The Clock Is Running: What Florida Property Owners Must Know About Code Enforcement and the Dispute Resolution Act

A recent circuit court ruling settled one of the most confusing and contentious questions in Florida land use law: whether property owners facing municipal code enforcement have the right to demand alternative dispute resolution under Section 70.51. The court said yes, and it reached that conclusion by citing my published research three times, along with an appellate decision I handled. Every Florida property owner and every Florida land use attorney needs to understand what this means.

By Mark S. Bentley, Esq.  |  Board Certified, City, County & Local Government Law  |  Florida Land Use ADR Attorney

For more than two decades, I have argued with local governments that the Florida Land Use and Environmental Dispute Resolution Act reaches code enforcement proceedings under Chapter 162 of the Florida Statutes. For years, many local governments pushed back aggressively, claiming the Act was reserved only for development orders and had no application to code enforcement. One county even passed an ordinance saying so. That ordinance was legally indefensible then and is even more clearly indefensible now.

In February 2015, the Fourth Judicial Circuit Court in Duval County issued the most direct judicial statement, yet, on this question, relying three times on analysis I published in the Stetson Law Review. The issue, at long last, is clarified in the property owner’s favor. But recognition of the right is only the starting point.

The Act imposes strict deadlines, creates procedural traps, and requires precise action to preserve your claims. In the sections that follow, I explain what the court decided, how the statute actually works in practice, and what Florida property owners must do within the first thirty days to protect their appellate rights before they are lost.

Facing A Code Enforcement Action In Florida?

You may have the right to demand ADR under Section 70.51 before the 30-day window closes. Contact Mark Bentley, Florida land use ADR attorney, for an immediate consultation.

Call 813-225-2500 to learn more about the Alternative Dispute Resolution process.

What Is the Florida Land Use and Environmental Dispute Resolution Act, and Who Does It Protect?

The Florida Land Use and Environmental Dispute Resolution Act (a/k/a “FLUEDRA”) was enacted in 1995 as part of a landmark two-part property-rights initiative. It is codified at Section 70.51, Florida Statutes. The Act was designed to give Florida property owners an informal, expedited, and cost-effective alternative to litigation when they believe a government decision on a development order or enforcement action is unreasonable or unfairly burdens the use of their property. I wrote a comprehensive analysis of this statute in 2008 in the Stetson Law Review, titled Understanding the Florida Land Use and Environmental Dispute Resolution Act, which the court cited directly in the ruling discussed here.

The Act operates through a neutral special magistrate, an independent person appointed to oversee the process, facilitate resolution, and issue recommendations. The special magistrate must meet the following requirements:

• Be a resident of Florida;
• Possess experience and expertise in mediation; and
• Have an understanding of at least one of the following disciplines and a familiarity with the others: land use and environmental permitting, land planning, land economics, local and state government organization and powers, and the law governing the same.

A property owner who receives a development order or who is subject to a governmental enforcement action has thirty days under Section 70.51(3) to request relief. Once that request is filed, the clock for seeking judicial review is tolled under Section 70.51(10)(a).

The special magistrate then facilitates mediation between the parties and, if those efforts do not resolve the dispute, conducts a formal hearing and issues a written, nonbinding recommendation to the governing body. Critically, participation by the government is not optional. Once an owner properly invokes the Act, the governmental entity has a clear legal obligation to participate in good faith and comply with the statutory process. Notably, the government must allocate all available resources toward resolving the dispute.

Foundational Article Cited Three Times by the Court: Understanding the Florida Land Use and Environmental Dispute Resolution Act — Mark S. Bentley, Esq., Stetson Law Review, Vol. 37 (2008). Cited in City of Jacksonville Beach v. Brothers Five of Jacksonville, 182 So. 3d 637 (Fla. 1st DCA 2015).

How Does the Act’s Tolling Provision Protect a Florida Property Owner’s Right to Appeal?

The tolling provision is one of the Act’s most important protections. Without it, a property owner who invokes special magistrate proceedings would simultaneously be required to file a petition for certiorari in circuit court within thirty days of the governmental action or permanently lose the right to judicial review. The tolling provision resolves that tension by pausing the judicial review clock while the parties work through the ADR process. The constitutionality of that provision was upheld by the Second District Court of Appeal in Peninsular Props. Braden River, LLC v. City of Bradenton,[1] a case that I personally handled and was affirmed by the Florida Supreme Court.

