Bay Point Club, Inc. v. Bay County, No. 1D03-1240.

CourtCourt of Appeal of Florida (US)
Citation890 So.2d 256
Docket NumberNo. 1D03-1240.
PartiesBAY POINT CLUB, INC., Appellant, v. BAY COUNTY, a political subdivision of the State of Florida, and K. Earl Durden; David Allen Spencer; Harry B. Sipple, III; Unal Tutak; David W. Hill; Lucy N. Hilton; William F. Fusselman; and Bay Point Community Association, Inc., Appellees.
Decision Date25 October 2004

890 So.2d 256

BAY POINT CLUB, INC., Appellant,
v.
BAY COUNTY, a political subdivision of the State of Florida, and K. Earl Durden; David Allen Spencer; Harry B. Sipple, III; Unal Tutak; David W. Hill; Lucy N. Hilton; William F. Fusselman; and Bay Point Community Association, Inc., Appellees

No. 1D03-1240.

District Court of Appeal of Florida, First District.

October 25, 2004.


890 So.2d 257
D. Andrew Byrne and Bram D.E. Canter, Cooper, Byrne, Blue & Schwartz, LLC, Tallahassee; and Kenneth D. Goldberg, Tallahassee, for Appellant

Robert C. Apgar and Sherry A. Spiers, Law Offices of Robert C. Apgar, Tallahassee, for Appellees, representing K. Earl Durden, et al.

Michael S. Burke; Burke, Blue & Hutchison, P.A., Panama City, for Appellees, representing Bay County.

Paul H. Amundsen and Richard W. Moore; Amundsen & Gilroy, P.A., Tallahassee, for Appellees, representing Bay Point Community Association.

Janet E. Bowman, Legal Director, 1000 Friends of Florida, Tallahassee, as Amicus Curiae.

David L. Jordan, Deputy General Counsel, Department of Community Affairs, Tallahassee, as Amicus Curiae.

EN BANC

HAWKES, J.

This case involves the extent of vested rights in a development of regional impact (DRI). We consider the case en banc, pursuant to Florida Rule of Appellate Procedure 9.331(1), to maintain uniformity of this court's decisions. A proper resolution of this case requires us to recede from our prior decision in Edgewater Beach Owners Ass'n v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), rev. denied, 845 So.2d 889 (Fla.2003), to the extent that it conflicts with this opinion.

The question before us is: Once a DRI has been approved by the regional planning agency, do all proposed changes not requiring additional regional review become vested development rights, exempt from any local government review and approval? We answer the question "no," and affirm the order of the Florida Land and Water Adjudicatory Commission (FLWAC).

Bay Point Club, Inc. (Appellant) proposed changes to a relatively small portion1 of a previously approved DRI. The changes, although rather dramatic to the affected parcels, do not constitute a regional impact on the entire 946 acre DRI. Since the proposed changes do not have regional impact, they are not classified as "substantial deviations" and do not require further regional review. See § 380.06(1), and § 380.06(19), Fla. Stat. (2001).

The definition of changes classified as "substantial deviations."

A DRI is defined as "any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county." § 380.06(1), Fla. Stat. (2001) (emphasis added). "Any proposed change to a previously approved development which creates a reasonable likelihood of additional regional [multi-county] impact, or any type of regional impact created by the change not previously reviewed by the regional planning agency, shall constitute a substantial deviation and shall cause the development

890 So.2d 258
to be subject to further development-of-regional-impact review." § 380.06(19)(a), Fla. Stat. (2001) (emphasis added)

Reading these two statutes in pari materia, a substantial deviation is a change that, per se, creates reasonable likelihood that it will have a substantial effect on the health, safety or welfare of citizens of more than one county. Such a change is automatically required to undergo a new DRI review. Changes which meet this classification are expressly delineated. See § 380.06(19)(a)-(c), (e), Fla. Stat. (2001).

All other changes, whether statutorily enumerated or not, would be classified as "not a substantial deviation." See § 380.06(19)(e), Fla. Stat. (2001). Logically, because the changes in this case do not have regional (i.e., multi-county) impact, they are not required to undergo a new development of regional impact review process. See id.

Here, the parties stipulated that Appellant's proposed changes fall within this second classification. Although not a term used in the statute, the parties label the proposed changes "non-substantial." This label mainly serves as a convenience to indicate the project does not have a regional, or multi-county impact. The term does not lead to a conclusion that the proposed changes are minor, of no significance, or exempt from the Bay County Comprehensive Plan.

Only development rights originally approved are vested development rights.

Once a DRI has been approved, the right to develop pursuant to the terms of the DRI vests. See § 163.3167(8), Fla. Stat. (2001). Vesting means development rights obtained through a previously approved DRI are not lost by subsequent changes in the law. It does not, and cannot, create entitlement to greater rights than those originally obtained.2 Accordingly, a proposed change jeopardizes vested rights because, by definition, the change seeks different development rights than those development rights originally approved.

The proposed changes.

Here, we are dealing with four parcels constituting approximately 16 acres of an original DRI containing 946 acres. Appellant owns only these 16 acres. Appellant's proposed changes significantly increase height limitations (from a maximum of five stories with a majority being two and three stories, to a maximum of 12 stories with the minimum being six stories), doubles residential density, and completely eliminates previously existing and originally approved recreational facilities. These changes are not insignificant.

The applicable statutes.

