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Feds. Dist. Court in FLA Finds Challenges to City’s Improvements as a Requirement for Building Approval were Sufficient to Survive Summary Judgment

This post was authored by Matthew Loescher, Esq.

Plaintiff initiated the process of obtaining Major Site Plan Approval for a proposed project on its property, consisting of a 116-unit affordable housing project, with 6,670 square feet of commercial and retail space on the ground floor of the building and a 2,358 square foot leasing office, both of which would be open to the public. Plainiff’s project required Major Site Plan Approval, which entailed: a Pre-Application meeting with City staff; review by the Development Review Committee (“DRC”); review and approval by the Architectural Appearance Committee (“ACC”); and review and approval by the Planning & Zoning (“P&Z”) Board. Provisions of the City Code also required certain improvements be made by all developers within certain zones. It was undisputed that from the beginning of the project, Plaintiff knew that the Improvements were required. Notwithstanding this, Plaintiff never objected to the Improvements at any point during the Major Site Plan Approval process. Construction of the Improvements led to an increase in the rent paid by the City to FEC under the lease. Following this, Plaintiff served its notice of the prohibit exaction, pursuant to section 70.45, Florida Statutes, on the City and filed this suit.

At the outset, the court noted that the Development Order explicitly imposed the construction of the Improvements as a requirement for approval and made it Plaintiff’s responsibility to obtain FEC’s approval. The Development Order did not address, in any way, what would happen if Plaintiff did not obtain FEC’s approval. However, as set out in the Development Order, construction of the Improvements was a requirement, not a requirement contingent on obtaining approval. Instead, the Developer’s Agreement made Plaintiff’s obligation to construct the Improvements contingent on the City obtaining FEC’s consent. As such, Contrary to Plaintiff’s argument, when the Development Order was entered, Plaintiff’s obligation to construct the Improvements, and obtain FEC’s approval of them, was clear and unequivocal. Accordingly, the court found the requirement was actually imposed and required in writing as a final condition of approval by the Development Order. Plaintiff’s section 70.45 notice was therefore untimely and, accordingly, barred under the statute.

Plaintiff next alleged that requiring it to build the Improvements was an unconstitutional condition, which deprived Plaintiff of its Constitutional rights because the Improvements lacked an essential nexus to a legitimate public purpose and were not roughly proportionate to the impacts of Plaintiff’s proposed use. The court found that the requirement that plaintiff improve adjacent roadways fell within the area of ​​concern raised by the Supreme Court — that the City would use its permitting power to make extortionate demands on landowners wishing to develop their property. Additionally, the City reached a final decision, represented by the Development Order. As such, Plainiff’s claim was ripe.

As a final matter, the court found that Contrary to the City’s assertions, the private ownership of Flagler Avenue and the type of lease between FEC and the City were relevant facts for consideration of whether the Improvements had an essential nexus and rough proportionality to the public purpose that the City was trying to achieve. The court noted the fact that Flagler Avenue was privately owned did not mean that there was no public benefit from the Improvements, but that the issue was for the jury to decide. Thus, a question of fact remained as to whether the Improvements had an essential nexus with the public purpose the City was trying to achieve and whether there was a rough proportionality between the public costs of the project and the Improvements. Accordingly, summary judgment was denied on this issue. Heritage at Pompano Housing Partners, LP v City of Pompano Beach, 2021 WL 8875658 (12/15/2021)