Save Homosassa River v. Citrus County

• Decision Date: 24 October 2008
• Docket Number: No. 5D07-2545.,5D07-2545.
• Citation: 2 So.3d 329
• Parties: SAVE the HOMOSASSA RIVER ALLIANCE, INC., et al., Appellant, v. CITRUS COUNTY, FLORIDA, et al., Appellee.
• Court: Florida District Court of Appeals

2 So.3d 329

SAVE the HOMOSASSA RIVER ALLIANCE, INC., et al., Appellant, v. CITRUS COUNTY, FLORIDA, et al., Appellee.

No. 5D07-2545.

District Court of Appeal of Florida, Fifth District.

October 24, 2008.

Rehearing Denied February 19, 2009.

Denise A. Lyn, of Denise A. Lyn, P.A., Inverness, for Appellant.

Michele Lieberman, of Law Office of Michele L. Lieberman, LL, Inverness, for Appellee.

Carl A. Bertoch, Crystal River, for Intervenor, Homosassa Riverside Resort, LLC.

GRIFFIN, J.

Save the Homosassa River Alliance, Inc., James Bitter, Rosemary Rendueles, and Priscilla Watkins [collectively "Plaintiffs"] appeal the trial court's order dismissing, with prejudice, their suit against Citrus County, Florida ["County"] and Homosassa River Resort, LLC ["Resort"] on the ground that they lack standing.

Resort owns property adjacent to the Homosassa River ["River"] in Old Homosassa, Florida. The Homosassa River is an Outstanding Florida Waterway and an essential manatee habitat.¹ There are two buildings on Resort's site, containing fifteen residential condominium units. Resort applied to the County for a land development code atlas amendment "to allow the development and redevelopment of 87 condominium dwelling units, retail space, amenities and parking" on this property. The project would result in the construction of four four-story residential structures. On July 11, 2006, Citrus County's Board of County Commissioners enacted Ordinance No. 2006-A13, which approved Resort's application and amended the County's land development code to reflect the approval.

Plaintiff Alliance is a not-for-profit corporation "committed to the preservation and conservation of environmentally sensitive lands and the wildlife in and around the Homosassa River and in Old Homosassa, Florida." Plaintiffs Bitter, Rendueles, and Watkins are individuals who own property in the area. On August 10, 2006, Plaintiffs filed this suit against the County, pursuant to section 163.3215, challenging the County's approval of Resort's application on the ground that it is inconsistent with the County's Comprehensive Land Use Plan, Citrus County Ordinance No. 89-04, as amended. On November 9, 2006, before the initial complaint was served on the County, Plaintiffs filed an Amended Complaint.

Resort was allowed to intervene in the dispute and the County filed a motion to dismiss, arguing that the Plaintiffs had failed to plead sufficient facts to establish standing. The trial court agreed and dismissed Plaintiffs' complaint, with twenty days to amend.

Plaintiffs filed their Second Amended Complaint against both the County and Resort, to which the County and Resort responded by filing a joint motion to dismiss. In their joint motion to dismiss, the County and Resort alleged that Plaintiffs had failed to establish standing because they had not sufficiently alleged (1) "any interest that exceeds in degree that of the general community," (2) "harm to such interests over and above that of their neighbors," or (3) "any nexus between the alleged comprehensive plan violations and the interests of the parties."²

The trial court heard arguments on the County and Resort's joint motion. At the hearing, Resort and the County essentially reiterated the points they had raised in their written motion and urged that the dismissal of the Second Amended Complaint be with prejudice. Plaintiffs argued that section 163.3215 gave affected citizens significantly enhanced standing to challenge the consistency of development decisions and that their allegations were sufficient to establish standing under this liberalized standard.

On about July 2, 2007, the trial court dismissed the Second Amended Complaint with prejudice, concluding that Plaintiffs had failed to sufficiently allege that their interests were adversely affected by the project in a way not experienced by the general population and because of insufficient "nexus" allegations. The trial court observed that "[t]here are no allegations that the county-approved plan permits improper runoff into the river or that the proposed development will itself (other than by adding people to the mix) adversely affect the quality of water or access to the river." Additionally, the trial court noted that "[t]here is no indication that residents living in this proposed project would add any more burden to the streets, storm drainage, river crowding, etc. than residents living elsewhere in the city."

