Home Rule Redux: The Community Planning Act of 2011
If there is a theme to the changes made by the 2011 legislature to Florida’s growth management processes, it is the return of authority over comprehensive planning decisions to local governments.
Since the legislature’s major overhaul of growth management laws in 1985, the intrusive state review processes and ever-changing requirements applicable to local comprehensive plans have been an ongoing source of friction and anxiety to local government officials and planners. The 2011 legislative session proved to be a perfect storm for F.S. §§163.3161 though 163.3217, previously known as the Local Government Comprehensive Planning and Land Development Regulation Act.1 The state land planning agency, the Department of Community Affairs, was subject to a second year of sunset review; recently elected Governor Rick Scott made it clear during his election campaign that he would actively support eliminating the department, and the downturn in the economy continued to plague developers and financially strapped local governments. The result was, as many state politicians had promised, that sweeping changes were made to the state’s growth management laws to greatly reduce state oversight and afford broader discretion to local governing bodies. Through a separate bill, the department was eliminated as a separate state agency, and its growth management functions were transferred to a newly created Department of Economic Opportunity.2
The reformulated Community Planning Act of 2011 includes new streamlined procedures and fewer substantive criteria applicable to local comprehensive plans. The thrust of the act is best summarized in the revised legislative intent "to guide and manage future development consistent with the proper role of local government" while "protecting important state resources and functions." This article summarizes the major changes made to the processes for amending comprehensive plans and litigating plan challenges under the Community Planning Act of 2011.
Comprehensive Plan Amendment Adoption and Review
HB 7207 requires that the "expedited state review process" be used for all plan amendments except for the following, which will use "state coordinated review": amendments in areas of critical state concern, amendments that propose a rural land stewardship area or a sector plan, updates based on an evaluation and appraisal report, and new plans. The expedited review process, which is similar to the alternative state review process pilot program, requires plan amendments to be sent directly to reviewing agencies who have 30 days to send comments back to the local government.
Under the act, expedited review amendments do not receive an objections, recommendations, and comments report (ORC report) or a notice of intent from the state land planning agency. After a local government sends a proposed expedited amendment to the required review agencies, including appropriate local governments and military bases, the state agencies may only provide comments within their respective areas of expertise on important state resources or facilities that will be adversely impacted if the amendment is adopted. The act provides no definition of "important state resources and functions." The state land planning agency’s comments are limited to those important state resources and facilities that fall outside the jurisdiction of the other commenting state agencies; however, it is also empowered to provide comments on "countervailing planning policies and objectives that should be balanced against adverse impacts on important state resources and functions."
The state-coordinated review process is essentially the same as the current amendment review process except that the ORC report is optional. In both the expedited and coordinated processes, state agency comments are limited to matters within their respective jurisdictions and to important state resources and facilities that will be adversely impacted by the amendment, although the state land planning agency under state-coordinated review may also comment on whether a plan or plan amendment is "in compliance." Whenever an adverse impact on important state resources or facilities is identified, the state agencies must also identify measures that will eliminate, reduce, or mitigate the identified adverse impacts.
The adoption process for small scale amendments has been retained with minor modifications. Small scale amendments continue to be limited to a use of no more than 10 acres of land (20 acres for rural areas of critical economic concern) and a local government maximum of 120 acres in a calendar year. The residential density cap has been removed, and the legislation clarifies that text amendments directly related to a map amendment are allowed. In addition, the prohibitions on using the small-scale amendment process for the same property within 12 months and for the same property owner for property within 200 feet have been deleted. The local government is no longer required to send a copy of the amendment to the state land planning agency, nor can the state land planning agency intervene in any challenge to a small-scale plan amendment.
A potentially new way to amend a plan arises when a local government is engaged in settling a challenged plan or amendment, as it may then use the settlement agreement as a vehicle for adopting plan amendments regardless of whether the amendments are related to the underlying disputed plan or amendment. In a significant departure from established agency practice, the parties to the agreement, in addition to agreeing to remedial plan amendments and other actions needed to resolve the compliance issues in dispute, may also stipulate that the local government may adopt new amendments using the single public hearing remedial amendment process. The only limitation to such new amendments is that they not be inconsistent with the compliance agreement. As the act has removed the amendment frequency limitations that previously constrained a local government’s ability to amend its plan quickly, the state land planning agency, when a party to the underlying litigation, may decide to continue its practice of not allowing the adoption of unrelated plan amendments through the settlement agreement process in order to ensure a full vetting of amendments during the local hearing and amendment review processes.
