A story published recently in The Ledger raised an intriguing point.
It involves how the County Commission responded when one of its development decisions this year was challenged in court.
These suits don’t happen often and two cases that come to mind didn’t end well for the county.
They approved a mining permit that was actually a prelude to preparing land for development and lost.
They denied a permit for a development on Lake Kissimmee that was started without a permit and still lost.
Once upon a time courts generally deferred to the judgment of local elected officials, but those days are long past.
The current lawsuit challenges a decision to allow suburban-density development next door to rural multi-acre homesteads after denying development proposals on the same site at earlier hearings.
The issue that was raised by the plaintiffs and their lawyer was why is the entire cost of defending the lawsuit is being paid by the taxpayers, especially since it will involve hiring an outside private law firm for what is likely to be a hefty cost to taxpayers.
There was some discussion—and that’s all it is at this point— among county commissioners about developing some sort of policy to require the developer to share the litigation costs.
How that would be structured—if it even occurs– hasn’t been decided.
One logical place to put such a provision is in the development order that ratifies the county’s decision. That may require an amendment to the county’s development regulations or some new ordinance to authorize it.
That’s providing such a practice is found to be legally permissible in the first place. I’m sure the county’s legal staff is researching that question.
County staffers likely will also be looking around to see if any other jurisdictions have any policy of this sort or would any action Polk take set a precedent. And, if it does, would it expose the county to lawsuits from developers who could argue they proceeded in good faith relying on county regulations and shouldn’t be held financially responsible if there’s a legal challenge.
Legal questions and issues can be very complicated and this one is no different.
Of course, if the Polk County Commission didn’t pass what are sometimes fairly permissive development regulations with all kinds of exemptions and density transfers and other manufactured developer rights, they might not have ended up in this position in the first place.