In Florida, there’s a rule that new development can only happen if there’s enough infrastructure in place to support it. This rule, called “concurrency,” was made in the 1980s. During a real estate recession, not much development happened, so the rule wasn’t really tested. There hasn’t been a case in Florida where a court decided if it’s unconstitutional for a local government to temporarily stop development because of concurrency. This article talks about the main cases on this topic and suggests a way for courts to decide if it’s unconstitutional. It also looks at a recent case that might help predict how Florida courts would handle a temporary ban on development because of concurrency. The town’s planning board denied a developer’s application for a subdivision plan because they didn’t have a special permit. The developer sued, claiming that the ordinance was a taking of their property. The court said that the delay in development was temporary, and that the developer could still build individual houses. They also said that the town had 18 years to make the necessary improvements and that the developer could speed up the process by making the improvements themselves. This analysis doesn’t consider that the cost of fixing the infrastructure could be more than the profit from a new development. The required improvements are probably needed because of all the existing development, not just one new development. Judge Breitel said that development can only be delayed for a short time, and some places pay landowners to delay development. The Supreme Court ruled in the 1987 First English case that landowners are entitled to compensation when the government takes away their ability to use their property, even if it’s temporary. This decision was made after a church’s campground and retreat for handicapped children was destroyed by a flood caused by a fire and storm. The church sued for damages and the Court agreed that they should be compensated for the time they couldn’t use their property. This is different from a previous case where a temporary moratorium wasn’t considered a taking. The Supreme Court didn’t make it clear whether ordinances that temporarily stop all development are unconstitutional. The dissenting opinion by Justice Stevens says that they should be allowed. The Court said the case should be sent back to the lower court to decide if the ordinance actually stopped the landowner from using their property, and if the county had a good reason for making the ordinance. Later on, the landowner didn’t win the case. A building permit moratorium is when a town temporarily stops giving out permits for new buildings. In Florida, there’s no specific law allowing this, but in other states, courts have said it’s okay if certain conditions are met. For example, the moratorium has to be for a good reason and not discriminate against anyone. It also can’t last too long, and the town has to come up with a plan quickly. In one case, the court said it was okay for a town to stop giving out permits for six months so they could figure out a plan for the area. In 1972, Florida passed laws to manage the fast growth of the state. In 1975, they passed a law requiring each local government to have a comprehensive land use plan that was consistent with zoning. In 1985, the law was amended to require infrastructure to support development. This means that public facilities like roads and water supply must be available at the same time as new development.
Some courts have allowed temporary restrictions on development if they protect public safety, but this might not apply to concurrency requirements. Public safety is not directly affected by concurrency, so it’s unclear if the “public safety exception” would apply. In simple language, the court determined that in some cases, a property owner’s rights are not violated if they can still use their property for some things, even if their plans for development are delayed. The court also said that delays in land use approvals are not considered a violation of property rights if they are not extraordinary. Additionally, the court said that a temporary ban on land development approvals does not violate property rights as long as it does not completely destroy the property’s potential uses. The court found that the village’s moratorium on cellular antennae was unfair because there was no evidence that the antennae were harmful to public health. In another case, the court ruled that a city’s order to shut down an apartment complex was a temporary taking of property, and the owner was entitled to compensation. In Florida, if a property owner is refused a permit because of a lack of available infrastructure, it might be considered a “taking” under the law. This means the government may be violating the owner’s rights. To determine if a taking has occurred, the court will look at a few things:
1) Whether the concurrency ordinance allows for any development at all
2) How much the property’s value is reduced and whether the owner’s expectations were reasonable
3) How long the delay in development is
4) Whether the local government is trying to fix the infrastructure problems
If the court finds that the property owner’s rights have been violated, the government may have to compensate them for the loss. It’s important to consider whether the concurrency problem is caused by the owner’s project or the government’s failure to plan for growth. If the project has a big impact on the infrastructure, it’s less likely that the government has taken the property unfairly. On the other hand, if the government has been lazy about providing services for years, it’s not fair to make a landowner suffer for it.
Also, think about whether the services affected are really important for people’s health and safety, like water and sewer, or if they’re more about quality of life, like parks. If it’s about people’s safety, it’s less likely that the government has taken the property unfairly. Courts in Florida have not yet decided if it’s okay for the government to temporarily stop people from using their property. This will probably change soon because of the growth management act. In the meantime, lawyers can use the analysis of previous cases and a suggested model to help with this issue.
Source: https://www.floridabar.org/the-florida-bar-journal/concurrency-and-moratoria/
Leave a Reply