James L. Homich
LAWYER
621 E. FIFTH AVENUE
MOUNT DORA, FLORIDA 32757
352.383.3031 fac.8833
June 14, 2022
Mount Dora City Council
Re: AMCO Development/Bert Harris Act
On Tuesday you have the responsibility to cast a vote on a development arguably the largest in the history of the City. Most of you have rightfully expressed your disapproval of the development but are fearful of the consequences of your vote because of your attorney's advice. I have attempted to obtain a second opinion on the matter but the firms only represent developers or cities and counties. A couple of the attorneys however did opine that the basic facts certainly were favorable to the city. I decided to thoroughly research the issue and have found significant support to deny the recommendation of the Magistrate contrary to your attorney's analysis.
The Magistrate made a recommendation not a "recommended order" as termed by your attorney. The recommendation can be rejected by you under §70.51 Fla. Stat. which is the Florida Land Use and Environmental Dispute Resolution Act. §70.80 Fla. Stat. states that:
It is the express declaration of the Legislature that ss. 70.001, 70.45, and 70.51 have separate and distinct bases, objectives, applications, and processes. It is therefore the intent of the Legislature that ss. 70.001, 70.45, and 70.51 are not to be construed in pari materia. [on the same subject or matter]
§70.51 Fla. Stat. is the Bert J. Harris Act. This statute basically means that the magistrate's recommendation has no bearing on a Bert Harris claim. Florida Courts have described the Dispute Resolution Act as "informal and nonjudicial"Scott v. Polk Cnty., 793 So. 2d 85, 87 (Fla. Dist. Ct. App. 2001) and "voluntary" Peninsular Properties Braden River, LLC v. City of Bradenton, Fla., 965 So. 2d 160, 161 (Fla. Dist. Ct. App. 2007). This statute, §70.80 Fla. Stat., directly contradicts your attorney's assertion that the rejection of the Magistrate's "recommended order" creates a Bert Harris claim. There are no appellate cases in the state which address both the Bert J. Harris Act and the Dispute Resolution Act in the same case.
Not only is the Magistrate's recommendation not precedent in a Bert J. Harris claim, it is a fundamentally flawed recommendation due to the magistrate's clear legal error interpreting the City's Land Development Code. The magistrate in her findings at paragraph II.A.25. says basically that "consistent" does not mean "consistent." It is a fundamental rule of legal interpretation that the plain meaning of a word is to be used. "Consistent" means "acting or done in the same way over time." The magistrate claims "'Consistency' does not mean exactly duplicative in the parlance of land use planning undertaken by experts." She assigns a novel meaning to the word, "consistent," which is the fundamental flaw upon which she bases her entire recommendation. It is doubtful a Circuit Judge would make that same legal error.
Our Land Development Code requires in section 3.4.5.2.e., under Planned Unit Development zoning, that:
New developments within the WBI-E and WBI-G zoning districts are required to following [sic] the preliminary and final master plan procedures of this section. The uses and standards shall be consistent with the underlying WBI-E and WBI-G zoning districts of this code. In these two zoning district [sic] the lands would be rezoned WBI-E or WBI-G zoning districts and include a final master plan outlining the conditions, minimum site area, uses, and standards at time of change of zoning. Amendments to an approved WBI-E or WBI-G final master plan follows the procedures of the PUD section. [Emphasis Added]
The only proper legal interpretation of this section of the PUD zoning code is that the height limits of the PUD shall be "consistent" or shall be the same as the WBI-E and WBI-G zoning districts which is 100 feet. Any other interpretation would be a fundamental error of legal interpretation. "The plain meaning of the statute is always the starting point in statutory interpretation." GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007)
Our Comprehensive Plan specifically requires the City to set the standards for building height in the Land Development Code:
Zoning applications within the Employment Center Future Land Use Category must be accompanied by a site/master plan as set forth in the Land Development Regulations. Such plans shall address, at a minimum, buffering, setbacks, lighting and building height, to ensure compatibility with adjacent uses. Design standards shall be provided in the Land Development Regulations that ensure that Employment Center development is compatible with adjoining properties. Standards shall include, but not be limited to, building style, design and scale; exterior building materials; roof design and construction; building size and placement; site furnishings; fences and entrance features; and the size and location of service areas.
Given that all development in the WBI Districts must follow the master plan/PUD process, the height limits would be meaningless if these master plans/PUD's could ignore the standards set for the District. Failure to follow the standards set forth in the Land Development Code for the WBI Districts is a clear violation of Mount Dora code.
Given that the Mount Dora LDC requires development within the WBI Districts under PUD zoning to have a height limit of 100 feet and given that the Bert J. Harris Act requires the land owner to prove an inordinate burden placed on the property by the denial of his application, a Bert J. Harris action against the City should fail. No burden has been placed upon the land that was not preexisting. That fact should be easily proven via summary judgment proceedings if challenged especially in front of a Lake County Circuit Judge. The landowner bought the land with the height restriction set forth in the code.
Apart from the legal analysis which clearly favors rejecting the application, you would be discarding decades of effort by prior councils and citizens to develop the WBI District in accordance with the City's goals and vision. You have a duty to those residents and council members to enforce the code as developed to promote the appropriate use of the land as envisioned. A decision to accept the Magistrate's recommendation is a rejection of the hard work of the citizens and prior councils to regulate the WBI District for the benefit of the City and its residents.
Sincerely,
James L. Homich
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