2002 reforms to growth management.

The 2002 Florida Legislature, with the active involvement and guidance of Gov. Jeb 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. 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 majority of the changes made during the 2002 legislative session started as separate bills but were ultimately combined into one large omnibus piece of legislation in the Committee Substitute for Senate bills 1906 and 550. (2) The legislation addresses coordinated school planning, improved water supply planning, changes to the process for judicial review of local land use decisions, new school financing, and several changes designed to improve both the quality of land use planning and the procedural aspects of both comprehensive planning and development of regional impact review.

Coordinated School Planning

Preexisting law required local governments to enter into interlocal agreements with their school boards but had little guidance for its contents and was not adhered to with any consistency throughout the state. Both the governor and the Growth Management Study Commission put a great deal of emphasis on filling the gaps in the law on school planning. 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. Conversely, the new law 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 with a great deal of flexibility at the local level as to how to meet these new requirements.

The new legislation does not alter the current optional provisions for school concurrency when adopted as part of a local comprehensive plan, nor does it 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. The Orange County Commission adopted a policy to deny comprehensive plan amendments and rezonings when they created unmitigated impacts on already over-crowded schools. (3) 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 Fifth District denied the petition for writ of certiorari. As of the date of this writing, pending motions for rehearing have not been ruled on by the appellate court.

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 10-year work plan for building water supply facilities that are considered necessary to serve existing and new development by January 1, 2005, or the next evaluation and appraisal report required by F.S. [section] 163.3191, whichever occurs first. This requirement only applies to those facilities for which the local government is responsible. A new emphasis is placed on the reuse of reclaimed water by revisions to F.S. [section] 403.064, requirements for reuse feasibility studies performed in conjunction with wastewater facility permitting.

Comprehensive Plan Process

* Streamlining. CS/SB 1906 and 550 makes both streamlining and substantive changes to the comprehensive plan amendment process found in F.S. Ch. 163. 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 noncontroversial amendments will be reviewed more quickly. Current disincentives for local governments to request review of noncontroversial amendments are removed. 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 F.S. [section] 163.3184. DCA will continue to publish copies of its notices of intent on its Web site, www.dca.state.fl.us, in addition to newspaper advertising in the legal notices section rather than in larger newspaper ads. Local governments are required to post notices of intent on their Web site 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 F.S. [section] 163.3177 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. 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 F.S. [section] 163.3180. 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 F.S. [section] 163.3187(3)(a).

In addition, F.S. [section] 163.3191, 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 (4) to specify that transportation facilities designated as part of the Florida Intrastate Highway System 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. Other transportation facilities are required to be in place or under construction not later than three years after issuance of a certificate of occupancy.

* Standing. The definition of "affected person" in F.S. [section] 163.3184 is expanded to include a property owner who owns property abutting property that is subject to the proposed change to a future land use map. This corrects a problem that has occurred in the current standing provisions that allow property owners in the jurisdiction proposing to amend their comprehensive plan standing, but not neighboring property owners located in a different jurisdiction. This change allows persons who are truly affected to have standing, regardless of which local government jurisdiction they reside in.

* Local Government Certification. A new certification process is provided with the creation of F.S. [section] 163.3246, which is similar to the expired sustainable communities pilot program. The sustainable communities pilot project ended in 2001 after the legislature failed to extend the statutory expiration date. Based upon the pilot project successes, the concept has now been reimplemented and expanded. 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. Newly created F.S. [section] 163.3246 provides certification eligibility criteria, requires a certification agreement between DCA and the local government, and requires revocation of the certification if the local government does not substantially comply with the agreement. Upon certification, comprehensive plan amendments for lands within the boundaries of the certification area are exempt from state and regional review. Review of the following types of plan amendments is retained by the state: certification area boundary changes; proposed rural land stewardship areas; proposed school facilities elements; those based on the evaluation and appraisal process; impact areas outside of the certified area; implement new statutory requirements; and if within the coastal high hazard zone, those that increase evacuation or shelter need.

