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Independent Reporting · Palm Coast, Florida
Property Rights & Process  ·  Palm Coast LDC

Water Can’t Stop a Rezoning. Here’s What Can.

By Johnny Diamond  ·  PalmCoastStorylines.com
Chief Investigative Correspondent
Editor’s Note

We’re going to try something different in our composition because of the complexity of this issue. The legal reasoning behind each claim — the case law, the statute, the supporting documents — lives in the underlined links throughout. Read those to fully understand the legal constructs involved.

Palm Coast, FL — City Council chambers. Any Tuesday.

The chamber fills. The line to the mic grows. Advocates and activists gather to have their say on something that will affect their lives. Not an episode. Not a podcast. The real thing.

Our neighbors go to those we’ve elected, protecting their homes, their families, their way of life. Lately, they talk about water. It’s well known we have a crisis with water.

People speak passionately, hopeful their voice will shape the outcome. Whether it can depends on the mysterious LDC.

Property rights in Florida isn’t just a concept, it’s law. The LDC is the law that defines the metrics — and every rezoning gets measured against them.

The LDC is a local ordinance. The council can rewrite it at any time.

During rezonings, water is the one thing almost guaranteed to come up. Council cannot act on it — water isn’t addressed by the LDC or the comprehensive plan (comp plan).

A rezoning is a decision, not a legislative one. The city is applying a rule that already exists, not writing a new one.

Most of the controversial rezonings include a modification to the Future Land Use Map, the FLUM, which is considered a .

A legislative action is judged by a different standard entirely — one where water can actually be weighed.

In the majority of controversial rezonings, council may choose to hear the rezoning and the FLUM amendment together. That makes things tricky.

Advocates and activists who want to weigh in on water or wastewater would be wise to preface their comments — state plainly they’re addressing the FLUM amendment, not the rezoning.

Why?

Because water and wastewater aren’t in the LDC or comp plan in any meaningful way.

So what can an advocate or activist do if they think the council got it wrong?

The LDC allows for .

Two steps. Two different bodies. Two different clocks.

Step one. A staff decision goes to the Planning and Land Development Regulation Board. Window: 15 calendar days. Filed with the Land Use Administrator.

Step two. A Planning Board decision goes to City Council. Window: 30 calendar days. Filed with the City Clerk.

Standing narrows at step two. Only the owner, an abutting property owner, or the Land Use Administrator can file it. A concerned resident who isn’t the owner or an immediate neighbor doesn’t qualify.

Council’s review is — a do-over — and quasi-judicial. Sworn witnesses. Both sides make their case. The outcome comes down to one phrase: competent substantial evidence in the record.

What is competent substantial evidence?

Evidence a reasonable person could rely on, and enough of it to actually support the outcome. Not a feeling. Not a vote count. Something in the record.

A traffic study. An engineer’s report. Sworn testimony. Not “I don’t like it.”

That’s the standard the chamber has to meet — every time, whether the room agrees with it or not. And challenging it has to be led by someone who lives next door.

— Johnny Diamond  ·  PalmCoastStorylines.com

LDC § 2.06.03 — Rezoning Review Criteria

Section 2.06.03 lists seven things the Planning Board and City Council “shall consider” when reviewing a rezoning application. Item D reads:

“Its impact upon necessary governmental services such as schools, sewage disposal, potable water, drainage, fire and police protection, solid waste, or transportation systems.”

Water is on the list. That’s real, and it’s worth being precise about it.

What isn’t on the list is a definition of “impact,” a threshold for what counts as too much of it, a required data submission on capacity, or any tie to an adopted level-of-service standard. The criterion tells council to think about water. It doesn’t give council anything to measure water against.

That gap matters because of Snyder. A denial has to be backed by competent substantial evidence tied to a standard — and “consider the impact” isn’t a standard a court can check a decision against. There’s no number, no adopted benchmark, nothing in the record for either side to point to. So a council member can raise water, cite § 2.06.03(D) by name, and still have nothing to act on if the applicant otherwise meets every other criterion — because the one criterion that mentions water was never built to be enforceable on its own.

The code names the concern. It doesn’t arm anyone to act on it.

Source: City of Palm Coast Land Development Code, Chapter 2 — Review Authority & Enforcement Procedures, § 2.06.03.

Quasi-Judicial — Board of County Commissioners of Brevard County v. Snyder

Citation: 627 So. 2d 469 (Fla. 1993).

