Conservancy of Sw. Fla. v. Collier Cnty.

• Decision Date: 02 December 2022
• Docket Number: 2D21-2094
• Parties: CONSERVANCY OF SOUTHWEST FLORIDA, INC., Appellant, v. COLLIER COUNTY, FLORIDA, and COLLIER ENTERPRISES MANAGEMENT, INC., Appellees.
• Court: Florida District Court of Appeals

CONSERVANCY OF SOUTHWEST FLORIDA, INC., Appellant, v. COLLIER COUNTY, FLORIDA, and COLLIER ENTERPRISES MANAGEMENT, INC., Appellees.

No. 2D21-2094

Florida Court of Appeals, Second District

December 2, 2022

Appeal from the Circuit Court for Collier County; Hugh D. Hayes Judge.

Geoffrey J. Michael, Brian D. Israel, Ethan G. Shenkman Lauren C. Daniel, and Stephen K. Wirth of Arnold & Porter Kaye Scholer, LLP, Washington, D.C., for Appellant.

Glenn Burhans, Jr., and Bridget Smitha of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tallahassee; and Richard D. Yovanovich of Coleman, Yovanovich & Koester P.A., Naples, for Appellee Collier Enterprises Management, Inc.

Sally A. Ashkar, Jeffrey A. Klatzkow, and Colleen Greene of Collier County Attorney's Office; and Gregory N. Woods and Jessica F. Tolin, Woods of Weidenmiller, Michetti & Rudnick, LLP, Naples, for Appellee Collier County, Florida.

Patrick H. Neale of Patrick Neal & Associates, Naples, for Amicus Curiae The Golden Gate Estates Area Civic Association and Affected Golden Gate Estates Residents.

Martha M. Collins of Collins Law Group, Tampa, for Amicus Curiae Center for Biological Diversity, Sierra Club Florida Chapter, Sanibel-Captiva Conservation Foundation, Calusa Waterkeeper, Environmental Confederation of Southwest Florida, Cypress Cove Landkeepers, and Stone Crab Alliance.

Ralf Brookes of Ralf Brookes Attorney, Cape Coral, for Amicus Curiae The League of Women Voters of Collier County.

Edward L. Larsen of Edward L. Larsen, Esquire, P.A., Naples, for Amicus Curiae Strong Towns.

Elizabeth Fata Carpenter, Lisa Interlandi and S. Ansley Samson of Everglades Law Center, Inc., North Palm Beach, for Amicus Curiae Tropical Audubon Society and Friends of the Evergaldes.

Steven M. Meyers of Meyers & Stanley, Orlando, for Amicus Curiae Florida Rights of Nature Network, Inc.

Clayton T. Osteen and Benjamin B. Bush of Ausley & McMullen, P.A., Tallahassee, for Amicus Curiae Florida Home Builders Association and Association of Florida Community Developers, Inc.

LUCAS JUDGE.

We have before us an appeal of a final judgment denying a comprehensive plan challenge to a county's development order. The circuit court carefully considered-and correctly resolved-the majority of the issues that were presented. One legal error, however, compels us to reverse a summary adjudication the court rendered and remand for further proceedings. We also certify a conflict that has emerged between our district and a sister district concerning the scope of a statutory cause of action.

I.

The Conservancy of Southwest Florida, Inc. (the Conservancy), filed a single-count declaratory judgment action under the aegis of section 163.3215 of Florida's Community Planning Act, challenging Collier County's approval of a development project proposed by Collier Enterprises Management, Inc. (CEM). The proposed development, known as Rivergrass Village, covers nearly a thousand acres of rural land in the eastern part of the county; it entails a mixture of single and multifamily residential homes, commercial, and public space. In its lawsuit, the Conservancy maintained that the Rivergrass Village development violated various parts of Collier County's comprehensive plan (known as the Growth Management Plan or "GMP"), as well as provisions within Collier County's Land Development Code and other land use standards.

Although it was a single-count complaint, the scope and sweep of the issues the Conservancy raised were multifaceted.^[1]

Over the course of a year, the case proceeded through litigation, summary judgment proceedings and, eventually, a bench trial in May of 2021. The circuit court resolved part of the Conservancy's declaratory relief action-in which the Conservancy argued that the development order violated traffic impacts and fiscal neutrality requirements of the GMP-through a partial summary judgment in favor of Collier County and CEM. The remaining issues were decided against the Conservancy in a final judgment after the bench trial. The Conservancy now seeks our review.

