May 20, 2011

Florida Adopts Landmark Community Planning Act

Growth Management, Environment and Land Use
Holland & Knight Alert
Lawrence E. Sellers

Revisions to the growth management law were a legislative priority of Governor Scott, as well as House and Senate leadership. Several bills passed in the 2011 session will result in wholesale changes to Chapter 163, F.S. The House proposal was contained in HB 7129, while SB 1122 encompassed the Senate’s version. The Governor proposed the elimination of the Department of Community Affairs (DCA) as part of a budget conforming bill on governmental reorganization. As the session came to a close, the Budget Conference Committee Report was approved, which included conforming bills to eliminate DCA and rewrite growth management statutes in light of the reorganization. The growth management revisions were included in HB 7207, while the governmental reorganization provisions were in SB 2156. Since 1985, terms like concurrency, level of service, compliance, financial feasibility, need and urban sprawl have all been part of the vocabulary of growth management. Each of these concepts has been substantially revised by HB 7207. EFFECTIVE DATE: If approved by the Governor, HB 7207 will be effective upon becoming law. EFFECTIVE DATE: If approved by the Governor, the effective date of SB 2156 is July 1, 2011.

New Names. While the title amendment to HB 7207 calls it “an act relating to growth management,” the term has been almost entirely eliminated from the 349-page bill. Chapter 163 will now be called the Community Planning Act (CPA) and the state land planning agency is now within the new Department of Economic Opportunity (DEO).

New Intent. The bill sponsors called this a “home rule bill” and clearly the new intent of growth management is to strengthen the role of local government in comprehensive planning. The CPA provides localities with more discretion while limiting the role of state government in approving comprehensive plans. On the other hand, the legislation holds local governments accountable by adding a provision that comprehensive plan amendments could constitute an “inordinate burden” subject to review under the Bert J. Harris Property Rights Act.

Extension of Permits/Development of Regional Impacts (DRIs). As outlined below, the new legislation provides for additional two-year permit extensions and four-year DRI extensions. Extensions are not automatic, and requests must be submitted in writing to the relevant agency no later than December 31, 2011.

Rule 9J-5 Repeal. Since the adoption of the Growth Management Act, Rule 9J-5 established many of the details required of local comprehensive plans and was the guidepost to DCA and the Division of Administrative Hearings (DOAH) in making plan compliance determinations. HB 7207 specifically repeals Rule 9J-5 but incorporates many of its definitions and substantive provisions, such as urban sprawl.

Concurrency. The requirement that public facilities be in place at the time they are needed for new development was a hallmark of the Growth Management Act. The CPA keeps the concurrency requirements for potable water, solid waste, drainage and sanitary sewer, but eliminates the requirements for transportation, schools and parks, as well as financial feasibility requirements. Additional concurrency items are deemed optional and a local government may amend its comprehensive plan to delete transportation, schools and parks from its concurrency requirements. If a local government wishes to continue enforcing concurrency for optional items, it must do so as part of the capital improvements plan. These optional concurrency decisions must be based on appropriate data and analysis and a level of service standard. For transportation concurrency, development projects can satisfy concurrency requirements through a proportionate-share formula which deducts costs of providing for “transportation deficiencies” – a new term used in place of “backlog.”

Plan Amendment-Agency Review. The comprehensive plan amendment process has been expedited and revised. Most amendments will go through the new, expedited process, while the former review process will remain in effect for Rural Land Stewardship Areas, Areas of Critical Concern, EAR-Based Amendments and newly-adopted comprehensive plans for a new local government (now known as the “state coordinated review process”). The limitation that localities may adopt plan amendments twice a year has been removed and state agency comments are now optional.

Under the standard, expedited process, local governments must adopt plan amendments within 180 days after receiving agency comments. The state planning agency has 30 days from the date it deems a plan amendment package complete to challenge the amendment; such a challenge is limited to the state agency review comments. The state planning agency’s challenge must be based upon clear and convincing evidence.

Third-party challenges to plan amendments are permitted. However, the local government’s decision will be reviewed under a fairly debatable standard and the state planning agency may not intervene in a third-party proceeding.

