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Do You Have Standing? How to Enforce or Challenge Local Zoning Ordinances in Florida
By: Jeff Wright, Esquire and Krithika Venugopal, Esquire
Too many chickens in your neighbor’s yard? Endless noise around the cul-de-sac? What do you do? Well, you might consider enforcing or challenging the local zoning ordinance through a lawsuit. The only catch is that you must establish something called “standing.”
What is Standing?
The term “standing” refers to an individual’s capacity to file a lawsuit. To put it simply, the individual must have suffered some injury that can be remedied through the lawsuit they intend to file. While the general legal definition is more technical, courts use an even more particularized definition when it comes to zoning and land use regulations.
Standing in Land Use and Zoning Lawsuits
This particularized definition was central to a recent opinion from the Fourth District Court of Appeal. In Everett v Martin County, the plaintiffs sued Martin County to enforce certain zoning ordinances and land use regulations against a neighboring business (who was also a defendant). Prior to the lawsuit, Martin County had issued code violations to the offending business for operating an illegal salvage yard. The county and the business entered an agreement that permitted the business to use its property for scrap metal recycling (as opposed to a salvage yard).
In their complaint, the plaintiffs claimed the offending business continued to operate a salvage yard in violation of the county’s zoning ordinances and land use regulations. They also challenged the validity of the agreement with the county (which permitted scrap metal recycling), claiming that the county employees who had entered the agreement had acted beyond the scope of their authority. In response, the defendants challenged the plaintiffs’ standing to sue.
The Three Types of Standing
In adjudicating the dispute, the court relied upon the landmark case of Renard v. Dade County, 261 So. 2d 832 (Fla. 1972). Renard recognizes three (3) categories of standing in the context of zoning litigation:
- Enforcing a zoning ordinance requires the plaintiff to comply with the “special injury” rule which requires special damages distinct from those suffered by the public.
- Attacking a validly enacted zoning ordinance as being an unreasonable exercise of legislative power requires the plaintiff to prove that their legally recognizable interest has been adversely affected by the proposed zoning action.
- Attacking a zoning ordinance for not having been properly enacted in the first place can be challenged by any affected resident, citizen or property owner of the governmental unit in question.
What is the “Special Injury” Rule?
The most difficult of these is the “special injury” rule in (1). The rule obligates the plaintiff to “show injury different both in kind and degree from that suffered by the public at large.” On the other hand, category (3) is the least burdensome category.
The Everett plaintiffs argued the applicability of the least difficult standard in (3), the court ruled otherwise. Since the plaintiffs sought to enforce a zoning ordinance rather than attack the ordinance as improperly enacted, the plaintiffs were required to comply with the requirements of category (1) not (3). The plaintiffs’ challenge to the county agreement as an improper enactment could not implicate the lesser standard since the county agreement was not a zoning ordinance.
Saddled with the heightened requirements of the “special injury” rule, the plaintiffs in Everett could not demonstrate their standing to sue. Even the offending business’ unsightliness, its pollution of waters on one of the plaintiffs’ properties, and the increased noise and traffic congestion did not amount to a “special injury” suffered by the plaintiffs. These annoyances and inconveniences affected the public at large, not just the plaintiffs.
Do You Have Standing? How to Determine if You Can Sue
Enforcing or challenging zoning ordinances and land use regulations requires knowledge of the related nuances and intricacies. As with all legal challenges, having a qualified and experienced attorney protecting your best interests is important to pursuing and preserving your rights. Those needing assistance may reach us at jeff.wright@henlaw.com or krithika.venugopal@henlaw.com to schedule a consultation.