Will Florida's Attorney General opine on whether a city ordinance restricting where public schools can be sited is a comprehensive plan amendment?

Plain-English summary

Frank Biden, writing on behalf of School Property Development, LLC, asked the Florida Attorney General to weigh in on a City of Sunrise ordinance that he said would prohibit public K-12 schools in residential, commercial, and industrial areas where the city's comprehensive plan and future land use map had previously allowed them. He wanted the AG to comment on the validity of the ordinance and on whether the city could effectively amend its comprehensive plan by ordinance without state agency review.

Senior Assistant Attorney General Gerry Hammond, writing for AG Pam Bondi, declined to take the question. The reasons were jurisdictional, not substantive.

First, the AG's opinion authority under section 16.01(3) is limited to legal opinions for state and local government agencies and officers, on questions about their official duties. The AG does not issue opinions to private individuals or private companies. School Property Development, LLC was a private entity.

Second, the AG's longstanding policy was not to comment on the actions of a particular local government in the absence of a request from that local government. The City of Sunrise had not asked. And duly enacted local ordinances are presumed valid by the courts and by the AG until a court rules otherwise.

The opinion did include a small piece of substantive guidance, as a courtesy: section 163.3184, Florida Statutes, prescribes the exclusive method for amending a comprehensive plan that has been found in compliance with Part II of Chapter 163 (the Local Government Comprehensive Planning and Land Development Regulation Act). That statute also includes mediation and expeditious resolution procedures. The AG enclosed Opinion 89-51 (on the relationship between zoning ordinances and land development regulations) and Opinion 95-32, and an informal opinion to Smith dated October 17, 2007.

What the opinion meant at the time for similar situations

At the time of issuance, the practical takeaway for a developer, business owner, or other private party who wanted to challenge a Florida local ordinance was that the Attorney General's office was not the right forum. The opinion mechanism was reserved for government clients asking about their own legal duties. A private party's options ran through state court (declaratory or injunctive relief), through state agency review of the comprehensive plan amendment process (which had its own statutory channels under section 163.3184), or through political channels at the municipality itself.

For a city or county whose ordinance was being challenged, the opinion also confirmed that the AG would not step into the role of pre-judging local legislation; that role belonged to the courts.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Who could request a formal opinion from the Florida AG?
A: Under section 16.01(3), Florida Statutes, only state and local government agencies and officers asking about their own official duties. Private parties (individuals, companies, attorneys not representing a government client) could not get a formal opinion. The AG's office did sometimes provide informal courtesy responses, like this one, but they did not opine on the merits.

Q: Why didn't the AG just answer the legal question anyway?
A: Two reasons. First, the AG's opinion authority itself was limited by statute to government clients. Second, the AG's longstanding policy was not to second-guess a particular local government's actions without a request from that government, partly because local ordinances are presumed valid until a court holds otherwise. Stepping in to validate or invalidate a city ordinance through an AG opinion would have undercut both the city's authority and the judiciary's role.

Q: How could a developer challenge a Sunrise ordinance like the one described?
A: Through the courts (a declaratory judgment action seeking a ruling on the ordinance's validity, or an injunction if it would cause irreparable harm) or through whatever administrative channels applied to the underlying comprehensive plan amendment. Section 163.3184 included a state-level review structure for plan amendments and a mediation procedure to resolve disputes.

Q: What is the relationship between a zoning ordinance and a comprehensive plan?
A: Under Florida's Local Government Comprehensive Planning and Land Development Regulation Act, the comprehensive plan is the controlling planning document. Zoning ordinances and other land development regulations must be consistent with the plan. If a local government wants to make changes that are inconsistent with a compliant comprehensive plan, the changes generally have to go through the section 163.3184 plan amendment process.

Q: Was there any indication the AG thought the Sunrise ordinance was invalid?
A: No. The opinion made a point of saying that duly enacted local legislation must be presumed valid until a court holds otherwise, and it explicitly declined to comment on the merits.

