GlobeSt.com UPDATE: Developers Fear Backlash from Apartment Demolition Ruling

JENSEN BEACH, FL-A local development case on its way to the Florida Supreme Court has sparked a statewide controversy over whether or not to replace the local court system with a new system to deal with complicated land use cases.

The case involves a six-year court struggle leading to a lower court’s decision ordering a developer to tear down five new buildings because the Martin County Board of Commissioners approved a site plan that was not consistent with the Martin County Comprehensive Plan.

Developers fear that if the decision stands, it could be used as a tool by environmental activists and other anti-growth activists, much like the issues of endangered species and wetlands.

“The system is broken,” Keith Hetrick, attorney for the Florida Homebuilders Association, tells GlobeSt.com. “Right now, the trial judge serves as a zoning body. Someone can continually file and challenge any development in court. That doesn’t work for local governments or citizens or developers. It only works for large environmental groups who want to drag it out in court.”

Cecelia Bonifay, a land use attorney with Orlando-based Ackerman, Senterfitt & Eidson, agrees. “I’m afraid this will become their mantra to stop development,” Bonifay tells GlobeSt.com.

But Terrell Arline, legal director for 1000 Friends of Florida, an activist group which supported the Pinecrest Lakes home owners in their case against the county, says that is not their intent.

“We agree with the home builders that this case took too much time, and something must be done about it,” Arline tells GlobeSt.com. He would like to get the process “into the hands of a more knowledgeable body of people.”

Arline suggests replacing court proceedings with a Land Use Board of Appeals, similar to those in Oregon and Washington. Arline says this idea has been brought up in Florida before, but has never gained much steam.

In Oregon, according to Arline, LUBA is a panel of three experienced land use attorneys appointed by the Governor and confirmed by the Senate. The review process is subject to strict deadlines and filing fees. Another option would be to make LUBA a specialized department within Florida’s Division of Administrative Hearings.

“If LUBA would replace local court system, it might be good idea.” Says Hetrick.

But Arline and Hetrick differ on the key issue of whether or not to allow the introduction of new evidence before LUBA. Hetrick agrees with Oregon’s model, where if the local decision is quasi-judicial–as in the case of Pinecrest Lakes–LUBA reviews the decision based solely on the evidence presented in the local government hearings. Arline prefers to allow for a completely new trial with new evidence, as the courts did the second time around in the Pinecrest Lakes case.

Not everybody thinks the system is broken, however. Towson Fraser is the public affairs director of the Florida Department of Community Affairs, which must approve all county comprehensive plans, including amendments, before they can be implemented.

“The Pinecrest Lakes case is an aberration,” Fraser tells GlobeSt.com. “We review 12,000 amendments a year, and they rarely end up in court. We don’t need to revamp a system that works 99.9% of the time.”