The Snyders owned half an acre zoned for one house and asked to rezone it for up to fifteen units per acre. Staff and the planning board both found it consistent with the comp plan. The county commission denied it anyway, with no stated reason.

The Florida Supreme Court held that a rezoning affecting a single, identifiable property is quasi-judicial, not legislative — the government is applying an existing rule to one parcel, not writing new policy. That means real judicial scrutiny on review, not a rubber stamp.

The test, close to the court’s own words:

“A landowner seeking to rezone property has the burden of proving that the proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance. At this point, the burden shifts to the governmental board to demonstrate that maintaining the existing zoning classification with respect to the property accomplishes a legitimate public purpose.”

On review, the board’s decision has to be backed by what the court calls competent substantial evidence — not simply a vote.

A footnote in the opinion is worth knowing: the court noted that Fla. Stat. § 163.3215 (a separate statute allowing third parties to challenge a development order’s consistency) is not available to the applicant seeking the rezoning — only to third parties challenging it, per the companion case Parker v. Leon County, 627 So. 2d 476 (Fla. 1993), decided the same day.

Read the full opinion, free: law.justia.com →

Legislative — Martin County v. Yusem

Citation: 690 So. 2d 1288 (Fla. 1997).

A landowner asked Martin County to change his comprehensive plan designation from Rural Density to Estate Density — a Future Land Use Map change — alongside a companion rezoning. The county denied the plan amendment.

The Florida Supreme Court held that a comprehensive plan amendment, including a FLUM change, is a legislative act — even when it applies to a single parcel and is requested alongside a rezoning. Unlike Snyder, a legislative decision is reviewed under the “fairly debatable” standard: the government’s judgment stands if reasonable people could disagree about it.

That is a much lower bar for the city to clear than Snyder’s competent-substantial-evidence standard — and it is also the doorway state law opens for water. Fla. Stat. § 163.3177(6)(a) requires a local government’s future land use element, and any amendment to it, to be based on data and analysis addressing, among other things, the availability of public facilities and services — potable water included.

In short: a FLUM amendment is judged by a standard where water can actually be weighed, and where state law affirmatively requires the city to look at it. A straight rezoning is not.

Source: Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997); Fla. Stat. § 163.3177(6)(a).

Sample Notice of Appeal — LDC § 2.16.02

For an abutting property owner appealing a Planning and Land Development Regulation Board decision to City Council. Fill in the bracketed fields.

NOTICE OF APPEAL Pursuant to Palm Coast Land Development Code § 2.16.02 TO: City Clerk, City of Palm Coast FROM: [Appellant Name], owner of property located at [Appellant Address], parcel ID [Parcel ID Number], which abuts the subject property RE: Appeal of the decision of the Planning and Land Development Regulation Board dated [PLDRB Decision Date], regarding [Application Name/Number], located at [Subject Property Address], parcel ID [Subject Parcel ID Number] STATEMENT OF STANDING: Appellant is the owner of real property abutting the subject property and is therefore entitled to appeal this decision to the City Council pursuant to LDC § 2.16.02. DECISION APPEALED: On [PLDRB Decision Date], the Planning and Land Development Regulation Board approved [Application Name/Number], including a finding that the proposed development is compatible with the surrounding area. GROUNDS FOR APPEAL: Appellant contends that the Board's finding of compatibility with the surrounding area was not supported by competent substantial evidence in the record. Specifically: [insert reason here] RELIEF REQUESTED: Appellant respectfully requests that the City Council, sitting in its quasi-judicial capacity, reverse the decision of the Planning and Land Development Regulation Board, or in the alternative, remand the matter with instructions consistent with the evidence in the record. FILED WITH: City Clerk, within thirty (30) calendar days of the Board's decision, as required by LDC § 2.16.02. Respectfully submitted, [Appellant Name] [Appellant Address] [Appellant Phone/Email] [Date]

Source: City of Palm Coast Land Development Code, § 2.16.02.

De Novo

Latin for “from the start.”

When City Council hears an appeal of a Planning Board decision under LDC § 2.16.02, it isn’t just checking whether the board followed the rules — it holds an entirely new hearing. New evidence gets presented. Witnesses are sworn again. Both sides argue their case again, from zero, as if the board’s decision hadn’t happened.

What doesn’t reset is the legal standard. Council is still bound by the same rule as the board below it: any outcome has to rest on competent substantial evidence in the record built at this new hearing.

Source: City of Palm Coast Land Development Code, § 2.16.02.