Wednesday, May 29, 2019

Everglades advocates request Gov. DeSantis to Veto HB 7103

May 29, 2019

The Honorable Ron DeSantis
Governor, State of Florida
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001

RE: Veto HB 7103

Dear Governor DeSantis,

The below-signed organizations, committed to the protection and restoration of America’s Everglades, respectfully request that you veto House Bill (HB) 7103.  This bill has several provisions that could negatively impact the full restoration of the Greater Everglades ecosystem, including efforts to reduce nutrient pollution in our waterways; the worst of which were quietly amended onto the bill in the final hours of the legislative session and adopted without public input, meaningful discussion or debate in committee hearings, without any legislative staff analysis, and without any public testimony.  In as much, legislators voted without fully understanding the impact of those last minute changes.  Good governance dictates that HB 7103 must not be signed into law and deserves your veto.

America’s Everglades is a unique ecosystem that extends from the Kissimmee Chain of Lakes into Lake Okeechobee, through the “River of Grass,” out to Florida Bay and the Florida Keys. This vast natural wonder has been severely impacted by over-development, habitat degradation, pollution and other man-made changes.

A critical tool that is used to ensure that Everglades restoration efforts are not further hindered, and that helps protect what is left of this ecosystem, is the local comprehensive plan. Local comprehensive plans include elements that address important issues relevant to our Everglades efforts, such as water quality, flood protection, drainage, waste management, water resource protection, aquifer recharge, water supply, conservation of open space, wetlands and other ecologically sensitive habitats, coastal management, urban development boundaries, agricultural buffers, and intergovernmental coordination.  Because they have site-specific legally-binding policies required for addressing environmental issues, and because the current law requires strict compliance with them, local comprehensive plans are presently the state’s best environmental protection tool relative to water quality, wetlands, drinking water, and flood protection. 

By law, once adopted, any local development decisions must be consistent with such comprehensive plans. This law was utilized a few years ago to overturn a county’s approval of three major lime rock mines in the Everglades Agricultural Area:  US Sugar Corp. v. 1000 Friends of Fla., 134 So. 3d 1052, 1053 (Fla. 4th DCA. 2013).  In those cases, the state’s wetland law was not going to prevent the mines.  It was the county comprehensive plan policy prohibiting mining in the EAA – to preserve it for farming and Everglades Restoration – that stopped the mines.  HB 7103 would have made those cases impossible and will render similar cases impossible in the future if it is signed into or allowed to pass into law.  

            HB 7103 will make a losing party, in consistency challenges, automatically liable for a prevailing party’s attorney fees. This will effectively end citizen enforcement of local comprehensive plans. In general, citizens who may bring challenges to defend against environmental threats, such as loss of wetlands that filter pollution and reduce flooding, do not have the same financial means as developers and/or local governments. Citizen comprehensive plan challengers typically struggle just to cover their own attorney fees; the risk of having to pay the attorney fees of local governments and/or other intervening party would make challenges much less available to concerned citizens.  Only the very wealthy would be able to attempt those challenges.

            Courts have said that “citizen enforcement is the primary tool for insuring consistency of development decisions with the Comprehensive Plan”[1]  and that the law’s “purpose cannot be achieved without meaningful judicial review in lawsuits….”[2].  Comprehensive plans are written for the very purpose of governing individual development decisions. If that purpose cannot be enforced by the only persons with standing to do so, the entire Community Planning Act would be essentially repealed. If it becomes law, HB 7103 would effectively eliminate the only means left for Floridians to enforce consistency with local comprehensive plans, including those relevant to the protection and restoration of the Everglades. As stated recently by the American Planning Association FL Chapter, HB 7103 “will have a chilling effect on, and raise a true barrier to, citizen participation in the enforcement of local plans... The bill also removes the authority for the Department of Legal Affairs to intervene in such challenges to represent the interests of the state [such as Everglades restoration], so these citizen and interest group challenges are truly the only means of policing the compliance of development orders with comprehensive plans… If development order consistency cannot be enforced, the binding legal authority of comprehensive plans is rendered meaningless… the failure to follow them… can lead to environmental degradation."[3].  Comprehensive plan consistency challenges are the only tool available to local citizens to hold local governments accountable. Without them, the local comprehensive plans that have been maintained over the past 30 years would become meaningless, and Everglades advocates would lose an important tool that could help prevent development mistakes and protect our Everglades restoration investments.

