Perspectives on the 2009 Growth Management Legislation
Introduction
by Susan L. Trevarthen
The following articles on growth management legislation are sponsored by the City, County and Local Government Law Section, James L. Bennett, chair, and Jewel W. Cole, editor, and the Environmental and Land Use Law Section, Paul H. Chipok, chair, and Gary K. Oldehoff and Kelly Samek, editors.
Known as the “Community Renewal Act,” Senate Bill 3601 was signed into law by Governor Charlie Crist on June 1, 2009. This bill is a major change to Florida growth management law and, as such, deserves careful review.
Two sections of The Florida Bar — City, County and Local Government Law and Environmental and Land Use Law — have collaborated to inform Florida attorneys of its key provisions and provide perspectives on the implications not only of this bill, but also of additional legislative changes that are likely to be considered during the 2010 session. The sections solicited leading attorneys to provide development (Wade Hopping and Cari Roth), third party (Richard Grosso), and local government (Vivien Monaco and Susan Trevarthen) perspectives on the bill.
Summary of Senate Bill 360
Before these perspectives, though, this feature will first provide a very brief summary of the bill’s provisions.2 The act recedes from some of the requirements of the 2005 growth management legislation, while creating exemptions from state-mandated transportation concurrency mandates and all development of regional impact (DRI) review for “dense urban land areas” (DULAs) that contain the majority of the state’s population in an effort to spur economic development. While the act contemplates the future creation of a statewide mobility fee, there is no guarantee that one will be adopted by a future legislature and no certainty as to its methodology or components. The act also provides for extensions of certain permits for two years.
Specifically, the act contains the following:
Permit Extensions : The act extends Department of Environmental Protection and Water Management District permits with expiration dates from September 1, 2008, through January 1, 2012; DRI buildout dates and deadlines to start and finish mitigation associated with phased projects; and related local development order and building permits, for two years.3
Definitions : The term “existing urban service area” is renamed as “urban service area” and expanded.4 The term “dense urban land area” or “DULA” is added and defined.5
Transportation Concurrency Exception Areas (TCEAs) : The act creates TCEAs for municipalities that are DULAs, urban service areas, and large counties that are DULAs but do not have urban service areas (except Miami-Dade and Broward counties).6 The act’s designation of a TCEA “does not limit a local government’s home rule power to adopt ordinances or impose fees.” When reviewing comprehensive plan amendments within TCEAs, the requirement to achieve and maintain level-of-service standards for transportation is deemed to be met.7
Transportation Methodologies : For those developments that will continue to be subject to DRI and concurrency review, the same levels of service must apply to both.
Mobility Fee : The act advances this concept by a) requiring OPPAGA to submit a report to the Florida Legislature by February 1, 2015, on how the SB 360 TCEAs have been implemented and what effects they have had on mobility and congestion, and b) directing DCA and the Florida Department of Transportation (FDOT) to establish a methodology for implementing a mobility fee and file a joint report8 on the methodology by December 1, 2009, including recommended legislation and a plan to implement the mobility fee as a replacement for transportation concurrency.
Financial Feasibility of Capital Improvements Element (CIE) and Intergovernmental Coordination Element (ICE) : The deadline for “hard” financial feasibility review of the CIE is extended to December 1, 2011. The ICE must specify the regional dispute resolution process and must include mediation or a similar process.
Public School Concurrency : Waivers for low-growth areas are modified, and penalties for noncompliance revised. If a school district includes portable/relocatable classroom capacity in its inventory of student stations, those classrooms may count as available capacity for the first three years of school concurrency implementation. Construction of a charter school is added to the list of proportionate share mitigation options.
Impact Fees : The 90-day delayed effective date for impact fee ordinances does not apply if the effect of the ordinance is to “decrease, suspend or eliminate” the fee. Under the act, the 90-day notice requirements now appear to apply to “increased” fees as well as new fees.
Security Cameras : The act prohibits locally adopted standards for security cameras for lawful businesses that require the expenditure of money to enhance local police services (other than those in publicly operated facilities).
Concurrent Zoning Approvals : The act allows applicants to request that the local government consider a zoning change that “would be required to properly enact the provisions of any proposed plan amendment” transmitted concurrently with the plan amendment.
Plan Amendment Processing : The exception from the twice a year limitation on plan amendments for the CIE update was reworded, and a new exception was created for — and streamlined process applied to — any amendment that designates an urban service area as a SB 360 TCEA and area exempt from DRI review.
Land Development Regulations (LDRs) : LDRs shall “maintain the existing density of residential properties or recreational vehicle parks if the properties are intended for residential use and are located in unincorporated areas.”9
Developments of Regional Impact (DRI) : The act exempts developments within a “dense urban land area” from DRI review.10 Exempt development orders for projects must be mailed to DCA if they exceed 120 percent of any DRI threshold that would otherwise be applicable, and DCA can appeal such orders if they are inconsistent with the comprehensive plan.
1 CS/CS/SB 360, Ch. 2009-96, Laws of Florida.
2 Just before adoption, the act was amended to include the provisions of the affordable housing bill. This feature focuses on the impact of the bill on growth management generally, and does not address these affordable housing provisions.
3 The extension is not applicable to certain permits: permits under programmatic or general Army Corps of Engineers permits, permits in significant noncompliance with the permit conditions, and extensions that would delay or prevent compliance with a court order. The act requires notification prior to December 31, 2009. Later enacted regulations can be applied if there is an immediate threat to public health or safety, and the property owner must secure the property.
