Appeals court overturns another lower court decision on growth management

May 9, 2011

The following article was published in the Florida Current on May 9, 2011:

Appeals court overturns another court decision on growth management

By Bruce Ritchie

For the second week in a row, the 1st District Court of Appeal has thrown out a lower court ruling on a growth management issue, saying that the suit was improperly filed against legislative leaders.

Nine counties along with the Florida Association of Counties, the Florida League of Cities and the Florida School Boards Association filed a lawsuit challenging 2009’s HB 227. The bill shifted the burden of proof to cities and counties when builders filed legal challenges against local impact fees on new developments.

The counties and the groups filed a lawsuit against then-House Speaker Larry Cretul and then-Senate President Jeff Atwater. The plantiffs said HB 227 represented an “unfunded mandate” on local government and required both the Senate and House to pass by a two-thirds vote. They also argued that changing the burden of proof violated the courts’ exclusive right to adopt rules relating to practice and procedure.

The Attorney General’s Office asked for the suit to be dismissed, arguing that Cretul and Atwater enjoyed immunity from judicial review as elected legislators. But Circuit Judge James O. Shelfer in November rejected a request, saying the lawsuit was about process and not whether HB 227 was constitutional.

The 1st District Court of Appeal, however, disagreed with the circuit judge, saying in its opinion that a lawsuit challenging the constitutionality of a law must be filed against the state agency or department charged with enforcing the law. The appeals court also said legislative immunity is necessary to “ensure legislators are not subject to the consequences of litigation at the expense of their legislative duties.”

Similarly the appeals court on May 2 overturned another circuit judge’s ruling that threw out 2009’s SB 360 growth management law changes. The appeals court said the suit was improperly filed against legislative leaders, then-Gov. Charlie Crist and Secretary of State Kurt Browning.

The appeals court decision on Monday was not unexpected given the ruling last week, said Cragin Mosteller, spokeswoman for the Florida Association of Counties.

HB 229 “puts all the burden of proof on local government which is not only cost prohibitive” but difficult to prove when there is turnover among county staff and elected officials, Mosteller said.

This year the House and Senate approved SB 410 to re-enact HB 229. SB 410, by Sen. Mike Bennett, R-Bradenton, passed by more than two-thirds in each chamber.

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