On June 28, 2019, Gov. DeSantis signed into law HB 7103, a bill with a provision that will doom what’s left of growth management in Florida. If the provision isn’t repealed, it will undermine efforts to ease the state’s water quality crisis and protect its environmental treasures – just when we need them most.  Check here for a brief fact sheet on HB 7103.

At the heart of the matter for 1000 Friends of Florida is a provision in the new law that amends Section 163.3215(8)(c) Florida Statutes to provide that any citizen who challenges a development order as inconsistent with a comprehensive plan and loses will be forced to pay the prevailing side’s attorney fees, including those of the local government and perhaps the developer – a sum that could easily climb into the tens or hundreds of thousands of dollars.

The provision was slipped into the bill in the final days of the 2019 legislative session through an amendment on the Senate floor. The amendment, from Senator Jeff Brandes, will effectively dismantle the only enforcement mechanism for city and county comprehensive plans, their blueprints for sustainable development. Under the provision, any citizen who challenges a development order as inconsistent with a comprehensive plan and loses will be forced to pay the prevailing side’s legal costs. Citizens won’t dare mount these challenges facing such a financial risk.

The Brandes amendment was never introduced in committee, never analyzed by legislative staff, never subjected to public testimony and never debated by legislators. We don’t believe a majority of Representatives and Senators would have supported the amendment if they recognized its devastating impact on Floridians and their hard-won right to shape the future in their communities.

March 2, 2020

After the Florida Legislature passed House Bill 7103 in 2019, threatening citizens who challenge development orders with financial ruin, 1000 Friends of Florida filed a lawsuit in September 2019 to overturn this unconstitutional measure and restore citizens’ planning rights. Our fight goes on.

As 1000 Friends pointed out in our lawsuit, HB 7103 violates the due process clause and single-subject requirements of the Florida Constitution.  In February 2020, Robert J. Howell, a citizen of Pasco County harmed by the new law, joined 1000 Friends as a plaintiff in the case.

The stakes are huge in this case for the future of Florida. Citizen challenges are the only way to ensure that development orders are consistent with local comprehensive plans, which are community blueprints for future growth and development. But under HB 7103, a citizen who files a consistency challenge and loses must pay the attorney fees for the winner, which can easily amount to tens or even hundreds of thousands of dollars. This is simply too big a financial risk for citizens, so it spells the end of enforcement for comprehensive plans. Alternatively, if a deep-pocketed developer challenges an order and wins, the local government – and ultimately the taxpayers – are on the hook for the costs.

1000 Friends and Mr. Howell named the Florida Department of Economic Opportunity, the state’s land-planning agency, as one of the defendants in their lawsuit. Last week lawyers for DEO, rather than attempt to refute the compelling legal arguments against the law, responded with a motion arguing for the case to be dismissed on largely procedural grounds.

Meanwhile, Senate and House bills (SB 250 and HB 6019) that would have fixed the fundamental flaw with HB 7103 — without litigation — by repealing the provision eliminating citizens’ planning rights have languished during the 2020 session of the Legislature. Neither bill has been considered in any committee hearings. Compromise language offered by 1000 Friends, which would have narrowed the provision to apply only to frivolous challenges of development orders, has been widely circulated among key House and Senate members, but also bottled up by committee chairs. Another bill advancing toward passage in the Senate, SB 410, could be amended to fix HB 7103, but time is running short.

It’s beyond disappointing that legislators have not taken advantage of these opportunities to restore citizens’ planning rights. Unless and until they do, 1000 Friends of Florida will continue to pursue our lawsuit challenging HB 7103.  It’s too important for citizens, and the future of Florida.

On behalf of the citizens of Florida, on Friday, September 13, 2019 1000 Friends of Florida filed a legal challenge  on the grounds that House Bill 7103 – amended and passed in the final hours of the 2019 Florida Legislative Session and signed into law by Gov. DeSantis – violates provisions in the Constitution of the State of Florida related to “single subject” and “due process.”

At the heart of the matter for 1000 Friends of Florida is a provision in the new law that amends Section 163.3215(8)(c) Florida Statutes to provide that any citizen who challenges a development order as inconsistent with a comprehensive plan and loses will be forced to pay the prevailing side’s attorney fees, including those of the local government and perhaps the developer – a sum that could easily climb into the tens or hundreds of thousands of dollars.

1000 Friends President Paul Owens explains that it is important to note that the amendment stripping citizens of their rights was never introduced in committee, never analyzed by legislative staff, never subjected to public testimony, and never debated by legislators.

“1000 Friends does not believe a majority of Representatives and Senators would have supported the amendment if they recognized its devastating impact on Floridians and their hard-won right to shape the future in their communities,” says Owens. 1000 Friends thus remains hopeful that the 2020 Legislature will in good faith remedy this oversight, as discussed below.

