The 2002 Legislature, with the active involvement and guidance of Governor Bush and the Department of Community Affairs (DCA), passed comprehensive changes to the 1985 Local Government Comprehensive Planning Act and related statutes. Although the changes are more aptly described as evolutionary than revolutionary, several provisions will affect the broad citizenry of the State of Florida. Remarkable for this area of law and public policy, the changes were drafted with great consensus and enjoyed broad approval from a wide array of interest groups. Many of the changes evolved from the suggestions of the 2000-01 Governor’s Growth Management Study Commission. [1]

     The 2002 Legislature, with the active involvement and guidance of Governor Bush and the Department of Community Affairs (DCA), passed comprehensive changes to the 1985 Local Government Comprehensive Planning Act and related statutes. Although the changes are more aptly described as evolutionary than revolutionary, several provisions will affect the broad citizenry of the State of Florida. Remarkable for this area of law and public policy, the changes were drafted with great consensus and enjoyed broad approval from a wide array of interest groups. Many of the changes evolved from the suggestions of the 2000-01 Governor’s Growth Management Study Commission. [2]

     The majority of the changes made during the 2002 legislative session started the session as separate bills but were ultimately combined into one large omnibus piece of legislation in the Committee Substitute for Senate bills 1906 and 550. The legislation contains important new changes to address coordinated school planning and improved water supply planning. It also greatly modified the process for judicial review of local land use decisions. These changes and others outlined below improve both the quality of land use planning and the procedural aspects of comprehensive planning. (A separate article by Laura Feagin will detail the changes to the development of regional impact review process in this and other bills.)

Coordinated School Planning -- Improving Communication between Local Governments and School Boards

     Preexisting law required local governments to enter into interlocal agreements with their school boards but had little guidance for the agreement’s contents, and was not adhered to with any consistency throughout the state. The new legislation elevates the importance of these interlocal agreements by specifying what they must address, adopting a parallel requirement for school boards, creating a review role for both DCA and the Department of Education, and imposing sanctions in the event these local entities do not meet their new responsibilities. Interlocal agreements must be submitted between March 1, 2003 and December 1, 2004 on a schedule to be published by DCA.

     The new interlocal agreements must address school siting, establish a process to ensure consistent enrollment and population forecasting, and participation by local government in decisions such as school siting, renovation and closure and all short and long range school facility planning. The new law also requires participation by the school board in comprehensive planning and rezoning proposals, which is enhanced by mandating school board representation on local planning agencies and regional planning councils. The agreements must address how to provide on and off-site improvements to meet the infrastructure and safety requirements of schools, and joint use of facilities such as parks and libraries. It also must create procedures for resolution of disputes and an oversight process to ensure the implementation of the interlocal agreement. The new requirements are designed to ensure an elevated dialogue on these important issues while granting local governments a great deal of flexibility as to how to meet these new requirements.

     The new legislation does not alter the current optional provisions for school concurrency which when adopted as part of a local comprehensive plan, nor grant the authority to a local government to deny development orders based on lack of school capacity. However, the Legislature did so in light of a closely watched case arising out of Orange County. Initiated by then Chairman Mel Martinez, [3] the Orange County Commission adopted a policy to deny comprehensive plan amendments and rezonings when they created unmitigated impacts on already over-crowded schools.  [4]  In Mann vs. Board of County Commissioners of Orange County, No. CIO 00-6722, 8 Fla. L. Weekly Supp. 473 (9th Cir. May 15, 2001), cert. denied, No. 5D01-1741 (5th DCA Feb.11, 2002), the property owner challenged a denial of a rezoning. The circuit court found that Orange County’s policy was consistent with its comprehensive plan and therefore the denial was permissible by law. The landowner appealed but the 5th District denied the petition for writ of certiorari. As of the date of this writing, the appellate court had not ruled on pending motions for rehearing.

     The legislation also authorizes the creation of educational facilities benefit districts pursuant to interlocal agreement between a school district and local government. The benefit district is an alternative mechanism for funding the construction and maintenance of educational facilities. If the local government and school district agree to create such a district, the district will assist in the construction and maintenance of school facilities with a levy of a non-ad valorem assessment. The school board contributes impact fee revenue generated by development within the benefit district, and up to one half of the remaining construction costs.

