A vision of the future of Florida land use law.

In this article, the author offers his version of the possible future scope and direction of land use law in Florida.

Article VIII, [subsections] 1 and 2 of the Florida Constitution grant counties and municipalities, respectively, the power to govern themselves, consistent with general laws of the state.

Evolving Sources of Zoning Power and Their Limitations

Over the next decade, new trends will emerge. Local governments will not be able to solve certain problems with origins and cures beyond their jurisdictions. Seven new regional governments will greatly expand the powers and responsibilities of the 11 existing under-utilized regional planning councils. The new regional governments will meet unique needs in areas connected by culture, environment, infrastructure, and, most important]y, each regional government's political will to fund that region's unique points of excellence, whether they be entertainment, converging technological industries, agriculture, or service and light industries. The regional governments will create new political boundaries and utilities like Hillsborough, Pinellas, and Pasco counties' new water efforts in a Tampa Bay water utility on April 30, 1998. Water sources, major transportation, overall planning, resource and capacity rationing, crime prevention, health care, economic development, tourism, higher education, and regional technological challenges and opportunities will be among the regional problems which will require a new wider scope of studies, solutions, and integrated exactions and funding courage spread over the right new rate or user base, with the right courage in a resource's time constraints.

Growth Management and Comprehensive Planning

"Comprehensive plan amendment," "deferral areas," "compact deferral areas," "congested links," "constrained facilities," "backlogged facilities," and "inadequate public facilities" are some of the new "growth management speak" of Florida citizens dealing with the effects of Florida's 1985 Growth Management Act and its concurrency management requirements. Greater discipline in facilities-based approval requires cautious gauging where road and other facility capacities remain or can be enhanced concurrent with a development's impacts.

New "consistent" development regulations were required to be compiled into one single development code for each jurisdiction. F.S. [sections] 163.3202(1).

There were certain minimum requirements set forth in the statute for specific detailed provisions in the development code which:

a) Regulate the subdivision of land;

b) Regulate the use of land and water for those land use categories included in the land use element and ensure the compatibility of adjacent uses and provide for open space;

c) Provide for protection of potable water well fields;

d) Regulate areas subject to seasonal and periodic flooding and provide for drainage and stormwater management;

e) Ensure the protection of environmentally sensitive lands designated in the comprehensive plan;

f) Provide that public facilities and services meet or exceed the standards established in the capital improvements element required by [sections] 163.3177 and are available when needed for the development, or that development orders and permits are conditioned on the availability of these public facilities and services necessary to serve the proposed development. No development order or permit may be issued which results in a reduction in the level of services for the affected public facilities below the level of services provided in the comprehensive plan of the local government.

Concurrency and Effects of Growth Management Laws

Concurrency is a legislatively enacted growth management tool for ensuring the availability of adequate public facilities and services to accommodate development. The foundation for a legally viable concurrency system is the formulation and implementation of a capital improvements plan for delivering essential public facilities in a timely manner, by linking the approval of new development to the current and future availability of adequate public facilities. Ideally, concurrency regulations should seek to avoid the necessity for any moratoria on development by ensuring that both existing and planned public facilities are available as needed in light of a community's growth. Currently there are seven mandatory facilities which are subject to concurrency requirements as required by F.S. Ch. 163, part II. These mandatory facilities for which local governments are required to adopt level of service standards include roads, sanitary sewer, solid waste, drainage, potable water, parks, and mass transit.[1] A capital improvements program must be set forth in the local government's comprehensive plan and establish both level of service standards for the facilities subject to concurrency and present the means for meeting the those standards.[2] Impacts of development that result in service levels below the adopted level of service will not be allowed.

Legal challenges will limit concurrency enforcement and substitute disciplines will be required. Five legal principles generally govern whether enforcement of public policies like concurrency require compensation of affected landowners who level of servicee development rights in the process:

1) Governments must exhaust less onerous alternatives to achieve public purposes before imposing a development moratorium because of public system inadequacies (such as adding additional lanes to a roadway before limiting development due to traffic delays). Moratoria must be based not just on inconvenience but matters of demonstrated public safety (as in the Ghidorzi case in North Carolina).

2) Governments must not impose moratoria until public hearings have determined public health, safety, and welfare necessities for such drastic measures, and such moratoria may not be of unlimited duration. Governments must adequately warn property owners and provide hearings and findings of fact before substantial land use restrictions are imposed, such as notices of adoption of concurrency management prohibitions of developments on roads whose levels of service are below adopted levels.

