Contract Zoning

Back to Betz Farm for a bit.

The other day, The Chronicle ran an article largely from James Dicks. In this article, he talks about the board acting chair, Janet Barek, abruptly ending the meeting after herself and fellow commissioner Holly Davis abstained from voting due to conflicts.

Dicks felt that since there were a majority of board members still there, they could have done the hearing.

That is likely true. Barek did not have to leave. She could have stayed to keep the quorum and let the hearing happen.

The problem there is that she cannot vote... and with only 2 members left to vote, there is no quorum. Sitting through a 5 hour or more hearing and not being able to do the vote seems like a waste of time to me. It would have to come back at a future meeting anyway.

Or does it?

I was given permission by the intervenor to share a letter written by their attorney, Terrell Arline. He is a prominent land use attorney in Tallahassee and has a pretty impressive background.

In this letter that was sent to the county, Arline states that he feels the contract is an illegal contract due to its contract zoning provision in the addendum.

Here is the letter in full. I will use snippets here and there as we go.

You see, contracts for land sales are invalid if the government entity essentially loses their ability to police the zoning.

"A local government may not “contract” away its obligations under its “police powers” regarding the regulation of the development of land."

How does he make that determination? Well it is in the text of the contract and addendum.

SELLER ASSISTANCE: Seller will execute all applications, consents
and any additional documentation required to obtain approvals for this project within 10 days of request. Closing date may be extended by the number of days past the 10 days required to comply.

Entitlements. Should any modifications to existing land use districts,
uses development orders in buyer’s sole discretion be required for the Property, the seller will fully cooperate in the Modification approval process.

He goes on to point out the addendum that was signed in April 2024 that states the closing happens only when the buyer gets all the non-appealable approvals desired.

Arline goes on to highlight some Florida cases that discuss this.

Here is a quote he mentions from Hartnett v Austin ruling.

"[t]he adoption of an ordinance is the exercise of municipal legislative power" and that the city exercising this power "cannot legislate by contract"). Accordingly, contract zoning has long been disapproved in Florida because it contracts away the exercise of the entity's police or legislative powers."

And he included another snipped from Morgran Co v Orange County.

"holding that an improper settlement agreement to rezone was not cured by a provision requiring the parties to follow the formal requirements to rezone, because the county already obligated itself to a decision)."

He closes with this.

"Therefore, in my opinion it would be a violation of long-established law in Florida against contract zoning for Citrus County to approve the requested PUD rezoning."

This raises an interesting point.

If this is contract zoning, as Arline suggests, that means the contract is illegal. The county cannot sell property under an illegal contract.

This opens the door for a contract cancellation and the grounds are much stronger than before when they cancelled due to non-performance. You see, while the buyer defaulted on the contract by missing stated deadlines, staff continued to cooperate. No one mentioned the contract issue and missed deadlines. Not sure who is supposed to monitor these contracts, but it may be time for a formal process.

That said, going that route can be costly as he can argue he deserves damages as no one in the county mentioned it for almost 3 years. He continued to do his processes and spend his money to get what the county needed.

Now, cancelling the contract under the contract zoning opens issue the door for the county to get out of the contract and keep the property. It is no longer a performance issue (or lack thereof)... it is a legal issue. Can the county even be a party for this type of contract under current laws? Courts may toss it completely as it is an illegal contract. And in that case, how could they tell the county to pay damages? Remember, the original contract was an "as-is" sale.

Things can get interesting going forward with the new board. But we shall see how they feel about this. Will they do what the majority of residents want and cancel the contract.. or will they just cave to the developer and keep this train moving?

It appears they have a way out now.

Have a great day everyone!