DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CITIZENS FOR RESPONSIBLE DEVELOPMENT, INC.,

a Florida not-for-profit corporation, and HERBERT SIMPSON,

Appellants,

v.

THE CITY OF DANIA BEACH, FLORIDA, BROWARD COUNTY, 

FLORIDA and DANIA ENTERTAINMENT CENTER, LLC,

a Delaware limited liability company,

Appellees.

No. 4D21-1306

[February 15, 2023]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Keathan Frink, Judge; L.T. Case No. CACE11-22597.

Michael E. Dutko, Jr. and Janine R. McGuire of Conrad & Scherer LLP, 

Fort Lauderdale, for appellants.

Andrea G. Amigo, George P. Roberts, Jr., and Lyman H. Reynolds, Jr.

of Roberts Reynolds Bedard & Tuzzio, PLCC, West Palm Beach, for 

appellee, The City of Dania Beach, Florida.

Andrew J. Meyers, Joseph K. Jarone and Scott Andron, Broward 

County Attorneys, Fort Lauderdale, for appellee, Broward County, Florida.

John M. Mullin and Robert L. Scheppske III of Tripp Scott, P.A., Fort 

Lauderdale, for appellee, Dania Entertainment Center, LLC.

On Motion for Rehearing

MAY, J.

We grant the appellees’ motions for rehearing, withdraw our prior

opinion, and substitute the following.

This dispute arose from development agreements between the City of 

Dania Beach (“City”) and the Dania Entertainment Center (“DEC”) to 

expand the Dania Jai Alai pari-mutuel facility. 
2

In 2006, the City entered into a development agreement with the parimutuel facility owner Aragon Group, Inc. The agreement included the

building of a new gaming facility and Jai Alai fronton. In 2007, Broward 

County (“County”) approved the plat for Dania Jai Alai for a 325,000 

square foot gaming facility, which included 100,000 square feet of casino, 

a 1,000-seat fronton, and 187,000 square feet of accessory commercial 

use. The County also approved two other parcels on the plat for 54 singlefamily detached units and 1.159 acres of active park. 

Subsequently, the DEC purchased the property from Aragon. In 2011,

the DEC sought to “amend and restate” the existing development 

agreement between the City and Aragon. The new development agreement 

incorporated plans from the original agreement and added a marina, 

commercial retail, a new casino, and two hotel towers. The City’s attorney 

and outside counsel advised the pari-mutuel facility it was exempt from 

City regulations. In May 2013, the DEC finalized the gaming licenses and 

permit rights transfers from Aragon. 

Mr. Sniezek of the Broward County Planning Council wrote a letter and

confirmed the City was not “required to allocate land use intensities under 

the ‘Regional Activity Center’ (RAC) land use designation on the Broward 

County Land Use Plan [] and located in the City” for the amended 

development. His letter provided:

Based on the information provided by you, it is Planning 

Council staff’s understanding that the proposed hotel and 

marina uses are located within lands designated as a parimutuel by the State of Florida. Based on that information and 

in such context of Florida Statute 550.155(2), it would appear 

that the proposed use would qualify as a “capital improvement 

proposed by a permitholder licensed under this chapter to a 

pari-mutuel facility existing on June 23, 1981.”

In consultation with the Planning Council Attorney and 

County Attorney’s office, Planning Council staff has 

determined that the uses described in your correspondence 

are permitted without a need to allocate land use intensities 

under the permitted uses of the RAC.

Please note that this finding is subject to review and agreement 

by the City of Dania Beach. In addition, the proposed uses 

must meet any other applicable requirements of Florida 

Statutes Chapter 550.
3

(Emphasis added). 

The statute referenced in the letter, section 550.155(2), Florida Statutes

(2011), provides in pertinent part as follows:

A capital improvement proposed by a permitholder licensed 

under this chapter to a pari-mutuel facility existing on June 

23, 1981, which capital improvement requires, pursuant to 

any municipal or county ordinance, resolution, or regulation, 

the qualification or approval of the municipality or county 

wherein the permitholder conducts its business operations, 

shall receive approval unless the municipality or county is able 

to show that the proposed improvement presents a justifiable 

and immediate hazard to the health and safety of municipal or 

county residents, provided the permitholder pays to the 

municipality or county the cost of a building permit and 

provided the capital improvement meets the following criteria:

(a) The improvement does not qualify as a development of 

regional impact as defined in s. 380.06; and

(b) The improvement is contiguous to or within the existing 

pari-mutuel facility site.

(Emphasis added).

At the City Commission meeting in August 2011, City staff 

recommended approving the 2011 amended development agreement with 

the DEC, and the public had an opportunity to comment. After public 

comment, the City Commission voted unanimously to approve the 2011 

development agreement.

The City and the DEC entered into the development agreement. That

agreement stated the City had determined the proposed improvements did 

not present an immediate hazard to the City’s residents’ health and safety. 

The County was not a party to the agreement.

In 2011, Citizens for Responsible Development (“CFRD”) and Herbert 

Simpson (“individual plaintiff”, collectively “plaintiffs”) sued the City for 

declaratory and injunctive relief. The complaint alleged CFRD was a nonprofit public interest organization in Broward County. It alleged its

membership included Dania Beach residents, who are adversely affected 

by the development agreement’s proposed expansion. 
4

The complaint further alleged Simpson was a legally blind resident 

living within one mile of Dania Jai Alai. The complaint sought a 

declaration that the 2011 development agreement was void because the 

City failed to comply with the Florida Local Government Development 

Agreement Act, sections 163.3220–163.3243, Florida Statutes (2011). The 

complaint sought to compel the City to comply with the Act. The DEC 

intervened in the proceedings.

In 2011 and 2012, the County approved two plat note amendments to 

the Dania Jai-Alai Plat.1 The planning council, in consultation with its 

attorney and the County attorney, determined the pari-mutuel facility uses 

were exempt from being allocated as part of the RAC, pursuant to section

550.155. The 2012 plat note effectuated changes to comply with the 

Florida Department of Transportation’s conditions of approval of the 2011 

plat note amendment.

In 2014, the DEC sought a new development agreement, the “second 

amended agreement,” which added a multi-story parking garage and a 

banquet hall. A public hearing was held on August 26, 2014, with advance 

notice published in the newspaper, posted at City Hall, and mailed to over 

6,000 surrounding landowners. Members of the public were allowed to 

speak, including Simpson, who expressed concern about the traffic and 

being able to cross the street. After notice, a second public hearing was 

held.

