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Graves v. City of Pompano Beach ex rel. City Com'n

Florida Court of Appeal, Fourth District

November 23, 2011

Barbara GRAVES, Gary Kast, Randi Martin and Lillian Thames, Appellants,
v.
CITY OF POMPANO BEACH, by and through its CITY COMMISSION, a Florida Municipality, and PPI, INC., Appellees.

Page 596

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert B. Carney, Judge; L.T. Case No. 09-17793(04).

Andrew J. Baumann, Kenneth G. Spillias and James E. Charles of Lewis, Longman & Walker, P.A., West Palm Beach, for appellants.

Gordon B. Linn, City Attorney, and Erin Gill Robles, Assistant City Attorney, Pompano Beach, for appellee City of Pompano Beach.

Daniel L. Wallach, Gary C. Rosen and Alan B. Koslow of Becker & Poliakoff, P.A., Fort Lauderdale, for appellee PPI, Inc.

ON MOTION FOR REHEARING

STEVENSON, J.

We grant appellants' motion for rehearing, withdraw our previous opinion issued on April 13, 2011, and substitute the instant decision in its place.

Appellants challenge the dismissal of their complaint for declaratory relief filed against appellees, the City of Pompano Beach and PPI, Inc., to declare a revised plat approval inconsistent with the City's comprehensive plan. Under section 163.3215(3), Florida Statutes (2009), an aggrieved or adversely affected party may maintain an action for declaratory or injunctive relief against a local government to challenge a " development order" that is inconsistent with the comprehensive plan. The trial court granted the appellees' motion to dismiss and concluded that the City's plat approval was not subject to challenge under section 163.3215(3) because it was not a " development order." Upon further review and consideration of the development rights consequent to a plat approval under the City Land Development Code, we find that the plat approval in the instant case is a " development

Page 597

order" under the statutory scheme and reverse.

The facts are briefly summarized and taken from the complaint. Appellants are all citizens living near or around Pompano Park Racino. The Resolution approving the plat was a revision to a prior, 2008 plat approval of the Park. The 2008 plat divided the Park into two parcels, A and B. This appeal concerns only parcel A since, according to the complaint, parcel B was ultimately not included in the plat application or approval. The Park, as approved in the 2008 plat, consisted of " an existing 278,381 square foot, 5,256 seat racetrack and grandstand facility known as the Pompano Park Harness Track— a parimutuel wagering facility." In connection with the racetrack, Parcel A contained 550 horse stalls, 44 dormitory rooms for jockeys, 115,906 square feet of ancillary commercial/retail use and a 46,503-square-foot gambling casino.

Subsequently, the City passed Resolution 2009-120, at issue in this case, which made several changes to the 2008 plat. The Resolution authorized the continued use of the existing racetrack and casino, authorized an expansion and conversion of land uses, and increased the development thresholds of the Park. Specifically, development thresholds were increased to allow 850 horse stalls, 154 dormitory rooms, a 500-room hotel, and a 230,000-square-foot casino building (containing a 55,000-square-foot casino and 175,000 square feet of commercial uses). In total, this approved an 8,497-square-foot expansion for casino use, a 54,094-square-foot expansion of commercial uses, and a new hotel. The Resolution also provided a preliminary approval for compliance with the City's land development code regarding traffic standards, as well as adequacy of water management, solid waste disposal and recreation facilities.

According to the complaint, the plat approval is inconsistent with the City's plan because it is a " juxtaposition of intensive commercial and recreational uses over the existing land use on the property, which is designed for less-intensive recreational uses." The comprehensive plan allegedly " identifies a primary land use for the property consisting of less-intensive recreational uses, and permits some more intense commercial uses to exist to support this primary use." Appellants maintain that the approval of the revised plat will allow intense commercial uses, rather than recreational uses, to become the dominant use on the property. Further, appellants maintained that the plat approval is inconsistent with the City's comprehensive plan because it violates various traffic policies and public-facility standards, and threatens surrounding properties and infrastructures. Appellants alleged in their complaint that the plat approval was a development order under section 163.3215 and had to comply with the City's comprehensive plan. The City and PPI filed a motion to dismiss and maintained that a plat approval was not the equivalent of a development order. The trial court agreed with the City and PPI, and granted the motion to dismiss.

In reviewing dismissal of a complaint seeking relief under section 163.3215, the standard of review is de novo. See Lutz Lake Fern Rd. Neighborhood Grps., Inc. v. Hillsborough Cnty.,779 So.2d 380, 383 (Fla. 2d DCA 2000). All well-pleaded facts and reasonable inferences therefrom must be accepted as true. See Wells v. Wells,24 So.3d 579, 582 (Fla. 4th DCA 2009). The test is not whether the complaint shows that the ...


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