HB 7103 strikes a mortal blow to managing growth in Florida:

“HB 7103 represents both an egregious attack on the right of Florida’s citizens to have a say in how their communities develop and a fundamental violation of significant provisions of Florida’s Constitution,” explains 1000 Friends Planning and Policy Director Jane West. She describes it as a “mortal blow” to managing growth in a state that now welcomes close to 1,000 new residents a day. “Florida’s lands, waters, quality of life and economy all will suffer as a result of HB 7103, and the costs will be borne by current and future generations of Floridians.”

With the adoption of HB 7103, citizens won’t dare mount these challenges in the face of such a chilling provision related to attorney fees. In fact, citizens in Pasco County and around the state have already dropped existing challenges out of concern about the prohibitive financial risks created by HB 7103. Others have decided not to challenge illegal development. Florida law already gives judges the authority to require citizens who file frivolous consistency challenges to pay attorney fees, so HB 7103 instead targets citizens with legitimate concerns.

“Passage of this act is an attack on the rights of each and every one of Florida’s 21 million citizens,” says 1000 Friends former Legal Director Richard Grosso.

HB 7103 undermines local comprehensive planning in Florida:

The 1985 Growth Management Act mandated that all local governments adopt and maintain a comprehensive plan to guide future development and all local government actions authorizing development be consistent with that plan. The state and certain impacted landowners, developers and citizens could file a “consistency challenge” in circuit court to determine if a development order complied with the local adopted plan. In most cases, this meant either the state or citizens would be the parties filing a challenge to ensure that the local government was appropriately enforcing its plan.

But the 2011 Community Planning Act removed the ability of the state to file consistency challenges, in effect leaving certain impacted citizens the only remaining party likely to ensure that local governments are accountable and abide by their comprehensive plans. After that, only citizens were able to ensure development was consistent with the local government comprehensive plan. HB 7103 — with its provision that the prevailing party is entitled to recover attorney fees and costs associated with the challenge – poses an insurmountable financial burden on all but most the deep-pocketed citizens.

In the words of Owens, “HB 7103 effectively struck the death knell for managing growth in Florida.” To find out more on the legal ramifications of HB 7103, see 1000 Friends of Florida’s May 9, 2019 letter requesting that Gov. DeSantis veto HB 7103 and the July 16, 2019 letter from 1000 Friends and allies to the chairs of key House and Senate committees calling for repeal of the amendment.

HB 7103 violates the Single Subject Rule in the Florida Constitution:

As originally introduced, HB 7103 was a 27-page bill that dealt with multiple subjects. As it advanced through the legislative process, it got worse, swelling to 43 pages. When ultimately passed by the Legislature and signed by Gov. DeSantis, it addressed 17 separate subjects. Among other things the bill undermines citizen participation in the local planning process, changes the application and approval process for all local development orders, changes provisions related to concurrency and impact fees, changes requirements for building permits and condominium associations, and weakens the ability of local governments to adopt and maintain inclusionary housing ordinances.

“This is in clear contradiction to the single subject provision as outlined in Article III, Section 6 of the Florida Constitution,” says 1000 Friends former Legal Director Terrell Arline. The article states in part, “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.”

HB 7103 violates the Due Process Rule in the Florida Constitution:

HB 7103 also violates Article I, Section 9 of the Florida Constitution related to due process because the only feasible remaining mechanism to enforce Florida’s growth management process is through citizen-initiated challenges to determine if a development order is consistent with the local comprehensive plan. Because the attorney fee provision in HB 7103 is so onerous, it is extremely unlikely that citizens will file such challenges.

Lawyer Joseph Little notes, “This means, in effect, that there is no process to enforce the consistency of development orders with the local comprehensive plan, therefore depriving citizens of a reasonable, firm opportunity to challenge environmentally woeful land use decisions.”

The Attorneys of Record reflect significance of this case:

The attorneys of record on this case are 1000 Friends’ current Policy and Planning Director Jane West of St. Augustine; Richard Grosso of Plantation, who served as 1000 Friends’ Legal Director from 1990 to 1996; Terrell K. Arline of Tallahassee, who served as 1000 Friends’ Legal Director from 1996 to 2000; and Joseph W. Little, lawyer from Gainesville.

Policy and Planning Director Jane West explains that this case has far-reaching implications for Florida’s process to manage growth. “Perhaps the best reflection is that the state’s leading public interest lawyers, including 1000 Friends’ former legal directors from 1990 to 2000, have offered their services pro bono to represent 1000 Friends in this challenge,” says West.

The provisions of HB 7103 completely undermine the right of citizens to have a meaningful say in their community’s planning process. “Citizen participation has been a hallmark principle of 1000 Friends since its inception,” says Owens, “and this is reflected in the caliber of attorneys stepping up to represent us in this challenge.”

