Introduction

1. COMMUNITY PLANNING ACT IMPACTS: HOW LOCAL GOVERNMENTS ARE ADAPTING TO THE CPA; CPA’S EFFECT ON LOCAL LAND USE PRACTICE

2. General Practice Tip:See Jellson, Zachary, NOTE: THE COMMUNITY PLANNING ACT: MARKET OVER PLANNING, 23 University of Fla. Journal of Law & Public Policy 193 (Aug. 2012); and Amended Complaint Town of Yankeetown v. DCA (Leon County: 2011 CA 002036 (challenging as unconstitutional; case was voluntarily dismissed).

3. Introduction • Community Planning Act (Part II, Chap. 163, Fla. Stat. - “CPA”), in effect since June 2, 2011, makes the most comprehensive changes to the comprehensive plan process since the 1985 Local Government Comprehensive Planning and Land Development Regulation Act.

4. Introduction cont’d. • State role (DCA) is significantly reduced, state oversight has been greatly minimized, and discretion of local governments to plan their own communities is greatly increased. • Role of DCA (state land planning agency) now reduced (only half the planners), shifted to Department of Economic Opportunity (DEO).

5. Synopsis of seminar: (a) overview; (b) the good news and bad news for local governments; (c) state review; (d) major changes in specific subject areas, such as urban sprawl, concurrency, periodic evaluations of comprehensive plans, prohibition of use of initiative and referendum process in regard to comprehensive plans; and (d) some practice tips under the CPA.

6. Other changes in law which we may not cover in this seminar: • Elimination of 2-per-year limit on amending plans. • Rules 9J-5 and 9J-11 repealed; portions of 9J-5 moved to CPA. • 3 methods of review: (a) expedited review process (90%) [Fla. Stat. § 163.3184] – Reduces the review time to 136 days to 65 days; (b) state coordinated review process (10%) – similar to former law; and (b) small scale amendments (no state review or challenges). • Made minor changes regarding plan amendments relating to military installation; mediation and expedited hearings during administrative challenges.

7. Overview Practice Tips: • Assistance to local governments and applicants seeking advice regarding land development matters: • Fla. Stat. § 163.3168: The state land planning agency shall help communities find creative solutions to fostering vibrant, healthy communities, while protecting the functions of important state resources and facilities. The state land planning agency and all other appropriate state and regional agencies may use various means to provide direct and indirect technical assistance within their available resources. • CALL D.E.O. FOR ASSISTANCE!

8. Overview Practice Tips cont’d.: • Per Fla. Stat. 163.3168(4), DEO has published, on its website, guidance on the submittal and adoption of comprehensive plans, plan amendments, and land development regulations. These are not administrative rules. Although they are not rules, follow the guidelines published by DEO on its website regarding preparation and submittals of plan amendments.

9. Overview Practice Tips cont’d.: • Even though state oversight and ability to challenge has been significantly reduced, affected persons can still administratively challenge plan amendments under 6 sections of the CPA as being not “in compliance,” as defined under 163.3184: elements, internal consistency, consistency with data and analysis, consistency with other statutes in certain areas (163.3177); coastal management (163.3178); concurrency, both required and optional (163.3180); evaluation and appraisal process (163.3191); sector plans (163.3245); and rural land stewardship areas (163.3248). • Note: The definition of “affected person” under § 163.3184 has not significantly changed in the 2011 and 2012 amendments.

10. Both local governments and landowners find the CPA makes adopting comp plan amendments more efficient without fear of litigation, especially for developments under 10 acres (small scale). Permit • BEFORE • Large scale comp plan process generally took an average of 136 days and was cumbersome. • Standard of review for third party challenges was to show non-compliance by “preponderance of the evidence”. • Comp plan amendments must be consistent with State Comp Plan. • AFTER • The CPA imposes a 30 day time limit on expedited state review for total review of approximately 65 days. • Under expedited review, amendment becomes effective 31 days after state has complete copy of adopted amendment unless challenged. • Each reviewing agency has a limited scope of “comment”, no more ORC. • Changes the standard of review to a standard which is highly favorable to local governments = the “fairly debatable” standard for challenges by affected persons. • State must meet clear and convincing standard where state challenges amendment due to “adverse impact” on “important state resources/facilities” (new undefined terms). Almost impossible to meet. • Comp plans don’t have to be consistent with State Comp Plan. • State can’t review a small scale amendment or intervene in a challenge to a small scale amendment at all.

