GT Alert

Florida Department of Community Affairs (DCA) Scales Back Draft Bill

March 2005

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As expected, growth management will be a key topic for this session, and DCA has already drafted and redrafted an early bill that proposes significant changes to the comprehensive planning process. While the second version is much more streamlined, it still includes provisions that would substantially impact land development in the State of Florida.

DCA proposed an omnibus bill earlier this year that would have implemented wide-sweeping changes in the state’s growth management process. Among the more significant proposals, the initial bill mandated that local government comprehensive plans (“LGCP”) include community visioning, urban growth boundaries, fiscal impact modeling and an array of new policy and analysis requirements related to “priority state interests” (PSI). The bill also proposed numerous procedural changes to limit DCA’s review of plan amendments, delegate substantial review functions to the Regional Planning Councils and to eliminate the role of the Administration Commission in issuing final orders on contested plan amendments.

DCA has modified the bill to now make many of the new concepts optional, but several key provisions remain mandatory and pose significant concerns. Most importantly, DCA’s recent draft continues to require that local government comprehensive plans protect PSIs that could potentially limit land uses and densities within a variety of habitat areas including “significant” wetland areas, habitats with a 7+ habitat rating by the Florida Fish and Wildlife Commission, Imperiled Communities and other designated habitat areas. PSIs would also potentially require extensive modeling to demonstrate protection of 1st magnitude springs, Class 1 waterbodies, well fields and the like. DCA also proposes to limit the types of development which can occur near the Strategic Intermodal System, which includes airports, ports, transit stations and major roadways connecting those facilities.

The new bill would also elevate requirements for capital improvements planning by requiring that local governments utilize a fiscal impact model to determine whether plan amendments are financially feasible. DCA must certify that the model is professionally acceptable. The draft bill ramps up requirements for school planning and expressly allows local governments to deny plan amendments that would impact overburdened schools. Local governments would have the option of accepting proportionate share contributions to allow the plan amendments to proceed.

DCA Secretary Cohen has also proposed incentives for local governments to adopt comprehensive plan “enhancements” that could include visioning, urban growth boundaries, rural stewardship areas, long range facility plans, build out plans and other measures that could substantially impact the ability to process plan amendments. Incentives for such measures include exemption from state review and transportation concurrency exceptions within certain designated areas.

The pending bill includes significant procedural changes somewhat similar to the initial version. DCA’s compliance review would apply only to new plans, amendments based on evaluation and appraisal reports, areas of critical state concern and the Wekiva Study area. For all other amendments, DCA would not issue a compliance determination, but could file a petition to challenge the amendment within 45 days following receipt of the adopted amendment. For such amendments, the local government adoption would be presumed correct and sustained unless a preponderance of evidence demonstrates the amendment is not in compliance. The fairly debatable standard would not apply to such cases. The pending bill would also eliminate the Governor and Cabinet role in issuing final orders on all challenged amendments. The new procedure would require an initial hearing with the Division of Administrative Hearings and DCA would subsequently issue a final order, subject to appeal to a district court of appeal.

This Alert was written by Kenneth B. Metcalf, AICP, Reginald L. Bouthillier, and Robert C. Apgar in the Tallahassee office. Please contact Mr. Metcalf at 850.425.8547, Mr. Bouthillier at 850.425.8517, Mr. Apgar at 850.425.8541 or your Greenberg Traurig liaison if you have any questions regarding the subject matter of this Alert.

© 2005 Greenberg Traurig

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