3) Governments must provide reasonable solutions for inadequate facilities in order to lift limited-term moratoria under good faith public funding of improvements to solve the problem. Contributions required from developers cannot exceed amounts that are at least "roughly proportional" to that development's impacts on the protected public resource.

4) Governments must pay for permanent and even temporary takings of property where all beneficial use is denied and investment-backed expectations frustrated.

5) Governments must apply public policies uniformly to those similarly situated.

Replacing concurrency moratoria, over the next decade's evolution, will require online performance and prepayment standards and requirements that lead to automatic approval at the click of a mouse: Resource uses, replacements, and substitutes will be programmed in, along with flex hour and transit incentives, efficient service provision incentives, and capacity reservations. There will be annual "use it or level of servicee it" safeguards against hoarding rationed capacities. In 1998, in CS 2474, the Florida Legislature exempted from development of regional impact mitigations (in effect since 1973 for large projects like those over 30 acres of office or 40 acres of retail) those projects over 5,000 acres (1,000 acres in some cases) that look instead at all affected resources and facilities in a new sector plan of the affected area.

Current land use exactions and mitigations will be replaced. Impact fees, user charges, development of regional impact exactions and mitigations and special assessments will yield to regional resource consumption charges, recycling credits, in-kind contributions, technology and resource exchanges, public/private partnerships, grants, subsidies, offsets, and sustainable resource incentives.

The focus of growth management will shift from what can be built where to what must be provided to build now. Growth management's current police officer and evolution overseer, the Florida Department of Community Affairs, currently requires urban service area lines in urban and urbanizing areas (90 percent of the state's population is urban, most of which is within 15 miles of the coast). This technique supposedly limits urban sprawl, promotes compact urban areas, and makes service provision more efficient, less costly, and less environmentally threatening. Thus, development within such areas is favored and sometimes encouraged (growth incentivization) with up zoning, expedited permitting, and government help extending or connecting to existing or nearby water, sewer, roads, etc. Growth incentivization is also evident in areas which have been vested from concurrency requirements for performing large areawide development of regional impact reviews, years ahead of development being contemplated.

Creative solutions, such as permitting a new 9,000 unit residential development in return for a three-million-gallon desalination plant, or permitting a three-million-square-foot office approval per complete grade-separated interchange with six new lane miles, will continue to emerge.

"Concurrency moratoria" where required road, water, sewer, drainage, and other mandatory public facilities are inadequate will evolve into "`concurrency-proof' zones." Development will be focused where capacity remains or can be inexpensively added. State law will require development regulations that include details how, when, and at what price development will be allowed, or how the "no" can be turned into "yes" and when. During Prohibition, real relief was called a "speakeasy." In 10 years, developer relief will be in areas called "build-easies." Some areas where excess infrastructure is created or capacity incidentally or delivery remains will be cheap. Some areas where capacities are affordably enhanceable will be moderately priced and others will be economically infeasible. Some counties like Hillsborough already have "no fee zones" relieving builders of impact fees where there is excess capacity and development needs to be encouraged.

Development assessments will include: credits for wetlands, species' habitats, green space, excess resource protection; credits for internal trip capture, job centers, new water sources; infrastructure offsets for refining the examination of true impacts of a development such as where nearby retail, office, and jobs are within walking or transit distance, like bike paths to schools, accommodating proposed development; and traditional pricing.

Some impact fee ordinances already allow developer studies to reduce assessments based on real trip lengths, rather than regulatory model trip generations. One study of a regional mall (away from interstates) needed $6 million of improvements; another study of a mall (near interstates) tried unsuccessfully through its studies to get the government to pay it $2 million for taking trips off existing highways going great distances to other malls.

* Governments will pay developers in cash and kind, and transfer development rights to them and expedite approval of their permits to discourage urban sprawl and efficiently deliver services. The state bought up some development rights in the Green Swamp for $33 million in 1996. In Albuquerque, New Mexico, those who develop in the favored urban growth areas where existing facilities are, get an expedited permit within 120 days. Approval is presumed in favored areas of Portland, Oregon. Florida has a few expedited 90-day permit programs now for those companies bringing the state a large number of new high-paying jobs.

Just as the federal government paid soybean farmers in the 1960s not to grow, governments will pay developers not to build in sensitive areas. The currency of non-building fees will be cash, entitlements, transfer of development rights, and/ or waivers of minor rules in less sensitive areas.