11. The CPA is good or bad news, depending on whether you are a local government, a landowner, an environmentalist, or an affected person. • Bad news: Could lead to piecemeal and uncoordinated development patterns with no regional oversight. • May be a wide divergence in interpretation of the statutes by the state agencies and local governments. The State cannot issue new administrative rules relating to the CPA, and will have limited staff to deal with remaining issues on an ad hoc basis. • Local governments may cave in to pressure from developers or citizen groups. • Good news: Could encourage more development and jobs. Redevelopment may avoid need analysis and concurrency requirements. • Local governments can now focus on product, not process, and are able to exercise more home rule authority. For example, local governments can establish their own planning periods (F.S. 163.3177(5)(a)). • CONCERNS: • It’s still too early to tell, since it hasn’t been tested yet. The uncertainty may dampen growth. • Lots of unknowns, like whether local governments can impose stricter regulations on growth than is provided in the Act. Act states it contains “the minimum requirements necessary to accomplish its stated intent” (163.3161(8)). • Many believe that local governments will hold the line and protect the environment and infrastructure. Have local governments learned the value of planning? • What about the inter-jurisdictional impacts? Who will consider these? • More reliance on third parties as watchdogs. • DEO has not challenged any local plan amendments.

12. The CPA gutted state review of land use decisions, which will now be almost exclusively by the affected local government. State Review Regional Review Local Review “Important State Resource” - Everglades • BEFORE • The DCA reviewed all comp plan amendments qualifying as large scale (over 10 acres) and issued an ORC report. • AFTER • Full scale state review only for amendments involving: 1) areas of critical state concern; or 2) updates to plans based on the EAR. (Only 10% of all amendments.) • For amendments not involving one of those two, the State will only review the impact of a large-scale comprehensive plan amendment on “important state resources and facilities”, which are not defined in the CPA. (Examples provided in the CPA are intermodal transportation systems and the Everglades). • Lack of definition could undercut state review further because review will be on case by case basis. • The DEO and other state agencies have found “important state resources” to be involved in about 5 comp plan amendments so far under the CPA, and all the state concerns were mediated. Source = F.S. 163.3184, 163.3187

13. There will also be less oversight on a regional level due to Regional Planning Councils’ lack of funds and changes to the DRI program. • BEFORE • Local Government comp plans must be consistent with the regional plan, which must be consistent with the state plan. • Appropriation of $2,500,000 for all 11 RPCs until Governor Scott’s vetoes of this appropriation leaving no money for RPCs.    • AFTER • Comp Plans still have to be consistent with the applicable regional policy plan. • Regional Planning Councils’ budgets have been vetoed by the Governor for the last two years, leaving the RPCs to try to continue to uphold their statutory duties without funding. • Despite lack of funding, RPCs continue to play the key role in emergency evacuation, transportation, natural resources, and affordable housing. State Review Regional Review Local Review

14. LOCAL PLAN AMENDMENT REVIEW PROCESSES • Even though the CPA has significantly simplified comprehensive planning, has eliminated state oversight, and now leaves much to the authority and discretion of local governments, local review processes which impact the plan amendment process remain in place. • Some comprehensive plans or land development regulations have procedures in place, pursuant to Sec. 163.3181, to insure maximum public participation.

15. The DRI program is somewhat reduced now and there are more changes promised. • BEFORE • DRI statutes were applied throughout the state except in “dense urban land areas” (DULA). (6 of 67 counties, close to 250 of 411 cities.) • Substantial deviations required additional regional review. • AFTER • Renews DULA exemptions and includes projects only partly within DULA. DULAs to be determined each year. • Where the project is exempt from DRI Process, extra-jurisdictional impacts will only be mitigated through the local government’s ordinances and intergovernmental coordination elements. RPCs will need to play a key role in addressing these impacts, but they haven’t been funded recently. • Under the CPA, there is an increased threshold for determining whether a project has substantially deviated from the DRI permit, meaning there will be fewer substantial deviations. Changes to approved DRIs that don’t decrease open space/conservation areas or external peak hour trips are no longer considered substantial deviations. • Developers can file proposed change to recalculate proportionate share. • 4 year extension regardless of prior extensions; applies to mitigation schedule. • Not certain about the future of DRIs. Once the economy is in full swing, there may be a rush of developers coming to the state with development proposals to develop large tracts of land in more rural areas, so DRI regulations may continue to be beneficial in those areas. • Incentives to create large scale “Sector Plans” that eliminate the DRI process. Any local government can adopt a sector plan. • There were no applications for DRIs in 2012. • Opportunity to rescind existing DRIs in DULAs. • More extensive legislative changes to DRI process to come. Source = 380.06

16. Small scale amendments under 10 acres are simple to adopt, and can include text changes. • BEFORE • 80 acreage maximum per year, residential density limitation, and limitation on numbers on same property or property within 200 feet. • DCA could intervene in third party challenge. • Standard was preponderance of the evidence. • No text amendments allowed. • AFTER • Process is unchanged for the most part. • The acreage maximum was increased to 120. • No residential density limitation. • No limits on comp plans on the same property within 12 months or the same property owner for property within 200 feet. • No longer required to send a copy to the state. • State can’t intervene in challenges by third parties. Can only be challenged by an “affected person”. • If there is a challenge by third parties, the standard is “fairly debatable”, highly favorable to the local government. • Big change: small scale can include a text change “directly related to the map amendment”. The definition of “directly related” is left open, up to the local government. Source = F.S. 163.3187

