Senate Bill 360: Changes in Florida’s Growth Management Laws

Last week the Florida Legislature passed Senate Bill 360, which enacted sweeping changes to Florida’s growth management laws. These changes include an exemption from the Development of Regional Impact (DRI) statute for future developments located in dense urban land areas; the creation of transportation concurrency exception areas; a requirement that the Legislature study and implement a mobility fee that would replace traffic concurrency; and, as a result of the 2009 real estate market, an extension of the expiration date of many permits, including DRI development orders, for two years.

The bill has not yet been presented to Governor Crist for his signature. Once it is presented to the Governor, he has 15 days to sign the bill into law or veto it. This bill was passed after extensive negotiation between the House, Senate and the Governor’s office, and it is anticipated that Governor Crist will sign it into law.

1. Exemption from the DRI Statute for “Dense Urban Land Areas”

a) Dense Urban Land Area Defined. Senate Bill 360 exempts new developments located in dense urban land areas from the DRI statute, Section 380.06, Fla. Stat. A dense urban land area is defined as follows:

(a) a municipality that has an average of at least 1,000 people per square mile of land and a minimum total population of at least 5,000;

(b) a county, including the municipalities located therein, which has an average of at least 1,000 people per square mile of land area; or

(c) a county, including the municipalities located therein, which has a population of at least 1 million.

b) Process for Determination of a Dense Urban Land Area. The Office of Economic and Demographic Research (OEDR) within the Legislature shall annually calculate the population and density criteria needed to determine which jurisdictions qualify as dense urban land areas by using the most recent land area data from the decennial census. Each year, beginning on July 1, 2009, the OEDR will submit to the state land planning agency a list of the jurisdictions that are designated as dense urban land areas; the state land planning agency will then post the list on its website within seven days after receipt. The designation of a jurisdiction that qualifies as a dense urban land area is effective upon publication of the list on the state land planning agency’s website. A development located partially outside of an exemption area must undergo DRI review. If a jurisdiction that qualifies as a dense urban land area is subsequently found to be ineligible, any development that has a pending application may maintain the exemption. Local governments must submit by mail a development order to the state land planning agency for projects that would be larger than 120 percent of any applicable DRI threshold and would require DRI review but for the dense urban land area exemption.

c) Current Development Orders. Any previously approved DRI development order for land located in a dense urban land area shall continue to be effective, but the developer has the option to be governed by 380.115(1).¹ The rights of any person to complete any development that has been authorized as a DRI has not been limited or modified.

d) Exception. The DRI exemption does not apply to areas of critical state concern, the Wekiva Study Area and land within two miles of the Everglades Protection Area.

2. Transportation Concurrency Exception Areas

a) Legislative Findings and Transportation Concurrency Exception Areas Defined. The Legislature found that in urban centers transportation cannot be effectively managed solely through the expansion of roadways, and that a range of transportation alternatives are essential to satisfy mobility needs. As a result, it created the transportation concurrency exception areas under Section 163.3180, Fla. Stat., based on all three of the following criteria:

(a) a municipality that qualifies as a dense urban land area

(b) an urban service area under section 163.3164 that has been adopted into the local comprehensive plan and is located within a county that qualifies as a dense urban land area

(c) a county, including the municipalities located therein, which has a population of at least 900,000 and qualifies as a dense urban land area but does not have an urban service area designated in the local comprehensive plan

Additionally, a municipality or a county that does not qualify as a dense urban land area may designate in its local comprehensive plan the following areas as transportation concurrency exemption areas: urban infill, community redevelopment areas, downtown revitalization areas, urban infill, and redevelopment and urban services areas.

b) Local Government Consultation with the State. Before designation an exception area, the local government must consult with the state land planning agency and Department of Transportation to assess the impact that the proposed exception area will have on the adopted level-of-services standards. Transportation concurrency exception areas are exempt from the requirements that the local government adopt into the comprehensive plan strategies to support and fund mobility and those criteria that those strategies must meet.

c) Exempt Areas. Transportation concurrency exception areas do not apply to designated transportation concurrency districts located within a county that has a population of at least 1.5 million, or a county that has exempted more than 40 percent of the area inside the urban service area from transportation concurrency for the purpose of urban infill.

d) Local Government Must Adopt Changes to Comprehensive Plan. A local government that has a transportation concurrency exception area shall, within two years after the area becomes exempt, adopt into its local comprehensive plan land use and transportation strategies to support and fund mobility within the exception area, including alternative modes of transportation.

e) Does Not Affect Any Existing Agreements. Any contract or agreement entered into or development order rendered before the creation of the transportation concurrency exception area will not be affected.

f) Report Required. By February 1, 2015, the President of the Senate and the Speaker of the House must submit to the Office of Program Policy Analysis and Government Accountability a report on the transportation concurrency exception areas that have been created.