Peninsular Props. Braden River, LLC v. City of Bradenton, 965 So. 2d 160 | Fla. 2d DCA 2007 | The Second District held that the tolling provision at Section 70.51(10)(a) is constitutional because it is so intertwined with the Act’s substantive provisions that it cannot be treated as an impermissible infringement on the Florida Supreme Court’s rulemaking authority. The court reversed the trial court’s dismissal and confirmed that property owners who invoke the Act in good faith are entitled to the full benefit of its tolling protection.

Why Did Florida Local Governments Argue That the Dispute Resolution Act Did Not Cover Code Enforcement, and Were They Right?

The resistance from local governments on this question was not a matter of good-faith legal uncertainty. It was a calculated effort to limit the Act’s reach and deny property owners a process the Legislature expressly created for them. I personally encountered this resistance in Hillsborough County, where after I filed a request for relief involving a code enforcement decision, the county passed an ordinance purporting to exclude code enforcement cases from the Act’s coverage. That move was legally indefensible. The Dispute Resolution Act at Section 70.51(28) allows local governments to adopt procedures to implement the Act, but it does not authorize those governments to narrow its substantive scope. A local ordinance cannot override a state statute and never could.

The statutory text makes the Legislature’s intent very clear. The Act defines an “owner” at Section 70.51(2)(d) to include a person who “holds legal title to real property that is subject to an enforcement action of a governmental entity.” The operative provision at Section 70.51(3) states that any owner who believes that “an enforcement action of a governmental entity . . . is unreasonable or unfairly burdens the use of the owner’s real property” may seek relief. Throughout the statute, in no fewer than fourteen separate subsections, development orders and enforcement actions are referred to separately and distinctly. The Legislature was plainly addressing two distinct categories of governmental action, and code enforcement actions are the quintessential example of enforcement measures that directly restrict and impact a property owner’s use of real property.

“An enforcement action would include virtually any enforcement action taken by a state, regional, or local government that would affect an owner’s use of its real property, such as city or county code enforcement proceedings pursuant to the Local Government Code Enforcement Boards Act.” — Mark S. Bentley, Stetson Law Review, Vol. 37 (2008), cited in Brothers Five of Jacksonville v. City of Jacksonville Beach (2015).

Has your local government told you the Act does not apply to your code enforcement case?

That position is likely wrong under Brothers Five. Speak with Florida land use ADR attorney Mark Bentley about your rights and deadlines. Call 813-225-2500 to schedule a consultation.

What Did the Brothers Five Court Decide, and Why Does It Change the Analysis for Florida Property Owners?

The case, Brothers Five of Jacksonville v. City of Jacksonville Beach, was decided on February 13, 2015, by the Fourth Judicial Circuit Court sitting in its appellate capacity in Duval County. The facts are straightforward but consequential. The property owner held a commercial property in Jacksonville Beach. In May 2014, the City issued a code enforcement notice concerning a lighted pole sign. Following a hearing under Chapter 162, Florida Statutes, the City’s special magistrate ordered the sign removed within thirty days, with a $100 per day fine for noncompliance.

The owner then invoked the Florida Land Use and Environmental Dispute Resolution Act. The City refused to participate, asserting that the Act did not apply to code enforcement proceedings. That refusal created a procedural trap. The thirty-day appeal period under Section 162.11 continued to run, but the tolling protection provided by the Act was effectively denied. Faced with the loss of appellate rights, the owner petitioned for a writ of mandamus to compel the City to comply with the statutory process.

The Court’s Ruling

The court rejected the City’s position and held that “the Act is applicable to code enforcement proceedings under Chapter 162.” It emphasized that the statute contains “specific and numerous references to enforcement actions of government entities” as distinct from development orders. Relying on both my Stetson Law Review article and the Second District’s decision in Peninsular Properties, the court interpreted “enforcement action” broadly. It concluded that Chapter 162 code enforcement proceedings fall squarely within that definition, thereby triggering the Act and the government’s corresponding obligation to participate.

On What Three Legal Grounds Did the Brothers Five Court Rule in Favor of the Property Owner?