At the third hearing, the CFRD’s counsel objected to the meeting as not 

being noticed as a quasi-judicial hearing. Counsel offered documents and 

testimony to prove the currently proposed development agreement 

presented an immediate hazard to the health, safety, or welfare of the 

City’s residents. The commission rejected the evidence. At the meeting’s 

conclusion, the second amended agreement was approved and then 

executed by the City and the DEC. The County was not a party to the 

second amended agreement.

After the City’s approval, CFRD and Simpson amended their complaint

to allege the City ignored three sets of development laws: (1) the 

Development Agreement Act, sections 163.3220–163.3243, Florida 

1 The 2011 plat note amendment added several approved uses, including an 

additional 15 acres of pari-mutuel facility which could include 500 hotel rooms, 

60 marina slips, and 45,000 square feet of commercial use. The 54 dwelling 

units and the park were to be deleted from the plat. According to the supporting 

material, the plat was subject to the “Dania Beach Regional Activity Center” 

(“RAC”). 
5

Statutes (2011); (2) the Dania Beach Unified Land Development Code; and 

(3) the Broward County Development and Land Use Codes. 

The plaintiffs alleged the development agreements failed to comply with 

Chapter 163, Florida Statutes (2011), and thereby denied the public the 

ability to participate. They alleged the City failed to comply with the review 

requirements of its own code and development review process to determine 

the expansion’s impact on the City and its residents. And finally, they 

alleged the City improperly gave “carte blanche” to the DEC based on 

section 550.155(2), Florida Statutes (2011).

The plaintiffs sought a declaration that section 550.155 did not apply 

to the Dania Jai Alai expansion, and the 2011 amended agreement was 

void as a result. Similarly, they sought a declaration that the 2014 

development agreement was void. They also sought a declaration that 

section 550.155 was void as an unconstitutional special law.

The plaintiffs sought injunctive relief in two other counts, pursuant to 

section 163.3243. They requested the court declare the 2011 and 2014 

approvals of the development agreements void because the City failed to 

comply with the public notice and hearing requirements of section 

163.3225. They sought to compel the City to comply with section 

163.3225.

The plaintiffs added the County as a defendant. They alleged the 

County “dropped the ball too” because it misinterpreted that section 

550.155 exempted existing pari-mutuels from County land use regulations 

and review processes. The plaintiffs alleged the County did not investigate 

whether the Dania Jai Alai facility complied with section 550.155.

The plaintiffs also sought a declaration that the County erroneously 

relied on section 550.155 because that section did not apply. 

Alternatively, the County failed to apply its land use code or engage in 

developmental review in connection to the 2011 and 2014 development 

agreements.

All defendants answered, asserting multiple defenses, including the 

plaintiffs lacked standing. Ultimately, the parties filed cross-motions for 

summary judgment. While the motions raised several grounds, the trial 

court granted summary judgment in favor of the defendants on the 

standing issue alone.

The court found the plaintiffs lacked standing because they failed to 

show an “injury-in-fact.” Specifically, the court found the CFRD failed to 
6

demonstrate associational standing by showing a “substantial number of 

[CFRD’s] members are substantially affected by the approval of the 

redevelopment.” Citing to Renard v. Dade Cnty., 261 So. 2d 832 (Fla. 

1972), the court found the plaintiffs failed to meet one of the specific 

standing requirements of land use cases; i.e., to establish special damages. 

The court found neither plaintiff met that requirement. From this order, 

the CFRD and Simpson now appeal.

We have de novo review. Volusia Cnty. v. Aberdeen at Ormond Beach, 

L.P., 760 So. 2d 126, 130 (Fla. 2000). 

The only question raised in this appeal is whether the plaintiffs have

standing. “Any litigant must demonstrate that he or she has standing to 

invoke the power of the court to determine the merits of an issue.” Giuffre 

v. Edwards, 226 So. 3d 1034, 1038 (Fla. 4th DCA 2017) (quoting Vaughan 

v. First Union Nat’l Bank of Fla., 740 So. 2d 1216, 1217 (Fla. 2d DCA 

1999)). 

“Standing depends on whether a party has a sufficient stake in a 

justiciable controversy, with a legally cognizable interest which would 

be affected by the outcome of the litigation.” Id. at 1038-39 (emphasis 

added) (quoting Weiss v. Johansen, 898 So. 2d 1009, 1011 (Fla. 4th DCA 

2005)).

• Does the Individual Plaintiff Have Standing?

Our supreme court has articulated the three requirements for 

standing.

First, a plaintiff must demonstrate an injury in fact, which is 

concrete, distinct and palpable, and actual or imminent. 

Second, a plaintiff must establish a causal connection 

between the injury and the conduct complained of. Third, a 

plaintiff must show a substantial likelihood that the requested 

relief will remedy the alleged injury in fact.

State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004) (citations omitted). In 

short, standing requires injury-in-fact, causation, and redressability. Id. 

As the trial court found, the individual plaintiff failed to make the 

requisite showing. 
7

Here, the trial court relied on Renard, where our supreme court 

addressed three types of attacks on zoning ordinances.2 The supreme 

court articulated standing requirements for each case category.

Part (1) deals with standing to enforce a valid zoning 

ordinance. The Boucher3 rule requiring special damages still 

covers this type of suit. . . .

Part (2) of the question certified to this Court deals with 

standing to attack a validly enacted zoning ordinance as being 

an unreasonable exercise of legislative power. . . . [P]ersons 

having a legally recognizable interest, which is adversely 

affected by the proposed zoning action, have standing to sue.

Part (3) of the question certified deals with standing to attack 

a zoning ordinance which is void because not properly 

enacted, as where required notice was not given. Any affected 

resident, citizen or property owner of the governmental unit in 

question has standing to challenge such an ordinance.

Id. at 837–38. 

In its order, the trial court focused on Part 1 and held the plaintiffs 

failed to establish a “special injury”. Because the individual plaintiff’s 

alleged injury (increased traffic) did not relate to the property where the 

individual plaintiff resided, the trial court found the individual plaintiff 

did not suffer an “injury-in-fact.”