3. Creation of Mobility Fee

a) Legislative Intent. The Legislature found that the existing transportation concurrency system has not adequately addressed the transportation needs of the state. Therefore, it determined that the state shall evaluate and consider the implementation of a mobility fee to replace the existing transportation concurrency system.

b) Mobility Fee Study. The state land planning agency and the Department of Transportation were instructed to continue their respective current mobility fee studies and develop and submit to the Speaker of the House and President of the Senate, no later than December 1, 2009, a joint report on the mobility fee methodology study and recommended legislation to implement the mobility fee as a replacement for the transportation concurrency management systems. The results of these required studies and any impacts the mobility fee may have on developers and land owners will not be known until after the joint report and proposed legislation are submitted to the House and Senate.

4. Two-Year Permit Extension

a) Permits eligible for extension. In recognition of 2009 real estate market conditions, any permit issued by the Department of Environmental Protection or water management district and any local government development order (including DRI development orders), or building permit that has an expiration date of September 1, 2008 through January 1, 2012, has been extended and renewed for a period of two years following its date of expiration. Permits that were extended will continue to be governed under the rules in effect at the time the permit was issued.

b) Permits that are not eligible for extension. The extension does not apply to: (1) any permit issued by the Army Corps of Engineers; (2) a permit or authorization determined to be in significant noncompliance with the conditions of the permit or authorization as established by the issuance of a warning letter, notice of violation, formal enforcement action or other equivalent action; or (3) a permit or other authorization that, if granted an extension, would delay or prevent compliance with a court order.

c) Action that must be taken by the permit holder. The holder of a valid permit or authorization eligible for the two-year extension shall notify the authorizing agency in writing no later than December 31, 2009, and identify the authorization for the extension.

5. Other Changes Implemented by Senate Bill 360

a) Urban Service Areas. The definition of urban service area was expanded to include the following: (1) areas with central water and sewer capacity and roads already in place and, (2) for counties which are dense urban land areas, the nonrural area of a county that has adopted a Rural Area designation (areas identified in the comprehensive plan as urban service areas, or urban growth boundaries) on or before July 1, 2009.

b) Alternative State Review Process. In addition to the pilot program jurisdictions (Pinellas County, Broward County, Jacksonville, Miami, Tampa and Hialeah) for the alternative state review process for comprehensive plans in urban areas, any local government may use the alternative state review process to designate an urban service area in its comprehensive plan.

c) Intergovernmental Coordination. Provides for a mandatory (instead of optional) dispute resolution process in the intergovernmental coordination element of comprehensive plan.

d) Impact Fees. A county or municipality is not required to wait 90 days to decrease, suspend or eliminate an impact fee. The waiting period is only required for a new or increased impact fee. Additionally, House Bill 227 amended Section 163.31801, Fla. Stat., to provide that in an action challenging an impact fee the government has the burden of proving by a preponderance of the evidence that the imposition or amount of the fee meets the requirements of state legal precedent or the statute. The court may not use a deferential standard.

e) DRI Transportation Methodology. The levels of service in the transportation methodology shall be the same levels of service used to evaluate concurrency under Section 163.3180, Fla. Stat.

f) Affordable Housing. Several changes were made relating to affordable housing, including the following:

i) Community land trusts may convey structural improvements for the purposes of providing affordable housing.

ii) Property owned by an exempt organization is determined to be used for charitable purposes if the organization has taken steps to prepare the property to provide affordable housing.

iii) The Florida Housing Finance Corporation now has the power to provide criteria to establish a preference for developers and general contractors domiciled in Florida who have substantial experience in developing or building affordable housing.

iv) Local land regulations are now required to contain detailed provisions to maintain the existing density of residential properties or RV parks if the properties are located in the unincorporated areas that have sufficient infrastructure and are not located within a coastal high-hazard area.

¹ Section 380.115(1) provides as follows: A change in a development-of-regional-impact guideline and standard does not abridge or modify any vested or other right or any duty or obligation pursuant to any development order or agreement that is applicable to a development of regional impact. A development that has received a development-of-regional-impact development order pursuant to s. 380.06, but is no longer required to undergo development-of-regional-impact review by operation of a change in the guidelines and standards or has reduced its size below the thresholds in s. 380.0651, shall be governed by the following procedures:

(a) The development shall continue to be governed by the development-of-regional-impact development order and may be completed in reliance upon and pursuant to the development order unless the developer or landowner has followed the procedures for rescission in paragraph (b). Any proposed changes to those developments that continue to be governed by a development order shall be approved pursuant to s. 380.06(19) as it existed prior to a change in the development-of-regional-impact guidelines and standards, except that all percentage criteria shall be doubled and all other criteria shall be increased by 10 percent. The development-of-regional-impact development order may be enforced by the local government as provided by ss. 380.06(17) and 380.11.

(b) If requested by the developer or landowner, the development-of-regional-impact development order shall be rescinded by the local government having jurisdiction upon a showing that all required mitigation related to the amount of development that existed on the date of rescission has been completed.