State Court Updates

Development Plans Under Attack in Florida

Anti-Growth Zoning Restrictions in Northern Virginia

Texas Court Finds Mediated Resolution Does Not Override Zoning Code

Georgia Appeals Court Upholds Development Agreement Between Developer & City

Inclusionary Zoning Sparks Discord in Florida

Florida Supreme Court Halts Efforts to Require Voter Approval for Changes to Development Plans

The Florida Supreme Court ruled in a 4-3 decision prohibiting the placement of the so-called “Florida Hometown Democracy” amendment on the 2006 ballot, citing that the amendment’s ballot summary contained misleading language that did not meet legal standards. Advisory Opinion to the Attorney General RE: Referenda Required For Adoption And Amendment of Local Government Comprehensive Land Use Plans, ___ So. 2d ___, 2005 WL 610430 (Fla. 2005).

The proposed constitutional amendment would have required voter approval for changes to local government comprehensive land-use plans or amendments to existing plans throughout the entire state. The Florida Attorney General petitioned the court for an advisory opinion whether the text of the proposed amendment complied with the Florida Constitution and state statutes. Although the court found that the proposed amendment complied with the single-subject requirement of the Florida Constitution, the court found that the ballot title and summary were fatally flawed because they "fail[ed] to privde an accurate, objective, neutral summary of the proposed amendment."

Lawyers representing Florida Hometown Democracy are seeking a motion for reconsideration. If rejected, the group’s leaders have indicated that they will revise the ballot summary and start collecting signatures for the same proposal.

Virginia Supreme Court Rejects Anti-Growth Zoning Restrictions

The Virginia Supreme Court last month threw out broad, anti-growth zoning restrictions in Loudoun County that it said had been adopted without adequate public notice. In 2003, Loudoun County's Board of Supervisors adopted zoning restrictions that required 10, 20 and as much as 50 acres per house in the western two-thirds of the county.  Loudoun County  — about 25 miles west of Washington, D.C., in Northern Virginia — is one of the nation’s fastest growing counties.

The court ruled that county officials failed to give adequate public notice of the changes because they did not “indicate the particular areas of the county that would be affected by the proposed policies.”

“We look forward to working with Loudoun County officials to make sure that the county enjoys sensible, well-planned growth,” said Jim Williams, executive vice president of the Northern Virginia Building Industry Association. “There is a strong demand for housing in the county, and we have a great opportunity to meet that demand in ways that create vibrant communities and improve the quality of life.”

County officials have not decided how they will respond to the court’s ruling in the property rights case. They could try to give proper notice before seeking to reinstate the low-density zoning; they could appeal the decision; or they could do nothing and let the more stringent growth restrictions disappear.

Texas Court of Appeals - Mediated Resolution Does Not Override Zoning Code

In Weatherford v. City of San Marcos,157 S.W.3d 473 (Tex. App. 2004), a property owner attemped to develop his property for commercial purposes. After several failed efforts to obtain zoning approval, he met with his neighbors and the City of San Marcos. They reached an agreement that some commercial use of his property was possible. After several more unsuccessful attempts to obtain development permission, the property owner sued. A Texas appellate court held the agreement created no vested right in any particular zoning classification due to a mediated resolution negotiated with the city, and any approval was in the city's discretion.

Georgia Court of Appeals Finds Developer Entitled to Reimbursement of Excess Development Fee Credits Through Impact Fee Credits

 In February, a Georgia Appeals Court held that an agreement between a developer and the City of Alpharetta regarding the extension of a road by the developer entitled the developer to reimbursement of the excess development fee credits through impact fee credits, but not a cash reimbursement. Fulton Greens Ltd. P'ship v. City of Alpharetta, ___ S.E.2d ___, 2005 WL 400583 (Ga. App. 2005). In this case, the developer and the City entered into a Development Agreement delineating their rights and obligations with respect to a roadway extension. Here, their agreement stated that the "value and cost of [the construction of system improvements] shall be used in lieu of the payment of impact fees and/or as an alternative method of payment of roads impact fees." The court ruled in favor of the developer finding:  "the Development Agreement clearly obligates the City to reimvurse Fulton Greens for the Windward Parkway extension through impact fee credits, not cash." 

Inclusionary Zoning Policies Spark Discord

The Chicago Tribune reported (December 5, 2004) on the policy discussions taking place in Ft. Lauderdale, Florida regarding municipal efforts to expand affordable housing through inclusionary zoning measures.  Few, if any inclusionary measures are currently on the books in Florida.  As the article reports, local governments in Ft. Lauderdale, and nationwide, are considering new approaches to affordable housing, such as requiring developers to include some low-cost homes in every development project.  As a general rule, developers have resisted such requirements, arguing that the best way to encourage more affordable housing is through incentives, not government regulation.  The article cites Montgomery County, Maryland’s moderately-priced dwelling unit (MPDU) program as among the oldest inclusionary measures in the nation.  Under that program, developers of large residential projects are required to make available between 12 and 15 percent of all units as moderately priced housing.  In return, developers purportedly receive permission to build with more density than is otherwise allowed.  According to the article, rather than being forced to build affordable housing through regulation, builders suggest, among other things, speeding up permitting for projects with price caps; subsidizing land acquisition; and eliminating or reducing public hearings on affordable projects. [ return to top ]