The dissent, however, has chosen to focus on Part 3, which “deals with 

standing to attack a zoning ordinance which is void because not properly 

enacted.” Id. at 837-38. The dissent then conflates development 

agreements with zoning ordinances and characterizes the plaintiffs’ 

complaint as an attack on the process used to approve the development

2 Renard did not involve or address development agreements.

3 Boucher v. Novotny, 102 So. 2d 132, 135 (Fla. 1958) (“[O]ne seeking redress, 

either preventive or corrective, against an alleged violation of a municipal zoning 

ordinance must allege and prove special damages peculiar to himself differing in 

kind as distinguished from damages differing in degree suffered by the 

community as a whole.”).
8

agreements.4 The dissent does so to avoid any requirement of special 

damages under Renard. 

So, we must look at what the plaintiffs alleged.

• Since 2011, the City repeatedly has either intentionally or 

mistakenly ignored the actual requirements of State law as it 

applies to the Dania Jai Alai proposed mega-expansion. 

• The uses contained within the mega-expansion are not 

permitted within the zoning districts applicable to the 

property. 

• The City failed to apply the land development regulations for 

the applicable zoning districts, so as to ensure that the uses 

contained within the mega-expansion are consistent with the 

community's character. 

These are allegations the City failed to comply with its own ordinances, 

which the plaintiffs now seek to enforce. That sounds suspiciously like 

Renard Part 1, which addresses standing to enforce a valid zoning 

ordinance. To have that standing, the individual plaintiff must show a 

“special injury.” What the complaint does NOT allege is that the City’s 

zoning ordinances are “void because not properly enacted, as where 

required notice was not given.” See Renard, 261 So. 2d at 838. 

Under J.P.’s three-part standing test, the individual plaintiff failed to 

establish an injury-in-fact, causation, and redressability. Under Renard,

Part 1 applies and the individual plaintiff failed to establish special 

damages and therefore has no standing.

4 Development agreements and zoning ordinances are not the same. “[A] 

‘development agreement’ has been defined as ‘a contract between a [local 

government] and a property owner/developer, which provides the developer with 

vested rights by freezing the existing zoning regulations applicable to a property 

in exchange for public benefits.’” Pres. Palm Beach Pol. Action Comm. v. Town of 

Palm Beach, 50 So. 3d 1176, 1179 (Fla. 4th DCA 2011) (second alteration in 

original) (quoting Morgran Co. v. Orange County, 818 So. 2d 640, 643 (Fla. 5th 

DCA 2002)). 

A zoning ordinance is a local legislative enactment, not a contract. See Lee 

County v. Morales, 557 So. 2d 652, 655 (Fla. 2d DCA 1990) (explaining zoning is 

a legislative function). 
9

Plaintiffs claim because the individual plaintiff is legally blind, 

increased traffic resulting from the DEC’s capital improvement creates the 

required injury-in-fact. But it doesn’t. The injury alleged by the 

individual plaintiff is purely conjectural — being hit by a car nearly a mile 

from his home. It is not an injury-in-fact, “which is concrete, distinct and 

palpable, and actual or imminent.” J.P., 907 So. 2d at 1113 n.4 (internal 

quotation marks omitted). And it is certainly not a “special injury” under 

Renard Part 1.

Indeed, the Second District has held increased traffic is “only damage[] 

differing in degree from [that] suffered by the community as a whole and 

[is] not [a] special damage[] . . . differ[ent] in kind.” Skaggs-Alberton’s 

Prop., Inc. v. Michels Belleair Bluffs Pharmacy, Inc., 332 So. 2d 113, 117 

(Fla. 2d DCA 1976). To reach this conclusion, the Second District relied 

on a Georgia decision, which explained:

The mere increase in traffic congestion adjacent to one’s 

property as the result of improvements erected on nearby 

property and the attendant inconvenience resulting therefrom 

which are damages suffered alike by all property owners 

similarly situated, does not give to one individual such a 

substantial interest in the decision of the Board of Adjustment 

permitting the improvement as to authorize an appeal 

therefrom. Such increase in traffic congestion and attendant 

difficulties in finding parking places are matters which 

address themselves to the police authorities of the 

municipality rather than to the zoning authorities. 

. . . . 

Such an inconvenience is a condition incident to urban living.

Id. (quoting Victoria Corp. v. Atlanta Merch. Mart, Inc., 112 S.E.2d 793, 

795 (Ga. Ct. App. 1960)). The individual plaintiff has no injury in fact, no 

special injury under Renard, and no standing.

• Does CFRD Have Standing?

For the CFRD to establish standing, it must prove:

(1) A substantial number of the [a]ssociation’s members, 

although not necessarily a majority, are substantially affected 

by the challenged rule; (2) The subject matter of the rule is 

within the association’s general scope of interest and activity; 
10

and (3) The relief requested is the type appropriate for a trade 

association to receive on behalf of its members.

Hillsborough Cnty. v. Fla. Rest. Ass’n, 603 So. 2d 587, 589 n.1 (Fla. 2d 

DCA 1992) (quoting Fla. Home Builders Ass’n v. Dep’t of Labor & Emp. 

Sec., 412 So. 2d 351, 353-54 (Fla. 1982)). 

Here, the CFRD also failed to show standing. The trial court 

determined: “[T]here is no record evidence that a substantial number of 

its members are or will be substantially affected by the [d]efendants’ 

actions.” At the hearing on the summary judgment motions, the CFRD 

relied on the individual plaintiff’s alleged injury, and suggested another 

member lives within 300 feet of the facility. But as explained above, the 

individual plaintiff lacks standing and so does the association. 

• Broward County

The County adopts the City’s and the DEC’s arguments but has its 

own unique position concerning the litigation. It argues that it is a 

stranger to the development agreements, took no part in them, and has 

no control over the City’s decisions. It also argues regardless of the “injury 

in fact” or “special injury” requirement, the plaintiffs cannot establish the 

second and third requirements for standing: causal connection and 

redressability. The County relies on DeSantis v. Fla. Educ. Ass’n, 306 So. 

3d 1202 (Fla. 1st DCA 2020). 

In DeSantis, plaintiffs sued several state officials, including Governor 

DeSantis, because they disagreed with the State’s plan for reopening 

schools during the pandemic. Id. at 1208. The First District concluded 

the plaintiffs failed to satisfy the causation and redressability 

requirements of standing. Id. at 1214. Individual school districts, not 

state officials, had the discretion to return to in-person learning and so 

were the actual “cause” of the plaintiffs’ alleged injuries. Id. The Governor 

could not be the cause. Id.

