It was an exciting Session this year for those involved in the growth management reform debate. The 2002 Legislature passed several streamlining and substantive development-of-regional impact (DRI) provisions this year. At the start of the session, any substantive DRI provisions looked improbable, as it was rumored that only the Governor’s school planning legislation would pass.

     It was an exciting Session this year for those involved in the growth management reform debate. The 2002 Legislature passed several streamlining and substantive development-of-regional impact (DRI) provisions this year. At the start of the session, any substantive DRI provisions looked improbable, as it was rumored that only the Governor’s school planning legislation would pass. [1]   In addition, out of 2427 bills, [2] only one bill was filed on the DRI process. [3] However, as Session progressed, DRI revisions began being amended onto various pieces of legislation. [4]  The bill that was the final vehicle for passage of the majority of the DRI provisions is CS/SB 1906 & 550. [5]  This article provides a summary of the DRI legislation that passed, a summary of failed DRI provisions, and what is on the horizon for the DRI process. At the time of this writing, the Governor has only signed CS/HB 261. However, it is expected that the Governor will sign CS/SB 1906 & 550 into law prior to the end of May.

Summary of DRI reforms

      The DRI revisions that were adopted this year were consensus driven and enjoyed broad support from varied interest groups. This was in stark contrast to previous sessions when proposed DRI revisions were steeped in controversy. In addition, many of the adopted proposals have been around since the fall of 1999, as part of DCA’s 2000 “low-hanging fruit” legislative package. Section 380.06(2)(d), Florida Statutes, is amended to provide a bright line test for developments under 100% of DRI thresholds by fixing the initiation of DRI review at 100% of a threshold or larger. This revision eliminates the 80% to 100% rebuttable presumption category and provides more predictability as to when review will occur. Additionally, most developments within the 80% to 100% category are not reviewed under any circumstance and rebutting the presumption is expensive and time-consuming. The presumption for developments at 100-120% was maintained, allowing a developer with a development between those percentages to prove that the development is not a DRI. Once again, this provision was retained in order to potentially allow some cost and time savings.

     The requirement for annual DRI reports in sections 380.06(15) & (18), Florida Statutes, is revised to provide for biennial reports, as these reports are time-consuming and often not needed. However, a local government may require more frequent reports if necessary. In addition, if no development has occurred since the prior submitted report, a letter from the developer stating such shall satisfy the reporting requirement. This revision allows for cost and timesavings by not requiring a report when there is no activity that requires monitoring.

     Section 380.04, Florida Statutes, is amended to include “electricity” into work by a utility that is excluded from the definition of development, as subsection 380.04(3)(b), Florida Statutes, makes reference to work on power lines. In order to address any potential conflicts among regional planning councils, section 380.06(12), Florida Statutes, is modified to authorize DCA to designate a lead regional planning council when a DRI involves multiple regional planning councils.

     Revisions were made to exempt certain developments from DRI review. Redevelopment of a development within the same land parcel that does not change land uses, intensity or density of use is eliminated from the DRI review. Since the redevelopment of the parcel is not changing the current land use or the land’s current intensity or density, DRI review is unnecessary. The acreage thresholds for office development and retail development are eliminated, as these thresholds have little relation to the actual impact of a development of this type and actually encourage, rather than discourage, urban sprawl. Oftentimes, a developer will decrease proposed open space within the development in order to avoid triggering DRI review. The elimination of these acreage thresholds should help stop this practice.

