Proposed laws could have “chilling effect” on challenges to development approvals

Florida HB 359 and SB 540 would require those who sue local governments to pay the cities’ legal fees if the plaintiffs lose

Money, Miami, Lawsuits
(Illustration by The Real Deal)

The Florida Legislature is considering two sets of laws that aim to impose responsibility for attorneys’ fees in cases where litigants challenge local development approvals.

The first group of laws, Florida House Bill 359 and Senate Bill 540, filed in January, would mandate that those who sue local governments over approvals pay the municipalities’ legal fees, if the plaintiffs lose. 

The proposed legislation, if it passes, could discourage the filing of such lawsuits, said attorney Keith Poliakoff of Fort Lauderdale-based Government Law Group. The bills refer to challenges to a plan or plan amendment, but do not specify further.  

“That will have a chilling effect on anti-developers because they will know that if they don’t prevail, they will be required by law to pay the attorneys’ fees for the other side,” Poliakoff said.  “Municipalities win these challenges 99 percent of the time.” 

Poliakoff, who represents municipalities, developers and property owners challenging such approvals, said it would prevent the latter from filing complaints because the potential cost would be prohibitive if they lose. Fees could mount into the thousands or hundreds of thousands of dollars.

Legal challenges can drag on for at least two or three years, affecting developers’ timelines and ability to secure financing. For some groups challenging approvals, that’s sometimes the point. 

“Because of the unfortunate slowness of our courts, developers are finding that it can potentially take years before the challenge ever sees a judge or light of day,” he said. “That delay causes [developers] to miss the cycle and makes the property no longer desirable to develop.” 

Local governments sometimes spend tens of thousands of dollars on outside counsel to defend themselves against these lawsuits. In more high-profile cases, legal fees can be in the hundreds of thousands of dollars. 

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“Municipalities spend tons of money, and in some cases don’t even have a development to look to, even if they win their court case,” Poliakoff added. 

Florida House Bill 843 and Senate Bill 816, would require the winner in such lawsuits to show that the challenge to the development order was “frivolous,” before the prevailing party can recover their attorneys’ fees from the opposing side. Those were filed on Feb. 15. 

Neighbors have long sued local governments over approvals across South Florida. At least two lawsuits were filed against the city of Miami over its approval of the Miami Freedom Park project. Sometimes, those suing are developers of nearby projects. One example: when the owners of the Setai Miami Beach sued the city of Miami Beach and the developer of the planned Bulgari hotel to void city approvals. 

 

In one of Poliakoff’s cases, a chemical company sued the city of Palm Bay in Brevard County. The suit, filed about three years ago, challenged the approval of an adjacent residential development. Poliakoff, who represents the developer, said the developer just wants to go to court so that he can build his project. 

In another case, Poliakoff represents a neighboring condo association that’s suing the village of Bal Harbour over its approval of what’s now called Rivage Bal Harbour. Related Group, Two Roads Development and Rockpoint plan the condo project for 10245 Collins Avenue. 

The Bellini condo association filed its complaint against the village in late November, challenging the Bal Harbour Village Council’s Oct. 31 approval that affirmed the decision of the Architectural Review Board to issue a certificate of appropriateness for the Rivage project. Bellini alleges the village council failed to follow due process. The case is still pending, court records show. 

Poliakoff suggests scrapping both sets of proposed legislation and instead “require the courts to view such challenges on an expedited basis” as they do with challenges to public records requests.