The plaintiffs also failed to satisfy the redressability requirement

because whatever the outcome of their lawsuit, “the choice of how to 

deliver education to students remain[ed] with Florida’s school boards,”

not the Governor. Id. 

Here, the County did not cause the plaintiffs’ alleged injury. That 

injury relates solely to the City’s alleged defective approval of the 

development agreements. The DEC and the City are the parties to the 
11

development agreements and the cause, if any, of an alleged injury. The 

County played no role in the development agreements. 

To the extent the plaintiffs rely on the 2011 Sniezek Opinion, they are 

misguided. The 2011 Sniezek Opinion was issued by the Planning 

Council—not the County. They are different governmental entities, and 

the County had no control over, or responsibility for, the actions of either 

the Planning Council or Mr. Sniezek. 

The plain language of both development agreements indicates the City

“confirm[ed]” an allocation of use from the RAC was not required and then 

explained this conclusion was “consistent with” Mr. Sniezek’s opinion. 

The development agreements themselves do not indicate the Sniezek 

Opinion controlled the City’s actions. And an adverse decision against 

the County would not redress the plaintiffs’ alleged injury because the 

County has no control over the City, the DEC, or the development 

agreements.

For these reasons, the plaintiffs have no standing to sue the County.

As the trial court concluded, neither the individual plaintiff nor the 

CFRD had standing to bring this action against the City, the DEC, or the 

County. The trial court correctly entered summary judgment for the 

defendants. We affirm.

Affirmed.

CIKLIN, J., concur.

WARNER, J., dissents with opinion.

WARNER, J., dissenting.

I dissent, because I believe that the standing issue is governed by the 

third category set forth in Renard v. Dade County, 261 So. 2d 832, 838 

(Fla. 1972). Any affected resident has “standing to attack a zoning 

ordinance which is void because not properly enacted, as where required 

notice was not given.” Id. Because appellants, affected residents, were 

challenging the development agreements as void, due to both lack of notice 

and the City’s failure to follow its own zoning code as to the process of 

adopting a zoning ordinance, they had standing. I contend that the 

development agreement in this case is the equivalent of a zoning ordinance 

for purposes of standing.
12

Stripped to its essence, the City of Dania Beach entered into a contract 

with DEC to develop a substantial portion of land around the Dania Beach 

Jai Lai. It held a public meeting on the first iteration of the agreement, 

and public hearing on the next, but the City did not follow either the 

Florida Local Development Agreement Act, section 163.3221, et seq. or its 

own land use code.5 The commission voted to approve each agreement, 

affirmatively refusing to apply its code, concluding that section 

550.1555(2), Florida Statutes (2011) prohibited their application. That 

section provides that a capital improvement to a pari-mutuel facility which 

requires municipal, or county approval shall receive such approval under 

certain circumstances.

The development agreement in this case allowed for changes in the plat 

and rezoning of property, if necessary, to accomplish the Capital 

Improvement Plan for the properties surrounding the Jai Lai. It requires 

vacation of a city street running through the property (which had been 

dedicated to the City), and it provides for the issuance of building permits 

in accordance with the agreement. In other words, it is the equivalent of 

a zoning ordinance.

Renard allows an affected person to challenge a void ordinance without 

showing special damages.6 261 So. 2d at 832. The Renard court cited 

Rhodes v. City of Homestead, 248 So. 2d 674 (Fla. 3d DCA 1971), in a 

footnote as support for standing to attack a zoning ordinance as void 

because it was not properly enacted. Renard, 261 So. 2d at 838 n.14.

In Rhodes, the Third District said:

5 Dania Beach Unified Land Development Code and Broward County 

Development and Land Use Codes.

6 City argues that plaintiffs’ reliance upon the distinctions in Renard as to 

standing requirements that do not require proof of special damages were 

disavowed in Herbits v. City of Miami, 207 So. 3d 274 (Fla. 3d DCA 2016), because 

the Third District held those distinctions were impliedly overruled. Id. at 284. In 

Herbits, the Third District cited to its own decision in Renard v. Dade County, 249 

So. 2d 500 (Fla. 3d DCA 1971), rather than the supreme court decision. Herbits, 

207 So. 3d at 283–84. We do not agree with Herbits, that the Renard distinctions 

have been sub silentio overruled by the supreme court. First, the supreme court 

does not intentionally overrule itself sub silentio. See Puryear v. State, 810 So. 

2d 901, 905 (Fla. 2002). Second, Herbits relied on Solares v. City of Miami, 166 

So. 3d 887 (Fla. 3d DCA 2015), but that case dealt with taxpayer standing to 

challenge a lease negotiated by the city, not a zoning case. Herbits, 207 So. 3d 

274.
13

The rule or ground [that the plaintiffs must show a special 

damage to attack a zoning decision] presented by defendants 

in moving to dismiss has no application where a person 

affected seeks to challenge such action of the city on the ground 

. . . that the proceedings of the city board or council which 

resulted in such action were conducted contrary to provisions 

of the charter, such as by failure to the city to give notice 

required by its charter, as alleged here.

Id. at 674–75 (emphasis supplied); see also Parsons v. City of Jacksonville, 

295 So. 3d 892, 894 (Fla. 1st DCA 2020) (“Under Florida law, no special 

injury is required for actions attacking void ordinances; i.e., ordinances 

adopted without proper notice or legislative authority, or in excess of police 

powers.”). Similarly, in Upper Keys Citizens Ass’n, Inc. v. Wedel, 341 So. 

2d 1062 (Fla. 3d DCA 1977), the court held no special injury requirement 

for standing applied to an attack on a variance on the grounds that it was 

illegally enacted and void because the county did not follow its zoning 

regulations. Id. at 1064. Therefore, the court concluded that the plaintiff, 

a non-profit corporation whose members were citizens of the county, had 

standing to sue to declare the variance illegal and void. Id.