* In the wake of new standards, courts will award disproportionately affected owners cash and viable, marketable development rights. In Key West the rights are viable and worth $15,000 per unit; in Dade, $9,000. In some areas, there is no market for them. Government will still pay for its compensable takings and inordinate burdens wherever societal benefits (like wetlands) fall disproportionately on some owners.

The determination whether a regulation deprives a property owner of all or substantially all economically beneficial use under case law relies on the following factors: the history of the property, including zoning, regulations, development, and nature of title; the landowner's reasonable expectations under state common law; and the level of services in the landowner's reasonable investment-backed expectations caused by the regulation.

Harris Private Property Rights Protection Act of 1995

The Bert J. Harris, Jr., Private Property Rights Protection Act, F.S. Ch. 70,[3] creates a new cause of action for an aggrieved property owner who demonstrates that governmental action occurring after May 11, 1995, "inordinately burdens" his property. Under the act, which took effect on October 1, 1995, a landowner must show, with an appraisal in hand, unreasonably "disproportionate" limitations or restrictions on investment-backed expectations for such uses.[4]

Over the next decade where governments cannot balance sensitive area needs, and nonbuilding purchase attempts fail, condemnation of development rights will lead to judicial awards in the form of cash awards, development rights exchanges, or entitlements. Special land use courts will be created for this purpose. Government will pay for their compensable takings if they deny all or substantially all development entitlements or use or inordinately burden them under Florida's 1995 property rights law.

* Government itself will develop where no one else will--in areas favoring government policies like environmental cleanup and protection, efficient delivery of services, and transit encouragement.

Governments will direct or develop needed affordable housing and other public facilities where no one else will, especially to decrease transit and housing subsidies, utilize existing capacity where it has accumulated, or use land which was environmentally contaminated, but is remediable (brownfields).

* The state legislature will admit its limitations and empower seven new regional local governments to oversee integrated resource and performance standards and price charts. These on-line charts will identify where, when, and at what price development can occur on geographic information system computer programs. Each region's political will to fund its unique needs will differentiate regions dramatically.

Regions will allocate traffic capacity, groundwater discharge, tourism centers, the coastline, mining, timber, agriculture, and other related resources, assuring efficient provisions of utilities and regional assets. The state legislature and seven regional counterparts, comprised of powerful local governments, water management districts, and regional planning councils, will oversee a two-tier primary zoning and development of the regional impact screening process. Rent bonus and other incentives will help move otherwise unmovable properties or redevelop existing vacant facilities for more efficient public services.

Currently, regional planning councils, numerous large cities and water management districts all take part in development screening and permitting. Solutions to problems that require a reach beyond their jurisdiction and authority are breaking down old parochialism, personality bases, traditional strongholds and have some elected officials looking beyond their own next reelection.

* The state will intervene in regions only where public facility provisions or cross regional resources (like the aquifer) fall below standards negotiated by the state with each region. Crucial autonomy will be hard earned. Purely local services like fire, police, and schools will be provided by 800 new perfectly sized benefit districts, each voting on the unique quality level they are willing to pay for.

Solutions will be local where problems are understood and solutions clevel of serviceely, delicately, and politically gaugable. Any tourniquets applied to constrain development will be quickly releasable again as long as locals meet resource protection goals negotiated with their region.

* One-stop permitting will finally come, but at the price of phased development. For example, a developer might be offered more density later or expedited permitting now for the first half of his development if he waits for other resources to catch up before he builds the rest. Pinellas County already stops some developments at 50 percent of their allowed use if a concurrency problem arises in the annual concurrency test statement. Transition to development rationing will require the compensation of transition victims who level of servicee vested rights. What a community is willing to pay for will drive its rationing and each region's unique ration list and prices on line for rationed entitlements. Offerings of development opportunities will be like the car inventory online now at Carmax computer kiosks. The direction of local bodies will be exercised in programming and reprogramming the stops in the integrated system.

Permitting will be at the price of scheduled development (delayed) approvals and deadlines to use capacity or level of servicee it.

In 1993, permits were streamlined in a minor way when a unified wetlands definition was finally adopted. In 1997, the Department of Community Affairs delegated development of regional impact reviews and plan amendment approval authority to five model local governments, in a test called "sustainable communities," subject to DCA appeal or approval: Martin County, Orlando, Boca Raton, Ocala, and Tampa/Hillsborough County.

* Creativity, technology, and risk taking will still enable traditional profit levels for development, but regional land use czars and pricing and steerage officers will program the computers. They will be required by statute to have at least 10 years of real world development experience to qualify for what would otherwise be filled by lifelong bureaucrats. Their compensation will be high and conflict tolerance non-existent. Development will go on. Wasn't it Plato who said the best form of government is an enlightened despot with a website, with integrated approvals and their price, timing, and conditions at the click of a mouse that roars.