Q: What were the opinions the AG enclosed for reference?
A: The opinion enclosed Op. Att'y Gen. Fla. 89-51 (which discusses the relationship between zoning ordinances and land development regulations), Op. Att'y Gen. Fla. 95-32, and an October 17, 2007 informal opinion to a Mr. Smith. These were offered as background reading, not as the AG's substantive view on the Sunrise ordinance.

Background and statutory framework

Section 16.01(3), Florida Statutes, has long set the limits of the Florida Attorney General's opinion power. Opinions are advisory documents written for state officials and named local-government officials to help them carry out their duties. They are not adjudications and not substitutes for litigation. The Florida AG's office historically maintained a policy of declining to opine on questions outside this scope, including private-party disputes and challenges to specific local ordinances absent a request from the affected local government. That policy was reflected in the published "Statement of Policy Concerning Attorney General Opinions."

The Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, set up Florida's framework for local land use planning. Once a local government's comprehensive plan was found in compliance with the Act, section 163.3184 prescribed the exclusive method for amending it. The statute included mediation and expeditious resolution provisions to handle disputes about plan amendments.

Whether the City of Sunrise's ordinance restricting public school siting actually amounted to a comprehensive plan amendment, and if so whether it had been processed properly, was a question for the courts and for the state's land use review apparatus, not for the AG.

Citations and references

Statutes:

• Section 16.01(3), Fla. Stat. (Attorney General opinions)
• Section 163.3184, Fla. Stat. (Plan amendment procedure)

Prior AG opinions enclosed with the letter:

• Op. Att'y Gen. Fla. 89-51, relationship between zoning ordinances and land development regulations
• Op. Att'y Gen. Fla. 95-32, referenced in the original
• Informal Opinion to Smith dated October 17, 2007

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/zoning-comprehensive-plan
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8064

Original opinion text

Mr. Frank Biden

School Property Development, LLC

4500 PGA Boulevard, Suite 303A

Palm Beach Gardens, Florida 33418

Dear Mr. Biden:

Thank you for considering the Florida Attorney General's Office as a source for assistance regarding recent actions by the City of Sunrise. According to information you have forwarded to this office, the city recently passed an ordinance "that would prohibit public K through 12th grade schools from being located in residential, commercial and industrial areas where the City's Comprehensive Plan and Future Land Use Map currently permit public schools to be sited." You have asked this office to comment on the validity of such an ordinance and whether the Sunrise Comprehensive Plan can be changed by ordinance without review by state agencies. You also assert that these actions constitute amendments to the City's Comprehensive Plan. Attorney General Bondi has asked me to respond to your letter.

After reviewing the information you have provided, it does not appear that this is a matter upon which this office may comment. The Florida Attorney General is statutorily limited to providing legal opinions to governmental agencies and officers on questions relating to their official duties. See section 16.01(3), Florida Statutes. Thus, this office is not authorized to provide legal advice or opinions to private individuals or entitles.

In addition, I must advise you that this office will not comment on the actions of a local governmental agency such as the City of Sunrise in the absence of a request from that agency. I am enclosing a copy of the Statement of Policy Concerning Attorney General Opinions for your consideration. Duly enacted local legislation must be presumed, by the courts and this office, to be valid in the absence of a judicial determination otherwise.

In an effort to be of some assistance to you, I am enclosing several previously issued Florida Attorney General Opinions which discuss amendments to comprehensive plans and the process for amendment by local governments. I note that section 163.3184, Florida Statutes, prescribes the exclusive method for amending comprehensive plans that have been found to be in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter163, Florida Statutes.[1] That statute contains a mediation and expeditious resolution provision for addressing the provisions of such an amendment. I am also including a copy of Attorney General Opinion 89-51 which discusses the relationship between zoning ordinances and land development regulations.

I trust that the material I am enclosing will be helpful to you.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

Enclosures: AGOs 89-51, 95-32

            Inf. Op. to Smith dated Oct. 17, 2007

[1] See s. 163.3184(3)(a), Fla. Stat., providing that "[t]he process for amending a comprehensive plan described in this subsection shall apply to all amendments except as provided in paragraphs (2)(b) [small scale development amendments] and (c) [plan amendments in areas of critical state concern] and shall be applicable statewide."