4 An “urban service area” is a) a built up area where public facilities and services, including but not limited to roadway and central water/sewer facilities, currently exist or are committed in the first three years of the capital improvement schedule of the plan; and b) for those counties that are “dense urban land areas” (see below), the nonrural area of a county with a charter rural area designation, or areas identified in the comprehensive plan as urban service areas or urban growth boundaries on or before July 1, 2009.
5 A “dense urban land area” is a) a municipality that has an average of at least 1,000 people per square mile of land area and a minimum total population of at least 5,000; b) a county, including its municipalities, which has an average of at least 1,000 people per square mile of land area; or c) a county, including its municipalities, which has a population of at least 1 million. The bill provides for publication of a list of “dense urban land areas,” which includes Miami-Dade, Broward, Palm Beach, Orange, Seminole, Hillsborough, Pinellas, and Duval counties, as well as the cities within these counties and many more municipalities across the state.
6 Other municipalities and counties are provided a streamlined process to create a TCEA for previously or newly designated urban areas. Existing contracts, agreements, and development orders related to concurrency are preserved.
7 Also, certain job creation projects certified by the Office of Tourism, Trade and Economic Development may receive a waiver of transportation concurrency.
8 The report must include “an economic analysis of the implementation of the mobility fee, activities necessary to implement the fee, and potential costs and benefits at the state and local levels and to the private sector.”
9 The prohibition does not apply to properties within a coastal high hazard area under §163.3178 or where the county determines that there is not sufficient infrastructure to serve the property.
10 Existing DRIs in these areas can rescind if all of the mitigation requirements have been satisfied. A pending DRI application in these areas is permitted to opt out of DRI review. If the “dense urban land area” status is subsequently lost, the act provides that pending applications may remain exempt from DRI review if the developer is “continuing the application process in good faith or the development is approved.” The DRI exemptions do not apply to Areas of Critical State Concern (§380.05), the Wekiva Study Area (§369.316), or within two miles of the Everglades Protection Area (§373.4592(2)). The existing list of DRI exemptions is slightly modified, and the impacts of the exempt use must be included in the DRI review unless it involves certain OTTED funding agreements.
Susan L. Trevarthen , AICP, chairs the municipal land use and zoning law practice at Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., in Ft. Lauderdale, and is a member of the firm. She is board certified in city, county, and local government law by The Florida Bar.
A Perspective from the Development Community
by Wade L. Hopping
It seems to be almost universally accepted that Florida’s transportation concurrency system does not work. It creates economic winners and losers. It encourages developers to seek existing transportation capacity on the road system wherever possible in order to manage their costs, sometimes in locations where public policy otherwise seeks to discourage development. And it encourages cities, counties, the Department of Transportation (DOT), and developers to “game the system,” breeding disrespect for how we pay for development-created impacts to our transportation system.
These are not only my conclusions: The 2009 Florida Legislature found that “the existing transportation concurrency system has not adequately addressed the transportation needs of this state in an effective, predictable, and equitable manner, and is not producing a sustainable transportation system.”1 The legislature set the stage for “fixing” this problem by directing the Department of Community Affairs (DCA) and DOT to complete their current studies on a new mobility fee to replace transportation concurrency. It required that the mobility fee provide for mobility needs, ensure that new development provides mitigation for its impacts, and “promote compact, mixed-use and energy-efficient development.”2 Implicit in this last command is that a mobility fee takes into account, in some way, vehicle miles or people miles traveled.
Adoption of a mobility fee will not be simple or painless. Nevertheless, it is consistent with the fact that developers in the private sector would prefer certainty and are willing to pay for their new impacts to the transportation system. However, they are neither obligated nor capable of paying for years and years of neglect and backlog on the road system or for financially unrealistic level-of-service standards that have been adopted for many roads. Developers should be asked to pay once for their transportation impacts so they can get on with business. They should not be hit with multiple fees and exactions, or be asked to pay more than one time for the same impacts.
The heart of the challenge in arriving at a policy framework for a mobility fee will be addressing and reconciling several somewhat conflicting goals while respecting the well-developed body of law that governs such matters:
Adopting a fee high enough to replace both transportation concurrency and local government transportation impact fees so developers only pay once for new impacts while providing sufficient funding to mitigate transportation impacts.
Adopting a fee with a locational price structure that encourages urban infill, discourages unbridled rural development and is consistent with the legislature’s command for local comprehensive plans to foster “energy-efficient land use patterns” and “greenhouse gas reduction strategies.”3
Adopting a fee that meets the dual rational nexus test,4 protects private property rights, and avoids the ridiculously excessive amounts that some developers have been asked to pay in recent years.
These goals will have to be addressed in the course of answering many practical questions about the policy framework for a mobility fee. Some of those questions follow.
Who Should Pay a Mobility Fee?
One of the toughest questions may be who should pay. Should the mobility fee be universal for every new “development”? I suggest that every “developer” should pay for his or her new transportation impacts. That would include public-sector developers. Such a position would be consistent with Florida’s long-standing statutory definition of “development,” which does not distinguish between public- and private-sector developers.5 The hardest part of this calculation will be to ensure that all new development pays an appropriate amount.
To Whom Should Mobility Fees be Paid?
