I introduce you to the Land Use and Environmental Dispute Resolution Act, Florida Statutes, Section 70.51, (hereafter “The Act”). With all its apparent imperfections the Act seems at first to be a lump of coal. But, but with a little ingenuity, it can be polished into a diamond that can be used to rescue governments and private property owners with cost effective relief short of litigation and/or time-consuming, mind-numbing appeals.
Who are the parties to a special magistrate proceeding under §70.51?
Any legal or equitable property owner who believes a development order or an enforcement action of a governmental entity is unreasonable or unfairly burdens the use of the owner’s property, may apply within 30 days after receipt of the order or notice of the governmental action for relief.
The other mandatory party to the special magistrate proceeding is the governmental entity that issued the development order or that is taking the enforcement action.
The Act recognizes the importance of public participation by allowing contiguous landowners to testify during the special magistrate proceedings. The Act gives an additional nod to the importance of public participation by allowing “substantially affected” persons to participate in the special magistrate proceeding if they participated to some extent at the initial proceeding. Furthermore, the Act specifically provides that the special magistrate process must be open to the public at large.
Obviously, the potential for public participation of this magnitude can be burdensome. However, if properly managed by the special magistrate it is precisely this level of public input which allows the public to feel heard, valued and vested in the resolution or outcome.
The final component of the special magistrate proceeding is the special magistrate. The parties are expected to mutually agree upon the special magistrate within 10 days of the owner filing the request for relief under the Act. The special magistrate need not be a Supreme Court certified mediator but must be a Florida resident and possess experience and expertise in mediation and at least one of the following disciplines: land use and environmental permitting, land planning, land economics, local and state government organization and powers, and the law governing the same.
What are the components of the special magistrate hearing process?
The Act contemplates a facilitation phase followed by a fact-finding, information-gathering phase. Although not specified in the Act, common sense dictates that these phases be scheduled for different dates.
Unless the parties agree to a later date, the special magistrate must first convene a facilitation/mediation within 45 days of receipt of the request for relief. It is likely that this hearing will be a hybrid of the mediation process most attorneys are familiar with due to the fact that the session must be open to the public.
If the facilitation/mediation phase is successful and an acceptable resolution is reached, the settlement agreement should specifically express that it is subject to the approval of the local government’s commission/council. The resulting negotiated settlement agreement is a bit of an anomaly as it is not admissible in court but it is nevertheless a public record because it is subject to the requisite formal approval process before the governing body.
If the facilitation/mediation phase reaches impasse for any reason (ie: public opposition cannot be overcome or the parties are too entrenched in their positions) that phase is to be adjourned and the fact-finding, information-gathering phase should be scheduled for hearing. The second phase of the hearing process should be scheduled to allow each party sufficient time to prepare for what really amounts to an adversarial hearing but at the same time recognizing the fact that the entire process must be completed within 165 days unless the period is extended by agreement of the parties. This fact-finding, information-gathering phase looks like the courtroom hearings we are all familiar with except that the formal rules of evidence do not apply and the mediator/facilitator sitting as “judge” can only issue a non-binding recommendation.
The special magistrate can find that the development order or enforcement action at issue is not unreasonable or does not unfairly burden the use of the owner’s property and recommend that the order or action remain undisturbed in which event the proceedings ends. Or, the special magistrate can find that the development order or enforcement action is unreasonable or does unfairly burden use of the owner’s property in which event, with the owner’s consent, the special magistrate can proceed to suggest alternatives to the subject order or enforcement action.
The special magistrate’s recommendation must be issued within “14 days of the conclusion of the hearing.” Within 45 days after receipt of the recommendation the governmental entity must accept, modify or reject the recommendation. Clearly, this acceptance, modification or rejection must be a decision made by the governing body at a public meeting.
Should the governing body choose to accept the recommendation, a property owner will not be required to duplicate the previous processes in which the owner has participated in order to effectuate the recommendation. However, if the special magistrate recommendation were to contemplate a separate and distinct administrative approval process, one which was not previously sought or undertaken, the special magistrate may only recommend that the alternative approval process be initiated. The special magistrate cannot mandate the outcome of that administrative process. The special magistrate’s recommendation must recognize the inherent police powers of the governmental entity and not encroach upon those powers and the due process associated with them.
If the government entity chooses to reject the recommendation it must thereafter issue a written decision within 30 days that describes the use or uses available to the subject property. Rejection is assumed if the government entity fails to act upon the recommendation within 45 days unless that time period is extended by mutual agreement of the parties.
Much ado has been made about the fact that the special magistrate’s recommendation is non-binding therefore of little value. However, the special magistrate’s recommendation serves an important purpose. Because the special magistrate’s recommendation is a public record, it, unlike a negotiated settlement agreement between the parties or the testimony offered at the special magistrate proceeding, is admissible in subsequent proceedings. A written recommendation from a special master deemed an expert in the field by the parties and indeed chosen for their expertise and reputation will serve as very persuasive authority in those subsequent proceedings. And, a written recommendation serves as a strong signal of a likely final outcome should the matter be further litigated or taken up on appeal. It would seem that a property owner or governmental entity unsatisfied with the recommendation should very carefully evaluate whether further pursuit of the matter will be productive and whether a capitulation of some sort may be in order.
Why should a dissatisfied property owner choose to participate in the special magistrate process and why would a governmental entity elect to bind itself to a special magistrate recommendation?
1) The ability to choose a neutral/arbiter experienced in local government law.
2) The ability to participate in a negotiation with a finite time line.
3) The opportunity to control costs.
The Act has not enjoyed the widespread use which was anticipated upon its adoption in 1995. Although the Act is not the perfect solution to land use disputes, it nevertheless is a cost-effective option. Yet, it remains a buried treasure. Unless and until governments begin noting in development orders and enforcement actions the landowner’s right to invoke the Act, its provisions will likely remain undiscovered, and its cost-saving potential will remain unexplored and unknown. Arguably it is the responsibility and duty of governments to notify landowners of their right to invoke the Act. If nothing else, given the state of our economy, it would certainly be in the best interest of governmental entities to point landowners in the direction of the Act rather than toward the costly courthouse steps. The Land Use and Environmental Dispute Resolution Act may well be an undiscovered gem. I suggest to government attorneys and private practitioners alike that you polish it off and see if it is worth adding to your collection of budget-cutting, time-saving alternatives and approaches in these challenging financial times.
For another practitioner’s take on the process see Robert Lincoln’s blog
on the topic.
- Sandra C. Upchurch