Overview of the Act

     The Florida Land Use and Environmental Dispute Resolution Act, adopted in 1995, established a “Special Master” proceeding whereby private property owners could seek a non-judicial resolution of disputes with governmental agencies who impose land use regulations upon the owner’s real property. These regulations include any order or notice “which is or will have the effect of granting, denying, or granting with conditions an application for a development permit, and includes the rezoning of a specific parcel. Actions by the state or local government are not development orders.” See § 70.51(2)(a), Florida Statutes. The Act sets forth various substantive and procedural requirements to govern the obligations of the parties during the special master process. Having served as special masters in these proceedings, the authors discovered that certain aspects of the proceeding, as applied, were actually counterproductive to achieving a resolution of the case. Furthermore, there were other areas not addressed by the Act which are needed if this Act is to accomplish its purpose in providing relief from burdens on real property rights. The focus of this article is to highlight some practical areas of concern that, absent modification or amendment, cause the essential objective of the Act of providing alternative dispute resolution to be inherently undermined.

Mediation Phase - Conflicts and Solutions

     The Act provides for the special master to hold a hearing within 45 days after receiving the request for relief filed by the property owner. Under § 70.51(17), the hearing is to be informal and open to the public. At the hearing, the first responsibility of the special master is to mediate a resolution of the conflict between the owner and the governmental agency. From a mediation standpoint, the requirement that the proceeding be open to the public creates various difficulties that directly affect the viability of the mediation process. First, the local government staff attending the hearing find themselves in positions of conflict when attempting to negotiate a Board’s decision in a public forum. In most cases, the Board denied the land use request in spite of staff recommendations for approval. Those same staff members are then put in the position of defending the Board’s action in the special master proceeding, while simultaneously attempting to negotiate a compromised resolution during the mediation phase of the hearing that departs from the Board’s denial of the land use request. If a negotiated agreement is reached, the staff must then present the proposed agreement to the Board for approval. These apparent contradictions place the staff in a tenuous situation concerning their ultimate responsibility during the special master proceeding, and create obstacles in the process that are difficult to overcome.

     Second, the cadre of concerned citizens who are usually present at special master proceedings to voice their opposition to any compromise in the Board’s denial of the land use request are generally confused and angered by the local government staff’s seeming abandonment of the Board’s decision during the mediation phase of the hearing. Their reaction and intervention in the mediation phase is usually counterproductive to the negotiation process. Although the Act places limitations on public participation during the mediation phase of the proceedings, these limitations, when enforced by the special master, are typically viewed by the public as attempts to exclude them from the process. When these perceptions are combined with the belief that the Board is abandoning its decision by attempting to negotiate with the property owner, the overall environment is clouded by public backlash, and does not facilitate the process of reaching a negotiated resolution.

     The Act needs to address these inherent conflicts. Under Florida law, court mediations are confidential and privileged proceedings, and it is the protection afforded by confidentiality that provides the best environment for settlement. Without confidentiality as an integral part of the special master proceeding, the opportunity to settle these disputes will be diminished. Therefore, one approach to eliminating these conflicts would be to amend the Act so that the first responsibility of the special master will be to conduct a confidential mediation conference that would be open to only the governmental entity and the property owner. Another approach would be to delete the mediation aspect of the special master proceeding and merely hold a special master evidentiary hearing in a public forum. Furthermore, to avoid having local government land use staff placed in the conflicting circumstance described above, it may be preferable for the County Administrator or an assistant administrator not involved in the initial land use review and recommendation to the Board to act as the local government representative at these proceedings.

Aspects of the Act Not Addressed / Recommended Changes

     The Act provides, in § 70.51(17)(b), that if “an acceptable resolution is not reached by the parties after the special master’s attempt at mediation, the special master shall consider the facts and circumstances set forth in the request for relief and any responses and any other information produced at the hearing in order to determine whether the action by the governmental entity or entities is unreasonable or unfairly burdens the real property.” In other words, the hearing consists of the mediation, and then secondarily, the consideration of evidence. Within 14 days after the conclusion of the hearing, the special master is required to prepare and file a written recommendation which sets forth specific findings as to whether the decision of the governmental agency is unreasonable or unfairly burdens the property. Although, on its face, this requirement seems to be reasonable, the statute fails to take into consideration those situations whereby a mediated agreement may be reached by the parties, but as is this case with counties, the proposed mediated agreement is subject to approval by the Board of County Commissioners. This additional approval forces a bifurcation of the hearing process, and in the event the Board rejects the proposed agreement, forces the parties to resume the hearing on a subsequent date for presentation of additional evidence.

     Unfortunately, the Act does not expressly provide for a bifurcated hearing. At least one party to these proceedings has argued that the statutory language requires that the special master complete the hearing through consideration of additional evidence, and then to prepare a written recommendation even though a proposed agreement had been reached. From a practical standpoint, this application of the Act would clearly turn the hearing into a more adversarial proceeding, and counteract any spirit of compromise fostered by the parties in reaching a mediated agreement. Additionally, the special master should only be required to file a written recommendation if the case cannot be settled by the parties. In order to avoid these conflicts, the Act should be amended to require a bifurcated hearing to be conducted by the special master, the first part being a confidential mediation conference as suggested above, and if the parties ultimately fail to reach an agreement, a separate hearing to consider additional evidence presented by the parties. Upon the conclusion of this separate hearing, the special master would prepare and file a written recommendation pursuant to § 70.51(19).

     In arguing their positions during a special master proceeding, a crucial question presented by the parties concerned the issue of what is the appropriate standard of review to be applied by the special master in making a written recommendation under § 70.51(19). The governmental agency argued that the proper standard in reviewing its decision should be a fairly debatable standard, while the property owner argued that the standard should be competent and substantial evidence. The Act is entirely silent on the standard of review to be applied to the process. This silence will enable various special masters around the state to apply different standards of review in dealing with the Act, creating the stage for anomalous results from county to county. The Act needs to be amended to incorporate a standard of review that would govern the special master’s decision in these proceedings.

     The final aspect of the Act that weakens its effectiveness is that it does not impose any legal significance to the written recommendation of the special master in the event the parties are unsuccessful in reaching an agreement. For example, if the special master finds that the action of the governmental entity is unreasonable or unfairly burdens the real property, the entire process can be reduced to a meaningless exercise if the written recommendation is simply rejected by the governmental entity, even though specific findings or alternatives have been presented by the special master. In order for this dispute resolution proceeding to have backbone, the written recommendation submitted by the special master must be cloaked with some level of evidentiary weight, such as the recommendation constituting competent and substantial evidence in future legal proceedings. This added significance to the special master’s written recommendation would give greater meaning to the proceeding, and ultimately, provide a better forum within which these regulatory disputes can be resolved without the need for judicial intervention.

(This article was written to foster discussion concerning the existing viability of the Act, and the potential need for changes, if any.)