EDGEWATER BEACH v. WALTON CTY

ON MOTIONS FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION

LEWIS, J.

We deny the motions for rehearing en banc and certification. However, we grant the motion for rehearing for the limited purpose of clarifying our previous opinion. Therefore, we withdraw our opinion dated August 22, 2002, and issue the following clarified opinion in its place.

Edgewater Beach Owners Association, Inc. and Robert A. Butterworth, Attorney General of Florida, ("appellants") seek review of an order dismissing their action for injunction filed under section 163.3125, Florida Statutes (1995), and granting final judgment in favor of Grand Dunes and KPM ("developers"). Although the trial court erred in finding that appellants lacked standing, we affirm the trial court's order because the developers have statutory vesting rights in the development, exempting them from complying with Walton County's comprehensive plan. Because we affirm on the basis of statutory vesting, we decline to address the remaining issue on appeal.

In 1982, Walton County ("County") approved development of a six-phase condominium project containing 476 residential units. The project was authorized as a Development of Regional Impact (DRI). The County issued Resolution 82-12, authorizing construction of the project without any conditions. In 1984, Phases I and II consisting of 175 total units were completed. Edgewater Beach Owners Association, Inc. ("Association") is a condominium association and the owner of Phases I and II. The developers own the remaining undeveloped property.

As the 1982 development order had an expiration date of June 8, 1992, KPM sought an extension of the build out date and expiration date. In 1993, the County issued Resolution 93-2, which extended the expiration date of the original development order. Resolution 93-2 also approved KPM's proposed design changes, which lowered the density in Phase III from 42 units to 19 townhomes. The resolution conditionally approved construction in Phases IV through VI at the 1982 levels, subject to a traffic study. The County concluded that the amendment to the 1982 order was not a substantial deviation and required no further DRI review under chapter 380, Florida Statutes.

The Association sought review of the County's 1993 resolution with the Florida Land and Water Adjudicatory Commission ("FLWAC"). FLWAC dismissed the appeal for lack of standing, stating that the Association was not a permissible party under chapter 380 to appeal to FLWAC. This Court determined that chapter 380 permitted the Association to appeal to FLWAC and remanded for further proceedings. Edgewater Beach Owners Ass'n v. Bd. of County Comm'rs of Walton County, 645 So.2d 541 (Fla. 1st DCA 1994). On remand, FLWAC found that the Association did not adequately allege an adverse effect in order to establish standing. In addition, FLWAC held that the DRI was not abandoned and that the County had the discretion to revive the 1982 DRI. On appeal, this Court affirmed FLWAC's decision. Edgewater Beach Owners Ass'n v. Bd. of County Comm'rs of Walton County, 694 So.2d 43 (Fla. 1st DCA 1997). The Association did not file any other action regarding Resolution 93-2.

In October 1995, the developers filed a Notice of Proposed Change, seeking to construct only two additional phases rather than four. The developers proposed building 89 units in Phase III and 89 units in Phase IV, each phase consisting of 20 stories. The County approved this development plan by issuing Resolution 95-82 as an amendment to the 1982 development order, as amended by Resolution 93-2. The Resolution further stated that the "DRI project is vested from application of the 1993 Walton County Comprehensive Plan pursuant to Section 163.3167(8), Florida Statutes" for development rights to 301 condominium units, the number of units allowed under the 1982 development order. The County's 1993 comprehensive plan imposed a four-story height restriction and limited the density of development to 12 units per acre.

The Association filed an appeal of this resolution with FLWAC, arguing that the changes in the development were not vested from compliance with the comprehensive plan. FLWAC upheld the Association's challenge to Resolution 95-82. This Court, however, determined that, based upon the record, the Association did not have standing to maintain the action before FLWAC. Grand Dunes v. Walton County, 714 So.2d 473 (Fla. 1st DCA 1998). The Court vacated FLWAC's order and remanded the case with directions to dismiss the petition for lack of standing. Id. at 475.

On March 7, 1996, the Association filed a complaint against Walton County, Grand Dunes and KPM, pursuant to section 163.3215 seeking to enjoin any development under Resolution 95-82. It challenged the validity of Resolution 95-82, claiming that it was inconsistent with the county's comprehensive plan. Grand Dunes and KPM responded that their rights to complete development vested under section 163.3167(8), Florida Statutes (1995), and under the common law principle of equitable estoppel. On December 16, 1998, Robert A. Butterworth, Attorney General, moved to intervene in the action, claiming that the issue of vested rights was an issue of statewide importance. The parties stipulated that the development amended by Resolution 95-82 would be inconsistent with the density requirements of the 1993 comprehensive plan but for the vesting of rights under statute or common law.

At trial, the Association's president testified that some members' ocean views would be blocked by the development which would lower the members' property value. She further stated that the proposed development would place some of their recreational facilities in the shade until noon. After the Association rested, the developers orally moved to dismiss, stating that the motion was a bench trial equivalent to a motion for directed verdict.