            If HB 7103 becomes law, local communities will likely see more developments that do not comply with local protections for water resources and environmentally sensitive lands. This is of grave concern to the Everglades and clean water advocacy communities.

In addition, the automatic attorney’s fees sanction in HB 7103 is unnecessary; Florida law already deters baseless legal challenges and prevents spurious litigation for improper purpose, such as undue delays of lawful development proposals.  HB 7103 would also encourage the courts to hear comprehensive plan enforcement cases using a summary procedure that limits discovery. Summary procedures are not appropriate for consistency challenges which involve complicated questions of law and fact and are often expert intensive.

It is noteworthy that one of the Everglades Coalition’s legislative priorities this year was to “reinstate strong statewide and regional land use planning to guide sustainable growth that is protective of Florida’s remaining natural areas and resources…”.  While there is much work to be done to realize that goal, your veto on HB 7103 will ensure that all Floridians, including Everglades advocates, continue to be able to hold local governments accountable on commitments they made to protect our natural resources.


Sincerely,


1000 Friends of Florida
Thomas Hawkins, Policy & Planning Director

Apalachicola Riverkeeper
Georgia Ackerman, Riverkeeper and Executive Director

Audubon Everglades
Scott Zucker, Vice President & Conservation Co-Chair

Audubon Florida
Celeste De Palma, Director of Everglades Policy

Bullsugar Alliance
Alex Gillen, Policy Director

Calusa Waterkeeper
John Cassani, Waterkeeper

Cape Coral Friends of Wildlife
Lori J. Haus-Bulcock, Board Member

Cape Coral Wildlife Trust
Pascha Donaldson, President

Center for Biological Diversity
Jaclyn Lopez, Florida Director

Conservancy of Southwest Florida
Nicole Johnson, Director of Environmental Policy

Conservation Alliance of St. Lucie County
Shari Anker, President

Defenders of Wildlife
Elizabeth Fleming, Senior Florida Representative

“Ding” Darling Wildlife Society
Mike Baldwin, President

Earthjustice
Alisa Coe, Staff Attorney

Environment Florida
Jennifer Rubiello, State Director

Environmental Confederation of Southwest Florida
Becky Ayech, President

Everglades Law Center
Lisa Interlandi, Executive Director

Florida Bay Forever
Elizabeth Jolin, Executive Director

Florida Conservation Voters
Aliki Moncrief, Executive Director

Florida Keys Environmental Fund, Inc.
Charles Causey, President

Florida Native Plant Society
Susan Carr, PhD, President

Florida Oceanographic Society
Mark Perry, Executive Director

Florida Wildlife Federation
Preston T. Robertson, President & CEO

Friends of ARM Loxahatchee National Wildlife Refuge
Catherine Patterson, President

Friends of the Everglades
Philip Kushlan, President

Indian Riverkeeper
Marty Baum, Riverkeeper

International Dark Sky Association, FL Chapter
Diana Umpierre, Chair

Izaak Walton League of America, FL Division
Michael Chenowetht, President

Izaak Walton League of America, FL Keys Chapter
Michael Chenowetht, President

Lake Worth Waterkeeper
Reinaldo Diaz, J.D., Waterkeeper, President

League of Women Voters of Florida
Judith Hushon, State Natural Resources Chair

Marine Resources Council
Leesa Souto, PhD, Executive Director

Martin County Conservation Alliance
Tom Bausch, Board Member

Matanzas Riverkeeper
Jen Lomberk, Executive Director & Riverkeeper

Miami Pine Rocklands Coalition
Relman R Diaz, Secretary

Naples Backcountry Fly Fishers
Edward Tamson Ph.D., Conservation Director

Sanibel-Captiva Conservation Foundation
Ryan Orgera, PhD, CEO

Save the Manatee Club
Anne Michelle Harvey, JD, MS, Staff Attorney

Sierra Club Florida
Frank Jackalone, Chapter Director

South Florida Wildlands Association
Matthew Schwartz, Executive Director

Suncoast Waterkeeper
Andy Mele, Interim Executive Director

The Institute for Regional Conservation
George D. Gann, Executive Director & Chair of the Board