The bill provides for expedited review of proposed comprehensive plan amendments and also limits review by various state agencies as follows:

  • Regional Planning Councils: adverse effects on regional resources or facilities identified in the strategic regional policy plan and extrajurisdictional impacts that would be inconsistent with the comprehensive plan of any affected local government
  • Department of Environmental Protection: air and water pollution; wetlands and other surface waters; federal and state-owned lands and interest in lands, including state parks, greenways and trails, and conservation easements; solid waste; water and wastewater treatment; and the Everglades ecosystem restoration
  • Department of State: historic and archaeological resources
  • Department of Transportation: issues within its jurisdiction as it relates to transportation resources and facilities of state importance
  • Fish and Wildlife Conservation Commission: fish and wildlife habitat and listed species and their habitats
  • Department of Agriculture and Consumer Services: agriculture, forestry and aquaculture issues
  • Department of Education: public school facilities
  • Water Management Districts: flood protection and floodplain management, wetlands and other surface waters, and regional water supply
  • State Land Planning Agency: important state resources and facilities outside the jurisdiction of other commenting state agencies; may include comments on countervailing planning policies and objectives served by the plan amendment that should be balanced against potential adverse impacts to important state resources and facilities

Small Scale Plan Amendment Process. The small scale plan amendment process applies where an amendment affects a use of 10 acres or less, and where the cumulative annual acreage for all small scale developments in a locality does not exceed 120 acres. HB 7207 removes the limitation that localities adopt small scale amendments no more than twice per year. Previously, a property granted a change within the prior 12 months could not be amended; this limitation has been deleted. The bill further loosens the small scale process by removing, for example, density limits for residential uses. Also, text changes relating to a small scale map change may now be processed simultaneously.

Plan Details. The baseline for comprehensive plans over the last 25 years has been that plans would be drafted as goals, objectives and policies, and be based upon the best available data and analysis. The revision states that the format is at the discretion of the local government but that it “typically is expressed as goals, objectives, policies, and strategies.” All plans must be based upon “relevant and appropriate data and analysis” which must still be from “professionally-accepted sources” but will no longer be subject to the compliance review process. Current law requires “at least” two planning periods of the first five years and at least a 10-year period. The revision allows additional planning periods for specific components, elements or amendments. While there is no need analysis per se, the plan amendments must still be based upon permanent and seasonal population estimates or projects provided by BEBR.

Urban Sprawl. The Urban Sprawl Rule was a central component of 9J-5 subject to wide ranging interpretation by DCA, ALJs and planning experts. Much of the language of the rule has been incorporated into the bill. Future land use plans are required to “discourage the proliferation of urban sprawl.” Each plan amendment is required to be analyzed in terms of 13 “primary indicators” of sprawl which consistent with the old rule, are “in the eye of the beholder.” The result is a more objective standard: if at least four of the listed strategies are utilized, a project will not be deemed urban sprawl. Some of these strategies include no adverse effect on natural resources, promotes walkable compact communities, promotes conservation of water and energy, preserves open space and promotes transit-oriented development or a new town. The bill specifically utilizes the encouragement of innovative techniques to discourage sprawl.

Innovative Planning Techniques. The bill takes the “innovative planning techniques” language from 9J-5 to encourage planning innovations and promote vibrant communities. Innovative techniques include visioning, sector plans, rural lands stewardship, urban service boundaries and mixed-use development. Use of these strategies will mitigate against a project being declared urban sprawl. Two innovations are revised to encourage long-term large-scale planning: Optional Sector Plans and Rural Land Stewardship Areas (RLSAs).

For Optional Sector Plans, the bill removes the pilot project limitations and would allow these projects anywhere on at least 15,000 acres. The stated-purpose of sector planning is to promote long-term planning for conservation, development and agriculture on “a landscape scale” to facilitate protection of regionally significant resources. The plan consists of two parts: a long-term master plan adopted through the coordinated review process, and a detailed specific area plan adopted later by development order. This provision authorizes long-term planning horizons and eliminates need as a consideration.

Rural Lands Stewardship Areas are also encouraged on at least 10,000 acres outside of a municipality or urban service area. The bill removes procedural obstacles that DCA used to discourage RLSAs and establishes incentives for rural landowners to seek to establish an RLSA overlay. The plan uses a revised concept of “stewardship credits” to incentivize landowners by trading agricultural and environmental protection for increased density or intensity.

