              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                           IN THE DISTRICT COURT OF APPEAL
                                           OF FLORIDA
                                           SECOND DISTRICT

FREDERICK HEINE and BARBARA                )
HEINE,                                     )
                                           )
             Appellants,                   )
                                           )
v.                                         )         Case No. 2D16-2804
                                           )
LEE COUNTY, a political subdivision of     )
the State of Florida; and ALICO WEST       )
FUND, LLC, a Florida limited liability     )
company,                                   )
                                           )
             Appellees.                    )
                                           )

Opinion filed June 30, 2017.

Appeal from the Circuit Court for Lee
County; Elizabeth V. Krier, Judge.

Robert K. Lincoln of the Law Office of
Robert K. Lincoln, P.A., Sarasota, for
Appellants.

Hala Sandridge and Victoria J. Oguntoye
of Buchanan Ingersoll & Rooney, P.C.,
Tampa, for Appellee Alico West Fund,
LLC; and Mark A. Trank and Michael D.
Jacob, Lee County Attorney's Office, for
Appellee Lee County.


LaROSE, Judge.

             Frederick and Barbara Heine appeal a final summary judgment entered in

favor of Alico West Fund, LLC, and Lee County, in the Heines' lawsuit brought under
section 163.3215(3), Florida Statutes (2015) (the Consistency Statute).1 We have

jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A).

              The Heines challenged a rezoning resolution approved by the Lee County

Board of County Commissioners (the Board) that authorized rezoning of Alico's

property. The Heines alleged that the resolution was inconsistent with various

provisions of Lee County's comprehensive plan. The trial court found otherwise, ruling

that the Heines' claims fell outside the purview of the Consistency Statute.

              On appeal, the Heines raise several issues challenging summary

judgment. After careful review of the record, and with the benefit of oral argument, we

affirm in all respects. However, we write to explain why the trial court properly

construed the Consistency Statute.

                                      Background

              Alico owns over eight hundred acres of land in Lee County. North Lake is

situated on the western portion of its property. The Heines live in a residential

community south of the Alico property and the North Lake. Their residence faces the

South Lake. The North Lake and South Lake are connected; the Heines enjoy a

recreational easement for the use of the North Lake.

              In 2010, Lee County amended its comprehensive plan. The amendment

changed the land use designation for a portion of Alico's property to "University

Community." The designation requires that "[a]ll development within the University

Community must be designed to enhance and support [Florida Gulf Coast University]."


              1
               The Heines also separately appealed the trial court's order dismissing
their declaratory judgment action, and petitioned for issuance of a writ of certiorari,
seeking second-tier review of the Board's resolution. These cases, along with the
instant appeal, were consolidated to travel together.
                                           -2-
The 2010 plan amendment significantly increased the potential development densities

and intensities of Alico's property.

              Following the 2010 plan amendment, Alico applied to rezone a portion of

its property for a project called CenterPlace. Alico intended to develop CenterPlace to

cater to the housing, commercial, and recreational needs of nearby University students,

faculty, and staff. County zoning staff recommended approval of Alico's request. After

several public hearings, a zoning hearing examiner, too, recommended approval.

Subsequently, after another public hearing, the Board approved a resolution granting

Alico's application.

              The resolution rezoned Alico's property to "Compact Planned

Development," and authorized an increase in development of up to 250 hotel rooms,

246,500 square feet of commercial/retail space, 100,000 square feet of office space,

and 300,000 square feet of research and development space. The resolution also

authorized up to 250 wet boat slips on the North Lake, 50 dry slips, installation of a boat

ramp, and up to 20 trailer parking spaces.

              Following Board approval, the Heines sued Lee County and Alico, alleging

that the resolution was inconsistent with Lee County's comprehensive plan. The Heines

challenged the resolution on numerous grounds: (1) failure to include enforcement

conditions for the construction of a minimum square footage of commercial space and

minimum residential density requirements; (2) failure to ensure the installation of

plantings, buffers, and landscaping "using xeriscape principles"; (3) failure to "ensure

that there will be a mix of housing types sufficient to meet the varying lifestyle of

students, faculty, administration and support staff"; (4) failure to obtain prior approval by

the University; (5) failure to give adequate consideration to noise, security, and visual
                                             -3-
impacts on the property; and, (6) failure to meet the 2010 plan amendment's safety

requirements pertaining to the University. The trial court granted summary judgment on

Alico's and Lee County's joint motion, ruling that the Heines' challenges were not within

the scope of the Consistency Statute because "they do not qualify as uses, densities, or

intensities of uses."

