Smart Growth group lawsuit seeks repeal of new Florida law

By John Haughey

September 16, 2019

Old and new State Capitol buildings in Tallahassee, FL.

A coalition of smart growth advocates filed a lawsuit seeking the repeal of a controversial new state law that it says was crafted to have a “chilling” effect on citizens seeking to challenge new development that conflicts with local land-use plans.

1000 Friends of Florida filed the lawsuit Friday in Leon County Court, claiming the bill that created the law, House Bill 7103, violates the state constitution’s “single subject” and “due process” provisions after it was expanded during its committee transit to address 17 different subjects – including a final-day amendment that requires those who file unsuccessful challenges against a development proposal pay all legal fees.

“HB 7103 represents both an egregious attack on the right of Florida’s citizens to have a say in how their communities develop and a fundamental violation of significant provisions of Florida’s Constitution,” 1000 Friends Planning and Policy Director Jane West said in a release announcing the lawsuit.

West said the new law is a “mortal blow” to managing growth in a state that now welcomes close to 1,000 new residents a day.

“Florida’s lands, waters, quality of life and economy all will suffer as a result of HB 7103, and the costs will be borne by current and future generations of Floridians,” she said.

HB 7103, sponsored by Rep. Jason Fischer, R-Jacksonville, was originally a 27-page bill that called for lifting mandates that stipulate developers build a specific amount of affordable housing units in a new development

“My intention is to make housing more affordable,” Fischer said on April 10 after the bill was approved by the House State Affairs Committee in a 14-8 vote.

By May 3, the last day of the 2019 session, HB 7103 had mushroomed into a 43-page “train” that, in addition to its original intent to limit local governments’ capacity to adopt inclusionary housing ordinances included provisions that revised the application and approval process for local development orders, changed concurrency and impact fee regulations and amended building permits and condominium association requirements.

The final change amended Section 163.3215(8)(c) Florida Statutes to provide that any citizen who challenges a development order as inconsistent with a comprehensive plan and loses will be forced to pay the prevailing side’s attorney fees “including those of the local government and perhaps the developer – a sum that could easily climb into the tens or hundreds of thousands of dollars,” 1000 Friends of Florida says in its lawsuit.

HB 7103 was approved in by the Senate in a 26-13 vote and in the House in a 72-37 tally. Gov. Ron DeSantis signed it into law on June 28.

“The amendment stripping citizens of their rights was never introduced in committee, never analyzed by legislative staff, never subjected to public testimony, and never debated by legislators,” 1000 Friends President Paul Owens said.

The group says the new law has already had repercussions, noting a citizens group in Pasco County has withdrawn a challenge to a proposed development “out of concern about the prohibitive financial risks created by HB 7103.”

“Passage of this act is an attack on the rights of each and every one of Florida’s 21 million citizens,” 1000 Friends former Legal Director Richard Grosso said.

HB 7103 also violates Article I, Section 9 of the state constitution related to due process because, 1000 Friends’ lawsuit maintains, “the only feasible remaining mechanism to enforce Florida’s growth management process is through citizen-initiated challenges to determine if a development order is consistent with the local comprehensive plan.

“Because the attorney fee provision in HB 7103 is so onerous,” the lawsuit states, “it is extremely unlikely that citizens will file such challenges.”

Owens said 1000 Friends’ lawsuit is “a last resort” and would be withdrawn if remedied by 2020 legislation.

“1000 Friends does not believe a majority of representatives and senators would have supported the amendment if they recognized its devastating impact on Floridians and their hard-won right to shape the future in their communities,” he said.