Tropical Audubon Society
Jose Francisco Barros, President

WWALS Watershed Coalition, Inc.
John S. Quarterman, Suwannee Riverkeeper


cc: Noah Valenstein, Secretary, FDEP
Drew Bartlett, Executive Director, SFWMD
SFWMD Governing Board




[1] Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191, 202 (Fla. 4th DCA 2001).
[2] Sw. Ranches Homeowners Assoc. v. Broward Cty., 502 So. 2d 931, 936 (Fla. 4th DCA1987).
[3] American Planning Association FL Chapter letter to Governor DeSantis on HB 7103, May 13, 2019.

Three Lakes WMA in the Kissimmee Prairie (Florida Fish and Wildlife photo by Andy Wraithmell)

Friday, May 17, 2019

Four Remaining Veto Requests of Governor DeSantis

Sierra Club Florida has four remaining veto requests of Governor DeSantis.  These four requests cover threats that both directly and indirectly impact the natural environment upon which we depend, freedom of speech, and the state of our democracy:

Property Development: Amended in the waning hours of the legislative session, HB 7103 turns the growth management law upside down by requiring comprehensive plan amendments to conform to pre-existing development orders, and requiring costs be paid to the prevailing party in challenges to development orders.  This will have a chilling effect on citizen enforcement of comprehensive plans. See letter here:  

Attorney Fees and Costs – HB 829 provides that fees and costs will always be granted to the prevailing party in a challenge involving an ordinance that is ‘’expressly preempted by the State Constitution or by state law.” Even if the preemption is expressed, the scope of the preemption  may legitimately be in doubt – exactly the sort of disagreement the courts are designed to settle. The risk of being assessed the local government’s fees and costs may be chilling for regular citizens challenging an ordinance, but not necessarily for a developer or other large landholder. Legal fees are a cost of doing business. The bill attempts to coerce localities to cave to any challenge they are not absolutely sure they are going to win. This bill is actually unnecessary, as Florida Statute already provides for awarding costs to victims of unscrupulous or frivolous suits. Additionally, a newly added Section 2 of the bill adds an implicit preemption of the local regulation of biosolids that would begin on the effective date of the FL Department of Environmental Protection regulation of same. See letter here:  

Voting Rights Restoration: When other bills failed, SB 7066 was amended with the restoration of rights (Amendment 4) languageThe legislation will harm all returning citizens who have prior felony convictions but have completed all but the financial obligations of their sentences by rendering them ineligible to vote. See letter here: 

Constitutional Amendments: HB 5 was amended late in the session to include the citizens' initiative petition gatherers language which will make it harder for citizen initiatives to get on the ballot. The bill makes it illegal to pay petition gatherers based on the number of petitions they collect, requires submission of information about petition gatherers, including their permanent and temporary addresses, and would require the gatherers to sign sworn statements that they will follow state laws and rules. The bill would also require petitions to be turned into county supervisors of elections no more than 30 days after being signed by voters, and includes penalties of up to $50 for each late submission. Fines could grow to $1,000 for any petition “willfully” not submitted on time. See letter here: http://www.sierraclubfloridanews.org/2019/05/sierra-club-florida-asks-governor.html


SIERRA CLUB RESPONDS TO SIGNING OF “TOLL ROADS TO NOWHERE” BILL BY GOVERNOR DESANTIS (PRESS RELEASE)