                                   Standard of Review

              We review the trial court's interpretation and construction of the

Consistency Statute de novo. See A.J.R. v. State, 206 So. 3d 140, 142 (Fla. 2d DCA

2016) ("We also apply a de novo standard of review to a trial court's construction of a

statute." (citing State v. C.M., 154 So. 3d 1177, 1178 (Fla. 4th DCA 2015))). Further,

because we are tasked with reviewing the trial court's award of summary judgment, we

likewise employ de novo review. Gator Boring & Trenching, Inc. v. Westra Constr.

Corp., 210 So. 3d 175, 181 (Fla. 2d DCA 2016).

                                         Analysis

              The Heines argue that the trial court erroneously limited the scope of

claims allowed under the Consistency Statute. They insist that the trial court adopted a

too narrow and restrictive reading of the Consistency Statute, thus thwarting its remedial

purpose. They urge us to adopt an expansive reading of the statute so as to allow a

broader variety of claims under the Consistency Statute. They maintain that reading the

statute in pari materia with other statutory provisions compels reversal. See State v.

Fuchs, 769 So. 2d 1006, 1009 (Fla. 2000) ("[S]tatutes which relate to the same or

closely related subjects should be read in pari materia." (citing State v. Ferrari, 398 So.

2d 804, 807 (Fla. 1981))). We are not persuaded.



                                            -4-
               Florida law mandates consistency between a local government's

comprehensive plan and its development orders.2 See § 163.3194(1)(a) ("After a

comprehensive plan . . . has been adopted in conformity with this act, all development

undertaken by, and all actions taken in regard to development orders . . . shall be

consistent with such plan or element as adopted."). To ensure compliance with this

obligation, the Florida Legislature permits "[a]ny aggrieved or adversely affected party

[to] maintain a de novo action . . . to challenge any decision of such local government

granting . . . a development order." § 163.3215(3); see also Pinecrest Lakes, Inc. v.

Shidel, 795 So. 2d 191, 200 (Fla. 4th DCA 2001) ("[W]e observed that section 163.3215

had liberalized standing requirements and demonstrated 'a clear legislative policy in

favor of the enforcement of comprehensive plans by persons adversely affected by local

action.' " (quoting Sw. Ranches Homeowners Ass'n v. Broward County, 502 So. 2d 931,

935 (Fla. 4th DCA 1987))).

               But the type of claim allowed under the Consistency Statute is not

unlimited. The statute authorizes an aggrieved party to bring an action to challenge a

development order that "materially alters the use or density or intensity of use on a

particular piece of property which is not consistent with the comprehensive plan."

§ 163.3215(3). A plain reading of this text compels us to conclude, as did the trial court,

that the Heines' challenges to the rezoning resolution do not fall within the ken of these

three areas.




               2
               The Board's rezoning resolution qualifies as a "development order." See
§ 163.3164(15) (defining a "development order" as "any order granting, denying, or
granting with conditions an application for a development permit").

                                           -5-
              "Legislative intent is the polestar that guides our analysis regarding the

construction and application of the statute." Diamond Aircraft Indus., Inc. v. Horowitch,

107 So. 3d 362, 367 (Fla. 2013) (citing Bautista v. State, 863 So. 2d 1180, 1185 (Fla.

2003)). Accordingly, we " 'begin with the actual language used in the statute' because

legislative intent is determined first and foremost from the statute's text." Raymond

James Fin. Servs., Inc. v. Phillips, 126 So. 3d 186, 190 (Fla. 2013) (quoting Heart of

Adoptions, Inc. v. J.A., 963 So. 2d 189, 198 (Fla. 2007)).

              When a statute is clear, courts will not look behind the
              statute's plain language for legislative intent or resort to rules
              of statutory construction to ascertain intent. Instead, the
              statute's plain and ordinary meaning must control, unless
              this leads to an unreasonable result or a result clearly
              contrary to legislative intent.

State v. Burris, 875 So. 2d 408, 410 (Fla. 2004) (citation omitted).

              The pertinent language of the Consistency Statute is clear and

unambiguous. The statute enunciates only three bases upon which a party may

challenge a development order's purported inconsistency with a comprehensive plan.

Therefore, we will not resort to rules of statutory construction to countenance the

Heines' expansive view of the statute's scope. That task, if undertaken at all, is for the

legislature. As our sister district observed, "there is no basis for us to look to 'polestars'

when the ship of statutory interpretation is guided by clear text. That is to say, we look

only to clear text for statutory meaning, not to the stars." Brown v. State, 848 So. 2d

361, 364 (Fla. 4th DCA 2003).

