Senate Bill 360 Refined: The Impact of the 2007 Legislative Session on Local Government Growth Management, Part II
Tax Increment Financing for Transportation Concurrency Backlogs and Conservation Lands
The legislature, recognizing the success that community redevelopment areas have had with tax increment financing over the past 30 years, has created two new ways for local governments to utilize such financing: 1) to assist in the elimination of transportation concurrency backlogs; and 2) to assist in the acquisition of conservation lands.
• Transportation Concurrency Backlog Areas — Under current state law, local governments have the ability to adopt long-term concurrency management systems with a planning period of up to 10 years for specially designated districts or areas where significant backlogs exist,1 with the funding of improvements within these districts or areas coming from either existing transportation funding or developer contributions. Under HB 7203 and HB 985, a new funding mechanism has been created to help eliminate backlogged transportation facilities. Similar to the designated districts or areas used for a long-term concurrency management system, a county or municipality may now designate a transportation concurrency backlog area2 with an identified transportation concurrency backlog.3
If a transportation concurrency backlog authority is created, it must adopt and implement a plan to eliminate all identified transportation concurrency backlogs within the designated area. The plan must be adopted as part of the local comprehensive plan within six months from the date the authority is created; this amendment is not subject to the twice-a-year limitation on adopting comprehensive plan amendments. The plan must identify and prioritize all transportation facilities that are deficient and do not satisfy concurrency requirements or the local government comprehensive plan. Additionally, the plan must provide a schedule for the financing and construction of projects that will eliminate the transportation concurrency backlogs within 10 years.
Once the municipality has adopted the plan, the area covered by the plan will be considered as having achieved and maintained transportation level of service standards and financial feasibility for transportation facilities. Additionally, transportation concurrency will be deemed satisfied for purposes of the proposed development; however, developers will not be responsible for the costs to eliminate backlogs within the transportation concurrency backlog areas as part of their proportionate fair share mitigation.
The authority must be funded by the proceeds of an ad valorem tax increment collected within the designated area, and the proceeds must be placed in a local trust fund. The increment is determined annually, and must be 25 percent of the difference between 1) the amount of ad valorem taxes levied each year, exclusive of any amount from any debt service; and 2) the ad valorem taxes that would have been assessed within the area prior to the effective date of the ordinance funding the trust fund where the funding will be deposited.
• Conservation Lands — The legislature has determined that acquiring conservation lands for recreational opportunities and ecotourism serves a valid public purpose, and that an inadequate supply of conservation lands limits recreational opportunities and negatively impacts the economy, health, and welfare of communities. In order to help local governments in acquiring conservation lands, HB 7203 provides that two or more counties, or a combination of at least one county and one or more municipalities, may establish a tax increment area for conservation lands through an interlocal agreement. The tax increment is required to be determined annually, and may not exceed 95 percent of the difference in ad valorem taxes.
Affordable Workforce Housing: HB 1375
• Housing Element of Comprehensive Plan Required to Include Provision for Affordable Workforce Housing — HB 1375 is an attempt to remedy the shortfall in affordable housing within the state. It requires that adequate sites for future affordable workforce housing4 be provided for in the housing element of the local comprehensive plan.5 In addition, HB 1375 directs counties which are not already designated as an area of critical state concern to adopt a plan to ensure adequate sites for workforce housing if the gap between the buying power of a family of four and the median county home sale price exceeds $170,000.6 This plan must be in place by July 1, 2008, and, at the very least, identify adequate sites for workforce housing. Failure to comply leads to a loss of eligibility to receive state housing assistance grants until compliance is achieved.7
• Expedited Comprehensive Plan Amendment Process for Local Housing Incentive Strategies — HB 1375 provides a mechanism to expedite the adoption of comprehensive plan amendments that are consistent with the local housing incentive strategies outlined in the State Housing Initiatives Partnership (SHIP).8 In order to use this expedited process, however, the local government must identify in its comprehensive plan the types of housing developments and conditions it will consider consistent with the SHIP local housing incentive strategies. The local government must notify DCA at least 30 days prior to the adoption of the amendment and provide them with the local government’s evaluation concerning the suitability of the site and the availability of services and facilities. Under this streamlined process, only one public hearing is required, which is the plan amendment adoption hearing.9 The advertisement for the hearing must provide the public with notice that the local government is using the expedited adoption process. Once DCA receives the amendment package, it has 30 days from its determination that the amendment package is complete to issue a notice of intent. Additionally, comprehensive plan amendments that are consistent with SHIP local housing incentive strategies are exempted from the limitation to only two amendments per year.10
