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The City of Ocoee fired back against a claim by the state commerce department that its new comprehensive plan contains development provisions that are more “restrictive or burdensome” than those prior to Aug. 1, 2024 — a new standard that resulted with last year’s passage of Senate Bill 180 — and therefore the plan, Envision 2045, is “null and void ab initio.”
The term null and void ab initio means that not only is the comprehensive plan no longer in effect or legally binding, it is as if it never existed.
In a Sept. 8 letter to FloridaCommerce, obtained by VoxPopuli through a public records request, City Attorney Daniel Langley, said that the department's claim was “incorrect”; that the department “lack[ed] authority and jurisdiction” to make that determination; that only businesses or Ocoee residents have grounds to assert the new comprehensive plan is “restrictive or burdensome”; and the city demanded the decision be reversed.
“There are serious due process issues at play here,” City Attorney Rick Geller told the commission last week during its meeting. He asked commissioners for a consensus to request a hearing before an administrative judge to have the decision reversed. The hearing has since been granted, although no date has been set.
A municipality’s comprehensive plan is the “Constitution of land use,” board-certified government law expert Clifford Shepard, founder and partner of the Maitland law firm Shepard, Smith, Hand and Brackins, told VoxPopuli in an interview. Shepard is not involved in this case.
Declaring the city’s comprehensive plan “null and void ab initio” is “devastating because it’s taking away what local government is all about, which is home rule,” Shepard said, adding that it could also leave the city open to lawsuits from developers who had been denied approvals based on the plan.
In his letter, Langley noted that FloridaCommerce failed to file a challenge with the Department of Administrative Hearings within 30 days of the plan's submittal and review on July 28 under the Expedited State Review Process. The department lost the right to challenge the comprehensive plan, he wrote, and Envision 2045 became effective Aug. 28.
The law created from Senate Bill 180 prevents municipalities in counties that were declared federal disaster areas after Hurricanes Debby, Helene or Milton from adopting moratoriums on re-development of damaged property; adding any amendments or provisions to a city’s comprehensive plans or review procedures to site plan approval procedures that are more “restrictive or burdensome” than what existed prior to Aug. 1 2024.
Langley’s letter points out that no legal definition of “restrictive and burdensome” has been developed.
Geller and city officials believe Envision 2045 is in compliance because it contains specific opt-out language that would allow property owners and developers who find new plan provisions “burdensome” to submit a notarized request to the city development services director to work under the city’s 2002 comprehensive plan. Unless extended, the restrictions passed under Senate Bill 180 expire Oct. 1, 2027.
“Anyone that feels like a provision is more restrictive can in writing request an opt out and be regulated under the comp plan that existed Aug. 1, 2024,” City Manager Craig Shadrix assured the commission during the Sept. 16 meeting
“ When this commission adopted the Envision 2045 comp plan, I stated emphatically that we were in compliance with SB 180 because of the opt-out, and I stand by that tonight,” Geller said.
Winter Garden, represented by Fishback Dominick, the same law firm as Ocoee, passed a resolution at its Sept. 25 meeting with similar opt-out language to stay compliant with the new law while updating its comprehensive plan. City Manager Jon Williams told VoxPopuli in a Friday email that the city plans to submit its comprehensive plan to the state in the spring of 2026.