This is precisely what these appellants claim, i.e., that the city did not 

follow the process of their land use code or the Florida Local Government 

Development Agreement Act. They allege that there was inadequate notice 

with respect to the approval of both the 2011 and 2014 development 

agreements. The allegations are not challenges to the substantive zoning 

decision, but challenges to the procedure for approving the development 

agreements. Furthermore, appellants’ complaint alleged that the City 

affirmatively failed to follow its code provisions by its application of section 

550.155. Because it did not apply its own code, the commission’s approval 

of the development agreement was invalid. The appellants, as affected 

residents, had standing to assert the commission’s actions as void. No 

showing of special damage was necessary.

The majority disagrees that this development agreement could be 

tantamount to a zoning ordinance for purposes of the application of 

Renard. In a footnote, the majority cites to Morgran Co. v. Orange County, 

818 So. 2d 640, 643 (Fla. 5th DCA 2002) for the proposition that a 

development agreement is a “contract between a [local government] and a 

property owner/developer, which provides the developer with vested rights 

by freezing the existing zoning regulations applicable to a property in 

exchange for public benefits.”
14

The Morgran court quoted from Brad K. Schwartz, Development 

Agreements: Contracting for Vested Rights, 28 B.C. Envtl. Aff. L.Rev. 719 

(Summer 2001). The article discusses development agreements and 

explains that these agreements are contract zoning, which is illegal, if not 

based upon enabling legislation:

Contract zoning refers to an ad hoc agreement between a 

municipality and a developer regarding rezoning. In the 

traditional view, contract zoning is per se invalid, but courts 

are increasingly rejecting this approach and upholding certain 

forms of contract zoning. Specifically, courts distinguish 

between bilateral and unilateral contracts. A bilateral 

contract in which a municipality promises to rezone property 

is illegal because the municipality bypasses the notice and 

hearing phases of the legislative process, thereby depriving 

interested parties of due process. On the other hand, a 

unilateral contract in which a developer makes a promise 

contingent on the municipality’s act of rezoning is legal. 

Because the municipality does not promise to take action 

prior to the zoning hearing, it does not circumvent the 

legislative process. In short, contract zoning is illegal 

whenever it arises from a promise by a municipality to zone 

property in a certain manner, whether in a bilateral contract 

or unilateral contract initiated by the municipality.

Development agreements take the form of bilateral contracts 

as the municipality and the developer exchange promises. As 

such, absent legislative authority, development agreements 

constitute illegal contract zoning. It is of critical legal 

consequence, therefore, that development agreements are 

entered into pursuant to express enabling legislation. Thus 

recognizing the central importance of development agreement 

legislation, it is worth noting the basic provisions found in a 

typical development agreement statute.

Id. at 728–29 (emphasis supplied).

Morgran also recognized that contract zoning is disapproved. 818 

So. 2d at 642. The court cited to Hartnett v. Austin, 93 So. 2d 86 (Fla. 

1956) which explained:

A municipality has no authority to enter into a private 

contract with a property owner for the amendment of a zoning 

ordinance subject to various covenants and restrictions in a 
15

collateral deed or agreement to be executed between the city 

and the property owner. Such collateral agreements have 

been void in all of the cases to which we have been referred. 

Any contrary rule would condone a violation of the long 

established principle that a municipality cannot contract 

away the exercise of its police powers.

Id. at 89 (internal citations omitted). Hartnett explains the limit of 

municipal power to enter into contract zoning:

In exercising its zoning powers the municipality must deal 

with well-defined classes of uses. If each parcel of property 

were zoned on the basis of variables that could enter into 

private contracts then the whole scheme and objective of

community planning and zoning would collapse. The 

residential owner would never know when he was protected 

against commercial encroachment. The commercial 

establishments on ‘Main Street’ would never know when they 

had protection against inroads by smoke and noise producing 

industries. This is so because all genuine standards would 

have been eliminated from the zoning ordinance. The zoning 

classifications of each parcel would then be bottomed on 

individual agreements and private arrangements that would 

totally destroy uniformity. Both the benefits of and reasons 

for a well-ordered comprehensive zoning scheme would be 

eliminated.

The adoption of an ordinance is the exercise of municipal 

legislative power. In the exercise of this governmental function 

a city cannot legislate by contract. If it could, then each citizen 

would be governed by an individual rule based upon the best 

deal that he could make with the governing body. Such is 

certainly not consonant with our notion of government by rule 

of law that affects alike all similarly conditioned.

Id. (emphasis supplied).

Thus, the adoption of a development agreement which provides for 

contract zoning is void as beyond the power of the City unless there is 

legislative authority for its enactment. Before the trial court, the City 

claimed authority through its Home Rule power, but the foregoing shows 

that it does not have the power to enter into contracts with private 

developers outside of enabling legislation. It must comply with its own 
16

Land Development Code, which is the enabling legislation for zoning 

matters.

The complaint alleges that the approval of the development agreement

occurred without notice in accordance with the code, nor without 

compliance with any of its procedures; in other words, without legislative 

authority. Therefore, based upon these allegations, Renard allows an 

affected resident to sue. I would reverse the court’s summary judgment 

as to Counts 1, 2, 4, and 5.

In Counts 6 and 7, appellants sought an injunction to prevent 

enforcement of the development agreements for failure to comply with the 

notice provisions of the Florida Local Government Development Agreement 

Act. § 163.3225, Fla. Stat. The City maintains that the statute does not 

apply. After carefully reviewing the record and the statute, I agree.

Section 163.3220, Florida Statutes, provides in part:

(3) . . . [I]t is the intent of the Legislature to encourage a 

stronger commitment to comprehensive and capital facilities 

planning, ensure the provision of adequate public facilities for 

development, encourage the efficient use of resources, and 

reduce the economic cost of development.

(4) This intent is effected by authorizing local governments to 

enter into development agreements with developers, subject 

to the procedures and requirements of ss. 163.3220-

163.3243.

(5) Sections 163.3220-163.3243 shall be regarded as 

supplemental and additional to the powers conferred upon local 

governments by other laws and shall not be regarded as in 

derogation of any powers now existing.

(Emphasis supplied.). It appears that a local government does not have to 

adopt the provisions of the act. Section 163.3223, Florida Statutes, states:

Any local government may, by ordinance, establish 

procedures and requirements, as provided in ss. 163.3220-

163.3243, to consider and enter into a development 

agreement with any person having a legal or equitable interest 

in real property located within its jurisdiction.
17

(Emphasis supplied.). Thus, the notice provisions under the act in section 

163.3225, which appellants contend the City violated, do not apply if the 

City did not adopt the provisions and provide for developer agreements.