The fee should be paid to the local government with the responsibility to provide the transportation facilities being paid for within the dual rational nexus test for impact fees already established in law. Paying the money to the local government, such as a city or county, can be very straight-forward and should depend on location issues, such as where the development and the transportation facilities to be improved are located. The real problem will come because of extra-jurisdictional or “spillover” impacts among several jurisdictions. The legislature needs to provide a way to resolve disputes between local governments, DOT, and various regional entities. The law authorizing a mobility fee also needs clear guidelines to ensure that facilities are built.
Should a Mobility Fee Encourage Compact Urban Development?
While current DCA thinking is that compact urban development is superior to suburban or rural development, the cost of urban development is generally much higher. Land values are higher. Limitations on space and other factors, such as a requirement to take down old buildings during redevelopment, make the cost of urban development much greater. Nevertheless, compact urban development can help the state meet its planning goals. One practical way to address this concern might be for mobility fees to use a “zone” system — like taxi fares — for 1) existing urban areas; 2) areas where future urban development is encouraged and suburban areas; 3) rural areas where job centers and future urban growth are planned; and 4) rural areas where preservation of agricultural values and conservation are encouraged, consistent with private property rights. Price differentials could encourage development in zones one, two, and three while discouraging development in zone four.
Should There Be Other Public Policy Adjustments to the Mobility Fee?
Decisionmakers will be asked to waive the mobility fee for workforce housing, high-quality new job projects, economic development projects, and other environmentally and economically desirable projects. Over time it may be desirable to give fee breaks for particular types of projects favored by public policy, but I suggest that this not be done until the new system is adopted and fully functional on a statewide basis.
It will be tempting to try to completely reform Florida’s antiquated transportation funding system as part of the effort to remedy the failure of transportation concurrency. This would be a mistake. The focus should be on cleaning up the mess we created with transportation concurrency and existing transportation impact fees, all within the body of constitutional law which has developed on such matters. We should create a new system in which every developer who puts new trips on the roads and creates other demands on the transportation system pays a reasonable amount for those impacts. We need a simple, straight-forward, and reasonably priced mobility fee.
1 Ch. 2009-96, §13(1)(a), Laws of Fla.
2 Id. at §13(1)(b).
3 Fla. Stat. §163.3177(6)(a) (2009).
4 Contractors and Builders Ass’n of Pinellas County v. City of Dunedin, 329 So. 2d 314 (Fla. 1976).
5 Fla. Stat. §380.04 (2009). See also Fla. Stat. §163.3180(4)(a) (2009) (“concurrency requirement as implemented in local comprehensive plans applies to state and other public facilities and development to the same extent that it applies to all other facilities and development”).
Wade L. Hopping, founding member of the Tallahassee law firm of Hopping Green & Sams, wrote this article shortly before his death on August 11. A 50-year member of The Florida Bar, he was chair of the Pacific Legal Foundation, former president of the Florida Chamber of Commerce, and a former justice of the Florida Supreme Court.
The Public Interest Perspective on SB 360
by Richard Grosso
The environmental community sought a veto of SB 360 because its grossly over-broad definition of “dense urban land area” promotes development in rural areas; it substantially repeals the regulation of developments of regional impact (DRI), and represents a huge public subsidy — through either tax dollars or quality of life — for the transportation impacts of development.
Developments of Regional Impact
The exemption of “dense urban land areas” (DULA) from DRI review is an overbroad legislative fiat that will cause significant amounts of rural and farmland to be labeled as DULAs because they lie within a local government with an average density of 1,000 people per square mile, which even itself is too low to be a true urban infill area. This will promote urban sprawl. The bill may be vulnerable to attack on separation of powers grounds, as it grants the exclusive authority to the legislature’s Office of Economic and Demographic Research to determine which jurisdictions qualify, authorizing Department of Community Affairs (DCA) only to publish that list on its Web page. Since this entity is not a state agency subject to F.S. Ch. 120, challenges to errors in this determination may well be precluded.
DCA may challenge projects that exceed 120 percent of the applicable DRI threshold, but only on the basis of inconsistency with the comprehensive plan. This will deprive local residents of the protections of the DRI law for most large scale or regional projects. Limiting DCA’s challenges to the substance of the more limited and general comprehensive plan policies (which were not written to address DRIs), instead of the more detailed and rigorous DRI rules, is problematic. Moreover, intergovernmental coordination policies in comprehensive plans are widely known to be among their weakest elements and, therefore, do not provide the same type of guidance as DRI review.
This substantial reduction in DRI requirements could cause major inconsistencies in development decisions by different local governments. A local government with a strong growth management philosophy could still find itself overrun with traffic from projects approved by adjacent local governments. There could be an increase in plan amendment challenges filed by adjacent local governments concerned about the impacts of density and intensity increases on their infrastructure or protected areas.
Alternative State Review Process for Plan Amendments
The bill provides an “alternative state review process,” which may be used by any local government to designate an urban service area. This process, coupled with the removal of schools and recreation areas from the public services required, enlarges the geographic scope of rural areas that can be called urban and, therefore, developed outside of the rigorous DRI review process.
