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