Water Supply Planning

     During the recent drought, citizens were baffled by new developments being approved while restrictions on water use were vastly curtailing usage by existing residential and business customers. Additionally, it was recognized that while there are current comprehensive planning requirements that address water supply planning by local governments, in practice, those provisions have focused more on the pipes and other infrastructure to deliver water rather than the water to be carried in those pipes. CS/SB 1906 and 550 substantially improves coordination between local governments, the entities controlling future land use, and water management districts, the entities generally charged with planning for water supply on a regional basis. The new legislation requires local governments to amend their comprehensive plans to better integrate those plans with the water management districts’ regional water supply plans. The legislation also requires local governments to include in their comprehensive plans a ten-year work plan for building water supply facilities that are considered necessary to serve existing and new development. These work plans must be submitted by January 1, 2005, or the next Evaluation and Appraisal Report required by section 163.3191, Florida Statutes, whichever occurs first. This requirement only applies to those facilities for which the local government is responsible.

Comprehensive Plan Process

Streamlining -- CS/SB 1906 and 550 makes both streamlining and substantive changes to the comprehensive plan amendment process found in Chapter 163, Florida Statutes. The local comprehensive plan amendment process is streamlined in two ways. Agency reviews and requests for review of comprehensive plan amendments will become a new one-step process rather than the current two steps, and non-controversial amendments will be reviewed more quickly. Additionally, there is a streamlined approach for those plan amendments that did not receive any comments or objections by DCA, commenting agencies or affected persons. If an adopted amendment has not been revised since it was previously transmitted and it did not receive any comments or objections, then upon receiving a letter stating these prerequisites have been met, DCA will issue a notice of compliance within 20 days of receipt of the adopted amendment rather than the current allowance of 45 days.
Public Notice -- Finally, the process for notifying the public of the State’s decisions on comprehensive plans is modernized. A temporary authorization contained in last year’s budget act regarding publishing notices of intent is now more formally revised in section 163.3184, Florida Statutes. DCA will continue to publish copies of its notices of intent on it’s website, www.dca.state.fl.us, in addition to newspaper advertising. The Department’s notices of intent will now be published in the legal notice section rather than in larger newspaper ads. Local governments are required to post notices of intent on their website if they have one and provide a sign-in form at the comprehensive plan transmittal and adoption hearing for those wishing to receive notice regarding additional action on an amendment. DCA will send courtesy notices to all who are included on the local government’s sign-in form.

Future Land Use Plans -- The requirement in section 163.3177, Florida Statutes, that the future land use plan of the comprehensive plan include standards to be followed to control population and building densities and intensities is clarified in order to address what uses are required to have intensity standards. This provision was sought by the agricultural community to prevent future battles over whether the minimum requirements for local comprehensive plans required adoption of intensity standards for agriculture. Local governments are also prohibited from denying development approval for a requested land use for certain approved solid waste management facilities that have previously received a land use classification change allowing the requested land use on the same property.

Urban Infill, Redevelopment and Concurrency -- Urban infill and redevelopment is promoted by allowing a local government to waive the concurrency requirements of section 163.3180, Florida Statutes. With the exception of transportation facilities, the local comprehensive plan’s concurrency requirement may be waived by a local government for designated urban infill and redevelopment areas, if the waiver does not endanger public health or safety. For a transportation concurrency waiver, a waiver must be adopted pursuant to existing section 163.3187(3)(a), Florida Statutes.
In addition, section 163.3191, Florida Statutes, relating to evaluation and appraisal reports, is revised to require local governments with jurisdiction over property located within the coastal high hazard zone to study whether any past land use density reduction impairs property rights when redevelopment occurs. These local governments are also required to develop strategies to address redevelopment feasibility and property rights while balancing public safety considerations.
Transportation concurrency was amended within CS/HB 715. Transportation facilities that are designated as part of the Florida Intrastate Highway System and are needed to support new development are required to be in place or under actual construction no more than five years after issuance of a certificate of occupancy or its functional equivalent. No changes were made to the current three-year certificate of occupancy requirement for other transportation facilities.