Concurrency Changes
The DCA has recognized that developers “will be relieved of transportation mitigation and development of regional impact requirements in many areas of the state. However, increased transportation congestion and the potential for a patchwork of home rule alternatives to transportation concurrency will degrade quality of life and the attractiveness and predictability of the development process in the state.”1 Whether concurrency is automatically repealed or can be enforced if a local government chooses to maintain its existing ordinances is one of the major ambiguities created by the bill. One impact on local advocates will be the prospect of asserting their views of what the bill means in the face of opposing interpretations asserted by the local building industry. With many local government lawyers likely to respond that they do not know what the bill means, and the specter of lawsuits by the regulated community, these battles may be uphill ones for advocates.
Another issue created by the concurrency changes is the impact on hurricane evacuation routes and coastal high hazard areas. If the bill is interpreted to require local governments to eliminate transportation concurrency in these areas, can they still limit traffic impacts so as to maintain safe evacuation times? Will the regulated industry argue that limits on traffic in coastal hazard areas or along evacuation routes are illegal concurrency provisions in disguise?
Local governments concerned about the potential impacts of an interpretation that precludes concurrency requirements might consider approaching traffic impacts as part of a re-evaluation of the densities and intensities allowed in their future land use maps. The bill did not limit a local government’s ability to reduce densities and intensities based on any of the factors in F.S. §163.3177(6)(a)(2009), including the availability of infrastructure, the character of the land, growth projections, or other factors.
Adopting Plan Amendment and Zoning Changes Concurrently
The bill requires local governments to “consider an application for zoning changes that would be required to properly enact the provisions of any proposed plan amendment.” Presumably, this means any required zoning change must be considered at the same time as the transmittal and adoption of any plan amendment. The term zoning changes is not defined and could conceivably apply to many or all development orders. This has the potential to reduce the planning function to little more than a permitting/development order function. Instead of amendments to future land use maps being viewed as fundamental legislative policy decisions about whether, for instance, to urbanize a certain part of a local government, the tendency will be to jump right to “how” to develop. Also, with a plan amendment (legislative action) and a rezoning (quasi-judicial action) pending for approval at the same time, the ability of all parties to navigate the rules that allow full ex parte discussions on plan amendments, but not development orders, will be a challenge.
Whose Economy is Being Stimulated?
Beyond the obvious transfer of the direct financing requirement for roads to local governments and away from developers, the bill waives the 90-day notice requirement for reductions, eliminations, or suspensions of impact fees, but not for increases. It is unclear why the legislature believed taxpayers can afford to subsidize new development to an even greater extent than is already happening. Some claim the bill was needed to improve Florida’s economy, but the laws being waived existed during the height of the building boom and presented no impediment to growth. The resultant over-building and mortgage crisis is a primary source of Florida’s economic troubles. The notion that the granting of easy new development approvals will improve the state’s economy, while so many developers with existing approvals are choosing not to build, cannot be taken seriously.
Looking Forward
Growth management reform is needed — to reduce process, increase substance, better protect ecosystems, preserve rural and farmlands, make plans clearer, and work better for residents. A study committee could result in smart growth management reform, but would only be as good as the resulting legislation, and it is valid to ask whether the legislative process is likely to produce a substantially improved approach.
1 FDCA 2009 Policy Analysis SB 360ER (May 20, 2009) (p.26).
Richard Grosso is a professor of law at the Shepard Broad Law Center at Nova Southeastern University in Ft. Lauderdale and the executive director and general counsel of the Everglades Law Center, Inc., (ELC) a public interest environmental and land use law firm. His teaching and legal practice concentrates in land use, growth management, and environmental policy and permitting issues.
A Look at Senate Bill 360 from a County Perspective
by Vivien J. Monaco
The first thing that counties, along with other local governments and various interest groups, have to consider in dealing with Senate Bill 360 is the meaning of the law. The legal interpretation or statutory construction of its provisions will affect a county’s response to and implementation of the legislation. Only eight of Florida’s 67 counties meet the definition of “dense urban land area” (DULA),1 and two of those (Broward and Miami-Dade) are exempt from the legislatively designated transportation concurrency exception areas (TCEAs).2 The non-DULA counties’ responses to the legislation will depend, in part, on how the municipalities within those counties react to Senate Bill 360 and the provisions relating to legislatively designated TCEAs.
Another provision of the law that has generated significant discussion throughout the state is the automatic two-year extension of certain permits.3 Some lawyers believe that the sentence, “[t]his extension includes any local, government-issued development order or building permit,” means that the two-year extension applies only to local government-issued development orders or building permits associated with permits described in the previous sentence (permits issued by the Department of Environmental Protection or a water management district). Others think that the two-year extension applies to all local government-issued development orders or building permits. Additionally, some attorneys believe that “development orders” mean local government development orders for developments of regional impact (DRIs) under §380.06(15), while others argue that the more expansive definition of development orders in §§163.3164(7) and 380.031(3) applies. The interpretation will govern which permits are extended by the authorizing local government.
One way of dealing with this ambiguity might be for a county (or municipality) to authorize two-year extensions of any development orders it might issue by ordinance under the local government’s home rule authority. At least one county has considered this approach.
