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November 08, 2023 Feature

Professor Mandelker and the Doctrine of Consistency with the Comprehensive Plan As Experienced in Florida

Nancy Stroud

It is my privilege to contribute a comment in honor of Professor Mandelker’s Festschrift. Over the thirty some years that I personally have known and worked with him, like many of the authors in this Festschrift publication, Dan has been a major influence on my career. That career, as a land-use lawyer primarily representing local governments throughout Florida, has demanded a breadth of knowledge and experience in the very wide variety of subjects that come with representing elected and appointed boards coping with the rapid and significant growth of a very diverse state with extraordinary environmental vulnerabilities. Even before I got to know Dan in the 1990s as a fellow member of the American Planning Association (APA) Amicus Curiae Committee, I found myself consulting his treatises and other writings and attending his presentations at APA and other conferences whenever I could. I was gratified when in 2004 he asked me to join him as a co-author of his preeminent treatise Planning and Control of Land Development, now in its tenth edition.

I know I am only one of several generations of local land-use lawyers who have relied on Professor Mandelker’s extraordinary scholarship to aid us through the challenges in our practices. Even if online research and the Internet now provide the practitioner with unlimited resources, nothing substitutes for the guidance of a thoughtful analysis from an experienced professional—and Dan is that person. He exemplifies that combination of practicality and broad knowledge that inspires land-use practitioners to better land-use practice, and thus to the building of better communities, physically and politically. How fortunate I am that I also can call on him personally to discuss those issues and that he remains as keen and interested in the issues as ever. This comment discusses how Dan has contributed to the field of land-use law in an area that has special meaning to my practice: the consistency requirement for comprehensive planning.

Comprehensive Planning and Consistency. Dan’s article in 1976, The Role of the Local Comprehensive Plan in Land Use Regulation,1 was published as I was attending the University of North Carolina to obtain a joint degree in planning and law. It was an article of faith among my fellow joint degree students that, of course, the comprehensive plan should guide the regulation of land development,2 and a visit by Dan to our program during that time, along with Fred Bosselman3 and Robert Einsweiler, sealed the deal. Upon my graduation and employment in Florida with the leading state proponent of growth management, John DeGrove,4 the requirement that land-development regulations be consistent with the comprehensive plan became a reality in my work.

In the early 1970s, Florida state government had entered a progressive era that resulted in reform of many of its laws, and not the least were its environmental and community development statutes. Florida had adopted the 1975 Local Government Comprehensive Planning Act, which mandated that each local government in Florida adopt a local comprehensive plan by 1979. All development permits and development regulations were required to be consistent with the plan, and regulations were to be adopted to implement the plan.5 At the time, this reform placed Florida among the few states that had a consistency requirement, with mandated, detailed statutory content for the plan elements and adoption process. Yet, it was overly ambitious. By 1979, most local governments had not met the statutory guidelines, and the plans varied widely in detail and efficacy. Their lack of integration with the decision-making of other levels of government, and the lack of state and local funding for the planning and implementation process itself, worked against the ability of local governments to fully realize the benefits of comprehensive planning. The consistency requirement had not been tested in court. John DeGrove lobbied for funding and better integration, and, at his applied research center at Florida Atlantic University, he devoted resources to assisting cities and counties through the planning process, including research assistants like myself. These planning efforts, however, never kept up with the great growth happening throughout Florida.

Florida doubled down on the consistency mandate and overhauled the local planning process in the 1985 Local Government Comprehensive Planning and Land Development Regulation Act.6 The legislation fixed some perceived weaknesses in the local planning act of the earlier decade and set the stage for local planning that persisted for twenty-five years, and was part of other legislative changes that established an integrated growth management system. Significantly, local plans, with detailed content requirements, were required to be reviewed and approved by a state administrative “compliance” process. As stated at the time by an author who later became the leading figure in the law’s implementation, Tom Pelham, “It remains to be seen whether Florida can successfully implement and operate a truly integrated statewide comprehensive planning process. While the necessary statutory framework is now in place, the real challenge for the legislature, state and regional agencies, local governments, and all of Florida’s citizens, will be to make it work.” 7 John DeGrove, Tom Pelham, and others who led the state implementing agency, the Department of Community Affairs, went to work on that effort. While the implementation process was controversial, by September 1, 1992, all but three of Florida’s 458 local governments had submitted plans, and all but sixty-eight were in compliance with the statute, with others in the process of negotiating compliance agreements with the Department.8

