Introduction

The process for rezoning your property varies depending on the municipality or county which has jurisdiction.  However, there are statewide rules that govern the process.  This article focuses on the rules applicable to municipalities.  Unless your property is within unincorporated county jurisdiction, you will need to go through the applicable city with jurisdiction to apply for rezoning.  This is not a quick and easy process, and your options should be carefully weighed with the help of a qualified land use attorney who understands the nuances involved.

What is Zoning?

In Florida, zoning is generally a legislative function of cities and counties.  It is a land development regulation that places reasonable, public-interest-serving restrictions on the use of real property.  Cities, in particular, have home rule authority under Florida’s Constitution adopted in 1968.  Under that authority, and implementing statutes in Ch. 166, Florida Statutes, cities have wide latitude to adopt land development (zoning) regulations that say where and how properties can be developed and used.  Pursuant to F.S. 163.3194, these zoning regulations must be consistent with the future land use element of the city’s adopted comprehensive plan, which functions as the city’s constitution for purposes of future land development and use. 

Only the duly elected legislative body of the city, usually called the City Commission or City Council, can adopt zoning regulations by ordinance.[i]  The adoption process must follow the detailed procedures set forth in F.S. 166.041(3).  To summarize the process, adoption of a zoning ordinance usually will require two separate publicly-noticed hearings. 

Zoning ordinances typically create a list of classifications, such as ‘Mixed Use or ‘Single Family Residential’ and within each classification, there is typically a list of permitted and/or conditional (or ‘special exception’) uses.  For any given zoning classification, permitted uses are those which are allowed as of right, and the property owner needs no additional permission for that use. Conditional uses are exceptions that are allowed on a case-by-case basis, if certain specified conditions are satisfied.  Conditional uses may only be approved after following the procedural requirements in F.S. 166.041(3).[ii] 

Zoning Amendments

Cities have significant discretion to grant or deny an application for rezoning.[iii]    A decision on a zoning amendment application is valid if it strictly adheres to the procedures set forth in F.S. 166.041(3), is consistent with the comprehensive plan, and accomplishes a legitimate public purpose.[iv] “Competent and substantial” evidence[v] must be in the record to support a city commission’s ruling as one that is reasonable, nonarbitrary, and nondiscriminatory.[vi]

Politics undeniably play a role in the rezoning process.  Community opposition will exert pressure on elected officials to vote against a rezoning application.  To avoid this outcome, effective planning and common sense is critical.  The property owner should not push for a use that is totally incompatible with the surrounding community.  If the use is even arguably incompatible, the City Commission may have a legitimate basis to reject the application, and there is little chance of appealing it successfully if the ruling is supported by competent, substantial evidence. 

Variance vs. Zoning Amendment

A variance is a different means of getting to the same end: a change in permissible property use.  Many cities have ordinances that allow property owners to apply for a variance, which is essentially a special exception that may be granted by the city commission based on the property owner’s unique circumstances.  Typically, a showing is required that the property owner would experience a unique hardship if the zoning were applied literally.  It usually must also be established that granting the variance would not be detrimental to the public interest.  These requirements and others will vary depending on the local jurisdiction.

Whether a property owner should seek a variance or zoning amendment depends on the unique circumstances of each property owner and the rules of the governing local jurisdiction.  A qualified land use attorney can recommend a course of action to the property owner that gives him/her the best chance of success, even if that may involve litigation. 

Do your Due Diligence  

It is a terrible thing to purchase land with the intent to use it for a particular purpose, only to later find out that the use is prohibited.  Therefore, by the time you close on the purchase of real property, you should already have a full understanding of the permitted and conditional uses for your property, and importantly, whether your intended use is one of them.  A qualified land use and zoning attorney is critical at this “due diligence” stage.  An attorney knowledgeable in this complex area of law will prepare a report that provides you with the analysis needed to proceed on an informed basis. 

With that said, if you own a property that is not zoned for the use you intend, it is a good idea to consult with a land use and zoning attorney to review your options.  If the intended use is legitimate and compatible with surrounding uses, you may be well-positioned to obtain a rezoning.

Conclusion

As you can see, zoning is complicated.  Each city and county has a different process.  If you intend to use your property in a manner that is inconsistent with zoning regulations, or if you need an evaluation on zoning, you would benefit greatly from a qualified land use and zoning attorney.  Abrams Law Firm, P.A. primarily practices this area of law.  Our government background gives us a depth of knowledge and understanding of the many issues you are likely to deal with throughout the process. Contact us now.    

Disclaimer: the information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance. An attorney and client relationship should not be implied. Nothing on this page is intended to substitute for the advice of an attorney.

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[i] § 166.041, Fla. Stat. (2018)

[ii] Webb v. Town Council of Town of Hilliard, 766 So. 2d 1241, 1244 (Fla. 1st DCA 2000).

[iii] Board of County Comm’rs of Brevard County v. Snyder, 627 So. 2d 469, 474 (Fla. 1993); St Johns County v. Smith, 766 So.2d 1097, 1100 (Fla. 5^th DCA 2000).

[iv] Id.

[v] This is a low evidentiary standard. Id. 

[vi] Id.

