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City of Coconut Creek v. City of Deerfield Beach3/19/2003
Appellant, City of Coconut Creek ("Coconut Creek"), appeals an order dismissing with prejudice its amended complaint challenging the consistency of a development order with Broward County's Comprehensive Plan and alleging substantive and procedural due process violations in the development order approval process. We conclude that appellant failed to satisfy a statutory condition precedent to suit within the time required, and must assert its substantive and procedural due process claims through certiorari. We affirm the dismissals, but reverse solely for the dismissals as to counts II and III to be redesignated as being without prejudice.
According to Coconut Creek's amended complaint, it owns land adjacent to property owned by appellee Deerfield Beach Energy Center, L.L.C. ("Energy Center"), in Deerfield Beach, Florida. Energy Center's land was annexed by Deerfield Beach in 1990 under an act that subjected it to Broward County's Comprehensive Plan and Code of Ordinances until December 1, 2002. Coconut Creek alleges that neither Broward County's Comprehensive Plan nor its zoning code permits power plants on Energy Center's property and that on June 18, 2001, Deerfield Beach's Development Review Committee, nonetheless, granted site plan approval for Energy Center to build a power plant.
Count I of Coconut Creek's amended complaint sought to enjoin issuance of the site plan approval, under section 163.3215, Florida Statutes (2001). Counts II and III sought to enjoin the approval's enforcement based on alleged substantive and procedural due process violations in the approval process.
For the purposes of this proceeding, the parties agree that the site plan approval is a "development order" as defined by section 163.3164(7), Florida Statutes (2001); that the development order is required to be consistent with the comprehensive plan under section 163.3194(1)(a), Florida Statutes (2001); and that Coconut Creek is an "aggrieved or adversely affected party" entitled to bring suit to challenge the consistency of the site plan approval with the comprehensive plan, under section 163.3215(1). Consequently, Coconut Creek's contention that the site plan approval is inconsistent with the comprehensive plan is controlled by section 163.3215. See ยง 163.3215(3)(b) ("Suit under this section shall be the sole action available to challenge the consistency of a development order with a comprehensive plan adopted under this part.").
Section 163.3215(4) provides that:
As a condition precedent to the institution of an action pursuant to this section, the complaining party shall first file a verified complaint with the local government whose actions are complained of setting forth the facts upon which the complaint is based and the relief sought by the complaining party. The verified complaint shall be filed no later than 30 days after the alleged inconsistent action has been taken. The local government receiving the complaint shall respond within 30 days after receipt of the complaint. Thereafter, the complaining party may institute the action authorized in this section. However, the action shall be instituted no later than 30 days after the expiration of the 30-day period which the local government has to take appropriate action. Failure to comply with this subsection shall not bar an action for a temporary restraining order to prevent immediate and irreparable harm from the actions complained of.
Site plan approval was given on June 18, 2001. The original complaint was filed in circuit court on July 13, 2001. Counsel stipulated process was served on the City of Deerfield Beach the same day. Deerfield Beach served its motion to dismiss on August 2, 2001 allegin
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