Thirty-five years later, the growth management system established in 1985 has been significantly amended and reduced, both by legislation and administrative and political hostility and neglect,9 but the primacy of the comprehensive plan over development regulations and development decisions remained, until the 2023 Florida legislative session made significant changes to reduce its effectiveness. The consistency mandate lived on for nearly forty years as an important legacy of that progressive time. Over these years, a large part of my practice has been assistance in the writing, adoption, and defense of comprehensive plans and their implementing land development regulations – and some of it in the challenge of local plans and decisions. In my experience, an ethos of comprehensive planning now is imbedded in Florida local government practice and politics, in a way that has lasting value to the citizenry and the development community. Of course, there is variation throughout the state, and some cities and counties are more attentive to comprehensive plans than others, and changes in political leadership affect the seriousness of their attention to plan consistency. But the planning and consistency mandates established in the 1980s have withstood the test of time, at least on the local level. However, the recent action of the state legislature to narrow the scope of the mandate may radically change the ability of parties to hold local governments accountable to their plans.

In addition to citizen and local political support for the consistency mandate, the Florida courts historically have been helpful in explaining and upholding it. The first important case, Board of County Commissioners. v. Snyder,10 applied a standard of strict scrutiny to the consistency challenge; later, Pinecrest Lakes, Ltd. v. Shidel11 emphasized the importance of history of the statute and applied its injunctive remedy to require new apartments to be torn down on the basis that Martin County had issued permits that were inconsistent with its comprehensive plan compatibility policy. Planning and smart growth organizations have rallied since to defend the importance of the consistency mandate as amici curiae.12

The most recent example of successful legal defense of the consistency mandate, and specifically the application of consistency to include all of the text of the adopted comprehensive plan, is Imhof v. Walton County.13 Imhof was a plan consistency challenge by two individuals and two nonprofit environmental organizations to a Walton County Planned Unit Development (PUD) approval. The mixed-use PUD would abut County Highway 30-A on one side, and Topsail Hill Preserve State Park, a conservation area, on at least one other side. The challengers claimed that the PUD was inconsistent with multiple comprehensive plan policies and objectives, including those related to density and intensity, buffers, setbacks, and sidewalk plans. The trial court decided that consistency challenge only allowed disputes regarding density and intensity under the state statute, and finding the density and intensity were not inconsistent with the plan, dismissed the other challenges. This narrow reading of the statute unfortunately came from a trial court decision that had not caught the attention of the wider planning community until it was upheld on appeal at the second district court of appeal.14

The challengers in Imhof appealed the trial decision to the first district court of appeal. Various amici weighed in, and the American Planning Association and its Florida chapter argued that this reading was inconsistent with court precedent dating back decades, and contrary to the planning statute.15 They addressed the importance of the consistency mandate, and its enforcement by aggrieved and adversely affected persons, to ensure that the local government’s comprehensive plan continues to be an effective primary foundation for local land development decisions, providing predictability for public and private investments in the community and the polestar for local implementing regulations. The unanimous first district court of appeal overturned the trial court in an extensive discussion of the consistency mandate, including a detailed grammatical analysis of the statutory language. It determined that the statute is “designed to ensure the complete consistency between development and a local comprehensive plan.”16 It certified a conflict between districts to the Florida Supreme Court, which did not take the case. Imhof was a critical validation of the broad consistency mandate in the Florida planning statute and a well-reasoned repudiation of the Heine case.

The Imhof decision had dire consequences in the 2023 Florida legislature, however, bringing attention to a means for anti-planning political forces to narrow the scope of the consistency mandate. HB 359/SB 540 passed the legislature despite active lobbying against it by more than sixty planning, environmental and growth management organizations and thousands of citizens, and was signed into law by Governor Ron DeSantis on May 24, 2023, becoming effective on July 1, 2023.17 The law amends Florida Statute section 163.3202 to restrict legal challenges to consistency of development orders with the comprehensive plan to only issues of “use or density or intensity of use,” clearly intending to codify the Heine standard, and nullifying Imhof.18 It further weakens the comprehensive planning process by discouraging citizen involvement in administrative challenges to plan amendments by adding a provision to sections 163.3184 and 163.3187 of the statute to entitle prevailing parties in such challenges to recover attorney fees and costs.19 The changes to the planning law, unfortunately, are just one of many rollbacks to planning and environmental laws and local home rule laws from a supermajority conservative legislature in a state now controlled by one party.