For Immediate Release                                            
May 17, 2019                                     
Contact:
Frank Jackalone, 727-824-8813, EXT. 302, 727-804-1317 (c), frank.jackalone@sierraclub.org
Tim Martin, 727-251-9979 timothymartin@suncoastsierra.org
Deborah Foote, 850-727-4039 (office), 251-533-1798 (c), deborah.foote@sierraclub.org


**PRESS RELEASE**

SIERRA CLUB RESPONDS TO SIGNING OF “TOLL ROADS TO NOWHERE” BILL BY GOVERNOR DESANTIS
Will destroy much of Florida’s remaining natural and rural areas

TALLAHASSEE, FL. (May 17, 2019) –
Governor Ron DeSantis today signed into law SB 7068, also known as the Toll Roads to Nowhere Bill.  In response, Sierra Club Florida issued the following statements:

Statement of Tim Martin, Sierra Club Florida Conservation Chair
Sierra Club Florida is deeply disappointed that Governor DeSantis has chosen to destroy much of Florida’s remaining natural and rural areas to build unnecessary and costly toll roads that won’t meet Florida’s true transportation needs. By ignoring the recommendations of the I- 75 Relief Task Force, the Governor’s decision to build the “roads to nowhere” will do nothing to address congestion in urban areas, and funding to support these new toll roads will be prioritized over other necessary transportation projects.”

“By building these toll roads, Florida stands to lose critical habitat for Florida panthers and black bears; protected lands and wildlife corridors risk being fragmented; and the roads and resultant development are likely to increase pollution - impacting Florida’s rivers and springs and increasing red tide and blue green algae outbreaks. Funding to plan for these toll roads will be diverted from general revenue, removing hundreds of millions of dollars from other critical areas such as education, healthcare, and the environment.”

“This decision will haunt the Governor. Every time he claims to be pro-environment going forward we will be forced to remind people of how, when faced with the biggest environmental decision in decades, he chose to side with wealthy landowners and industry interests. Teddy Roosevelt is probably rolling in his grave right now that a comparison was ever made between him and Governor DeSantis.”  

Statement of Frank Jackalone, Sierra Club Florida Chapter Director:
“Governor DeSantis failed the people of Florida and our natural environment today. He signed a bill that would spend billions of taxpayer dollars to build 320 miles of toll roads traversing Florida’s pristine nature coast and rural heartland.  These roads are a gift to developers who want to convert hundreds of thousands of acres of forests, wetlands, and ranches into new cities, towns and subdivisions.”

“Ron DeSantis proved that he’s no Teddy Roosevelt.  During the Session, he stood by idly while the Legislature slashed funding for the Florida Forever Program and provided no funding for the Rural Lands Protection Program - disregarding the mandate of Florida’s voters set by Amendment One in 2014 to acquire and protect important conservation lands.  DeSantis also remained silent when Senate President Bill Galvano bullied the Legislature to accept his poorly thought out Toll Roads to Nowhere plan without even getting input from the Governor’s own staff at the Department of Transportation and the Department of Environmental Protection.  Instead of heeding the strong concerns of environmental and community leaders, Governor DeSantis caved into pressure from Galvano and wealthy business interests that stand to profit from the three toll roads and the massive development that will accompany them.”

“It is a false narrative that building toll roads means economic development in rural areas. One only needs to look at I-10 between Tallahassee and Pensacola to see that it doesn’t happen. What will come is sprawl, local businesses replaced with gas stations, fast food restaurants and chain stores surrounding toll road interchanges, and the deterioration of robust downtowns due to being bypassed by the toll roads.”

“Sierra Club Florida will take every action in our power to prevent the construction of the three toll roads. We will join together and assist residents of communities whose homes, businesses and rural way of life will be threatened by these destructive roads. We will unite with taxpayers who don’t want to assume the costs of unneeded toll roads, and we will work with urban residents whose infrastructure and transit needs are being ignored by the State. We will go to court, demand a rehearing by the Legislature, and hold elected officials accountable for voting for this ruinous plan.”


