Companion bills making their way through the Florida House and Florida Senate have Paul Owens and others who share concerns about citizens’ ability to push back against development on alert.

The bills are Florida House Bill 359 and Senate Bill 540, which would mandate that those who sue local governments over comprehensive plans or comprehensive plan amendments be on the hook for attorney fees and court costs if the municipality or county being challenged prevails in the matter.

Comprehensive plan amendments are often necessary in the entitlement or approval process for new development, and lawsuits over them are one of the tools available for individuals or groups wishing to prevent or delay such development.

For Owens, a longtime Orlando resident and president of Tallahassee-based 1000 Friends of Florida, a smart-growth advocacy group, these bills are a big deal — and a big problem.

“If this provision becomes law, it will be too risky for citizens or public interest groups like mine, with modest budgets, to take the financial risk of challenging a comprehensive plan amendment,” Owens told Orlando Business Journal. “If the citizens or public interest group loses, then they are on the hook for those legal costs. I’m talking potentially six figures [in legal costs], and there are very few people I can think of who would be willing to take that financial risk.”

Robert Rosen, an attorney and partner in the Orlando office of Burr & Forman, similarly told OBJ that this type of legislation likely will have a chilling effect on challenges — but also could help avert challenges with no merit.

That matters, as well, because such challenges can be used as a tactic to delay projects until the clock runs out on their feasibility, according to attorney Keith Poliakoff of Fort Lauderdale-based Government Law Group.

In an interview with The Real Deal, a New York-based real estate news site, Poliakoff — whose practice has involved representing both municipalities and citizen groups that challenge them in such case — said such delays can take projects past the point of viable.

“Because of the unfortunate slowness of our courts, developers are finding that it can potentially take years before the challenge ever sees a judge or light of day,” Poliakoff said. “That delay causes [developers] to miss the cycle and makes the property no longer desirable to develop.”

In a separate statement sent to on Poliakoff’s behalf to media outlets in Florida, Poliakoff further reinforced the potential chilling effect Rosen alluded to, arguing that since municipalities win these types of cases more than 90% of the time, the risk of incurring such costs would be all the more heightened for those challenging the development.

Related to this set of companion bills is a second set of companion bills — Florida House Bill 843 and Senate Bill 816 — which would require the prevailing party in these types of lawsuits to demonstrate that the litigation was “frivolous” in order to recover those costs.

Meanwhile, the legislation figures to be closely observed in metro Orlando’s commercial real estate community as it moves closer to an outcome.

“Anything that deals with the overarching idea of property rights is something we’re very much interested in,” said Daryl Carter, of Maury L. Carter & Associates, a longtime Orlando land broker. “My opinion is anything that protects property rights is good, and anything that erodes property rights is bad.”

Currently, HB 359 and SB 540 are making their way through the respective committee processes in both the Florida House and Senate. Filed later in the session, HB 843 and SB 816 have both been referred to committee.

The legislation comes at a time when expediting development, particularly housing, is top of mind for many cities and counties in Florida.

Owens said it would be a “false choice” to pit citizen engagement in the development process squarely at odds with the ability to accommodate growth.

“I think there’s plenty of room between where both can be accommodated.”

Similarly, he acknowledged that the type of litigation that might be discouraged by the laws, if enacted, is not the only — or even the main — method for groups to engage in the community planning process. Showing up to government meetings in which comprehensive plan amendments are discussed and speaking up during public comment, so that officials know where the community stands, is also an important tool.

“That isn’t taken away, thank goodness, under this bill,” Owens said. “But it’s still important to have that option [to sue] if the decision makers are not swayed by community opposition that is expressed at these meetings.”

Article Link: These bills in the Florida Legislature could have a big effect on Orlando development. Here’s how.
Author: Steven Ryzewski