17. The State will no longer monitor whether local governments are providing roads, schools and parks at or near the time of development. Concurrency is still mandatory for health and safety facilities, like sewer, water, and stormwater. • The original purpose of concurrency was to ensure the government had the necessary facilities and infrastructure needed at the time of growth. • Idea behind eliminating State mandated concurrency is that now development will be cheaper, so we will get more development. Problem: what if roads/schools become overcrowded? • Local governments can still require concurrency (for now) if they beef up their plans to include more technical back up and meet other state requirements. It’s not all up to the home rule authority of local governments. • Is concurrency a good planning tool? Many believe transportation concurrency led to urban sprawl. • Eliminating parks may not be a big deal because there were no state standards. Source = F.S. 163.3180

18. Local Governments are no longer required to demonstrate “financial feasibility” of Capital Improvements • BEFORE • Local Governments required to demonstrate the financial feasibility of their list of proposed capital improvements • 5 Year plan had to include specific projects necessary to achieve LOS Standards. • Sufficient revenue had to be identified. • AFTER • Need only show level of service standards “can be reasonably met.” F.S. 163.3180(1)(b). • 5 Year schedule of capital improvements is still required, but it is no longer required to be financially feasible. Funding source does not have to be identified. • Capital projects can be identified as “funded,” or “unfunded” and given priority for funding. • Facilities and infrastructure can come in 5 or even 10 years from the tine of development, depending on the government’s funding schedule. • The Capital Improvement Element does not have to be a part of the comp plan. • No sanctions for failure to update capital improvements schedule. Source = F.S. 163.3177

19. Since the CPA was adopted, at least 15 local governments have rescinded transportation concurrency, substituting development agreements, and impact and mobility fees. • BEFORE • Legislature had already created many exceptions to transportation concurrency, and allowed developers to pay only “proportionate fair share” of cost of needed improvements. • Several flaws were identified in transportation concurrency, including that concurrency drives development to rural areas, leading to urban sprawl. Urban infill has been exempt from concurrency for a while, but was defined narrowly. • AFTER • If the local government wants to keep concurrency, developers must be allowed to “pay and go”, to prevent developers from having to pay more than once to mitigate the impacts of a multi-phase project, or pay to mitigate impacts to toll roads. • Developers must be allowed to satisfy concurrency through a new formula which attempts to charge the developer for only their proportionate share of the cost of providing transportation facilities to serve the development, and not for any backlog on the roads. All road improvements needed to correct deficiencies must be deemed to be in place before conducting an analysis of what to charge the developer • Eliminating concurrency theoretically allows these local governments to adopt comp plan amendments regardless of whether the roads can be paid for. • Many communities are substituting impact fees, but those are subject to a new statute (163.31801, F.S.), making them more difficult to adopt. • Many existing DRIs may seek to renegotiate their proportionate share agreements with local governments. • Developers can seek credit for impact fees paid. • Will result in proportionate share reductions of 40-80%, per Greenberg Traurig’s estimates. Source = F.S. 163.3180

20. Since the CPA, at least 16 local governments have rescinded school concurrency. • BEFORE • All governments must execute interlocals with School Boards to implement school concurrency. • Comp plans must include a school facilities element. • AFTER • If local governments keep concurrency, requirements are generally the same. Local governments must continue to allow a developer to proceed with a development despite failing school concurrency by entering into a proportionate share plan for the cost of providing additional school facilities. • The CPA did not eliminate the requirement for an interlocal between the School Boards and the local governments to coordinate on school closings and construction. • Most all local governments are rewriting the interlocalswith the school board, but are unsure exactly what to put in place of concurrency. • Eliminated requirement for School Facilities Element. Source = F.S. 163.3177, 163.3180

21. The Legislature may have unwittingly encouraged “urban sprawl” by loosening the definition of urban sprawl at a time when there is an abundance of housing. • BEFORE • Comp plans must discourage “urban sprawl”, as defined in statute, based on 13 indicators. • AFTER • A comp plan must still discourage urban sprawl based on the same 13 factors, but the “lack of demonstrated need” is not an indicator of “urban sprawl”, and 8 development patterns can mitigate urban sprawl. • If an amendment achieves only 4 out of 8 of these patterns, then the amendment can be said to discourage urban sprawl. This may allow a local government to ignore the 13 factors that lead to the determination of urban sprawl. • The 8 factors include such factors as: 1) directing economic growth so as to protect natural resources and ecosystems; 2) promotion of water and energy. • Much of the rural land on which sprawl can occur is within the jurisdiction of small local governments that often turned to DCA for assistance/support. Source = F.S. 163.3177