Appeals Court Sides with Lewis, Longman & Walker Client, the Seminole Tribe of Florida, Ruling that Hendry County FPL Power Plant Rezoning is subject to challenge under the Florida Community Planning Act and not preempted by the Power Plant Siting Act
West Palm Beach, Fla., June 17, 2013 – On June 12, 2013, the Second District Court of Appeal ruled in favor of the Seminole Tribe of Florida, represented by Lewis, Longman & Walker, P.A., (“LLW”) holding that where Florida Power and Light (“FPL”) rezones property for a power plant outside of the process under the Power Plant Siting Act (“PPSA”), the rezoning decision is subject to challenge for inconsistency with the local government’s comprehensive plan. In an ongoing lawsuit between the Seminole Tribe, FPL and Hendry County, LLW, on behalf of the Seminole Tribe, asserts that the County’s decision to rezone 3,200 acres of land adjacent to the Seminole Tribe’s Big Cypress Reservation for a regional power plant is inconsistent with numerous provisions of the County’s Comprehensive Plan. Accordingly, the Seminole Tribe filed suit under Section 163.3215, Florida Statutes, which mandates that all development orders adopted by local governments must be consistent with that government’s comprehensive plan. The statute provides for citizen enforcement of the local government’s comprehensive plan through suits by adversely affected parties.
This case was dismissed by the Circuit Court in January 2012, on the basis that the Seminole Tribe’s comprehensive plan consistency challenge was preempted by the PPSA which provides a single, unified process for obtaining all state and local approvals for construction and expansion of power plants in Florida. FPL and the County argued, and the Circuit Court agreed, that the Seminole Tribe would have to wait to challenge the consistency of the zoning ordinance under the PPSA – even though FPL had not filed an application for power plant certification and did not seek to rezone the property through the PPSA process.
The Seminole Tribe appealed the dismissal. LLW attorneys Ken Spillias, Andrew Baumann and Tara Duhy handled the appeal for the Seminole Tribe, arguing that FPL had made a tactical decision to rezone the property in advance of any PPSA application, and therefore, the rezoning was subject to challenge under Section 163.3215, Florida Statutes. The Seminole Tribe also argued that it would be foreclosed from challenging the rezoning itself under the PPSA because the PPSA would only look at the new zoning – the zoning in effect at the time the PPSA application is filed – and would not review the change in zoning already adopted outside of the PPSA process.
In this case of first impression, the District Court agreed with the Seminole Tribe, holding that a rezoning adopted outside of, and prior to, initiation of the PPSA certification process is subject to challenge under Section 163.3215 of Florida’s Community Planning Act. The District Court observed that FPL “strategically” applied to rezone the property for a power plant before any PPSA application had ever been filed out of a desire to have the new zoning in place so that when the PPSA application came forward, they would not have to rezone the property through that process. The District Court concluded that FPL elected to rezone the property outside of the PPSA context and subjected the County’s rezoning decision to a comprehensive plan consistency challenge under Section 163.3215, Florida Statutes.
The decision may have lasting ramifications on the manner in which FPL elects to rezone and entitle property for current and future projects, as local approvals acquired prior to an application under the PPSA are susceptible to challenge for consistency with local comprehensive plans as well as traditional certiorari review.
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