     There were also DRI exemptions created for three types of developments that receive significant oversight by a variety of federal, state and local agencies. Two of these exemptions evolved from a straight elimination from DRI review to an exemption only under specified conditions. Petroleum storage facilities or expansion of such facilities are exempt from DRI review if those facilities are consistent with an applicable local comprehensive plan or with an applicable comprehensive port master plan. After a tremendous amount of negotiation and evolution, [6] new marinas or expansion of existing facilities were exempted from DRI review when a county or municipality adopts a boating facility plan or policy into the coastal management or land use element of its comprehensive plan. These plans or policies must address protection of endangered species such as manatee and resource protection, as generally outlined in the Bureau of Protected Species Management Boat Facility Siting Guide, dated August 2000. These amendments are exempt from the twice-a-year limitation on the adoption of amendments. DCA, in conjunction with the Department of Environmental Protection and the Fish and Wildlife Conservation Commission, will adopt model plans, policies, and criteria, within six months of the effective date of the legislation. Developments in local governments that have adopted a boating facility siting plan or policy are exempt from review once the plan or policy is included in the local government’s comprehensive plan, as long as such plan or policy satisfies the criteria provided for in the siting plan guide. There may be an outstanding issue with this DRI exemption when DCA begins reviewing amendments to determine whether the boating facility siting plan or policy is consistent. The third type of development exempted from DRI review is airport facilities.  [7]  If the airport master plan currently required by the federal government is incorporated into the comprehensive plan, and the plan includes other provisions ensuring integration of airport facilities with other local and regional transportations systems, then no DRI review will be required.

     Vesting language is also provided in order to avoid modifying any vested or other right or any duty or obligation pursuant to any development order or agreement that is applicable to a DRI. If a development is no longer required to undergo DRI review, the development continues to be governed by its development order and may be completed in reliance upon and pursuant to the development order. In addition, a local government may enforce the development order pursuant to sections 380.06(17) and 380.11, Florida Statutes. However, a developer or landowner may request to abandon the development order by following the procedure provided in section 380.06(26), Florida Statutes. If an application for development approval or notification of proposed change is pending on the effective date of the legislation, then continued review may be elected.

Failed DRI provisions

     Although there was success in passing some substantive DRI revisions, there were several proposed revisions that failed to be included in any bill that passed the Legislature. Some of these provisions failed due to the late hour at which they were introduced, others because they were controversial, and others because there was no strong push for their adoption. Although many of these provisions received some form of legislative approval, they were not included in the final version of CS/SB 1906 & 550.

     There was an attempt to amend the definition of development to exclude interstate highways and increases in utility capacity within an existing right-of-way. The exclusion of interstate highways was proposed because, as it relates to Chapter 163 concurrency analysis, a developer, local or state government has no control over improvements. In addition, utility supply increases within an existing right-of-way or redevelopment was proposed for exclusion as these activities should be regarded as beneficial and discouraging sprawl.
Several bills attempted to amend section 380.06(19)(c), Florida Statutes, to provide a brightline test for buildout extensions by providing that an extension of either 6 or 7 years is not a substantial deviation. The rationale behind eliminating the 5 to 7 years buildout extension rebuttable presumption category was to provide more predictability as to when review will occur; most extensions within this category are not reviewed under any circumstance; and rebutting the presumption is expensive and time-consuming. Although this revision was consistent with other streamlining provisions and not controversial, consensus could not be reached on whether the brightline test should be 6 or 7 years.

     There was also an attempt to amend section 380.06(25), Florida Statutes, to allow an additional three years for buildout or phase extensions for areawide DRIs. This was requested in part due to the recent economic downturn and the events of September 11, 2001. These events altered the development pace in many areawide DRIs with many projects being scaled back, delayed or abandoned. This additional time would have allowed the areawide DRIs to continue without having to perform costly mitigation measures.
There was an attempt to remove some of the current burden with developing in urban infill or redevelopment areas by amending section 380.06(24), Florida Statutes, to eliminate developments in urban infill and redevelopment areas from DRI review. Although these areas are located where infrastructure is generally already in place and where we want to promote growth, this provision failed to pass the Legislature.

     Proposals to amend section 380.0651(4), Florida Statutes, by increasing the acreage threshold to 480 or 640 acres for industrial plants failed. The rationale for this increase is that these thresholds actually encourage rather than discourage urban sprawl. However, unlike office development and retail developments, if this threshold is eliminated, then the only remaining threshold for industrial plants is the number of parking spaces. Because of this, a provision to increase the current acreage threshold by doubling it was proposed. After some review, it was determined that the impact of this increase or some lesser increase was unknown and adoption should be delayed until more information was acquired.