Introduction

Bert J. Harris, Jr. Private Property Rights Protection Act (“Bert Harris Act”), found in Section 70.001, Florida Statutes, was originally enacted in 1995.  This law provides that when “a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to…compensation for the actual loss to the fair market value of the real property caused by the action of government”.[i]  The purpose of the law is to provide for “relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property.”[ii]

The Bert Harris Act guarantees stronger private property rights than is conferred by the Takings clause in the Fifth Amendment of the U.S. Constitution.[iii]  Before the advent of the Bert Harris Act, the only way to seek compensation for loss of market value resulting from government regulation of real property was to assert that it constitutes a “Taking” under an inverse condemnation theory.   To prevail on this theory, the property owner would need to show that the government regulation deprived the owner of all beneficial or economically viable use of the property, resulting in substantial loss of market value.[iv]  Post Bert Harris, however, a Florida property owner need only show that the government regulation inordinately burdened the existing use or vested right to a specific use of the property.[v]  This provides significantly greater protection against government regulations that are burdensome to real property.  The italicized terms are specifically defined in the statute and are explained in more detail below. 

Inordinate burden

The Bert Harris Act defines “inordinate burden”, in part, to mean a government regulation “that directly restricts or limits the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole”.[vi] 

To have a right to relief, the government regulation, such as a zoning change, must have been directly applied to the real property owned by the claimant.[vii]  A property owner thus cannot sue for the lost value of his/her real property resulting from a regulation applied to an adjacent property.[viii]  For example, in Vale v. Palm Beach Cnty., an appeal before the Florida Fourth District Court of Appeal, residential property owners sued for Bert Harris Act violations after Palm Beach County rezoned an adjacent golf course and permitted a planned unit development.[ix]  Although this development might have reduced their homes’ market value, the Court in Vale held that the Bert Harris Act did not apply.[x]  The Court explained that the statute only provides a right to relief where the regulation at issue is directly applied to the claimant’s specific real property.[xi]   

There has been limited court interpretation on the meaning of “reasonable, investment-backed expectation”, which is not defined in the statute.  The most recent guidance comes from an appellate decision from the Florida Fourth District Court of Appeal in the case Ocean Concrete, Inc. v. Indian River Cnty.[xii]  The court in Ocean Concrete held that whether expectations are “reasonable” and “investment backed” depends on the physical and regulatory aspects of the property.[xiii]  It went on to find that the property owner in the case was reasonable for expecting to use his property for a concrete batch plant, because this was a permitted zoning use when he purchased the property and this use was feasible under the circumstances.[xiv]  In contrast, in another appellate matter, City of Jacksonville v. Coffield, the court held that the owner did have a reasonable expectation to develop the property into residential subdivision where no public road connected to the property.[xv]    

Existing Use

“Existing Use” is defined in the Bert Harris Act to mean either: (1)“the actual, present use or activity on the real property”; or (2) “activity or such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses….”[xvi]  If a proposed use was permitted by the zoning code prior to the government action, courts will find that this is conclusive evidence that the proposed use is “reasonably foreseeable, nonspeculative”, “suitable for the subject real property,” and “compatible with adjacent land uses”.[xvii] 

Vested Right

According to the Bert Harris Act, a vested right is “determined by applying the principles of equitable estoppel or substantive due process under the common law”.[xviii]  Under the common law principles of equitable estoppel, a property owner has a vested right if he or she 1) in good faith, 2) upon some act or omission of the government, 3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he or she acquired.[xix] 

Courts will not permit an estoppel claim against a government entity except in exceptional circumstances, and equitable estoppel does not apply to transactions that are forbidden by law or contrary to public policy.[xx]  Thus, if a government entity misleads a developer regarding his development rights on real property, the developer will not then be permitted to assert an estoppel claim against the government entity if he purchases the property in reliance on the misrepresentation.[xxi]  This is because the property owner is made responsible for knowing the law as it applies to his property, and government misrepresentations about the law cannot change the outcome.

Procedural Considerations

 A Bert Harris Act claim must be presented within one year from the time the government action is first applied to the property at issue.[xxii]  At least 150 days before filing a lawsuit, written notice of the claim must be given to the appropriate governmental entity.[xxiii]  When the pre-suit notice is received, the government has 150 days to consider its options, which include retracting or modifying its action, taking no action, or granting relief in a variety of ways and making an offer to settle.[xxiv]  

Conclusion

If you believe that a government action, including but not limited to a zoning regulation, has inordinately burdened an existing use or vested right to a specific use of your real property, you should consult with an attorney to review your options.  You may be entitled to substantial compensation for the loss of your property’s market value.  

Our firm is prepared to advise you on all options and help you find the best legal course of action.  We have experience representing local government entities, which allows for a more complete understanding of both sides of this complex area of law.

Last updated: February 25, 2019   

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[i] § 70.001(2), Fla. Stat. (2018)

[ii] § 70.001(1)

[iii] § 70.001(9)

[iv] City of Riviera Beach v. Shillingburg, 659 So.2d 1174 (Fla. 4^th DCA 1995); Hadar v. Broward Cnty, No. 16-14569 (11^th Cir. 2017); Bakus v. Broward Cnty, 634 So.2d 641 (Fla. 4^th DCA 1993). 

[v] § 70.001(2)

[vi] § 70.001(3)(e)

[vii] Vale v. Palm Beach Cnty., No. 4D18-1037 (Fla. 4^th DCA Nov. 21, 2018). 

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id.

[xii] 241 So.3d 181 (Fla. 4^th DCA 2018). 

[xiii] Id.

[xiv] Id.

[xv] 18 So.3d 589 (Fla. 1^st DCA 2009). 

[xvi] § 70.001(3)(b)

[xvii] Ocean Concrete, Inc., supra

[xviii] § 70.001(3)(a)

[xix] Citrus County v. Halls River Development, 8 So.3d 413 (Fla. 5^th DCA 2009). 

[xx] Id. 

[xxi] Id. 

[xxii] § 70.001(11)

[xxiii] § 70.001(4)(a)

[xxiv] § 70.001(4)(c)