State Senate President Galvano pats Governor DeSantis on the back at the signing ceremony for Toll Roads Bill.  Source: Florida Politics

###


Thursday, May 16, 2019

Sierra Club Letter to Governor DeSantis Requesting Veto of SB 7066


May 10, 2019

The Honorable Ron DeSantis, Governor
Plaza Level 1, The Capitol
400 South Monroe Street
Tallahassee, FL 32399-0001

Dear Governor DeSantis:

Sierra Club Florida urges you to veto Senate Bill 7066 titled “Election Administration.” 
Passed by nearly 65 percent of voters last fall, Amendment 4 was supposed to automatically restore the voting rights of former felons who completed their sentences except for those convicted of murder or a felony sexual offense. SB 7066 will require former felons to repay all restitution along with all court-ordered fees and fines before regaining their voting rights. The legislation does allow for financial obligations to be considered completed if a victim or court forgives the restitution, or a judge allows community service in lieu of payment.
We believe that the legislature has violated the spirit of what voters supported by making a person’s voting rights dependent on how much money they can afford to pay and this requirement will have a disparate impact on a group that is disproportionately black and may lack employment or large incomes. Amendment 4 does not need clarification, and lawmakers are merely attempting to undermine one of the biggest voting rights expansions in decades.
SB 7066 also will create an extra burden on Florida’s court system. There is no single entity responsible for tracking fines, fees, and restitution, which makes it unclear how people will be kept updated on the total amount they must repay, or how local elections officials will track who can and cannot register. Additionally, it doesn’t contain any information on how courts should handle the influx of people seeking to have financial obligations dismissed or converted to community service.
SB 7066 is a step backward for efforts to reintegrate people with felony records into local communities and we strongly urge you to veto this legislation.

Sincerely,

Deborah L. Foote
Government Affairs and Political Director

Sierra Club Letter to Governor DeSantis Requesting Veto of House Bill 5


May 10, 2019

The Honorable Ron DeSantis, Governor
Plaza Level 1, The Capitol
400 South Monroe Street
Tallahassee, FL 32399-0001

Dear Governor DeSantis:

Sierra Club Florida urges you to veto House Bill 5 titled “Ballot Measures.” 

Tacked onto a bill in the waning hours of the last full day of the legislative session, the adopted amendment circumvented the legislative process. Specifically, the House added the petition-gathering restrictions to HB 5 which was focused on local sales taxes and sent it to the Senate. The Senate then approved it, though a separate bill that included petition-gathering restrictions failed to make it through the Senate committee process during the session. 

The petition-gathering process plays a crucial role in placing citizens’ initiatives on the ballot. The
legislation makes it more cumbersome and expensive to collect the petitions necessary to gain access to the ballot by:
  • making it illegal to pay petition gatherers based on the number of petitions they collect;
  • requiring all paid petition gatherers to register with the Department of State including provision of their permanent and temporary addresses, and requiring the gatherers to sign sworn statements that they will follow state laws and rules; and
  • requiring petitions to be turned into county supervisors of elections no more than 30 days after being signed by voters and includes penalties of up to $50 for each late submission- growing to $1,000 for any petition “willfully” not submitted on time.

There also are changes to ballot language. Specifically, the ballot would have to name the initiative’s sponsor, state how many out-of-state petition gatherers were used, describe the percentage of money raised for the initiative from Floridians, and provide a statement in BOLD regarding the economic impact of local and state government.

Sincerely,

Deborah L. Foote
Government Affairs and Political Director

Sierra Club Letter to Governor DeSantis- Veto House Bill 829


May 16, 2019

The Honorable Ron DeSantis
Plaza Level 1, The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001

Dear Governor DeSantis:

Sierra Club Florida urges you to veto House Bill 829, titled “Attorney Fees and Costs.”
HB 829 is an attempt by the legislature to coerce local governments into acceding to more preemption than may be supported by statutory text by increasing the financial risk of going to court to defend an ordinance challenged on the grounds that it is expressly preempted. In addition, section 2 of the bill (ll. 52-59) makes clear the legislature’s intent to preempt regulation of Class B biosolids in a one-size-fits-all fashion. This is inappropriate in water quality issues which should be addressed on a watershed by watershed basis.