As has been noted by many of my colleagues in this Festschrift, Dan’s contributions to land-use law have been sustained, broad, and insightful. The consistency doctrine is just one example that has had significant benefits to growth management in Florida. Just how significant it will be to Florida in the future will depend in large part not on the successful legal enforcement methods of the past, but on the fidelity of local governments to the doctrine.


1. Daniel R. Mandelker, The Role of the Local Comprehensive Plan in Land Use Regulation, 74 Mich. L. Rev. 899 (1976); see also Stuart Meck, The Legislative Requirement that Zoning and Land Use Controls Be Consistent with an Independently Adopted Local Comprehensive Plan: A Model Statute, 3 Wash. U. J.L. & Pol’y 295 (2000) (an earlier Festschrift for Dan Mandelker, citing other scholars’ works on the subject, including fellow Festschrift commentators Edward Sullivan and Dan Tarlock).

2. We were introduced also to the seminal work of early advocate Charles Haar as well. See, e.g., Charles M. Haar, In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154 (1955).

3. Little did I suspect that several years later I would be practicing law with Fred Bosselman, who would become an important mentor and inspiration. See A. Dan Tarlock, Tribute to the Achievements of Professor Fred P. Bosselman, 17 J. Land Use & Env’t L. 1 (2001).

4. See a description of Dr. DeGrove’s influence in Florida and beyond at the website of the nonprofit advocacy group that he helped to found, John M. DeGrove, 1000 Friends of Florida, (last visited Jan. 11, 2023).

5. Fla. Stat. §§ 163.3167, 163.3194(1), 163.3201 (1977).

6. 1985 Fla. Laws 295, ch. 85-57 (codified at Fla. Stat. §§ 163.3261–.3215 (Supp. 1986)) [hereinafter 1985 Local Government Comprehensive Planning and Land Development Regulation Act].

7. Thomas G. Pelham, William L. Hyde & Robert P. Banks, Managing Florida’s Growth: Toward an Integrated State, Regional, and Local Comprehensive Planning Process, 13 Fla. St. U.L. Rev. 515, 597–98 (1985).

8. Thomas G. Pelham, The Florida Experience: Creating a State, Regional and Local Comprehensive Planning Process, in State & Regional Comprehensive Planning, Implementing New Methods for Growth Management 109 (Peter A. Buchsbaum & Larry J. Smith eds., 1993).

9. See 1985 Local Government Comprehensive Planning and Land Development Regulation Act, supra note 6.

10. 627 So. 2d 469 (Fla. 1993). Notably, the court cited to Mandelker and Tarlock to explain in part why strict scrutiny is appropriate, noting that “zoning decisions are too often ad hoc, sloppy and self-serving with well-defined adverse consequences without off-setting benefits.” Id. at 473 (citing Daniel R. Mandelker & A. Dan Tarlock, Shifting the Presumption of Constitutionality in Land-Use Law, 24 Urb. Law. 1, 2 (1992)).

11. 795 So. 2d 191 (Fla. Ct. App. 2001).

12. For example, see Town of Ponce Inlet v Pacetta, 120 So. 3d 27 (Fla. Ct. App. 2013). The author represented amici curiae American Planning Association, Florida Chapter, and the Florida League of Cities in support of the Town in the appeal.

13. 328 So. 3d 32 (Fla. Ct. App. 2021).

14. Heine v. Lee County, 221 So. 3d 1254 (Fla. Ct. App. 2017).

15. The author represented the American Planning Association and the Florida chapter on appeal.

16. 328 So. 3d at 45.

17. Act of July 1, 2023, ch. 2023-115, 2023 Fla. Laws. Environmental advocates have dubbed the legislation the “Sprawl Bill.” See DeSantis Just Signed “Sprawl Bill” 540 into Law, Friends of the Everglades (May 24, 2023),

18. Act of July 1, 2023, § 3.

19. Id. §§ 1–2.

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Nancy Stroud

Nancy Stroud practices land-use law in Boca Raton, Florida. She is also a Fellow of the American Institute of Certified Planners. She coauthors the land use treatise originated by Professor Mandelker, Planning and Control of Land Development: Cases and Materials. She is a graduate of the University of North Carolina School of Law and earned a master’s degree from the UNC Department of City and Regional Planning.