     An attempt to increase the DRI thresholds of multi-use developments in section 380.0651, Florida Statutes, from 145% to 175% of the appropriate thresholds for developments with two or more land use, and 160% to 200% for developments with three or more land uses, failed. Even though this provision promotes smart growth concepts, it was determined that the impact of these increases or some lesser increase was unknown and adoption should be delayed until more information was acquired.

     A revision to the aggregation provision in section 380.0651(5), Florida Statutes, also failed. The proposed language was an attempt to strengthen the current aggregation requirements in order to capture more developments that are attempting to avoid the DRI. After receiving guarantees from DCA and the development community to work on this issue this summer, this provision was removed from further consideration.

     For the second year, an attempt to amend section 163.3164(6), Florida Statutes, by incorporating into the definition of “development” for purposes of the Local Government Comprehensive Planning and Land Development Regulation Act the text of section 380.04, Florida Statutes, failed. Currently, the definition of “development” in section 163.3164, Florida Statutes, cites to section 380.04, Florida Statutes, for the meaning given to the term in that section; this proposal would have put that language directly in the section.

     As mentioned previously, Senate Bill 552 by Senator Constantine was the only bill that was filed solely with the intent of revising the DRI process. The bill attempted to replace the DRI process with an optional process to certify local governments with adequate capabilities to review and coordinate extra-jurisdictional impacts from development within the jurisdiction.
DRI proposals on the horizon

     It is very likely that there will be numerous proposals to revise the DRI process during next year’s Legislative Session and future legislatures. Although this year was deemed a success, there is still an underlying belief by many that the 1972 DRI process is outdated and needs to be substantively revised, if not completely eliminated. The elimination or replacement of the DRI process will most likely be an issue next year. Many of the proposals that failed to be adopted this year will also most likely be back. In addition, DCA has received a request to evaluate the DRI process this summer and suggest modifications to the provisions regarding aggregation of properties for the purpose of DRI review and the thresholds for multi-use developments. Whatever is on the horizon for the DRI process, it will most likely be an exciting, although contentious debate.

1      CS/HB 753, 1st Eng.
2      This figure includes both bills and resolutions filed during the 2002 Regular Session.
3       SB 552 by Senator Constantine. The last draft of this legislation is on the Legislature’s web site: www.leg.state.fl.us in the Senate Committee on Comprehensive Planning, Local and Military Affairs committee meeting packet for March 12, 2002 or at http://www.leg.state.fl.us/data/committees/Senate/meeting_packets/CA.pdf
The Committee did not hear the bill during its March 12, 2002 meeting.
4      CS/HB 1906 & 550, 2nd Eng; CS/CS/SB 382, 1st Eng; CS/HB 1535, 1st Eng; CS/HB 261, 3rd Eng, as can be found in Chapter No. 2002-20, Laws of Florida; CS/SB 2228; HB 757.
5     The final version of CS/SB 1906 & 550 may be found at: http://www.leg.state.fl.us/data/session/2002/Senate/bills/billtext/
pdf/s1906er.pdf
6      Senators Constantine, King, Posey, Smith and Clary offered the final marina DRI exemption amendment (Senate amendment 144778) to House amendment 154855. The Save the Manatee Club, 1000 Friends of Florida, The Audubon Society, League of Women Voters, Florida Chapter of the American Planning Association, DCA, and the development community agreed to this provision.
7      This exemption is contained in CS/HB 261, and can be found as Chapter 2002-20, Laws of Florida.
 

Laura Jacobs Feagin, a graduate of Florida State University College of Law, is an associate attorney in the Tallahassee office of Lewis, Longman & Walker. Her practice areas include government relations, land use and environmental issues, and local government issues.