Specifically, the bill would:

1)      Use the threat of awarding the prevailing party attorney fees and costs to coerce local governments into acceding to broader constitutional or statutory preemptions than may actually exist in law. HB 829 would impose these expenses on non-prevailing parties even if initial presentations to the court were good faith arguments regarding whether the scope of an express preemption extended to the subject of a local ordinance, and if the arguments were made with a reasonable expectation of success. A general exemption from monetary sanctions for good faith behavior already exists in 57.105 (3)(a) F.S. The basis for this exemption is to allow the judicial system to operate in a way that reserves sanctions for malfeasance, not for having a weaker argument.

The party challenging an ordinance gets an initial advantage from the pressure on the local government to withdraw or repeal its ordinance before the court process is completed and costs can be awarded.  The challenger though, is at the same or greater risk should the local government successfully follow through on defending the legitimacy of its ordinance since the challenger will then be on the hook for the local government’s fees and costs in addition to his or her own.

Neither party can control what the other’s fees and costs will be. This serves to discourage both parties from entering the legal arena to challenge or defend. The inability to budget within one’s means is a strong disincentive to participation in a challenge or defense of an ordinance.

The legislature’s power is wrongly increased whenever a dubious claim of preemption goes unchallenged and law is not clarified because of an indefensible disincentive to accessing the judiciary. General laws are written to apply to the state as a whole and interpretation is often necessary. Local governments and their constituencies should not suffer diminished autonomy because the legislature chooses to make court action prohibitively risky. 
2)      Apply the disincentive of awarded fees and costs to local governments’ environmental ordinances.  Subsection (5) of HB 829 exempts local ordinances adopted pursuant to Part II of Chapter 163 (Growth Management issues), the Florida Building Code, and the Florida Fire Prevention Code.  However, a review of those statutes reveals that there is nothing in any of them that deal with invasive or exotic species.  Accordingly, an express preemption of regulations dealing with invasives to the state would be subject to the fees and costs provisions of this bill which could weaken or halt a locality’s attempts to get ahead of a serious threat in a timely manner.  Even more disturbingly, section 2 of the bill makes clear the legislature’s intent to preempt local control of the management of land application of Class B biosolids.  The relevant text of the bill reads:

A municipality or county may continue to enforce or extend an ordinance, regulation, resolution, rule, moratorium, or policy adopted before February 1, 2019, relating to the land application of Class B biosolids until the ordinance, regulation, resolution, rule, moratorium, or policy is repealed by the municipality or county or until the effective date of the rules adopted by the Department of Environmental Protection, whichever occurs first.

This text indicates an implied preemption that has a number of negative aspects:
·         The intended preemption is clearly implied as beginning on the effective date of rules adopted by the Department of Environmental Protection. The preemption is to be complete; no more stringent regulation will be permitted.  Residents of communities are the ones who have to live with water pollution and must be able to adopt regulations strong enough to do the job of protecting their water resources.  Also, it is the local community that is on the hook for violations of the Clean Water Act, not the State.  Localities must be able to adopt regulations, up to and including bans, that work effectively and must not be saddled with a halfway measure that a statewide regulation is very likely to be. Section 2 of the bill exempts growth management ordinances from the costs and fees provisions of HB 829, but it decidedly does not exempt them from preemption as this portion of the bill illustrates.
·         Water quality regulation should be done on a watershed by watershed basis as soils, vegetation, impermeable surfaces, and sources of pollution vary throughout Florida.
·         The implied preemption in section 2 of the bill contravenes of 163.3162 (3) (h) which currently states that ordinances regulating “the transportation or land application of domestic wastewater residuals or other forms of sewage sludge shall not be deemed to be duplication of regulation.”

