Hillsborough County Follows Through on its Vote to Sue the State of Florida by Filing a Declaratory Action Challenging the Live Local Act
On March 6, 2026, Hillsborough County (the “County”) filed a lawsuit against the State of Florida to challenge the validity of the Live Local Act (limited to section 125.01055, Florida Statutes). This suit comes on the heels of the Board of County Commissioners’ unanimous vote on December 17, 2025 to authorize the filing of such a challenge, which was raised upon the motion of County Commissioner Joshua Wostal. In the single-count Complaint, the County seeks declaratory relief pursuant to Chapter 86, Florida Statutes, asserting a number of purported conflicts between the application of the Live Local Act and the Community Planning Act, the due process guarantees of the Florida Constitution, existing planned development approvals, and more.
After providing a brief summary of the Live Local Act, the Complaint cites to many of the foundational local government planning powers and duties derived from the Florida Constitution and the Community Planning Act. It details the requirements for creating and maintaining a comprehensive plan, as well as the requirements for creating consistent land development regulations that implement the same. At a high level, the Complaint alleges that the mandates of the Live Local Act conflict with these foundational land use powers and duties by requiring the approval of multifamily residential projects in areas that were duly evaluated, studied, and designated for industrial or commercial uses in conformity with the requirements of the Community Planning Act, among others.
The Complaint asserts a number of other purported conflicts: that the Live Local Act compels the County to violate its citizens’ procedural due process rights by eliminating the notice and hearing requirements that would otherwise be necessary for a general rezoning; that the Live Local Act impairs existing “contracts” by retroactively modifying planned development zoning approvals with negotiated conditions; and that the Live Local Act does not fulfill an important public purpose as applied to developments at 120 percent area median income because there is no data supporting a shortage of such housing within the County’s metropolitan statistical area. The Complaint brings one count for declaratory relief, seeking over 15 declarations with respect to the foregoing issues. The case was filed in Leon County, was originally assigned to Judge Jonathan Sjostrom, and then reassigned to Judge Marsh.
Despite the County’s growing discontent with the law, the state legislature continues to strengthen the provisions of the Live Local Act, with the Senate recently passing House Bill 1389. While the latest round of amendments (Live Local 4.0) has not yet been signed into law, this does suggest that the state has no intention of changing course on the large-scale preemptions that the Live Local Act provides to promote affordable housing projects. Our Land Development, Zoning & Environmental Team is closely monitoring this lawsuit as it progresses.
D.C. Circuit: EPA and FWS violated ESA; Florida May Not Issue 404 Permits
The most recent nail in the coffin of Florida’s Section 404 permitting program came last week when the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) upheld the decision vacating the Environmental Protection Agency’s (“EPA”) approval of the program due to violations of the Endangered Species Act (“ESA”) by the EPA and Fish and Wildlife Service (“FWS”). The decision means Section 404 permits will continue to be processed by the U.S. Army Corps of Engineers (“Corps”) for the foreseeable future, much to the disappointment of many industry groups who complained about processing and communication delays from the Corps.
Section 404 of the Clean Water Act regulates dredge and fill activities in waters of the United States (“WOTUS”). Permitting under Section 404 is typically handled by the Corps; but Section 404 allows states to apply to the EPA to assume permitting over a subset of WOTUS. In December 2020, Florida became only the third state to receive EPA approval to assume the Section 404 permitting process. The success was short lived. In February 2024, the District Court agreed with environmental groups that EPA’s approval was based on an insufficient consultation with FWS and the National Marine Fisheries Service (“NMFS”) (collectively “Agencies”) required by Section 7 of the ESA. This decision immediately halted the program and shifted permitting back to the Corps. Florida applied for a stay of the decision regarding permits not affecting ESA-listed species, but the application was denied. The Corps took over Section 404 applications pending in Florida’s system at the time of the decision and all subsequent applications.