1. The Act Applies to Chapter 162 Code Enforcement Proceedings. After reviewing the statutory language of Section 70.51 in full, the court found that enforcement actions were clearly distinguished from development orders throughout the statute. It agreed with published analysis that “enforcement action” is a non-restrictive term encompassing code enforcement brought under Chapter 162, Florida Statutes.
2. Mandamus Is the Correct Remedy When a Government Refuses to Participate. Once an owner properly invokes the Act, the government’s obligation to comply is ministerial and non-discretionary. The court cited the Stetson Law Review article directly for the proposition that “once relief is sought under the Act, the relevant government entity has an indisputable legal duty to comply with the Act’s requirements and participate in the alternative dispute resolution process.” Mandamus was therefore appropriate to compel that compliance.
3. The Availability of an Appeal Does Not Substitute for the Act’s ADR Process. The City argued that because the owner could appeal under Section 162.11, mandamus was unavailable. The court rejected this, citing both my Stetson Law Review article and Peninsular Properties for the principle that the ADR process is in addition to, not a replacement for, judicial review. To rule otherwise would nullify the tolling provision and frustrate the Legislature’s intent to make mediation a viable first step.

Your Rights Under the Dispute Resolution Act Are Real, They Are Enforceable, and They Are Time-Limited.

If a local government has refused to engage in the ADR process after you have properly invoked it, or if you are facing a code enforcement action and need to understand all available options before the 30-day window closes, contact a Florida land use ADR attorney immediately.

Schedule A Consultation with Mark Bentley by Calling 813-225-2500

What Must a Florida Property Owner Do to Invoke the Dispute Resolution Act After a Code Enforcement Order?

Timing Controls the Outcome

Timing is not a secondary concern. It is the issue. Under Section 70.51(3), a property owner has thirty days from receipt of a development order or enforcement action to file a request for relief under the Act. That deadline is jurisdictional. If it is missed, the right to invoke the Act is lost entirely.

The problem is compounded by the parallel deadline in Section 162.11. As Brothers Five demonstrates, if the owner does not timely invoke the Act and the City refuses to recognize its applicability, the thirty-day appeal period can expire while the dispute over procedure is still unfolding. At that point, both the administrative remedy and the judicial review option may be gone. This overlap creates a narrow and unforgiving window. Early action is not strategic. It is necessary to preserve rights and maintain leverage.

What Must a Request for Relief Include?

Section 70.51(6) sets out the minimum requirements. The request must be filed with the elected or appointed head of the governmental entity and include:

• A brief statement of the owner’s proposed use of the property,
• A summary of the governmental enforcement action or development order,
• Copies of the relevant enforcement documentation,
• A concise explanation regarding the impact of a development order or enforcement action on the ability to achieve the proposed property use, and
• A certificate of service.

These statutory elements establish the floor, not the ceiling. In practice, the request for relief is the first substantive advocacy document in the process. A well-prepared submission that lays out the legal theory, factual record, and practical consequences does more than satisfy the statute. It frames the dispute, signals credibility, and positions the matter for resolution. When done correctly, it can force meaningful engagement from the government and, in some cases, drive settlement before a hearing ever occurs.

What Happens After a Land Use and Environmental Dispute Resolution Request Is Filed, and How Long Does the Process Take?

The government has fifteen days under Section 70.51(16)(a) to respond. The parties must then mutually agree upon a special magistrate within ten days of the owner’s filing under Section 70.51(4). The entire process cannot exceed 165 days under Section 70.51(23), though the parties may mutually agree to extend it. The government must share equally in the cost of proceedings under Section 70.51(28). That cost-sharing obligation levels a playing field that ordinary litigation rarely does.

Frequently Asked Questions About the Land Use and Environmental Dispute Resolution Process

If I file a lawsuit before invoking the Dispute Resolution Act, do I lose my ADR rights?

Yes. Under Section 70.51(10)(a), initiating judicial proceedings before invoking the Act constitutes a waiver of the right to special magistrate proceedings. The sequence is legally determinative. Invoke the Act first; litigate later if necessary.

Can a Florida city or county adopt an ordinance excluding code enforcement from the Act?

No. Local governments may adopt procedures to implement the Act under Section 70.51(28), but they cannot use those procedures to narrow the Act’s substantive scope or override a state statute.

What remedy is available if a local government refuses to participate after the Act is properly invoked?

A petition for writ of mandamus in circuit court. As recognized in Brothers Five of Jacksonville v. City of Jacksonville Beach, once a property owner properly invokes the Act, the government’s obligation to participate is clear, mandatory, and non-discretionary. When a governmental entity refuses to comply, mandamus is the appropriate mechanism to compel participation and enforce adherence to the statutory process.

How Did Florida Land Use ADR Attorney Mark Bentley’s Published Legal Article Directly Shape This Ruling?

The Brothers Five court cited my 2008 Stetson Law Review article three separate times in reaching its holding. First, on the scope of the term “enforcement action” and whether it encompasses Chapter 162 proceedings. Second, on the government’s legal duty to participate once the Act is invoked. Third, on the relationship between the Act’s ADR procedure and the right to judicial appeal, and why one cannot substitute for the other.