There is nothing in the record to show that the City has adopted the 

statute, making section 163.3220 et seq. inapplicable. Because it is 

inapplicable, I would affirm the trial court’s summary judgment on these 

counts based upon the tipsy coachman principle.7

Finally, the City and County both argue that the trial court should be 

affirmed on the tipsy coachman principle, because even if appellants have 

standing, the City’s actions in approving the development agreement were 

required by section 550.155. While the majority has not addressed this 

issue because they affirm on the standing issue, I must address why I 

would still reverse. I disagree that tipsy coachman should apply, because 

there remain material issues of fact as to how section 550.155 should be 

applied.

Appellants claim in the complaint that the City and County improperly 

failed to apply their land use codes, because they erroneously found that 

the pari-mutuel facility was exempt from their application pursuant to 

section 550.155. There are several reasons to support their claim that the 

governmental entities are not exempt from following their own ordinances 

in development approval.

Section 550.155 provides:

A capital improvement proposed by a permitholder licensed 

under this chapter to a pari-mutuel facility existing on June 

23, 1981, which capital improvement requires, pursuant to 

any municipal or county ordinance, resolution, or regulation, 

the qualification or approval of the municipality or county

wherein the permitholder conducts its business operations, 

shall receive approval unless the municipality or county is 

able to show that the proposed improvement presents a 

justifiable and immediate hazard to the health and safety of 

municipal or county residents, provided the permitholder 

pays to the municipality or county the cost of a building 

permit and provided the capital improvement meets the 

following criteria:

7 Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644–45 

(Fla.1999).
18

(a) The improvement does not qualify as a development of 

regional impact as defined in s. 380.06; and

(b) The improvement is contiguous to or within the existing 

pari-mutuel facility site[.]

§ 550.155(2), Fla. Stat. (emphasis supplied). Nothing in the statute states 

that the capital improvement is “exempt” from the approval process. In 

fact, it contemplates that an approval process is required. Had the 

Legislature intended to exempt any capital improvement from proceeding 

through rezoning, building permit approval, and the like, it would have 

expressly stated as much. Thus, the County and the City wrongly 

interpreted this as altogether exempting the facility from the approval 

process. Instead, the statute requires the approval process, even though 

in the end it may compel the outcome.

There also remains a material issue of what constitutes the parimutuel facility. A pari-mutuel facility is defined in the statute as: “the 

grounds or property of a cardroom, racetrack, fronton, or other facility 

used by a licensed permitholder.” § 550.002(22), Fla. Stat. (2011). 

Fronton is defined as “a building or enclosure that contains a playing court 

with three walls designed and constructed for playing the sport of jai alai 

or pelota.” § 550.002(9), Fla. Stat. (2011).

Under the statute, the “facility” does not appear to be anything more 

than the building itself or the building with the parking lot. It does not 

comport with the statutory definitions that property across the street from 

the Fronton, or the docks in the water can constitute part of the parimutuel facility. The only evidence in the record relied on by the City and 

County is a letter from a Department of Business Regulation investigator 

which states that the entire property was “authorized for pari-mutuel 

activity.” But that is not a statement that the entire property is a parimutuel facility.

Moreover, the statute applies to a pari-mutuel facility existing on June 

23, 1981. There is no information in the record regarding the facility in 

existence on that date. If the land surrounding that 1981 facility was 

acquired after 1981, or the facility itself was expanded after 1981, then 

those additional land and improvements would not have been existing on 

that date, and thus the statute would not apply to any improvement of the 

expanded facility.

Finally, there is a material issue of fact as to what property is 

“contiguous to or within the existing pari-mutuel facility site.” See § 
19

550.155(2)(b), Fla. Stat. Given the definition of pari-mutuel facility in the 

statute, property across a street that was dedicated to the City would not 

qualify, even if the development agreement provided that the City was to 

vacate the street.

For those reasons, I do not think a tipsy coachman resolution is merited 

based on section 550.155(2), Florida Statutes.

WARNER, J., dissenting.

I dissent, because I believe that the standing issue is governed by the 

third category set forth in Renard v. Dade County, 261 So. 2d 832, 838 

(Fla. 1972). Any affected resident has “standing to attack a zoning 

ordinance which is void because not properly enacted, as where required 

notice was not given.” Id. Because appellants, affected residents, were 

challenging the development agreements as void, due to both lack of notice 

and the City’s failure to follow its own zoning code as to the process of 

adopting a zoning ordinance, they had standing. I contend that the 

development agreement in this case is the equivalent of a zoning ordinance 

for purposes of standing.

Stripped to its essence, the City of Dania Beach entered into a contract 

with DEC to develop a substantial portion of land around the Dania Beach 

Jai Lai. It held a public meeting on the first iteration of the agreement, 

and public hearing on the next, but the City did not follow either the 

Florida Local Development Agreement Act, section 163.3221, et seq. or its 

own land use code.8 The commission voted to approve each agreement, 

affirmatively refusing to apply its code, concluding that section 

550.1555(2), Florida Statutes (2011) prohibited their application. That 

section provides that a capital improvement to a pari-mutuel facility which 

requires municipal, or county approval shall receive such approval under 

certain circumstances.

The development agreement in this case allowed for changes in the plat 

and rezoning of property, if necessary, to accomplish the Capital 

Improvement Plan for the properties surrounding the Jai Lai. It requires 

vacation of a city street running through the property (which had been 

dedicated to the City), and it provides for the issuance of building permits 

in accordance with the agreement. In other words, it is the equivalent of 

a zoning ordinance.

8 Dania Beach Unified Land Development Code and Broward County 

Development and Land Use Codes.
20

Renard allows an affected person to challenge a void ordinance without 

showing special damages.9 261 So. 2d at 832. The Renard court cited 

Rhodes v. City of Homestead, 248 So. 2d 674 (Fla. 3d DCA 1971), in a 

footnote as support for standing to attack a zoning ordinance as void 

because it was not properly enacted. Renard, 261 So. 2d at 838 n.14.

In Rhodes, the Third District said:

The rule or ground [that the plaintiffs must show a special 

damage to attack a zoning decision] presented by defendants 

in moving to dismiss has no application where a person 

affected seeks to challenge such action of the city on the ground 

. . . that the proceedings of the city board or council which 

resulted in such action were conducted contrary to provisions 

of the charter, such as by failure to the city to give notice 

required by its charter, as alleged here.