In addition to the elimination of the twice-a-year limitation for plan amendments, another notable change in the plan review process is a new 180-day deadline in which to adopt a plan or plan amendment, except for amendments relating to developments of regional impact. There is express authorization for the state land planning agency to agree to extend the deadline, but if the deadline expires without an adoption hearing, the amendment is deemed to have been withdrawn.
Transportation, Schools, and Parks Concurrency
One of the most often quoted but generally misunderstood provisions in the act relates to the elimination of the state mandate for concurrency for transportation, schools, and parks and recreation facilities. All local governments were previously required to adopt concurrency management policies for each of these facility types and those provisions will remain in effect unless and until they are changed by the local government. Therefore, it remains to be seen what impact removal of the state mandate will have.
The only state-mandated concurrency facilities are now sanitary sewer, solid waste, drainage, and potable water. If a local government decides to rescind any optional concurrency provision, it must do so by plan amendment, but that amendment is not subject to "state review." Although the term "state review" is not defined in the act, it appears that only nonstate entities will be involved in the review of these amendments.
If transportation concurrency is applied by a local government, it must consult with the Florida Department of Transportation (FDOT) when proposed plan amendments affect strategic intermodal system (SIS) facilities, and it must exempt public transit facilities from concurrency. The act provides a revised, and hopefully simplified, formula for proportionate share contributions and requires that a local government implementing concurrency must allow an applicant for a development of regional impact, rezoning, or other land use permit to satisfy transportation concurrency by complying with the proportionate share provisions of the act. FDOT is directed to develop and submit a study to the legislature by December 15, 2011, on recommended changes or alternatives to the calculation of proportionate share contributions, with local government and developer participation.
As all local governments have already adopted the previously required school element imposing school concurrency and the associated interlocal agreement, it is questionable whether there will be any local governments willing to face the anticipated political heat associated with rescission of school concurrency. Regardless, the act makes school concurrency optional. It also removes the three-year limitation on counting portables toward classroom supply, so that portables meeting certain criteria will now be part of the permanent capacity calculation.
Unlike transportation and school concurrency, there has never been state guidance on the adequacy of a level of service standard for parks and recreation. Thus, removal of the state mandate for parks and recreation concurrency should have little or no impact on local comprehensive planning.
Evaluation and Appraisal Report Process
The evaluation and appraisal review and amendment process is significantly modified and streamlined by the act. Each local government must still undertake a review process every seven years, in accordance with a schedule to be prepared by the state land planning agency, but its mandatory work products and processes are much less onerous. The previous requirement for a detailed evaluation and appraisal report subject to state sufficiency review has been eliminated and is replaced with a self-reporting letter sent by the local government to the state land planning agency which identifies new statutory requirements that need to be incorporated into the local plan. Local governments are encouraged, but no longer required, to evaluate their plans in the context of changed conditions and to update them by plan amendments. The state land planning agency is not granted any review duties or powers regarding a local government’s determination of necessary statutory updates. If a local government finds that there are statutory requirements that trigger a plan amendment, it has one year to prepare and transmit the amendments in accordance with the coordinated state review process that is mandatory for evaluation and appraisal amendments. The act specifies that a local government that fails to submit the required letter or update its plan to reflect changes in state requirements may not amend its comprehensive plan until it complies.
Rules Repealed and Minimum Standards Revised
The act specifically repeals Fla. Admin Code Rule Ch. 9J-5, entitled "Minimum Criteria for Review of Local Government Plans and Amendments, Evaluation and Appraisal Reports, Land Development Regulations, and Determination of Compliance." Approximately 10 pages of the rules, including the most significant data and analysis requirements and several planning term definitions, were codified in the act. The act also repeals Fla. Admin. Code Rule Ch. 9J-11.023, relating to rural land stewardship areas and specifically states that rulemaking is not authorized to implement related statutory provisions. [The statutory process and criteria for rural land stewardship have been revised and will move from F.S. §163.3177(11) (2010) to F.S. §163.3248 (2011).]
The urban sprawl rule, formerly Fla. Admin Code Rule 9J-5.006(5), was generally codified in the act, but in a revised format for determining whether a plan or amendment encourages the proliferation of urban sprawl. The urban sprawl test no longer includes "lack of demonstrated need" as one of the primary indicators of urban sprawl. The act also removes from the rule the directive to review the sprawl indicators in the context of land uses, local conditions, development controls, and innovative and flexible planning and development strategies. Future urban sprawl analysis will be able to employ a much simpler approach and achieve a more objective result. The revised statute includes a list of eight development patterns or urban forms that mitigate the 13 enumerated urban sprawl indicators. If the element or plan amendment achieves any four or more of those patterns or forms, it is determined to discourage the proliferation of urban sprawl.
