Sometimes governmental agencies have disagreements concerning land use regulations. These often arise when one governmental agency needs the zoning approval of the other in order to construct facilities. Most often, cities or counties regulate the use and development of land through zoning and land development regulations, and development proposals of other governmental entities may not entirely “fit” within the applicable zoning and land use scheme. In many instances, specific preemptive statutory law exists which determines outcomes for governmental disputes (e.g. United States Post Office facilities being largely exempt from local regulation). However, for other kinds of facilities, there is no pre-emptive statutory guidance.
So how are these matters addressed by the judiciary when they cannot be otherwise resolved? What if, for example, the State wishes to locate a controversial facility in a local community and the facility does not meet all of the local community’s land development regulations? The Fourth District Court of Appeal employs a “balancing of competing governmental interests test” to determine whether, under the facts presented in a particular case, one governmental entity will be subject to the zoning powers of another In Orange v. City of Apopka, 299 So. 2d 652 (Fla. 4th DCA 1974), three cities and the Tri-City Airport Authority wished to build an airport on land zoned A-1 Agricultural in unincorporated Orange County, and had determined the airport was necessary pursuant to The Airport Law of 1945, Chapter 22846, Laws of Florida 1945. Airports were permitted under the County’s A-1 zoning classification as a special exception. The three cities and the Tri-City Airport Authority applied for the Special Exception and were denied by the County. They then filed a declaratory judgment action in Circuit Court and a Petition for Writ of Certiorari. The Circuit Court determined that the Plaintiffs were immune from the County’s zoning law, using previous and well established case law that a governmental entity which enjoys the power of eminent domain is immune from local zoning law when exercising its governmental powers. Although the Circuit Court concluded that this decision rendered the Certiorari proceeding moot, it nevertheless also determined that the County had substantial competent evidence to deny the Special Exception. On Appeal, the District Court of Appeal reversed the Circuit Court’s determination that the Plaintiffs were immune from local zoning law, rejecting the “governmental function-proprietary test” for resolving zoning conflicts between governmental units in favor of the “balancing of competing governmental interests test”:
“Rather than become limited by the governmental-proprietary distinction which could lead to situations which cry for relief, we feel the better rule, the rule allowing for the greatest flexibility and fairness, is the one which requires that one governmental unit be bound by the zoning regulations of another governmental unit in the use of its extraterritorial property, purchased or condemned, in the absence of specific legislative authority to the contrary. In the absence of express legislative immunity from zoning, the intruding governmental unit should apply to the host governmental unit’s zoning authority for a special exception or change of zoning, whichever appropriate. The zoning authority is then in the best position to consider and weigh the applicant’s need for the use in question and its effect on the host’s unit’s zoning plan, neighboring property, environmental impact, and the myriad of other relevant factors . . . If the applicant is dissatisfied with the decision of the zoning authority . . . it is entitled to a judicial determination de novo wherein the circuit court can balance the competing governmental public and private interests essential to an equitable resolution for the conflict. The court can consider, among other things, the type of function involved, the applicant’s legislative grant of authority, the public need therefore, the existing land use scheme, alternative locations for the facility in less restrictive zoning areas, alternative methods for providing the needed improvement, and the detriment to adjoining landowners. If, after weighing all pertinent factors the court finds the host government is acting unreasonably, the zoning ordinance should be held inapplicable to the proposed improvement, just as was done in State ex. Rel. Helseth v. DuBose, 99 Fla. 812, 128 So. 40 (1930).” Id. At 655
The principle has been extended to cases which do not involve the exercise of extra territorial powers. In Village of North Palm Beach v. The School Board of Palm Beach County, 349 So. 2d 683 (Fla. 4 DCA 1977), the School Board wished to build a library on a school site that would have violated North Palm Beach’s applicable zoning setback. The trial court refused to grant the Village an injunction preventing the library’s construction. On Appeal, the Court stated:
“In cases of governmental disputes as to whether zoning requirements of one governmental body applies to another governmental body when seeking to use land contrary to applicable zoning regulations, the balancing-of-public-interests test (sometimes referred to as the balancing-of-competing-public-interests test), in the absence of statutory authority, allows for the greatest flexibility and fairness in determining the issue. . . . Therefore, we adopt the balancing-of-public interests test for resolving zoning conflicts between different governmental bodies, and reject the rigid governmental function versus proprietary function test. Orange County v. City of Apopka, 299 So. 2d 652 (Fla. 4th DCA 1974)” Id. at 683,684.
The purpose of the balancing of competing governmental interests test is to allow the Court to weigh and consider the interests of both governmental agencies in determining the controversy. Governmental entities that exercise land development regulatory power would be well served by affording some leeway to its usual processes and procedures in cases that involve other government agencies’ projects, so as to allow evidence relevant to the balancing of competing governmental interest test to be considered, and to make decisions in light of this evidence. By employing this strategy, their decisions may be more defendable upon judicial review.
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