The meaning of the provision in SB 360 that designates TCEAs in DULA counties and municipalities4 has also been the subject of some disagreement and confusion throughout the state. Florida’s Department of Community Affairs (DCA) has taken a strong position on the interpretation of the legislatively designated TCEAs in SB 360.5 Under DCA’s interpretation, local governments with legislatively designated TCEAs must actively amend their comprehensive plans and concurrency management ordinances to implement those TCEAs. Most DULAs are proceeding under DCA’s interpretation regarding the legislative designation of TCEAs, and are maintaining their current concurrency management systems. However, SB 360 requires local governments that have TCEAs designated by the legislation (or designated by local government option using new provisions in SB 360) to adopt into their local comprehensive plans within two years, strategies to support and fund mobility.6 This means that each DULA local government (except for the two DULA counties exempt from the TCEA designation) must adopt a mobility plan into its comprehensive plan by July 8, 2011. Many local government attorneys believe that the legislatively designated TCEA must also be adopted into the comprehensive plan when the mobility plan is adopted, while others think that local transportation (or road-based) concurrency is still an option.
Non-DULA counties are also affected by the DULA municipalities within those counties. At least some DULA municipalities believe that the legislatively designated TCEA is self-executing, and that SB 360 effectively proscribed the enforcement of transportation concurrency within the legislatively designated TCEAs. Depending on what type of development is approved in DULA municipalities that interpret the TCEA provisions as self-executing, the non-DULA county may face deterioration in its adopted levels of service on county and state roads.
Non-DULA counties may also face these same types of issues from a DULA municipality located within the county or an adjacent DULA county if the DULA has a pending development that would have been subject to DRI review prior to the effective date of SB 360. Under SB 360, that development will more than likely not be subject to DRI review,7 thus, leaving the non-DULA county without an opportunity to enter the review process and negotiate to reduce the impacts the development located in the DULA jurisdiction may have in the adjacent non-DULA jurisdiction.The pending lawsuit filed by seven municipalities and one county makes the implementation of SB 360 even more problematic for counties and municipalities. One of the counts of the complaint for declaratory and injunctive relief asks the court to declare SB 360 unconstitutional as a violation of the Florida Constitution’s single-subject requirement.8 The other count of the complaint asks the court to declare the law unconstitutional as a violation of the prohibition in the Florida Constitution against unfunded mandates.9 If the court finds that SB 360 violates the single subject rule, the entire law would be invalid.10 If the court finds that portions of SB 360 violate the constitutional prohibition on unfunded mandates but not the single-subject requirement, it is possible that the court could sever the offending provisions.
As a practical matter, local governments that have begun to implement the law may decide to defer implementation of SB 360 until either the courts or the legislature (by new legislation) provide more clarity. At least one county has already done so. Written notifications for permit extensions will be accepted by that county until the end of the year and held on file awaiting judicial or legislative action.
So where do counties go from here? The ambiguities in the language of Senate Bill 360 created uncertainty over the meaning of some of its provisions, and the pending litigation on its constitutionality adds to that uncertainty. For those counties with legislatively-designated DULAs, the comprehensive plan amendment process required by Senate Bill 360 (at the very least, the adoption of strategies to support and fund mobility) will cost time and money. Is that effort wasted if the law is found unconstitutional? What if the legislature reenacts the growth management provisions of Senate Bill 360, but with changes to some of its key provisions?
One observation planning professionals and others have made for some time now is that transportation concurrency has failed as a growth management tool and communities should be moving toward more compact pedestrian and transit-oriented development. These trends dovetail into the SB 360 requirement of adopting mobility strategies into local government comprehensive plans.
Regardless of what happens with SB 360 in the courts or the legislature, counties and cities may be well served (and better serve their residents) by looking at comprehensive mobility planning. Local governments that begin this process now will be better able to deal with development and redevelopment in ways that reduce demands on vehicle-based transportation and help meet the future requirements for reduced greenhouse gas emissions. And if in doing so, those local governments meet the requirements of the existing SB 360 or a revised version of the growth management portion of it, then maybe something good can come from the confusion.
1 See 2009 Fla. Laws Ch. 96, Section 2, §163.3164 (34); Division of Community Planning, 2009 List of Local Governments Qualifying as Dense Urban Land Areas, www.dca.state.fl.us/fdcp/dcp/Legislation/2009/CountiesMunicipalities.cfm.
2 2009 Fla. Laws Ch. 96, §4, §163.3180 (5)(b) 5 and 6.
3 2009 Fla. Laws Ch. 96, §14.
4 2009 Fla. Laws Ch. 96, §4, §163.3180 (5)(b) a-c.
5 See Notice to Local Governments of Transportation Options Under Senate Bill 360 for Transportation Concurrency Exception Areas in Dense Urban Land Areas, www.dca.state.fl.us/fdcp/dcp/Legislation/2009/Notice.cfm.
6 See 2009 Fla. Laws Ch. 96, §4, §163.3180(b) 4.
7 See 2009 Fla. Laws Ch. 96, §12, §380.06 (29).
8 See Fla. Const. art. III, §6 (“Every law shall embrace but one subject and matter properly connected therewith. . . ”).
9 See Fla. Const. art. VII, §18.
10 See, e.g., State v. Thompson, 750 So. 2d 643, 648-49 (Fla. 1999).
Vivien J. Monaco is an assistant county attorney for Orange County, practicing land use law, and is board certified in city, county, and local government law. She is chair-elect of the City, County and Local Government Section of The Florida Bar. She graduated cum laude from Stetson University College of Law.