We urge you to exercise your authority to veto HB 829 in order to maintain access to the courts, to reserve the use of monetary sanctions for malfeasance as already established in Chapter 57 of the Florida Statutes, to allow challengers and local governments to make rational choices regarding how to control their costs in budgeting for legal actions, and to indicate your disapproval of preempting effective local environmental ordinances.

Sincerely,

Deborah L. Foote
Government Affairs & Political Director

Tuesday, May 14, 2019

Sierra Club Letter to Governor Ron DeSantis: Veto HB 7103


May 14, 2019

The Honorable Ron DeSantis
Plaza Level, The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001

RE: House Bill 7103

Dear Governor DeSantis:

Sierra Club Florida urges you to veto HB 7103, titled “Community Development and Housing.”

HB 7103 threatens Florida with a proliferation of sprawl by effectively eliminating the only means of enforcing comprehensive plans, and is unnecessary in light of statutory sanctions for improper or baseless legal actions.

Specifically the bill would:

1) Threaten Florida with a proliferation of sprawl by making challenges to development orders a potential financial catastrophe for the citizens the law relies on for enforcement.  HB 7103 requires the court to award costs and fees to the prevailing party.  Since the parties in such a proceeding are necessarily a local government and an “aggrieved or adversely affected party,” there is a clear imbalance in the resources available to each.  As noted in the legislative findings in 57.111(2) F.S.:

The Legislature finds that certain persons may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense of civil actions and administrative proceedings. Because of the greater resources of the state, the standard for an award of attorney’s fees and costs against the state should be different from the standard for an award against a private litigant. The purpose of this section is to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in certain situations an award of attorney’s fees and costs against the state.

HB 7103 makes no such accommodation for the differences between citizens and local governments because its purpose is to intimidate citizen action against development orders inconsistent with local comprehensive plans.

The only bulwark against violations of an adopted comprehensive plan is citizen action; Florida Statutes provide no other mechanism.  The fees and costs provision makes the choice to challenge the approval of a development order equivalent to deliberately choosing to risk bankruptcy. 
Accordingly, it is clear that few, if any, such challenges will be mounted if this bill becomes law.  The result will be the end of growth management in Florida. Land use will become a race to the bottom, and residents will be doomed to increased costs due to inefficient design and planning that only increase with time. Pollution from runoff and unnecessary automobile use will increase, and Floridians will see a decreased quality of life.  Florida has seen this before. It is why the Growth Management Act was adopted in the first place.

2) The punitive fees and costs provision of HB 7103 is unnecessary to prevent improper or baseless legal actions or those designed only to cause delay.  There are already numerous provisions in statute that deal with awards of costs and fees, and in many cases these awards are sanctions for wasting the time of the court or for using the courts to harass another party. Chapter 57 of the Florida Statutes is devoted to costs and fees. 57.105 F.S. provides that costs and fees are to be awarded if a claim or defense is made that is not supported by material facts or would not be supported by the application of then-existing law to those material facts. Costs and fees also are awarded if a legal action is shown to be designed to cause unreasonable delay. And subsection (6) of 163.3215, the very section of law amended in HB 7103, provides:

The signature of an attorney or party constitutes a certificate that he or she has read the pleading, motion, or other paper and that, to the best of his or her knowledge, information, and belief formed after reasonable inquiry, it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or for economic advantage, competitive reasons or frivolous purposes or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the court, upon motion or its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

There can be no reason to institute the fees and costs provision of HB 7103 other than to intimidate by the threat of penury aggrieved or adversely affected citizens who would otherwise come forward to challenge a development order that is inconsistent with a local comprehensive plan. 

We urge you to recognize that unenforceable laws protect no one, to protect the viability of growth management in Florida for the State’s residents and the communities where they choose to live, and to defend the right of citizens to go to court to call their government to account without having to literally ‘bet the farm’ on the outcome. We strongly urge you to veto HB 7103.

Sincerely,

Deborah L. Foote
Government Affairs & Political Director