• Tax Deferrals for Affordable Rental Housing Property — Consistent with the legislature’s effort to resolve the affordable housing crisis, HB 1375 provides that municipalities may adopt ordinances to defer certain of its ad valorem taxes, as well as non-ad valorem special assessments, on affordable rental housing that is being operated, rehabilitated, or renovated by the owners of the property in accordance with the Affordable Housing Planning and Community Assistance Act.11 Eligibility is determined by the cost of the unit and the income level of the renter. Using the definitions contained in F.S. §420.0004, only extremely low-income persons, very low-income persons, low-income persons, or moderate-income persons are eligible, and the monthly housing costs for the unit must not exceed 30 percent of the median adjusted gross annual income for these households.12 The property must continue to be owned and operated as affordable rental housing for the duration of the deferral period, and the deferred taxes and assessments are due and payable when there is a change of use or other change triggering the loss of qualification for the deferral.13
• Community Workforce Housing Innovation Program — The Community Workforce Housing14 Innovation Program (CWHIP) in HB 1375 is the legislative response to the recent rapid rise in both the median purchase price of housing and the cost of rental housing, which has surpassed increases in median income in the state, and resulted in the inability of essential services personnel15 to live in the communities where they work.16 The goal of CWHIP is to provide affordable rental and home ownership community workforce housing for essential services personnel affected by the high cost of housing. The Florida Housing Finance Corporation was authorized by the legislature to provide loans for construction or rehabilitation of workforce housing in eligible areas. The corporation also provides incentives for local governments in eligible areas to use local affordable housing funds, including those from SHIP, to help meet the affordable housing needs of eligible persons.
HB 1375 authorizes local governments to use SHIP funds for persons or families with a total annual household income that is not more than 140 percent of the area median, adjusted for household size, or not more than 150 percent of the area median, adjusted for household size, in areas designated as areas of critical state concern and those areas with such designation for 20 consecutive years prior to the removal of that designation.17 Additionally, any comprehensive plan amendment through which a local government seeks to carry out a CWHIP project is not subject to the twice-a-year limitation on adopting comprehensive plan amendments. Further, development orders or development permits for innovative community workforce housing projects shall be processed and approved in an expedited manner.
HB 1375 also modifies the requirement that a local government appoint an affordable housing advisory committee. If a local government receives the minimum SHIP allocation, that local government can elect to appoint fewer than the required 11 representatives, if 11 representatives meeting the criteria under the statute cannot be found. This advisory committee is now authorized to make an initial recommendation to the local government to amend its comprehensive plan and regulations, ordinances, etc., in a manner that the advisory committee believes will encourage or facilitate affordable housing. Recommendations with regard to affordable housing incentives must be submitted by the advisory committee in an initial report, and thereafter in triennial reports, to the local government. Local governments that receive only the minimum SHIP allocation may elect to perform only the initial review. The local government must consider the recommendations of the advisory committee, and may also request the advisory committee to perform other duties related to affordable housing.
Pilot Program for Reduced State Oversight of Comprehensive Planning
In an effort to reduce state oversight of local comprehensive planning in urban areas, HB 7203 created F.S. §163.32465, entitled “State review of local comprehensive plans in urban areas.” At this time, this section is not applicable to all urban areas. Rather, it is first being implemented through an “Alternative State Review Process Pilot Program.” Specific pilot communities will experiment with an expedited comprehensive plan and review process, including Pinellas and Broward counties, the municipalities within these counties, and the cities of Jacksonville, Miami, Tampa, and Hialeah.18 However, municipalities within the pilot counties (i.e., Pinellas and Broward) may elect by supermajority vote of the governing body not to participate in the pilot program.19
This pilot program applies to DCA review of a wide range of comprehensive plan amendments, including large scale comprehensive plan amendments (text or map amendments); amendments related to developments of regional impact; amendments to designate urban infill or other similar areas; emergency amendments; amendments related to the capital improvements element and schedule; amendments to implement compliance agreements; amendments for brownfield redevelopment projects; amendments to add transportation facilities to the trafficways plan; and any other type of amendment not excluded from the program as described below. The frequency and timing requirements for large scale comprehensive plan amendments set forth in F.S. §§163.3187 and 163.3191, still apply. Therefore, the pilot communities, like other local governments, will be permitted to adopt large scale comprehensive plan amendments only twice a year.