The act also clarifies that "need" is a data and analysis issue, not an independent compliance criterion, and that it sets a floor, not a ceiling. The act requires that plans be based on at least the minimum amount of land required to accommodate the medium projections of the University of Florida’s Bureau of Economic and Business Research for a planning period of at least 10 years unless otherwise limited under the statutes and rules relating to areas of critical state concern.
The definition of "in compliance" that applies to the review of plans and plan amendments has been revised in the act to eliminate the requirement for consistency with Rule Ch. 9J-5 and consistency with the state comprehensive plan. The definition still requires consistency with the applicable regional policy plan, but the act deletes the statutory guidance that defined consistency with the regional policy plan by requiring the local plan to be "compatible with" and "further" the plan through an analysis that construed the regional plan "as a whole."3 Despite this deletion, however, it is doubtful that the legislature intended a single goal or policy of a regional policy plan to be applied in isolation and to be the sole basis for a finding that a local plan or plan amendment is not "in compliance." Regional policy plans establish general planning goals, objectives, and policies for a region. They are not well-suited for establishing minimum compliance criteria.
"Financial Feasibility" and Capital Improvements
The act repeals the requirement for a plan to be "financially feasible," as was previously required in F.S. subsection 163.3177(2)
(2010), but which never went into effect because of a legislative deferral of the requirement through December 1, 2011. A minimum five-year schedule of capital improvement projects that are necessary to achieve and maintain level of service standards for public facilities and services is still required, but its content and updating process has been modified. The schedule may include unfunded projects for any of the five years so long as the status of being unfunded is identified, and the project is assigned a funding priority level. Privately funded projects need not be included on the schedule, and the prior requirement for development agreements between developers and local governments to demonstrate financial feasibility has been deleted. Local governments must continue to review their capital improvements elements on an annual basis, but may adopt any modifications to the five-year schedule of capital improvement by ordinance without those updates being deemed to be plan amendments.
The law still requires each plan to include a minimum of two planning periods, one covering a period of at least five years after plan adoption and another covering a span of at least 10 years. The Department of Community Affairs previously had taken inconsistent positions on how to apply the statute and rules if a plan included an additional long range planning period that addressed a geographic portion of its jurisdiction, such as when a plan amendment addressing land use changes for a certain project included one or more custom tailored planning periods tied to the project’s development. The act resolves that debate by expressly authorizing additional planning periods for specific land use amendments or projects. It also revises the sector plan statute to specifically authorize a long range planning period that exceeds the underlying plan’s general long range planning period.
The cap on the number of sector plans has been removed so that any local government or combinations of local governments may adopt a sector plan. The revised process is intended to promote coordinated planning strategies for conservation, agriculture, and development within large areas comprising at least 15,000 acres. Development within an approved sector plan is not subject to development-of regional impact review. A sector plan requires a plan amendment that adopts a long term master plan encompassing the entire planning area. Upon the request of a landowner, properties may be excluded from the master plan; however, for properties that are included, the determination of whether to remove properties from a sector plan is up to the discretion of the local government and may only be accomplished by a plan amendment.
At least two detailed specific area plans are required to implement the long-term master plan. A major change to the sector planning provisions is that each detailed specific area plan is to be adopted by a local development order, as opposed to the former requirement for adoption by plan amendment. A copy of the development order must be provided to the state land planning agency, the land owner, and the developer. If any of those three persons or entities considers the development order to be inconsistent with the local plan or the long-term master plan, an appeal may be filed with the Florida Land and Water Adjudicatory Commission within 45 days of rendition in accordance with F.S. subsection 380.07(6). If an aggrieved or adversely affected person challenges the development order in circuit court through F.S. §163.3215, and the party filing the challenge serves notice to the state land planning agency, any appeal filed by the state land planning agency must be dismissed and the state land planning agency may intervene in the pending judicial proceeding.
Regardless of the adoption process followed by the local government, any "affected person" — as that term is defined in F.S. subsection 163.3184(1)(a), and remains unchanged by the act — may challenge a plan or a plan amendment by filing a petition directly with the Division of Administrative Hearings (DOAH) within 30 days after the plan or plan amendment is adopted by the local government. The state land planning agency is barred from intervening in any proceeding initiated by an "affected person." The "fairly debatable" standard, which provides deference to the disputed local government decision, applies to any challenge filed by an affected person. Challengers to small scale amendments no longer may prove noncompliance by the less deferential "presumed to be correct" standard.