We affirm the judgment and rulings below in all respects except for the circuit court's summary adjudication of the Conservancy's claim that the traffic and fiscal impacts of Rivergrass Village violated the County's GMP. On that discrete issue, we find there were disputed material facts which precluded summary judgment.

II.

"We review summary judgments de novo . . . mindful that the movant for summary judgment must show that there are no genuine issues of material fact" in dispute and that, as such, the movant is entitled to judgment as a matter of law. See Mack v. Hyundai Motor Am. Corp., 346 So.3d 661, 665 (Fla. 2d DCA 2022) (first citing Scott v. Strategic Realty Fund, 311 So.3d 113, 116 (Fla. 2d DCA 2020), then citing Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So.3d 383, 389 (Fla. 2d DCA 2018)). Because the court's entry of summary judgment preceded the effective date of the Florida Supreme Court's recent amendment to Florida Rule of Civil Procedure 1.510, we are bound to apply the prior, more restrictive standard of the summary judgment rule. Id. at D1614, n.2. Much of our analysis turns upon the interpretation of statutory law, which is also an issue subject to de novo review. See Lab. Corp. of Am. v. Davis, 339 So.3d 318, 323 (Fla. 2021) (citing Lopez v. Hall, 233 So.3d 451, 453 (Fla. 2018)).

III.

A.

We begin with the statutory cause of action at issue found in section 163.3215. Subsection (2) of the statute defines who has standing to bring a private comprehensive plan consistency challenge, while subsection (3) provides the scope of their cause of action:

(2) As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order.

(3) Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part.

The Fifth District summarized the history of this section's adoption and how it impacted the scope of standing for citizens to challenge development orders for other people's private property:

Prior to 1985, common law governed a third party's standing to intervene to challenge a development order as inconsistent with the governing comprehensive plan. See Parker v. Leon County, 627 So.2d 476, 479 (Fla. 1993), Citizens Growth Mgmt. Coal., Inc. v. City of W. Palm Beach, 450 So.2d 204, 206-08 (Fla. 1984). The common law rule provided that, in order to have standing to challenge a land use decision, a party had to possess a legally recognized right that would be adversely affected by the decision or suffer special damages different in kind from that suffered by the community as a whole. Putnam [Cnty.] Envtl. Council, Inc. v. Bd. of [Cnty.] Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000); Citizens Growth Mgmt. Coal., Inc., 450 So.2d at 206. In 1985, the Florida Legislature reacted to the Supreme Court's 1984 decision in Citizens Growth Management that the common law rules of standing applied to the Growth Management Act by enacting section 163.3215, Florida Statutes. Its stated purpose was "to ensure the standing for any person who 'will suffer an adverse effect to an interest protected . . . by the . . . comprehensive plan.'" Parker, 627 So.2d at 479 (citing § 163.3215(2), Fla. Stat. (1985)) . . . . There is no doubt that the purpose of the adoption of section 163.3215 was to liberalize standing in this context. See City of Ft. Myers v. Splitt, 988 So.2d 28 (Fla. 2d DCA 2008).

Save the Homosassa River All., Inc. v. Citrus County, 2 So.3d 329, 336 (Fla. 5th DCA 2008) (third and fourth alterations in original) (footnote omitted).

However, as we explained in Heine v. Lee County, 221 So.3d 1254, 1257 (Fla. 2d DCA 2017), "the type of claim allowed under the Consistency Statute is not unlimited." We held in Heine that this statutory cause of action "enunciates only three bases upon which a party may challenge a development order's purported inconsistency with a comprehensive plan." Id. Thus, the Consistency Statute only provides a private cause of action to challenge a development order that "materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan." Id.

The circuit court correctly applied Heine when it confined the scope of the Conservancy's rather sprawling consistency challenge to claims alleging a material alteration to the use or intensity of use on the Rivergrass Village property that purportedly violated the GMP.^[2] From our review of the record, much of what the Conservancy alleged and argued below concerned documents and provisions (such as the Collier County Land Development Code...