Local Government Development Orders

Case law interpreting F.S. [section] 163.3215 regarding challenges to local government development orders have 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). Current case law dictates that third party challengers are the only parties that may use the cause of action created in F.S. [section] 163.3215 to challenge development orders. A landowner may not use this statute and must petition for certiorari review in circuit court in order to challenge a local government decision. Parker v. Leon County, 627 So. 2d 476 (Fla. 1993). The standard of review that third party intervenors receive under F.S. [section] 163.3215 is de novo review, Poulos v. Martin County, 700 So. 2d 163 (Fla. 4th DCA 1997), while landowners' challenges are the more deferential to local government standards 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 F.S. [section] 163.3215 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 F.S. [section] 120.57(1)(1) 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.

This legislation substantively changes the current statute to address case law in order to provide uniformity in development order challenges in circuit court. Additionally, if local governments adopt the special master process, public participation and involvement should be improved as a result of several requirements in the citizen notice and participation procedures of the ordinance. Finally, the elimination of the verified complaint requirement eliminates unnecessary and costly delays.

Development of Regional Impact (DRI)

After many failed legislative attempts, CS/SB 1906 and 550 streamlines and makes substantive changes to the DRI process. F.S. [section] 380.06(2)(d) is amended to provide a bright-line test for developments under 100 percent of DRI thresholds by fixing the initiation of DRI review at 100 percent of a threshold or larger. The presumption for developments at 100-120 percent was maintained, allowing a developer with a development between those percentages to prove that the development is not a DRI. The requirement for annual DRI reports in F.S. [section] 380.06(15) and (18) 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 nothing that requires monitoring. A technical change to F.S. [section] 380.04 is provided by inserting "electricity" into work by a utility that is excluded from the definition of development, as [section] 380.04(3)(b) makes reference to work on power lines. In order to address any potential conflicts among regional planning councils, [section] 380.06(12) 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 or intensity or density of use is eliminated from the DRI review. The acreage thresholds for office development and retail development are eliminated, as these thresholds had little relation to the actual impact of a development of this type. There were also DRI exemptions created for three types of developments that receive significant oversight by a variety of federal, state, and local agencies. 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. New marinas or expansion of existing facilities are exempt from DRI review when a county or municipality adopts a boating facility siting plan or policy into its comprehensive plan. These plans or policies must address protection of endangered species such as the manatee as well as resource protection. 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. The third type of development exempted from DRI review is airport facilities. This exemption is contained in CS/HB 261. (5) 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 transportation systems, then no DRI review will be required.

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, (6) 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 2001-02 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.

Developments of regional impact are also bound to be on the legislative agenda. One of the bills that failed during the 2002 legislative session 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. (7) For the last draft of this legislation visit the legislature's Web site, www.leg.state.fl.us. The last version is in the Committee on Comprehensive Planning, Local and Military Affairs Committee meeting packet for March 3, 2002. (8) Additionally, the current chair of the Senate Comprehensive Planning and Local and Military Affairs Committee, Senator Lee Constantine, requested that DCA evaluate the DRI program and suggest modifications to the provisions regarding aggregation of properties for the purpose of DRI review and the thresholds for multiuse developments.

Undoubtedly, these projects will yield more evolutionary reforms of Florida's now 17-year-old growth management laws.

(1) Florida's Growth Management Study Commission. A Liveable Florida for Today and Tomorrow, available at www.fioridagrowth.org (February 2001).

(2) HB 569, HB 753, HB 1535, HB 1609, HB 2001, SB 382, SB 1876, SB 2228, 2002 Regular Session (2002).

(3) Orange County has not adopted school concurrency. School concurrency would have impacts on a broader range of development orders. See FLA. STAT. [subsection] 163.3164(7), 163.3180(13).

(4) 2002 Fla. Laws ch. 13.

(5) 2002 Fla. Laws ch. 20.

(6) FLA. STAT. ch. 171.

(7) SB 552 by Senator Constantine.

(8) SB 552 was not considered by the Committee on Comprehensive Planning, Local and Military Affairs.

Cari L. Roth is general counsel for the Florida Department of Community Affairs. She is a 1983 graduate of the Florida State University College of Law. Prior to joining the department in July 1999, she was a partner in the Tallahassee office of Lewis, Longman & Walker, P.A.

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

This column is submitted on behalf of the Environmental and Land Use Law Section, Maribel N. Nicholson-Choice, chair, and Robert Manning, editor.