Section 7 of the ESA requires the Agencies to consult on all federal actions that may affect a listed species or its designated critical habitat within their jurisdiction. As part of that consultation process, the Agencies must issue a Biological Opinion (“BO”) meeting certain criteria and ultimately determining if the proposed action is likely to “jeopardize the continued existence” of an ESA-listed species or result in the “destruction or adverse modification” of critical habitat for ESA-listed species. If the Agencies determine there is no jeopardy to the continued existence of a listed species or destruction or adverse modification of its habitat from the proposed federal action, but such action is likely to result in a “take” of such species, the Agencies must prepare an Incidental Take Statement (“ITS”). “Take” means the harm, harassment, or death of a listed species, and is a federal crime; however, a “take” that is incidental to an authorized activity is allowable if the protective measures described in the ITS are taken. In addition, the ITS must limit incidental take and require renewed consultation with the Agencies if those limits are exceeded. In this way, Section 7 consultation creates a liability shield for federal actions resulting in incidental take. A similar process and liability shield is available to states and individuals through the ESA’s Section 10.
A plurality of the D.C. Circuit agreed that the BO produced by FWS in the consultation process was inadequate pursuant to statute and as a result it must be set aside; it unanimously agreed that the ITS was inadequate pursuant to statute and must be set aside and that failure of the EPA to consult with NMFS violated the ESA; and a majority of the court concurred that the remedy for these inadequate productions was to vacate EPA’s action turning the program over to Florida.
Though for different reasons, a majority of the D.C. Circuit believed the technical assistance portion of Florida’s application was not permissible. The technical assistance program would have allowed FWS to review all Section 404 applications for listed species impacts and recommend conditions to mitigate impact to species and critical habitat. The state was mandated to accept those recommended conditions or deny the application. One judge said the BO was not sufficiently detailed and the no-jeopardy determination was arbitrary and capricious; another said there are no statutory provisions allowing a bypass for permit-specific consultation. The result of both analyses was an invalid BO. In dissent, a third judge argued the BO should stand because the FWS determination that the technical assistance program was as protective as individual consultation is a scientific determination that should not be judicially disturbed without evidence that the decision was unreasonable.
While all three judges concurred EPA’s failure to consult with NMFS and an ITS that lacked a limit on take violated the ESA, the judges disagreed on the remedy. Two judges joined the District Court in stating these failures require vacatur, while the third judge said no evidence had been presented that those deficiencies did not constitute harmless error. In a dissent, this judge wrote that considering the significant resources expended on Florida’s State 404 program, it should be allowed to continue processing Section 404 applications not affecting listed species while the FWS take statement is amended and consultation with NMFS is undertaken.
Public Official Standing Doctrine Bars Challenge to Constitutionality of SB 180
On June 26, 2025, Governor Ron DeSantis signed SB 180, a bill that addresses Florida’s statewide and local response to emergency and natural disasters, into law. The bill restores and strengthens provisions originally enacted in 2023 to prohibit local governments from enacting burdensome regulations and construction moratoriums after storms. For the first time, the Legislature created an enforcement mechanism for private property owners challenging a local government action that violates the prohibition. This important change not only strengthened these prohibitions, but also ensured that local governments allow their communities to rebuild.
Soon after SB 180 was signed into law, several lawsuits were filed challenging the new legislation. In Leon County, cases challenging SB 180 on numerous grounds were consolidated, including cases filed by 25 cities and counties (collectively, the “Public Plaintiffs”), 1000 Friends of Florida, and an Orange County resident (collectively, the “Private Plaintiffs”). The cases were brought against the Secretary of the Florida Department of Commerce, in addition to other elected and appointed constitutional officers, with the Florida Home Builders Association intervening as a defendant (collectively, the “Defendants”).
The Public Plaintiffs’ grounds for challenging SB 180 included six counts: Count I – SB 180 violated the Single Subject Rule; Count II – SB 180’s title violated the Single Subject Rule; Count III – SB 180 violated the Reasonable Classification provision; Count IV – SB 180 was an unfunded mandate; Count V – SB 180 conflicted with the Community Planning Act; and Count VI – SB 180 violated local governments’ Home Rule Powers.
The Private Plaintiffs brought a five-count complaint: Count I – SB 180 is arbitrary and capricious; Count II – SB 180 is vague; Count III – SB 180 violated the Single Subject Rule; County IV – SB 180 violated Florida Constitution’s Natural Resources Clause; and Count V – a claim for a temporary and permanent injunction.