Plaintiffs filed a motion for rehearing on July 11, 2007. In the motion for rehearing, Plaintiffs asserted that the trial court's analysis was not within the statute. They also objected that the trial court's dismissal "with prejudice" at that stage of the proceedings was premature and contrary to the existing case law. The trial court concluded that Plaintiffs had been given "ample opportunity to show standing if they could" and that they would not be helped by further delay. The trial court denied Plaintiffs' motion for rehearing.

The Second Amended Complaint

Plaintiffs' Second Amended Complaint contains lengthy allegations in support of their standing to bring this suit. The complaint begins by introducing each of the plaintiffs (Alliance, Bitter, Rendueles, and Watkins). Alliance is a not-for-profit corporation committed to the preservation of the lands and the wildlife in and around the Homosassa River and Old Homosassa, Florida. The complaint explains that the group has "embarked on a specific and focused course" to protect the River from problems associated with improper and ineffective storm water management systems, overpopulation of the lands adjacent to the River, destruction of wetlands surrounding the River, degradation of the River's water quality, and excessive boat traffic upon the River. The group conducts seminars to educate the area's residents about the River and how to preserve it. One of the Alliance's main objectives has been "the orderly development and preservation of the character of Old Homosassa." Members of the group use the River for both educational and recreational purposes; have invested substantial effort and funds to protect and preserve the River and its endangered manatees; and have served on the Old Homosassa Area Redevelopment Plan steering committee.

The complaint alleges that Bitter is an active Alliance member who owns property about three miles from Resort's site. He is conscious of governmental actions that affect the health of the Homosassa River and participates actively in public conversations regarding development of the area. Bitter fishes in the River, frequently boats along it, and often visits its shores "to admire the beauty and wonder of the River and its wildlife." Additionally, Bitter receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. Finally, it is alleged that in the event of a natural disaster or a threat of a natural disaster, Bitter would have to evacuate his property via West Fishbowl Drive, which is a two-lane road in Homosassa. "West Fishbowl Drive ... is along the evacuation route for [Resort's] property...."

Rendueles owns canal-front real property less than a mile from Resort's site.³ Rendueles worked on the County's Old Homosassa Overlay steering committee and actively participated during the County's public hearings on Resort's application. Additionally, it is alleged that Rendueles "enjoys the beauty of nature by traveling down the Homosassa River and walking and bicycling along the streets in Old Homosassa." She often visits the River's shores "to admire the beauty and wonder of the River and its wildlife." Rendueles receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Rendueles would evacuate her property via W. Yulee Drive, which is a two-lane road in Homosassa.

Watkins owns real property within Homosassa, Florida. She participates in Alliance's activities and actively participated during the County's public hearings on Resort's application. Watkins frequently kayaks on the River; bicycles along W. Halls River Road and W. Fishbowl Drive; and enjoys walking down Old Homosassa's uncrowded streets and roads. Watkins receives potable water from the Homosassa Special Water District, sewer services from Citrus County, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Watkins would evacuate her property via W. Halls River Road, a two-lane road in Homosassa, which is along the evacuation route for Resort's property.

Plaintiffs allege that "[b]ecause of the County's adoption of a development order which is inconsistent with its adopted Comprehensive Plan[,] [Plaintiffs] will suffer an adverse effect to their interests furthered by the local government comprehensive plan...." In paragraph 27, Plaintiffs generally list protected interests that they claim will be adversely affected by the County's approval. Specifically, Plaintiffs allege:

The Alliance and Property Owners, including the members of the corporation, will suffer adverse effects to interests protected or furthered by the adopted Plan, as amended, including but not limited to their property interests, their interest in protecting and maintaining the existing water quality of the Homosassa River, their interest in protecting the endangered Manatees, their interest in sufficient water and wastewater infrastructure, their interests in efficient and equitable distribution of land uses in the area, their interests in reasonable...