Three well-established principles of statutory construction mandate FLWAC be affirmed. First, where the language is clear and unambiguous, it must be given its plain and ordinary meaning. Second, no term should be rendered meaningless. Third, statutes which relate to the same subject must be read in pari materia and construed to give meaning and effect to each part. See Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1273, 1286 (Fla.2000).

890 So.2d 259
Here, the relevant statutes we must read in pari materia are sections 380.06(19)(f)6, 163.3194(1)(a), and 163.3167(8), Florida Statutes (2001). Section 380.06(19)(f)6, recognizes local government's authority to review and approve proposed changes to previously approved DRIs. The statute, in pertinent part, provides: "If the local government determines that the proposed change does not require further development-of-regional-impact review and is otherwise approved, ... the local government shall issue an amendment to the development order incorporating the approved change and conditions of approval relating to the change." Id. (emphasis added). The language "and is otherwise approved...." clearly and unambiguously requires a proposed change be subjected to, rather than exempted from, additional local approval even when no further DRI review is necessary. Similarly, the language "and conditions of approval relating to the change," clearly and unambiguously recognizes that a developer does not, per se, hold vested rights to proposed changes in a previously approved DRI simply because the changes do not require further DRI review. A vested right cannot be subject to "conditions of approval." This plain, statutory language requiring approval and recognizing the power of local government to condition that approval means Appellant's vested rights do not expand to include proposed changes

Section 163.3194(1)(a), Florida Statutes (2001), provides: "After a comprehensive plan, or element or portion thereof, has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted." Id. (emphasis added). Based on this plain and unambiguous language, any development right not vested prior to the adoption of the comprehensive plan, must comply with the requirements of the comprehensive plan. Since "changes" cannot be vested, "changes" are included in the phrase "all development undertaken," and must comply with the local comprehensive plan.

Section 163.3167(8), Florida Statutes (2001) provides: "Nothing in this act shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to chapter 380...." Id. (emphasis added). Appellant's proposed development changes (an approximate 100% increase in residential units, more than doubling the height limitation, and eliminating all recreational uses) were never previously authorized. Thus, Appellant has no vested right to the significant development changes proposed. Its only vested development right is in completing development authorized by the original DRI.

When reading these sections in pari materia, an approved DRI creates vested rights to complete any development that "has been authorized." See § 163.3167(8), Fla. Stat. (2001). Proposed changes that are not required to undergo a new DRI permitting process, must be "otherwise approved" and may be subject to "conditions of approval." See § 380.06(19)(f)6., Fla. Stat. (2001). "All development" and "all actions taken in regard to development orders" "shall be consistent" with the comprehensive plan. See § 163.3194(1)(a), Fla. Stat. (2001). Stated more clearly: DRIs previously authorized may be completed, but changes must obtain approval, and must comply with the comprehensive plan.

Conclusion

Following an evidentiary hearing, the ALJ found the proposed changes were inconsistent

890 So.2d 260
with the comprehensive plan. FLWAC held these findings were supported by competent, substantial evidence. Because FLWAC's decision is supported by competent, substantial evidence, and is based on a proper interpretation of the relevant statutes, we AFFIRM.

WOLF, C.J., ERVIN, BOOTH, ALLEN, WEBSTER, DAVIS, BENTON, VAN...

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6 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...348 (Fla. 1st DCA 2006) (en banc decision released without antecedent publication of panel decision); Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004) (en banc decision released without antecedent publication of panel decision); Sanders v. State, 847 So.2d 504 (Fla. 1st......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...348 (Fla. 1st DCA 2006) (en banc decision released without antecedent publication of panel decision); Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004) (en banc decision released without antecedent publication of panel decision); Sanders v. State, 847 So.2d 504 (Fla. 1st......
  • Save Homosassa River v. Citrus County, No. 5D07-2545.
    • United States
    • Court of Appeal of Florida (US)
    • 24 Octubre 2008
    ...Ass'n, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000) Florida Rock Props. v......
  • NASSAU County v. WILLIS, No. 1D09-1008.
    • United States
    • Court of Appeal of Florida (US)
    • 3 Agosto 2010
    ...833 So.2d 215, 219-20 (Fla. 1st DCA 2002) (citations omitted), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004) (noting the statute "gives citizens with adversely affected interests a significantly enhanced standing to challenge the consis......
  • Request a trial to view additional results
6 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...348 (Fla. 1st DCA 2006) (en banc decision released without antecedent publication of panel decision); Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004) (en banc decision released without antecedent publication of panel decision); Sanders v. State, 847 So.2d 504 (Fla. 1st......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...348 (Fla. 1st DCA 2006) (en banc decision released without antecedent publication of panel decision); Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004) (en banc decision released without antecedent publication of panel decision); Sanders v. State, 847 So.2d 504 (Fla. 1st......
  • Save Homosassa River v. Citrus County, No. 5D07-2545.
    • United States
    • Court of Appeal of Florida (US)
    • 24 Octubre 2008
    ...Ass'n, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000) Florida Rock Props. v......
  • NASSAU County v. WILLIS, No. 1D09-1008.
    • United States
    • Court of Appeal of Florida (US)
    • 3 Agosto 2010
    ...833 So.2d 215, 219-20 (Fla. 1st DCA 2002) (citations omitted), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004) (noting the statute "gives citizens with adversely affected interests a significantly enhanced standing to challenge the consis......
  • Request a trial to view additional results

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