Municipal Perspectives on Senate Bill 360, Version 2.0
by Susan L. Trevarthen
With 2009’s SB 360,1 where a municipality stands depends on where it sits. Florida’s 412 municipalities vary by age, size, population, geography, culture, and urbanization. Like a kaleidoscope, the implications of this statute shift as one refocuses the lens.2 This makes it difficult to generalize about any “municipal” viewpoint, and difficult for municipalities to speak with one voice to the Florida Legislature about growth management legislation. Despite this diversity of circumstance, it is possible to identify common municipal concerns with SB 360. These concerns were substantial enough to motivate the Florida League of Cities (and the Florida Association of Counties) to urge Governor Crist to veto the bill.
Protection of Home Rule
All municipalities have home rule powers under the Florida Constitution3 and seek to protect those powers from encroachment. The ban on security camera regulation is a clear preemption, as is the requirement that all land use map amendments within a TCEA be deemed to meet roadway level of service standards and the permit extension provision.4 Such preemptions are objectionable to municipalities because they fail to recognize that municipal governing bodies are closer to the people, and are better situated to determine what is best for their diverse communities than is the Florida Legislature.
The permit extensions are especially challenging because the statutory language is poorly worded and likely to be the subject of litigation. Permit holders who wish to utilize the extensions receive development rights that are unclear because they are not properly documented. Municipalities are left to improvise a method of processing and properly documenting the notifications of extensions, and are exposed to litigation risk from all sides.5
The act generally recognizes the home rule authority of local governments in relation to the new transportation concurrency exception areas (TCEAs). However, it is unclear whether the designation of TCEAs in DULA municipalities is preemptive or empowering.6 While some municipalities eager to overcome specific concurrency problems have opposed the suggestion that they must act to implement the repeal of concurrency, this position allows municipalities the freedom to arrive at the best solution for their situation and assure that it is clearly documented.7
Unfunded Mandates
There is also broad municipal agreement that state government should not be placing requirements on local government without providing funding to meet state objectives.8 Within two years of a TCEA being designated under the act, affected local governments “shall” adopt comprehensive plan amendments and transportation strategies “to support and fund mobility” within the TCEA.9 SB 360 removes the developer’s mandated role in addressing mobility concerns in DULAs, while likely increasing congestion. This potentially places DULA municipalities in the uncomfortable position of being forced to raise local sources of revenue to fund the transportation facilities that may be demanded by their constituents and to address this requirement to fund mobility. In a time of constrained resources, it will be challenging for municipalities to “fund mobility”; the available tools may not be sufficient to address the need.
Concern Over Hometown Democracy
While not universal, the Florida League of Cities and most municipalities oppose Amendment 4 to the Florida Constitution on the 2010 ballot, known as Hometown Democracy. SB 360 adds fuel to the fire of that movement, as evidenced by the numerous articles recently published that base their arguments for Hometown Democracy on the enactment of SB 360.10
Concurrency, Impact Fees, and Exactions
The debate over SB 360 has evidenced a lack of appreciation for the differences between concurrency, exactions, and impact fees. They all can add to the cost of development, but are analytically distinct.
Concurrency regulates the timing of development. It is not an infrastructure finance mechanism. It created problems because of the major backlog of roadway needs that existed before concurrency and the lack of available funding with which to meet this need. Also, Florida local governments were creative in finding ways to say yes, and lacked the resources to address the resulting increases to backlogs. Another part of the problem was an over-focus on suburban-style roadway networks, little attention to other modes of travel, and neglect of land use planning and zoning for uses that support alternative modes.
A developer facing a concurrency failure could try to buy out of the concurrency problem or get creative with the analysis. Alternatively, it could confront the issue directly by modifying the project scope to match the available capacity, delaying all or part of the project until capacity became available, or developing in a different location where capacity existed.
Exactions are individually assessed conditions of approval that may or may not relate to a concurrency failure. Sometimes negotiated with the developer and sometimes abused, exactions are governed by a well-developed body of case law.11
In contrast, impact fees are legislatively developed and uniformly imposed and ensure that all developers participate in financing infrastructure. The major issue with Florida’s use of impact fees has been the political difficulty of setting them at the true cost of growth. Because the portion of the cost that is not covered by impact fees has not always been covered by other funds, more backlogs have inevitably resulted. The development industry must accept its share of the blame for this situation, because it has aggressively lobbied against and attacked local governments who have tried to set impact fees at full cost.
The adequacy of the “mobility fee” as an alternative cannot be assessed until a specific methodology is proposed. The issues of most importance to municipalities will be who gets the proceeds, who controls who gets the proceeds, whether the formula is equitable among governments, whether proceeds will be adequate to meet the needs, whether the new system is stable over time, and whether the methodology will be adopted without political compromise. If mobility fees follow the path of many impact fees, by setting the rate at a fraction of the full cost, they are sure to fail.
If mobility fee revenues to local governments fall short of infrastructure needs, ad valorem taxpayers will have to make up the difference (and the municipal or county commissioner may be the one to pay the political price). In this era of tax reform, even ad valorem revenue may be insufficient to compensate, leaving communities to gridlock, with all of its environmental, economic development, and quality of life consequences.
Conclusion
Senate Bill 360 is a significant revision to the 1985 Growth Management Act. Municipal attorneys are faced with difficult interpretation and implementation issues, and the potential that additional legislation or litigation will moot them. Future legislative efforts would benefit all growth management stakeholders by focusing on the clarity of any new or “glitch” legislation and the associated implementation issues and, further, by respecting home rule.