In sum:

* "Land use courts" will balance higher land use priorities and the property rights that survive this revolutionary rationing of remaining development rights.

* Seven regional governments will govern most of what was once under statewide control. The state legislature and new seven regional counterparts will merge the power of local governments, water management districts, and regional planning councils in the seamless web of regulation by incentives and pricings. There will be a point system for sensitive area impacts and performance standards and price charts on-line for identifying in real time--at the click of a mouse--where, when, and at what price each residential and other type of development can occur.

* The ticking time bomb of the infrastructure deficit, combined with the Internet's development of an instantaneous plebiscite, will lead to a new way of governing, but five or seven local elected officials will exercise traditional discretion over the regional land use czar programs for approvals. Based on Florida's historic response to its growing pains, within 10 years, we will see the creation of seven new regional governments and 1,800 local ones, with boundaries determined by the practical limits of how far police and fire-protection services can reach.

* Why? In 1960, Florida spent three percent of its gross income on infrastructure. By 1985 the total had fallen to less than one percent. In that span of 25 years, Florida's population jumped from just under five million to just over 11 million, an increase of 220 percent. The falling rate of spending on public facilities, combined with the population explosion, understandably put a strain on the public's sense of well-being, leading to this rationing and Y2010 Problem.

Finding the Vision

Planning is not the only way to preserve community values, and planning beyond a community's resources may actually bring more harm than good to a community.

Citizens in each community must acquaint themselves with what is at stake in planning to fulfill the vision outlined in the comprehensive plan. They must also be willing to fund and support that vision. A community's comprehensive plan is more than a mere wish list. It is an invoice for those services and policies the citizens will support for those services and policies the citizens will support as their vision of the community.

Along with the new regional governments will come new forms and sources of funding so as to spread the costs of these solutions to regional problems over the appropriate base of new and existing users.

Development will go on in Florida. The question is how. Is the Growth Management Act a ticking time bomb that will stunt Florida's economic growth, or will it provoke discipline and force Florida's leaders to provide new revenue sources and pricing of rationed remaining facilities? Is growth management in Florida a brilliant framework for making growth pay its own way, or is it going to stop growth even by those who are willing to pay the full real share of their impact on facilities and resources?

Correcting Florida's Vision Over the Next Decade

Thirteen years of experience with comprehensive planning under the 1985 Growth Management Act have taught us lessons for the next decade in developing a vision for Florida's future.

Lesson One. If the people of a community want to preserve its special character, they must begin now to participate in creating a vision for their community and pricing of the remaining development rights, and local programmers how to get approvals and efficiently deliver services.

Lesson Two. Comprehensive plans must be understandable and streamlined to bring into focus the goals that shape the community vision.

Lesson Three. Comprehensive plans should come with price tags. The costs of planning must be clearly defined to assist citizens in making informed choices about whether the costs of their visions are affordable and result in benefits to the community.

Lesson Four. Planning cannot be conducted in a vacuum. Planning must occur within the boundaries of the constitutional property rights of individual landowners.

Lesson Five. Market forces must be acknowledged. Planning should work in harmony with market forces rather than against them (by trying to force people and businesses into places they do not want to be or will not be welcomed). Many planners promote urbanization as a means to optimizing utilization of government services and promoting cost-effective mass transit, but market demands for such urban lifestyle must be groomed or adapted to real evolving lifestyle choices. Planners' pursuit of compact growth cannot succeed until it is backed by a readiness to pay for its consequences, namely clevel of serviceely situated residential and commercial development, higher densities, more multi-family dwellings, and smaller lots for single-family dwellings. Then the vision can be achieved when the lifestyle decisions support it and the price the communities are willing to charge for remaining regional and local capacities and their renewal.

[1] FLA. STAT. [sections] 163.3180(1)(a) (Supp. 1996).

[2] Level of service is a basic planning concept used to reflect to what degree a public facility will be needed or required per unit of growth or development in a community. FLA. ADMIN. CODE R. 9J-5.003(65).

[3] FLA. STAT. [sections] 70.001 (1995).

[4] FLA. STAT. [sections] 70.001 (1995).

Ronald L. Weaver, a partner in the law firm of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., practices in Tampa where he heads the firm's land use department.

This column is submitted on behalf of the Environmental and Land Use Law Section, Lawrence E. Sellers, Jr, chair, and Melissa P. Anderson, editor