Id. at 674–75 (emphasis supplied); see also Parsons v. City of Jacksonville, 

295 So. 3d 892, 894 (Fla. 1st DCA 2020) (“Under Florida law, no special 

injury is required for actions attacking void ordinances; i.e., ordinances 

adopted without proper notice or legislative authority, or in excess of police 

powers.”). Similarly, in Upper Keys Citizens Ass’n, Inc. v. Wedel, 341 So. 

2d 1062 (Fla. 3d DCA 1977), the court held no special injury requirement 

for standing applied to an attack on a variance on the grounds that it was 

illegally enacted and void because the county did not follow its zoning 

regulations. Id. at 1064. Therefore, the court concluded that the plaintiff, 

a non-profit corporation whose members were citizens of the county, had 

standing to sue to declare the variance illegal and void. Id.

9 City argues that plaintiffs’ reliance upon the distinctions in Renard as to 

standing requirements that do not require proof of special damages were 

disavowed in Herbits v. City of Miami, 207 So. 3d 274 (Fla. 3d DCA 2016), because 

the Third District held those distinctions were impliedly overruled. Id. at 284. In 

Herbits, the Third District cited to its own decision in Renard v. Dade County, 249 

So. 2d 500 (Fla. 3d DCA 1971), rather than the supreme court decision. Herbits, 

207 So. 3d at 283–84. We do not agree with Herbits, that the Renard distinctions 

have been sub silentio overruled by the supreme court. First, the supreme court 

does not intentionally overrule itself sub silentio. See Puryear v. State, 810 So. 

2d 901, 905 (Fla. 2002). Second, Herbits relied on Solares v. City of Miami, 166 

So. 3d 887 (Fla. 3d DCA 2015), but that case dealt with taxpayer standing to 

challenge a lease negotiated by the city, not a zoning case. Herbits, 207 So. 3d 

274.
21

This is precisely what these appellants claim, i.e., that the city did not 

follow the process of their land use code or the Florida Local Government 

Development Agreement Act. They allege that there was inadequate notice 

with respect to the approval of both the 2011 and 2014 development 

agreements. The allegations are not challenges to the substantive zoning 

decision, but challenges to the procedure for approving the development 

agreements. Furthermore, appellants’ complaint alleged that the City 

affirmatively failed to follow its code provisions by its application of section 

550.155. Because it did not apply its own code, the commission’s approval 

of the development agreement was invalid. The appellants, as affected 

residents, had standing to assert the commission’s actions as void. No 

showing of special damage was necessary.

The majority disagrees that this development agreement could be 

tantamount to a zoning ordinance for purposes of the application of 

Renard. In a footnote, the majority cites to Morgran Co. v. Orange County, 

818 So. 2d 640, 643 (Fla. 5th DCA 2002) for the proposition that a 

development agreement is a “contract between a [local government] and a 

property owner/developer, which provides the developer with vested rights 

by freezing the existing zoning regulations applicable to a property in 

exchange for public benefits.”

The Morgran court quoted from Brad K. Schwartz, Development 

Agreements: Contracting for Vested Rights, 28 B.C. Envtl. Aff. L.Rev. 719 

(Summer 2001). The article discusses development agreements and 

explains that these agreements are contract zoning, which is illegal, if not 

based upon enabling legislation:

Contract zoning refers to an ad hoc agreement between a 

municipality and a developer regarding rezoning. In the 

traditional view, contract zoning is per se invalid, but courts 

are increasingly rejecting this approach and upholding certain 

forms of contract zoning. Specifically, courts distinguish 

between bilateral and unilateral contracts. A bilateral 

contract in which a municipality promises to rezone property 

is illegal because the municipality bypasses the notice and 

hearing phases of the legislative process, thereby depriving 

interested parties of due process. On the other hand, a 

unilateral contract in which a developer makes a promise 

contingent on the municipality’s act of rezoning is legal. 

Because the municipality does not promise to take action 

prior to the zoning hearing, it does not circumvent the 

legislative process. In short, contract zoning is illegal 

whenever it arises from a promise by a municipality to zone 
22

property in a certain manner, whether in a bilateral contract 

or unilateral contract initiated by the municipality.

Development agreements take the form of bilateral contracts 

as the municipality and the developer exchange promises. As 

such, absent legislative authority, development agreements 

constitute illegal contract zoning. It is of critical legal 

consequence, therefore, that development agreements are 

entered into pursuant to express enabling legislation. Thus 

recognizing the central importance of development agreement 

legislation, it is worth noting the basic provisions found in a 

typical development agreement statute.

Id. at 728–29 (emphasis supplied).

Morgran also recognized that contract zoning is disapproved. 818 

So. 2d at 642. The court cited to Hartnett v. Austin, 93 So. 2d 86 (Fla. 

1956) which explained:

A municipality has no authority to enter into a private 

contract with a property owner for the amendment of a zoning 

ordinance subject to various covenants and restrictions in a 

collateral deed or agreement to be executed between the city 

and the property owner. Such collateral agreements have 

been void in all of the cases to which we have been referred. 

Any contrary rule would condone a violation of the long 

established principle that a municipality cannot contract 

away the exercise of its police powers.

Id. at 89 (internal citations omitted). Hartnett explains the limit of 

municipal power to enter into contract zoning:

In exercising its zoning powers the municipality must deal 

with well-defined classes of uses. If each parcel of property 

were zoned on the basis of variables that could enter into 

private contracts then the whole scheme and objective of 

community planning and zoning would collapse. The 

residential owner would never know when he was protected 

against commercial encroachment. The commercial 

establishments on ‘Main Street’ would never know when they 

had protection against inroads by smoke and noise producing 

industries. This is so because all genuine standards would 

have been eliminated from the zoning ordinance. The zoning 

classifications of each parcel would then be bottomed on 
23

individual agreements and private arrangements that would 

totally destroy uniformity. Both the benefits of and reasons 

for a well-ordered comprehensive zoning scheme would be 

eliminated.

The adoption of an ordinance is the exercise of municipal 

legislative power. In the exercise of this governmental function 

a city cannot legislate by contract. If it could, then each citizen 

would be governed by an individual rule based upon the best 

deal that he could make with the governing body. Such is 

certainly not consonant with our notion of government by rule 

of law that affects alike all similarly conditioned.