1 Ch. 2009-96, Laws of Fla.
2 Relevant factors include the DULA status of municipality, DULA status of its neighbors and county, level of buildout, annexation potential, capacity on roadways, control of overcapacity roadways, and political support for or opposition to growth management.
3 Fla. Const. art. VIII, §2(b).
4 See Fla. Stat. §§163.31802 and 163.3180(5) (2009), and Ch. 2009-96, §14.
5 If a municipality deems a requested extension to be improper, it could be sued by the permit holder. If it accepts the extension, it could be sued by competitors, neighbors, or other third parties who oppose the development project.
6 If these designations are self-executing without further municipal action, then the statute has swung from mandatory concurrency to a prohibition on concurrency, without stopping in the middle at the point of municipal choice and control.
7 For example, Broward County developed and implemented a system of concurrency based on transit rather than traditional roadways in 2004, which was found in compliance.
8 See City of Weston, et al. v. The Honorable Charlie Crist, Case No. 2009 CA 002639 (2d Jud. Cir.), available at www.clerk.leon.fl.us/index.php?section=2&server=cvweb&page=cvimage/high_profile/index.asp (challenging SB 360 as an unfunded mandate and for violation of the single subject rule).
9 See amendments to Fla. Stat. §163.3180(5), (2009).
10 See, e.g., Dara Kam, Anti-development “Hometown Democracy” Amendment Has Enough Signatures for 2010 Ballot, Supporters Say, Palm Beach Post, June 08, 2009; Jon Thaxton, Growth Bill Tramples on Local Government, Herald-Tribune, June 7, 2009 (“With the passage of SB 360,. . . support for Hometown Democracy is growing rapidly”); and John Hedrick, My View: People Need Veto Power of Hometown Democracy, Tallahassee Democrat, July 26, 2009.
11 See Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).
Susan L. Trevarthen, AICP, chairs the municipal land use and zoning law practice at Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., in Ft. Lauderdale, and is a member of the firm. She is board certified in city, county, and local government law by The Florida Bar.
Transportation Concurrency in Dense Urban Land Use Areas After Passage of the Community Renewal Act of 2009
by Cari L. Roth
Since the beginning of state-mandated comprehensive planning in 1985, local government comprehensive plans in Florida were required to ensure that public facilities and services be available concurrent with the impacts of development.1 The application of this concurrency principal specifically to transportation has been one of the most challenging practical implications of the requirement and one of the most expensive for the development community and local governments. One of the hallmarks of the Community Renewal Act of 2009 is the creation of statutory exceptions to these transportation concurrency requirements by the creation of “automatic” transportation concurrency exception areas (TCEAs) in dense urban land use areas (DULAs.)2
Controversy has arisen over the authority and obligations of local governments in which these statutory TCEAs are created. The act also stated: “The designation of a transportation concurrency exception area does not limit a local government’s home rule power to adopt ordinances or impose fees.”3 The Department of Community Affairs, in a published opinion, has opined that the statutory TCEA designation in the legislation is not effective to eliminate transportation concurrency in TCEAs until — and only if — the local government amends its comprehensive plan and land development regulations to remove transportation concurrency provisions.4 Others, including the legislators who had leadership roles in the passage of SB 360, believe that no local action is necessary to effectuate the TCEA implementation.5 The controversy begs for legislative clarification, and, more broadly, clear legislative intent on the areas of the growth management requirements where the legislature seeks uniformity in application, and those areas where local diversity in response to legislative requirement is allowable or desirable.
The cardinal rule of statutory construction is, “when a statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.”6 The statute states unambiguously that the “following are transportation concurrency exception areas.”7 There are no qualifiers or preconditions requiring local action in the legislation for the statutory TCEAs. Since the legislature also specifically stated that the home rule authority of local governments to adopt ordinances and impose fees is not limited by the designation of a TCEA, does this statement create the ambiguity that would trigger a more extensive judicial examination of legislative intent? Does the home rule provision authorize a local government to do what state mandate previously required it to do but now excuses from compliance? Or, put another way, does the home rule provision limit the immediate and consistent implementation of statutory TCEAs?
Absent the home rule statement in the act, the principles of statutory construction would clearly dictate that statutory TCEAs are effective upon the publication by DCA of the jurisdictions meeting the population and density requirements to be DULA.8 If a court were to go beyond the clear statements in the statute to examine legislative intent, the first place to look to divine legislative intent is the words of the statute itself.9 The concurrency exception statute begins with an expression of legislative intent. In the act, the legislature reaffirmed the acknowledgement that the concurrency mandates often discourage urban infill and redevelopment and adds intent provisions supporting transportation alternatives to road expansion.10 The statutory TCEAs are focused in defined DULAs to encourage such urban redevelopment.11 The staff summary of the bill notes that the goal of the bill is to stimulate economic development and promote development in urban areas.12
Options are provided, and have been provided since 1993, for local governments to create transportation concurrency exceptions areas, but never before has there been designation, at a statutory level, of a TCEA. The statutory designation of TCEAs was accompanied by two exemptions for two areas that would otherwise be designated TCEAs by the provision.13 Generally, when express exceptions are made in a statute, the inference is that no others were intended or may be implied.14 Also, the cases require an examining court to try to harmonize the provisions of a statute and not render part of that statute meaningless.15 There is a strong argument that allowing local governments to ignore the statutory TCEA creation potentially renders that section moot by local government inaction.