The trial court dismissed the action finding that the appellants failed to establish that they were "an aggrieved or adversely affected party" as defined in section 163.3215(2), Florida Statutes (1995). The trial court further held that, even assuming the Association had standing, the developers had vested statutory and common law rights despite the attachment of conditions to the future construction of phases IV through VI in Resolution 93-2.

Determining whether a party has standing is a pure question of law to be reviewed de novo. See Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs of Putnam County, 757 So.2d 590 (Fla. 5th DCA 2000). Prior to 1985, the common law rule for standing applied to actions challenging a land use decision. Id. at 593. Under the common law rule, a party had to possess a legally recognized right that would be adversely affected by the land use decision in order to have standing to challenge that decision. Id.; see also Citizens Growth Mgmt. Coalition of West Palm Beach, Inc. v. City of West Palm Beach, 450 So.2d 204, 208 (Fla. 1984). The 1985 adoption of section 163.3215, however, liberalized the standing requirements by providing a right to enforce a comprehensive plan to parties having more than a general interest. Putnam County, 757 So.2d at 593; Southwest Ranches Homeowners Ass'n v. County of Broward, 502 So.2d 931 (Fla. 4th DCA 1987) (stating that "this section liberalizes standing requirements and demonstrates a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action").

To establish standing under section 163.3215(2), a party must demonstrate that it is an "aggrieved or adversely affected party" who will "suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan." As a remedial statute, section 163.3215 should be liberally construed to ensure standing for a party with a protected interest under the comprehensive plan who will be adversely affected by the local government's actions. See Educ. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621 (Fla. 4th DCA 1999). The statute, therefore, gives citizens with adversely affected interests a significantly enhanced standing to challenge the consistency of development decisions with the local comprehensive plan. See Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla. 4th DCA 2001).

Here, the Association alleged that the proposed development was inconsistent with its protected interests in density and intensity as limited under the 1993 comprehensive plan. At trial, the Association presented testimony of adverse effects to these interests if the development proceeded as approved. The Association's president testified that members' ocean views would be blocked by the development which would lower the members' property values. She further stated that the proposed development would place some of the Association's recreational facilities in the shade until noon. As an adjacent landowner, the Association has a more direct stake in the impact of the development than the general community. Under the liberalized standing requirements of section 163.3215, the Association, a group of property owners whose land adjoins the proposed development and stands to be directly affected by the alleged aspects of the development, has, therefore, shown standing to contest Resolution 95-82. Accordingly, the trial court erred in finding that the Association lacked standing to bring this action and dismissing its complaint for lack of standing.

Although the trial court erred in dismissing the Association's complaint for lack of standing, the error was harmless. It is harmless error when, absent the error, the same result would have been reached. See Nat'l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840 (Fla. 1st DCA 2000). Here, absent the finding that the Association lacked standing, the trial court correctly found that the developers were vested under section 163.3167(8) from complying with the County's 1993 comprehensive plan.

We review the trial court's interpretation of section 163.3167(8) de novo. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582 (Fla. 2000); Agency for Health Care Admin. v. Wilson, 782 So.2d 977 (Fla. 1st DCA 2001). Section 163.3167(8) provides that: "Nothing in this act shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to chapter 380 or who has been issued a final local development order and development has commenced and is continuing in good faith." When a court construes a statute, its goal is to ascertain legislative intent, and if the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words. Aetna Cas. Sur. Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla. 1992).Applying that standard here, the language of section 163.3167(8) is clear and unambiguous and should be given its plain meaning. We hold that the phrase "and development has commenced and is continuing in good faith" does not modify the phrase "any development that has been authorized as a development of regional impact pursuant to chapter 380." The disjunctive "or" separates the phrase "development that has been authorized as a development of regional impact" from the phrase "final local development order and development has commenced and is continuing in good faith." Cf. Village of North Palm Beach v. Mason, 167 So.2d 721 (Fla. 1964) (interpreting the phrase "holding a valid and existing franchise granted by the board of county commissioners of any county of this state in a given county" to not apply to "Every public utility" as it was separated by a comma and the disjunctive "or"). Although punctuation is the most fallible and least reliable indication of legislative intent, see Wagner v. Botts, 88 So.2d 611, 613 (Fla. 1956), it should be noted that no comma or other punctuation mark exists after the phrase "or who has been issued a final local development order." Under the rule of grammatical construction, a qualifying phrase is read as limited to the last item in a series when the phrase follows that item without a comma. See State ex rel. Owens v. Pearson, 156 So.2d 4, 6 (Fla. 1963). Therefore, the "continuing in good faith" requirement is limited to local development orders. The dissent interprets the "continuing in good faith" phrase to apply to a DRI development as well as local development orders. To arrive at such an interpretation would require inserting a comma after "final local development order." However, we are not permitted to add punctuation marks which the Legislature did not employ. See id.

The dissent's interpretation of section 163.3167(8) would also render the statute's reference to a DRI development order superfluous. A DRI development order is a "final local development order," just as a building permit or zoning decision is. See § 380.06(15), Fla. Stat. (1995) (setting forth the procedure for local government to follow in issuing a DRI development order); § 163.3164(7), Fla. Stat. (1995) (defining "development order" as "any order granting, denying, or granting with conditions an application for a development permit"). If the "commenced and continuing in good faith" requirement is read to apply to both DRI and non-DRI development orders, then no reason exists to distinguish the two. The Legislature could have simply granted vested rights for any development "that has been issued a final local development order and development has commenced and is continuing in good faith."