Id. (emphasis supplied).

Thus, the adoption of a development agreement which provides for 

contract zoning is void as beyond the power of the City unless there is 

legislative authority for its enactment. Before the trial court, the City 

claimed authority through its Home Rule power, but the foregoing shows 

that it does not have the power to enter into contracts with private

developers outside of enabling legislation. It must comply with its own 

Land Development Code, which is the enabling legislation for zoning 

matters.

The complaint alleges that the approval of the development agreement 

occurred without notice in accordance with the code, nor without 

compliance with any of its procedures; in other words, without legislative 

authority. Therefore, based upon these allegations, Renard allows an 

affected resident to sue. I would reverse the court’s summary judgment 

as to Counts 1, 2, 4, and 5.

In Counts 6 and 7, appellants sought an injunction to prevent 

enforcement of the development agreements for failure to comply with the 

notice provisions of the Florida Local Government Development Agreement 

Act. § 163.3225, Fla. Stat. The City maintains that the statute does not 

apply. After carefully reviewing the record and the statute, I agree.

Section 163.3220, Florida Statutes, provides in part:

(3) . . . [I]t is the intent of the Legislature to encourage a 

stronger commitment to comprehensive and capital facilities 

planning, ensure the provision of adequate public facilities for 

development, encourage the efficient use of resources, and 

reduce the economic cost of development.
24

(4) This intent is effected by authorizing local governments to 

enter into development agreements with developers, subject 

to the procedures and requirements of ss. 163.3220-

163.3243.

(5) Sections 163.3220-163.3243 shall be regarded as 

supplemental and additional to the powers conferred upon local 

governments by other laws and shall not be regarded as in 

derogation of any powers now existing.

(Emphasis supplied.). It appears that a local government does not have to 

adopt the provisions of the act. Section 163.3223, Florida Statutes, states:

Any local government may, by ordinance, establish 

procedures and requirements, as provided in ss. 163.3220-

163.3243, to consider and enter into a development 

agreement with any person having a legal or equitable interest 

in real property located within its jurisdiction.

(Emphasis supplied.). Thus, the notice provisions under the act in section 

163.3225, which appellants contend the City violated, do not apply if the 

City did not adopt the provisions and provide for developer agreements.

There is nothing in the record to show that the City has adopted the 

statute, making section 163.3220 et seq. inapplicable. Because it is 

inapplicable, I would affirm the trial court’s summary judgment on these 

counts based upon the tipsy coachman principle.10

Finally, the City and County both argue that the trial court should be 

affirmed on the tipsy coachman principle, because even if appellants have 

standing, the City’s actions in approving the development agreement were 

required by section 550.155. While the majority has not addressed this 

issue because they affirm on the standing issue, I must address why I 

would still reverse. I disagree that tipsy coachman should apply, because 

there remain material issues of fact as to how section 550.155 should be 

applied.

Appellants claim in the complaint that the City and County improperly 

failed to apply their land use codes, because they erroneously found that 

the pari-mutuel facility was exempt from their application pursuant to 

10 Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644–45 

(Fla.1999).
25

section 550.155. There are several reasons to support their claim that the 

governmental entities are not exempt from following their own ordinances 

in development approval.

Section 550.155 provides:

A capital improvement proposed by a permitholder licensed 

under this chapter to a pari-mutuel facility existing on June 

23, 1981, which capital improvement requires, pursuant to 

any municipal or county ordinance, resolution, or regulation, 

the qualification or approval of the municipality or county

wherein the permitholder conducts its business operations, 

shall receive approval unless the municipality or county is 

able to show that the proposed improvement presents a 

justifiable and immediate hazard to the health and safety of 

municipal or county residents, provided the permitholder 

pays to the municipality or county the cost of a building 

permit and provided the capital improvement meets the 

following criteria:

(c) The improvement does not qualify as a development of 

regional impact as defined in s. 380.06; and

(d) The improvement is contiguous to or within the existing 

pari-mutuel facility site[.]

§ 550.155(2), Fla. Stat. (emphasis supplied). Nothing in the statute states 

that the capital improvement is “exempt” from the approval process. In 

fact, it contemplates that an approval process is required. Had the 

Legislature intended to exempt any capital improvement from proceeding 

through rezoning, building permit approval, and the like, it would have 

expressly stated as much. Thus, the County and the City wrongly 

interpreted this as altogether exempting the facility from the approval 

process. Instead, the statute requires the approval process, even though 

in the end it may compel the outcome.

There also remains a material issue of what constitutes the parimutuel facility. A pari-mutuel facility is defined in the statute as: “the 

grounds or property of a cardroom, racetrack, fronton, or other facility 

used by a licensed permitholder.” § 550.002(22), Fla. Stat. (2011). 

Fronton is defined as “a building or enclosure that contains a playing court 

with three walls designed and constructed for playing the sport of jai alai 

or pelota.” § 550.002(9), Fla. Stat. (2011).
26

Under the statute, the “facility” does not appear to be anything more 

than the building itself or the building with the parking lot. It does not 

comport with the statutory definitions that property across the street from 

the Fronton, or the docks in the water can constitute part of the parimutuel facility. The only evidence in the record relied on by the City and 

County is a letter from a Department of Business Regulation investigator 

which states that the entire property was “authorized for pari-mutuel 

activity.” But that is not a statement that the entire property is a parimutuel facility.

Moreover, the statute applies to a pari-mutuel facility existing on June 

23, 1981. There is no information in the record regarding the facility in 

existence on that date. If the land surrounding that 1981 facility was 

acquired after 1981, or the facility itself was expanded after 1981, then 

those additional land and improvements would not have been existing on 

that date, and thus the statute would not apply to any improvement of the 

expanded facility.

Finally, there is a material issue of fact as to what property is 

“contiguous to or within the existing pari-mutuel facility site.” See § 

550.155(2)(b), Fla. Stat. Given the definition of pari-mutuel facility in the 

statute, property across a street that was dedicated to the City would not 

qualify, even if the development agreement provided that the City was to 

vacate the street.

For those reasons, I do not think a tipsy coachman resolution is merited 

based on section 550.155(2), Florida Statutes.

* * *

Not final until disposition of timely filed motion for rehearing.