              The Heines claim that the trial court should have construed the

Consistency Statute in pari materia with section 163.3194(3)(a), which provides as

follows:


                                             -6-
              A development order or land development regulation shall
              be consistent with the comprehensive plan if the land uses,
              densities or intensities, and other aspects of development
              permitted by such order or regulation are compatible with
              and further the objectives, policies, land uses, and densities
              or intensities in the comprehensive plan and if it meets all
              other criteria enumerated by the local government.

(Emphasis added). They argue that the language, "other aspects of development

permitted," allows an attack upon the development order, apart from grounds of use,

density, or intensity explicitly provided for in the Consistency Statute. However, once

again, "the 'in pari materia' canon of statutory construction would be appropriate only if

we found the statute ambiguous." Brown, 848 So. 2d at 364 (emphasis omitted). We

do not. We will not rewrite the Consistency Statute to include language omitted by the

legislature. The Florida Supreme Court has observed:

              Even where a court is convinced that the Legislature really
              meant and intended something not expressed in the
              phraseology of the act, it will not deem itself authorized to
              depart from the plain meaning of the language which is free
              from ambiguity. . . . If it has been passed improvidently the
              responsibility is with the Legislature and not the courts.

Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 454 (Fla. 1992)

(quoting Van Pelt v. Hilliard, 78 So. 693, 694-95 (Fla. 1918)); see also Capeletti Bros.,

Inc v. Dep't of Transp., 499 So. 2d 855, 857 (Fla. 1st DCA 1986) ("The omission may be

a legislative oversight; nevertheless, courts should not rewrite legislation to cure an

omission by the legislature just because it seems to fit overall legislative policy.").

              We have no basis to conclude that the absence of the "other aspects of

development permitted" language in the Consistency Statute was a legislative oversight.

See, e.g., Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So. 2d 20, 24 (Fla. 2004)

("The absence of a causation requirement in the statute cannot be viewed as a


                                             -7-
legislative oversight."). The omission of such language is presumed to be deliberate,

and is evidence that the Consistency Statute limits the scope of claims to use, density,

and intensity challenges only. "This conclusion logically derives from a general principle

of statutory construction, expressio unius est exclusio alterius, which means that

'express mention of one thing is the exclusion of another.' " Citizens for Responsible

Growth v. City of St. Pete Beach, 940 So. 2d 1144, 1150 (Fla. 2d DCA 2006) (quoting

Inman v. State, 916 So. 2d 59, 61 (Fla. 2d DCA 2005)).

              The Heines argue that the Consistency Statute is remedial in nature; thus,

it must be read liberally. See Golf Channel v. Jenkins, 752 So. 2d 561, 565-66 (Fla.

2000) ("[R]emedial statutes should be liberally construed in favor of granting access to

the remedy provided by the Legislature." (citing Arrow Air, Inc. v. Walsh, 645 So. 2d

422, 424 (Fla. 1994))). In support of their position, they rely on Education Development

Center, Inc. v. Palm Beach County, 751 So. 2d 621, 623 (Fla. 4th DCA 1999). There,

the Fourth District recognized that "[s]ection 163.3215 enlarged the class of persons

with standing to challenge a development order as inconsistent with the comprehensive

plan." Id. Our sister district stated that section 163.3215 "should be liberally construed

to advance the intended remedy, i.e., to ensure standing for any party with a protected

interest under the comprehensive plan who will be adversely affected by the

governmental entity's actions." Id. (emphasis added) (citing Parker v. Leon County, 627

So. 2d 476, 479 (Fla. 1993)). The Heines, however, conflate the Consistency Statute's

expansive conferral of standing with the scope of what a plaintiff with standing may

challenge. See Martin County Conservation All. v. Martin County, 134 So. 3d 966, 967

(Fla. 1st DCA 2010) ("Section 163.3215 is a remedial statute designed to enlarge the

class of persons with standing to challenge a local development order."). Because the
                                           -8-
Consistency Statute was intended to liberalize standing, not broaden the scope of what

a party with standing may challenge beyond use, density, and intensity, the trial court

did not err in construing the statute literally, rather than liberally.

                                          Conclusion

               Because the trial court correctly construed the Consistency Statute as

permitting only those challenges specifically authorized therein, and properly applied the

statute to the facts of this case, we affirm.

               Affirmed.



CRENSHAW and SLEET, JJ., Concur.




                                                -9-