"[A]ll words in a statute should be construed so as to give them some effect, not so as to render them meaningless surplusage." Fla. Police Benevolent Ass'n v. Dep't of Agric. and Consumer Servs., 574 So.2d 120, 122 (Fla. 1991); see also Hawkins v. Ford Motor Co., 748 So.2d 993, 1000 (Fla. 1999) (stating that statutory interpretations which render provisions superfluous are disfavored). If the specific reference to DRI development orders in section 163.3167(8) is to be given effect, it must be read to create vested rights for DRI developments orders regardles of whether development has commenced or continued in good faith. Therefore, we reject such an interpretation which would render the reference to DRI as mere surplusage.

Furthermore, the legislative history of section 163.3167 supports our interpretation. In 1975, the Legislature created section 163.3167 and provided that "[n]othing shall limit or modify the rights of any person to complete any development that has been authorized as a Development of Regional Impact pursuant to chapter 380." See Ch. 75-257, § 4, at 799, Laws of Fla. In its creation of the vesting provision, the Legislature did not require that a DRI development must commence and continue in good faith for the developer to maintain its right to develop the DRI. In 1985, the Legislature added the phrase "or who has been issued a final local development order, and development has commenced and is continuing in good faith." See Ch. 85-55, § 3, at 213, Laws of Fla. In this legislation, the Legislature included a comma after "local development order." The inclusion of this comma suggests that the "continuing in good faith" requirement would apply to a DRI development as well. However, the very next year, the Legislature purposely deleted the comma from the statute. See Ch. 86-191, § 6, at 1415, Laws of Fla. This shows an intent that the good faith requirement should not apply to a DRI development. Accordingly, we conclude that upon attaining an authorized DRI development, a developer need not commence or continue development in order to retain its vesting rights under section 163.3167.

As the present case involves a development of regional impact, section 163.3167 must be read in pari materia with the requirements of section 380.06, Florida Statutes (1995). See State v. Fuchs, 769 So.2d 1006 (Fla. 2000) (stating that statutes relating to the same or closely related subject should be read in pari materia); Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla. 1981). Section 380.06 outlines the procedures for review and approval of a development of regional impact. Once approved as a DRI and a development order has been issued authorizing development, a project need not be subject to additional DRI review and approval under section 380.06 unless an amendment to the project involves a substantial deviation. § 380.06(19), Fla. Stat. (1995).

Section 380.06(19) provides for the local government to determine whether a proposed amendment to a DRI constitutes a substantial deviation. Here, the County specifically found in both the 1993 and 1995 resolutions that the amendments were not substantial deviations requiring further DRI review. On appeal, appellants do not challenge this determination. Because neither the 1993 nor the 1995 resolution involved substantial deviations, the changes did not require further DRI review.

As the amendments did not require further DRI review, the project did not lose its original authorization for DRI development in the 1982 resolution, which the 1993 and 1995 resolutions amended. Section 163.3167(8) specifically states that the developers have vested rights to complete "any development that has been authorized" as a DRI. By the plain meaning of the word "any," vesting attaches once the original DRI development order authorizes development. This vesting would continue until the development was subjected to another DRI review. That is, non-substantial deviations to the original DRI development order would not cause loss of the vesting rights to the original development plan. Under section 380.06(19), a substantial deviation would lead to a new DRI review and a new authorization for DRI development. Therefore, with a substantial deviation, a developer would lose any vested rights in the previous development, and new vested rights would arise under section 163.3167(8) for the new DRI authorization.

Here, the developers did not lose any vesting rights to the original development plan because the 1993 and 1995 resolutions were non-substantial deviations. Furthermore, the 1982 development order authorized unconditional development of the project. The developers were not required to obtain future development orders to complete Phases III through VI. Therefore, we affirm the trial court's finding that the 1993 and 1995 amendments did not limit or modify the developers' statutorily protected vesting rights to the 1982 development plan.

The Association and the Attorney General cite section 163.3194(1)(a), Florida Statutes (1995), for the proposition that the 1995 resolution must comply with the County's 1993 comprehensive plan. Section 163.3194(1)(a) states: "After a comprehensive plan, or element or portion thereof, has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted." (emphasis added). This section only applies to land covered by the County's 1993 comprehensive plan. As discussed above, section 163.3167(8) removes the vested 1982 development area from the requirements of the 1993 comprehensive plan. Therefore, section 163.3194(1)(a) does not apply in this situation. As such, the amended development order need not be consistent with the comprehensive plan. Accordingly, the trial court did not err in finding that the developers were vested, under section 163.3167(8), from complying with the County's 1993 comprehensive plan.

We, therefore, affirm the trial court's entry of final judgment in favor of the developers.

AFFIRMED.

BARFIELD, J., CONCURS; BOOTH, J., DISSENTS WITH WRITTEN OPINION.