That level of reliance on published legal analysis is not common in a four-page circuit court opinion. It reflects the fact that this statute has been so infrequently litigated that the courts have had to look beyond reported appellate decisions to understand its meaning. My experience participating in these proceedings since 1997, both as special magistrate and as counsel for property owners, and the analysis I published in the Stetson Law Review, gave the court a framework it found persuasive and adopted directly.

The court also relied on Peninsular Properties Braden River, LLC v. City of Bradenton, the Second District case I handled, for the proposition that the Act’s intent to encourage mediation is facilitated by the tolling provision and that a right to appeal does not adequately substitute for the Act’s dispute resolution process.

Is your local government claiming the Dispute Resolution Act does not apply to your situation?

That position may be legally wrong. Contact a Florida land use ADR attorney who has argued and won these issues at the appellate level.

Call 813-225-2500 to schedule a consultation with Mark Bentley

What Changes to the Florida Dispute Resolution Act Would Better Protect Property Owners in Code Enforcement Disputes?

The Act has not been substantively amended since 1995, and its deficiencies are well-documented. Based on my experience in these proceedings over more than two decades, the following changes would most meaningfully improve outcomes for property owners facing code enforcement actions under Chapter 162:

• The Act should be amended to define “enforcement action” expressly, incorporating the broad interpretation confirmed by Brothers Five and eliminating the space that local governments have exploited to resist participation.
• The special magistrate should be given meaningful enforcement authority, including the ability to assess attorneys’ fees against a noncompliant government, so that a refusal to participate carries actual consequences rather than requiring a separate mandamus action.
• The Act should require local governments to include notice of the owner’s right to invoke Section 70.51 in every code enforcement notice, because most property owners still have no idea this remedy exists.
• And the Act should clarify the post-tolling deadline for seeking judicial review once special magistrate proceedings conclude, an issue the statute leaves unaddressed, and which creates risk for owners who have relied on the tolling protection in good faith.

These are not theoretical concerns. Every one of them has arisen in actual proceedings I have been involved in. Until the Florida Legislature acts, property owners need counsel who understands both the Act’s protections and its procedural traps.

Why Should a Florida Property Owner Facing a Code Enforcement Action Consult a Florida Land Use ADR Attorney Before the 30-Day Deadline?

The thirty-day deadline at Section 70.51(3) is not forgiving and does not pause while you decide whether to invoke the Act. In a code enforcement context, you may simultaneously be running a separate thirty-day appeal clock under Section 162.11. The interaction between those two deadlines, and the sequence in which you must act to preserve your rights, requires legal judgment. Acting out of sequence by filing a judicial appeal before invoking the Act, as Section 70.51(10)(a) confirms, may forfeit the ADR option entirely.

Beyond deadlines, the quality of your initial request for relief matters. As mentioned above, the filing requirements at Section 70.51(6) set only a minimum threshold, but a thorough, legally grounded request has strategic value that extends through the entire proceeding and into any subsequent judicial action. It tells the government and the special magistrate that you understand both the facts and the law, and that you will not abandon the matter if the initial mediation fails.

I have been involved in these proceedings since 1997. I have served as special magistrate, as counsel for property owners, and as the attorney of record in the Second District case that established the constitutionality of the Act’s tolling provision. The analysis I published about this statute was cited three times by a court reaching the most significant ruling yet on the Act’s application to code enforcement. I know how these proceedings work, where they go wrong, and how to position an owner for the best possible outcome at every stage.

Mark S. Bentley is Florida Bar Board Certified in City, County and Local Government Law and a certified planner through the American Institute of Certified Planners (AICP). He has represented property owners in Florida Land Use and Environmental Dispute Resolution Act proceedings since 1997 and has served as a special magistrate. He is the author of Understanding the Florida Land Use and Environmental Dispute Resolution Act, Stetson Law Review, Vol. 37 (2008), cited by Florida courts in landmark rulings interpreting the Act.

Do Not Wait Until the 30-Day Deadline Has Passed.

As a Florida land use ADR attorney with more than two decades of experience invoking, defending, and presiding over land use proceedings, I know how to strategically take advantage of the ADR process.

If you are facing a code enforcement action or a denied development order, call 813-225-2500 today to schedule a consultation with me to learn about your rights under the Dispute Resolution Act before time runs out.

[1] Peninsular Props. Braden River, LLC v. City of Bradenton, 965 So. 2d 160, Fla. 2d DCA 2007.