Public Schools. Amendments to the Growth Management Act in 2005 merged planning requirements for school districts with local government planning. Current law required a public schools facilities element, school concurrency and an interlocal agreement on school planning. The bill significantly changes these requirements by eliminating the requirements for school concurrency or for a public schools facilities element in the plan.

While interlocal agreements among the school district and local governments are still mandated, there is no requirement for approval by the state planning agency or for comments from the Department of Education. Local government may continue to enforce school concurrency, but only if data and analysis demonstrate that level of service standards can be met. Notably, portable classrooms may be used to achieve level of service standards. If school concurrency is continued by a local government, developers must be afforded a “proportionate share mitigation” process whereby a contribution of cash or land toward a capital improvement can satisfy concurrency. Requirements for co-location of schools and parks and for school siting have been eliminated.

Development of Regional Impacts (DRIs). In recognition of the 2011 real estate market conditions, the bill allows developers to receive a four-year extension on all commencement, phase, build-out and expiration dates for DRI projects, regardless of any previous extension. Developers must notify local governments by December 31, 2011, in order to receive the four-year extension.

The standards for designating a DRI “essentially built-out” were revised so that the amount of proposed development remaining to be built must be less than 40 percent of any applicable DRI threshold (formerly 20 percent). Several substantial deviation criteria have been relaxed with, for example, the trigger point for additional review of office development increasing to the greater of 15 percent or 100,000 gross square feet, with the previous numbers set at 10 percent or 66,000 gross square feet. Also, a proposed change to the proportionate share calculation does not constitute a substantial deviation so long as the local government agrees to the change. The legislation broadens local authority to deny a proposed change to include matters relating to local issues and provides the specific example of a change incompatible with a plat restriction.

The bill also limits the scope of the DRI review. Industrial areas, hotels/motels and theaters were removed from the list of DRIs. An exemption for solid minerals mining projects from DRI requirements was created and those mines must instead enter into agreements with the Department of Transportation concerning mitigation.

Dense Urban Land Area (DULA). The term “dense urban land area” has been deleted. Nonetheless, the areas previously designated DULAs remain protected and those local governments meeting the DULA criteria are still afforded DRI exemption. Also, the bill adds that a DRI lying within both DULA and non-DULA jurisdictions may be rescinded if at least 85 percent of the overall DRI lies within a DULA and the portion of development outside the DULA does not meet DRI thresholds.

Public Facilities/Capital Improvements. The bill tightens the definition of “public facilities” by deleting health systems and spoil disposal sites for maintenance dredging located in the intracoastal waterways, except for certain port-owned spoil disposal sites. An amendment to the comprehensive plan is no longer required to update the capital improvements schedule or to eliminate, defer, or delay the construction for any facility listed in the five-year schedule.

Urban Service Areas. The definition of “urban service area” was revised in the bill and no longer includes the description “built up.” Where public facilities are not yet in place, the bill allows labeling of an urban service area if these facilities are identified in the capital improvements element. Formerly, these facilities needed to be committed in the first three years of the capital improvements schedule. Lastly, the bill added that the term includes any areas designated in the comprehensive plan, regardless of the local limitation. The process has been streamlined and statutory changes need only be addressed every seven years.

Evaluation and Appraisal Report (EAR) Process. The process has been streamlined and statutory changes need only be addressed every seven years.

Voter Referendum. Referenda on local comprehensive plan amendments are prohibited, preventing reoccurrence of the disastrous results St. Pete Beach experienced after attempting referenda-style planning. Prior to the bill’s passage, this prohibition only applied to referenda affecting five or fewer parcels.

Development Agreements. The duration of development agreements between a locality and developer has been extended from 20 to 30 years. The ability for parties to mutually extend this duration remains intact.

Permit and DO Extensions. The bill adds a new, additional two-year permit extension, but the overall maximum, including previously granted extensions, cannot exceed four years. The holder of a valid permit or other authorization that is eligible for the two-year extension must provide written notice by December 31, 2011, to take advantage of the additional extension.

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