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