Conclusion:

For the reasons explained above, 1000 Friends of Florida has filed its legal challenge to HB 7103. However, we would prefer that the members of the 2020 Florida Legislature and Gov. DeSantis enact legislation to remedy the damage done to Florida’s growth management process by HB 7103 to restore citizen rights in 2020.

Legal Outcome:

On June 3, 2020, Leon Circuit Court Judge John C. Cooper granted motions from the Florida Secretary of State and Department of Economic Opportunity to dismiss 1000 Friends’ challenge. Judge Cooper held that the Secretary of State lacked enforcement power with respect to the amended statute and DEO was not a proper party to the case.

1000 Friends’ legal team then appealed Judge Cooper’s ruling to the First District Court of Appeal in Tallahassee. On June 15, 2021, attorney Richard Grosso, representing 1000 Friends’ legal team in a hearing before three judges of the 1^st DCA, argued for reversing the circuit court order.

On November 3, 2021, the judges upheld the circuit court order on the technical grounds that DEO was not a proper party defendant. The judges did not address 1000 Friends’ arguments that the provision unconstitutionally denies Floridians their due process rights.

1000 Friends and our allies continue to urge legislators to repeal the provisions in state law that make challenges to development orders and comprehensive plan amendments prohibitively risky for citizens as well as their nonprofit advocates.

Media Coverage

1000 FRIENDS OF FLORIDA INFORMATION:

Opinion: Our fight to restore citizens’ planning rights in Florida, by Paul Owens, TC Palm, October 1, 2019
Opinion: The fight to protect Florida citizen’s planning rights, by Paul Owens, Orlando Sentinel, September 19, 2019
Opinion:  Making losers pay opponents’ costs undercuts Florida’s Growth Management Act, by Paul Owens, Tampa Bay Times, July 30, 2019
Opinion: To protect the Everglades, Gov. Ron DeSantis should veto House Bill 7103, by 1000 Friends of Florida Chair Victoria Tschinkel, Miami Herald, June 12, 2019
Opinion: Gov. DeSantis should stand up for ‘traditional’ Florida and veto harmful bill, by 1000 Friends of Florida Board Member Jim Swann, Florida Today, June 13, 2019
Point of View: With Florida quality of life under siege, DeSantis must veto attempt by developers to crush citizen voices, by 1000 Friends of Florida Vice Chair Greg Barnhart, Palm Beach Post, June 14, 2019
Making losers pay opponents’ costs undercuts Florida’s Growth Management Act, by 1000 Friends of Florida President Paul Owens, Tampa Bay Times, July 30, 2019
Opinion: Bill ending comprehensive planning in Florida deserves governor’s veto, by Thomas Hawkins, TC Palm, May 8, 2019

1000 Friends of Florida statement on Gov. DeSantis signing HB 7103
1000 Friends of Florida July 16, 2019 letter to chairs of key House and Senate Committtees calling for repeal of amendment
1000 Friends of Florida May 9, 2019 letter to Gov. DeSantis calling for VETO of HB 7103

OTHER MEDIA COVERAGE:

Growth management advocates challenge new state law that could limit citizen lawsuits against developers, by Lloyd Dunkelberger, Florida Phoenix, September 14, 2019
Editorial: If you challenge a developer’s dream, be prepared to pay up – or shut up, by South Florida Sun Sentinel Editorial Board, September 20, 201.
Florida development bill could force Manatee County to approve permits within 30 days (Bradenton Herald, 6/5/19)
Another Opinion: Save Florida’s shreds of growth control (Jacksonville Times-Union, 6/4/19)
MARK LANE: Slow legislative pipeline raises hope for DeSantis vetoes (Daytona Beach News-Journal, 6/4/19)
Environmentalists ask DeSantis to veto bill that could stifle development challenges (Tampa Bay Times, 5/30/19)
Citing threat to Everglades, 44 groups ask Gov. DeSantis to veto bill (Florida Phoenix, 5/29/19)
Editorial: The Florida Legislature sells out (again) to developers (Tampa Bay Times, 5/20/19)
Commentary:  Governor must veto dangerous growth-mismanagement bill (Orlando Sentinel, 5/20/19)
Opinion:  Is this the death of growth management in Florida? (Tallahassee Democrat, 5/15/19)
Editorial:  DeSantis should veto Florida lawmakers’ ‘sneak attack’ on sane development, growth management (Palm Beach Post, 5/12/19)
Amendment in state bill could impact growth management in Florida (WJCB, 5/11/19)
Opinon:  Turning the Toxic Tide: Our 5-part playbook for saving Florida’s waters (USA TODAY Florida Network, 5/9/19)
Editorial: State must stop pollution at its source (Gainesville Sun, 5/8/19)
After decade on life support, Florida just killed growth management (Orlando Sentinel, 5/8/19)
Last-minute legislative amendment penalizes anyone who challenges Florida development (Florida Phoenix, 5/7/19)
Bill could cripple Florida’s growth management plans (WJCT News, 5/6/19)