The state land planning agency may challenge an amendment adopted under the expedited review process or a plan or amendment adopted under the coordinated state review process, but it may not challenge a small scale amendment. Under the expedited state review process, the state land planning agency must file its petition with DOAH no later than 30 days from the date the local government is notified that its amendment is complete. Under the coordinated state review process, this deadline is extended to 45 days from the notification of completion of the plan or plan amendment.
If the state land planning agency files a petition under the expedited review process, its compliance issues must be based on comments provided by the review agencies and its determination that an important state resource or facility would be adversely impacted by the amendment. The petition must specifically explain how the amendment will adversely impact the important state resource or facility.
Under the coordinated state review process, the state land planning agency’s range of possible issues is not as limited. The agency may raise any applicable compliance issue within the scope of the definition of "in compliance," not only those based on adverse impacts on an important state resource or facility. An "affected person" may intervene in any proceeding initiated by the state land planning agency.
As before, in challenges initiated by the state land planning agency, the local government’s determination that the plan or plan amendment is "in compliance" is presumed to be correct and the agency must prove that the plan or plan amendment is not in compliance by a preponderance of the evidence. Issues of internal inconsistency remain subject to the "fairly debatable" standard in challenges initiated by the agency.
Transition and Implementation Provisions
For pending cases in which the state land planning agency is the petitioner, the agency has 60 days after the effective date of the act to review the proceedings to determine if the issues it raised are consistent with the revised provisions of the act. If the issues raised by the agency are not consistent with the new provisions, the agency must dismiss the proceeding. If the agency determines that one or more of the issues is still viable under the revised law, the agency has 30 days to amend its petition to plead with particularity the manner in which the plan or plan amendment fails to meet the revised provisions.
The legislature has provided for a "soft start" for local governments who must address the significantly revised provisions of the act. Thus, if a local government has a plan that already has been found to be in "in compliance," no new plan amendment is triggered by the act until the local government is required to update its plan by adopting amendments to implement its evaluation and appraisal report. However, new amendments must be in compliance with the provisions of the revised act.
In an uncharacteristic departure from the act’s theme of increased authority to local government, local home rule powers have been restricted regarding initiative or referendum processes applying to development orders and plan amendments. The act addresses issues raised in Citizens for Responsible Growth v. City of St. Pete Beach, 940 So. 2d 1144 (Fla. 2d DCA 2006), as to whether certain voter referenda to approve a plan amendment may be authorized by local charter or are unconstitutional because they are inconsistent with state law. The Second District held that the statutory prohibition on initiatives and referenda in regard to development orders or plan amendments affecting five or fewer parcels inferentially authorizes initiative and referendum processes for amendments affecting more than five parcels.4 Revised F.S. §163.3167(12), deletes the parcel restriction and now prohibits any initiative or referendum that applies to any development order or plan amendment.
This article has focused on the local comprehensive planning aspects of the legislation, but there are myriad other changes in the act with which practitioners should become familiar. These include two separate two-year permit extensions and several changes relating to developments of regional impact. In total, the act is a significant departure from over two decades of increased state oversight and repeated instances of new planning mandates. Given the dire financial circumstances in which most local governments now find themselves, relief from these mandates is likely to be welcomed in most quarters. With the reduced state role, however, comes an increase in responsibility on local governments to be accountable for the decisions they make which impact the future growth of their communities.
1 Fla. HB 7207 (2011).
2 Fla. SB 2156 (2011).
3 Fla. Stat. §163.3177(10)(a) (2010).
4 Citizens for Responsible Growth, 940 So. 2d at 1150.
Linda Loomis Shelley is a shareholder of Fowler White Boggs, P.A., with over 25 years of experience representing public and private clients in environmental, land use, and administrative litigation disputes. She is a former general counsel and secretary of the Department of Community Affairs. Shelley received her B.A. and J. D. from the University of Florida.
Karen Brodeen is a shareholder of Fowler White Boggs, P.A., and a former assistant general counsel of the Department of Community Affairs and of the Department of Environmental Protection. Brodeen received her B.A. from Franklin and Marshall College and her J.D. from Florida State University College of Law.
This column is submitted on behalf of the City, County and Local Government Law Section, Kenneth A. Tinkler, chair, and Jewel W. Cole, editor.