Standing to Challenge Comprehensive Plans and Amendments -- Existing standing provisions require the challenger to reside, own property or do business in the jurisdiction proposing to amend its comprehensive plan while a neighboring property owner located in a different jurisdiction cannot establish standing. The legislation corrects this deficiency by expanding the definition of “affected person” in section 163.3184, Florida Statutes, to include a property owner who owns property abutting property that is subject to the proposed change to a future land use map. No attempt was made to otherwise modify the standing to challenge a comprehensive plan or amendment.

Local Government Certification -- The sustainable communities pilot project ended in 2001 after the Legislature failed to extend the statutory expiration date. Based upon the pilot project successes, a new certification process is provided with the creation of section 163.3246, Florida Statutes. The purpose of the new certification program is to reward qualifying local governments with less state and regional oversight of their comprehensive plan amendment process. Local governments that may participate under this program are those who commit to directing growth to an identified area, have a demonstrated record of effectively implementing and enforcing their comprehensive plan, and have a commitment to implement exemplary planning practices. Certification areas must be compact, contiguous, and appropriate for urban growth and development. These areas must also include areas within which public infrastructure is existing or planned within a 10-year time frame. The new program allows DCA to enter into eight certification agreements per year. Continued oversight for specified types of plan amendments is retained by the state.

Challenges to Local Government Development Orders

Section 163.3215, Florida Statutes establishes the procedures for challenging a local government development order as inconsistent with the comprehensive plan. Case law interpreting this section has resulted in differing methods of review by circuit courts. Additionally, there is great variation in the implementation of the quasi-judicial process required by the Florida Supreme Court in Board of County Commissioners v. Snyder, 627 So. 2d 469 (Fla. 1993), for evaluation of proposed development orders.

Current case law dictates that third party challengers are the only parties that may use the cause of action created in section 163.3215, Florida Statutes, to challenge development orders. A landowner must petition for certiorari review in circuit court in order to challenge a local government decision. [5]

Standing to Challenge Comprehensive Plans and Amendments -- Existing standing provisions require the challenger to reside, own property or do business in the jurisdiction proposing to amend its comprehensive plan while a neighboring property owner located in a different jurisdiction cannot establish standing. The legislation corrects this deficiency by expanding the definition of “affected person” in section 163.3184, Florida Statutes, to include a property owner who owns property abutting property that is subject to the proposed change to a future land use map. No attempt was made to otherwise modify the standing to challenge a comprehensive plan or amendment.

Local Government Certification -- The sustainable communities pilot project ended in 2001 after the Legislature failed to extend the statutory expiration date. Based upon the pilot project successes, a new certification process is provided with the creation of section 163.3246, Florida Statutes. The purpose of the new certification program is to reward qualifying local governments with less state and regional oversight of their comprehensive plan amendment process. Local governments that may participate under this program are those who commit to directing growth to an identified area, have a demonstrated record of effectively implementing and enforcing their comprehensive plan, and have a commitment to implement exemplary planning practices. Certification areas must be compact, contiguous, and appropriate for urban growth and development. These areas must also include areas within which public infrastructure is existing or planned within a 10-year time frame. The new program allows DCA to enter into eight certification agreements per year. Continued oversight for specified types of plan amendments is retained by the state.

Challenges to Local Government Development Orders

     Section 163.3215, Florida Statutes establishes the procedures for challenging a local government development order as inconsistent with the comprehensive plan. Case law interpreting this section has resulted in differing methods of review by circuit courts. Additionally, there is great variation in the implementation of the quasi-judicial process required by the Florida Supreme Court in Board of County Commissioners v. Snyder, 627 So. 2d 469 (Fla. 1993), for evaluation of proposed development orders.
Current case law dictates that third party challengers are the only parties that may use the cause of action created in section 163.3215, Florida Statutes, to challenge development orders. A landowner must petition for certiorari review in circuit court in order to challenge a local government decision. [6]  The standard of review that third party intervenors receive under section 163.3215, Florida Statutes, is de novo review, [7] while landowners’ challenges are the more deferential to local government standard inherent in certiorari review. The Growth Management Study Commission identified the differences in remedies as an inequity and its recommendations included a uniform process to address development order challenges.