The examination of legislative intent grows murkier when case law on the application of home rule authority is examined. There is not room in this brief article to examine this interplay in depth, but readers are directed to the recent excellent piece by Judge James Wolf and Sarah Harley Bolinder in a recent issue of this publication.16 In reviewing whether an action is permitted under home rule, the courts have generally favored self-government, but each analysis needs to address whether the legislature has preempted a subject, either expressly or by implication, and whether the local action expressly conflicts with state law. The legislature has not expressly preempted the area of transportation planning or exactions. But, whether a local replication of concurrency in light of the statutory creation of a TCEA is an impermissible conflict with the statute is a closer question. The local action must not frustrate the purpose of a state statute. The two must be able to coexist without conflict to allow the local government regulation to stand.17 Statute clearly creates a comprehensive, mandatory scheme for ensuring transportation impacts are addressed concurrently with development. The DULA communities were not merely excused from the concurrency mandate. Rather a new category of exception areas was created for them. The new statutory TCEAs are intended to promote urban infill and economic activity, and the application of transportation concurrency in the DULA communities was found to frustrate these goals. We are, though, without guidance from the legislation on the extent of what a local government may do short of continuing to do what the statute previously mandated.
DCA wisely notes there is likely to be confusion and controversy in the general public and interested parties if the statutory TCEAs are recognized without further local action to eliminate transportation concurrency from the comprehensive plan and ordinances. However, confusion and controversy is likely without local action as well. If a local government can continue to impose concurrency in a DULA under home rule authority, do any of the statutory provisions intended to bring some necessary flexibility to the requirement apply (proportionate share payments, prohibition on the payment for backlogged facility upgrade costs, allowable lag time between development approval and a facility improvement)? Local application of concurrency without these adaptations of the strict application of concurrency would have the opposite impact of the expressed intent in creating the statutory TCEAs.
The legislature took an important step in addressing some of the obstacles transportation concurrency creates for promoting desirable development by the creation of statutory TCEAs. There are still many issues associated with transportation concurrency, not the least of which are the impacts on neighboring jurisdictions outside the TCEAs that will feel the impact of traffic created by encouraged development in the TCEA. It may unfairly burden desirable development outside the TCEA for the same reason.
Traffic congestion is an important issue to the citizenry of Florida, but transportation concurrency will continue to frustrate local efforts to emerge from our current economic doldrums unless the tension between the ideal of free flowing roads and the limits on both developer and local government ability to fund that ideal is addressed. Any reform must recognize the incredible diversity of Florida’s communities and the desires of the citizenry within them while providing clear guidance on legislative intent.
1 Ch. 85-55, §6, 1985 Fla. Law 215; see also Ch. 86-191, §7, Fla. Law 1415, 1418.
2 Ch. 09-96, §§2, 4, Fla. Law 4, 4-5, 9-14 (codified at Fla. Stat. §163.3180(5)(b)1 (2009)). Local governments also have the option to create TCEAs under Fla. Stat. §163.3180(5)(b)2, 3, 7 (2009).
3 Fla. Stat. §163.3180 (5)(f), (2009).
4 Department of Community Affairs, Notice to Local Government of Transportation Planning Options Under Senate Bill 360 for Transportation Concurrency Exception Areas in Dense Urban Land Areas(2009), available at www.dca.state.fl.us/fdcp/dcp/Legislation/2009/Notice.cfm.
5 Letter from Michael S. Bennett, Fla. S. & Dave Murzin, Fla. H.R., to Thomas Pelham, Secretary, DCA (June 24, 2009).
6 Cherry v. State, 959 So. 2d 702 (Fla. 2007).
7 Fla Stat. §163.3180(5)(b)1 (2009) (emphasis added).
8 Fla. Stat. §163.3164(34) (2009).
9 Kasischke v. State, 991 So. 2d 803 (Fla. 2008); Continental Casualty Co. v. Ryan Inc. Eastern, 974 So. 2d 368 (Fla. 2008).
10 Fla. Stat. §163.3180(5)(a) (2009).
11 Fla. Stat. §163.3164(34) (2009).
12 Fla. S. Comm. on Comm’y Aff., Session Summary of Legislation Passed at 47, et. seq. (2009), available at www.flsenate.gov/publications/2009/senate/reports/summaries/pdf/community.pdf.
13 Fla. Stat. §163.3180(5)(b)5-6 (2009).
14 State Road Dep’t. v. Levato, 192 So. 2d 35 (Fla. 4th D.C.A. 1966); Biddle v. State Beverage Dep’t, 187 So. 2d 65 (Fla. 4th D.C.A. 1966).
15 Martinez v. State, 981 So. 2d 449 (Fla. 2008).
16 James R. Wolf & Sarah Harley Bolinder, The Effectiveness of Home Rule: A Preemption and Conflict Analysis, 83 Fla. B.J. 92 (June 2009).
17 See Shetler v. State, 681 So. 2d 730 (Fla. 2d D.C.A. 1996), rev. denied, 680 So. 2d 424.
Cari L. Roth has 25 years of experience representing both private and public sector clients before all levels of government on land use issues. She served as general counsel to the Florida Department of Community Affairs from 1999-2003. She is a shareholder in the Tallahassee office of Bryant Miller Olive.
