Howell v. Pasco Cnty.
| Decision Date | 27 March 2015 |
| Docket Number | No. 2D14–893.,2D14–893. |
| Parties | Robert J. HOWELL, Terry Hoppenjans, and Myles Friedland, Appellants/CrossAppellees, v. PASCO COUNTY and Outlaw Pasco County and Outlaw, Appellees/Cross–Appellants. |
| Court | Florida District Court of Appeals |
Ralf Brookes, Cape Coral, for Appellants/Cross–Appellees.
David Smolker, Jacob T. Cremer, and Jessica S. Swann of Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., Tampa, for Appellees/Cross–Appellants.
Robert J. Howell, Terry Hoppenjans, and Myles Friedland (Howell parties) appeal a final summary judgment entered in favor of Outlaw Ridge, Inc., in the Howell parties' consistency action brought pursuant to section 163.3215(3), Florida Statutes (2012). In the action below, the Howell parties challenged a development order issued by Pasco County that conditionally approved Outlaw's application to mine limerock using ancillary processing such as blasting, grinding, and crushing. Outlaw cross-appeals the final judgment, arguing that the trial court erred in denying its motion to dismiss the underlying action for lack of subject matter jurisdiction and failure to state a cause of action.1 We find no merit to Outlaw's cross-appeal, and we do not address it further. But we reverse the final summary judgment because we conclude that there were disputed issues of material fact regarding whether the development order was consistent with the County's comprehensive plan.
As part of its comprehensive plan, Pasco County was required to adopt a future land use plan that designated the proposed future general distribution, location, and extent of countywide land uses. See § 163.3177(6)(a), Fla. Stat. (1990). Upon the adoption of the comprehensive plan, all future development within the County had to be in conformance with the plan. See § 163.3194(1)(a). In 1990, Pasco County's 2025 comprehensive plan designated the future land use of Outlaw's property and much of the surrounding land, including some of the Howell parties' property, as Agricultural Rural (AG–R). The AG–R designation allows mining, but if the mining involves ancillary processing, special approval must be obtained from the Pasco County Board of County Commissioners. Ancillary processing may include, as in this case, blasting, crushing, and grinding in a processing plant.
The Howell parties are neighboring landowners to the property that was the subject of the limerock mining application. Since 2007, Outlaw has held a class I mining permit to mine sand on the property. In 2011, Outlaw sought a modification of its permit to extend the time for sand mining and to allow limerock mining with ancillary processing. Initially, due to neighborhood opposition, Outlaw was unsuccessful in obtaining approval for the limerock mining.2 Outlaw then initiated proceedings pursuant to the Florida Land Use and Environmental Dispute Resolution Act. See § 70.51, Fla. Stat. (2011). Eventually, Outlaw, several neighboring landowners, and the County reached a mediated settlement agreement that was contingent upon the Pasco County Board of County Commissioners' (the Board's) approval of the limerock mining subject to several conditions. The Howell parties objected, but in May 2013, the Board approved Outlaw's application, permitting limerock mining for fifteen years subject to forty-three performance conditions.
Following the approval, the Howell parties filed the underlying action, arguing that the approval was not consistent with the County's comprehensive plan. Outlaw filed a motion for summary judgment on the consistency issue that was granted by the trial court and resulted in the order on appeal.
“Summary judgment should be granted only when ‘there is no genuine issue of material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Pilot Constr. Servs., Inc. v. Babe's Plumbing, Inc., 111 So.3d 955, 957 (Fla. 2d DCA 2013) (quoting Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) ). “ ‘The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail.’ ” Id. (quoting Hervey v. Alfonso, 650 So.2d 644, 645–46 (Fla. 2d DCA 1995) ). “A material fact, for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case.” Cont'l Concrete, Inc. v. Lakes at La Paz III Ltd. P'ship, 758 So.2d 1214, 1217 (Fla. 4th DCA 2000). We employ a de novo standard of review for final summary judgments. See Pilot Constr. Servs., Inc., 111 So.3d at 957.
In the context of land development, section 163.3194(3), defines consistency as:
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