     This year, a consensus emerged around an optional special master process to improve the nature of quasi-judicial hearings and create some uniformity to methods of appeal to circuit court. Section 10 of CS/SB 1906 and 550 revises section 163.3215, Florida Statutes, by authorizing but not requiring local governments to establish a special master process to address quasi-judicial proceedings associated with challenges of development orders based on consistency with the local comprehensive plan. To establish a special master process, a local government must adopt an ordinance that includes statutory minimum provisions, such as notice and public participation requirements. The local government chooses which local processes may utilize the special master process. The special master does not make a final decision. Rather they submit a recommended order to the local government, which is considered in a public hearing. The local government adopts a final order and is limited as to the changes they may make to the recommended order, similar to the provisions in section 120.57(1)(l), Florida Statutes, for administrative proceedings. The definition of “an aggrieved or adversely affected party” is revised to include owners, developers, or applicants for a development order to make it clear that the statutory remedy is applicable to both denied applicants and third parties unhappy with their local government’s decision. The requirement for a verified complaint prior to instituting action is also deleted. Most attorneys familiar with these proceedings reported that the verified complaint process never yielded anything but delay in proceeding to circuit court.

     If a local government adopts an ordinance creating a special master process, the sole method by which an aggrieved or adversely affected party may challenge a decision of a local government granting or denying an application for a development order is by filing a petition for certiorari in circuit court. This must occur no later than 30 days following the later of the issuance of the development order or other local government written decision or when all local administrative appeals are exhausted. If a local government does not adopt a special master process, then the developer or third party may bring a de novo action to challenge a local government decision.

FUTURE CHANGES TO GROWTH MANAGEMENT

     CS/SB 1906 and 550 establishes several reports that may generate additional action by the Legislature in the future. Counties with a population over 100,000 are required, with the municipalities and special districts within such county, to submit a report to DCA by January 1, 2004, which identifies existing or proposed interlocal service delivery agreements and which identifies deficits or duplication in the provision of services. This provision is an attempt to have these local governments identify existing service deficiencies and opportunities for cooperation and efficiency in service delivery. To address the numerous problems and controversies that have arisen as a result of the current annexation statutes,7 representatives of municipalities, counties and special districts must recommend changes to the Legislature regarding annexation statutes by February 1, 2003.

     Several other items are in the works that may also yield future legislative action. The 2001-2002 budget contained funds for the State to develop and test a model for evaluating the fiscal impact of land use and development decisions. This study is intended to provide a model for use by all local governments to assist those governments in evaluating the short, and more importantly, the long range impacts of local decisions on the fiscal health of Florida’s communities.

     Undoubtedly, these projects will yield more evolutionary reforms of Florida’s now 17-year-old growth management laws. In the meantime, the Department will be working with local governments and public and private sector professionals to implement the many varied provisions of CS/SB1906 and 550.
 

1.... Florida’s Growth Management Study Commission, A Liveable Florida for Today and Tomorrow, available at www.floridagrowth.org (February, 2001)
2.... HB 569, HB 753, HB 1535, HB 1609, HB 2001, SB 382, SB 1876, SB 2228, 2002 Regular Session (2002); CS/SB 1906 has not yet been sent to the Governor.
3.... Chairman Martinez was appointed Secretary of the U.S. Department of Housing and Urban Development by President Bush in January, 2001.
4.... Orange County has not adopted school concurrency. School concurrency would have impacts on a broader range of development orders. See, sections 163.3164(7), 163.3180(13), F.S.
5.... Chapter 2002-13, Laws of Florida
6.... Parker v. Leon County, 627 So. 2d 476 (Fla. 1993).
7.... Poulos v. Martin County, 700 So. 2d 163 (Fla. 4th DCA 1997)