The Defendants filed a Motion to Dismiss against the Public and Private Plaintiffs’ claims, primarily arguing that Plaintiffs lacked standing. The circuit court found the Public Plaintiffs lacked standing based on the public official standing doctrine and failing to plead an injury. However, the circuit court found the Public Plaintiffs had standing to proceed under Count IV based on the claim that the legislation is an unfunded mandate. The circuit court dismissed Counts III and IV with Prejudice as to both Private Plaintiffs, dismissed Counts I and II as to 1000 Friends of Florida without prejudice allowing for an opportunity to amend, but denied dismissal on Counts I and II as to the Orange County Resident, and delayed ruling on Count V finding that injunctive relief could be considered a remedy at a later stage.
The litigation is still pending with the Defendants set to file answers on the remaining Counts and the Plaintiffs left with an opportunity to amend their complaints.
Case Summaries
Florida Second District Court of Appeal Grants Petition for Writ of Mandamus Directing the Circuit Court to Exercise its Certiorari Jurisdiction
City of Tampa v. Liberty Hosp. Mgmt., LLC, 2026 WL 627977 (Fla. 2d DCA Mar. 6, 2026)
Liberty Hospitality Management, LLC (“Liberty”) proposed to rezone its property on Harbour Island in the City of Tampa (“City”) for use as a hotel. The rezoning request sought a change to the Harbour Island Development of Regional Impact (“DRI”) to increase the number of rooms and parking spaces allocated to the subject property. The Tampa City Council denied the application and Liberty appealed by filing a petition for writ of certiorari. On its own initiative, the circuit court concluded that the City Council could not exercise quasi-judicial power and that the circuit court did not have jurisdiction over Liberty’s petition. The petition was dismissed and Liberty appealed. The Second District Court of Appeal found the circuit court’s reasoning was “flawed at the outset.” The Court clarified that the City’s Charter and Florida law both provide the City Council with the authority to act as a legislative body to pass an ordinance on rezoning and to conduct hearings as part of that process. While neither the City’s Charter nor Florida law refer to “quasi-judicial action,” Florida law allows municipalities to exercise powers “not expressly prohibited by the constitution, general or special law, or county charter.” Moreover, because neither the City’s Charter nor Florida law expressly prohibits the City Council from taking quasi-judicial action on a site-specific zoning request, the Council can take quasi-judicial action in the exercise of its legislative powers. These quasi-judicial decisions are reviewable in the circuit court by petition for writ of certiorari.
Florida Third District Court of Appeal Upholds Miami Beach Ordinances Prohibiting Short-Term Rentals
Nichols v. City of Miami Beach, 422 So. 3d 202 (Fla. 3d DCA 2025)
The City of Miami Beach adopted two ordinances barring short-term rentals in single-family and multi-family residential districts. Nichols, the owner of multiple properties located within single-family residential districts, filed suit challenging both ordinances. Importantly, Nichols was only affected by the single-family district ordinance, which provided no exceptions for short-term rentals. Both ordinances included substantial mandatory fines for noncompliance. In her lawsuit, Nichols alleged that the ordinances violated equal protection, that the fines imposed constitute excessive punishment under the Florida Constitution, and that the fines are preempted by state law. The trial court granted summary judgment on the state law preemption claims and invalidated both ordinances in their entirety. On appeal, the Court affirmed in part and reversed in part, remanding for severance of the excessive fines to preserve the validity of the ordinances. On remand, Nichols’ challenge to the ordinances continued only as to equal protection and the trial court granted summary judgment in favor of the City. On appeal for the second time, the Court examined and upheld the ordinances under the rational basis test, finding that the legitimate purpose of the ordinances is to “restrict the location of short-term rentals in order to protect and maintain the residential character, privacy, security, and quality of life of residential neighborhoods by protecting such communities from the adverse effects associated with short-term rentals.” The Court also held that Nichols lacked standing to challenge the multi-family residential district ordinance, as her properties were not located in a multi-family district.