The pilot program’s streamlined process does not apply to small scale plan amendments; comprehensive plan amendments proposing a rural land stewardship or optional sector plan; evaluation and appraisal report (EAR) based comprehensive plan amendments; implementation of “new” statutory requirements;20 new comprehensive plans for newly incorporated municipalities; and local governments that have been designated for an alternative review process pursuant to F.S. §§163.3246 (Local government comprehensive planning certification program),21 163.3184(17) (Community vision and urban service boundary) or (18) (Urban infill and redevelopment area). All comprehensive plan amendments adopted by the pilot communities are subject to the mediation and expedited hearing provisions in F.S. §163.3189.
The pilot communities will follow most of the process in F.S. §163.3184, for adopting and transmitting comprehensive plan amendments. However, HB 7203 requires “immediate” transmittal after approval by a majority of the governing body at the first public hearing. Other significant changes to the process include a) all of the review agencies’ comments will be sent directly to the pilot community; b) the DCA will no longer issue an objections, recommendations and comments report; and c) the pilot community will determine whether the comprehensive plan amendment is in compliance with the Growth Management Act, not DCA. However, HB 7203 does require DCA’s comments to “clearly identify issues that, if not resolved, may result in an agency challenge to the plan amendment.” DCA and the other reviewing agencies will only have 30 days from receipt to provide comments; if an expedited amendment is likely to raise concerns for them, pilot communities may want to coordinate with them earlier in the process to avoid potential challenges.22
The adopted amendment must be transmitted to the reviewing agencies within 10 days following adoption at the second public hearing. Affected persons have 30 days to challenge the adoption of the amendment. HB 7203 is quite specific about what constitutes a “complete” transmittal after adoption,23 and the 30 day time frame for DCA to challenge the amendment does not begin to run until DCA has determined that the package is “complete.” DCA may only challenge an amendment on the basis of a comment made by any reviewing agency, or because the adopted version of the amendment has “substantially changed from” the reviewed version. DCA is encouraged to focus challenges on issues of regional or statewide importance.
The pilot community’s determination that the amendment is “in compliance” is presumed to be correct, unless it is shown by a “preponderance of the evidence” that the amendment is not “in compliance.”24 This is a departure from current state law, which applies the “fairly debatable” standard to DCA’s compliance determinations. The “preponderance of the evidence” is a more demanding standard of review, and, thus, a challenge to an amendment may be more likely to be successful under the pilot program than under current state law. Otherwise, the administrative hearing process is generally similar to the existing process.
The pilot program will be in place at least until the next legislative session. The Office of Program Policy Analysis and Government Accountability must submit a report on the effectiveness of the program by December 1, 2008, which will address issues such as which additional local governments should be considered for inclusion in the program and which participating local governments should be excluded.25
Other Amendments in HBs 7203, 1375, and 985
A few other amendments are worth mentioning:
1) Both HB 7203 and HB 1375 provide that the prohibition against adopting comprehensive plan amendments resulting from the failure to adopt evaluation and appraisal report (EAR)-based comprehensive plan amendments does not apply to amendments by local governments, as defined in F.S. §163.3178(2)(k), which are necessary to integrate a port comprehensive master plan with the coastal management element. However, this change only applies if the port comprehensive master plan is not causing or contributing to the failure of the local government to comply with EAR requirements.
2) The maximum duration of development agreements permitted pursuant to F.S. §163.3229, has been increased from 10 to 20 years by HB 7203.
3) HB 7203 provides that conservation easements shall survive, and are now enforceable, after the issuance of a tax deed.
4) HB 985 requires local governments to consider information from FDOT with regard to the effect any proposed land use zoning change, comprehensive plan amendment, land use permit, ordinance, or order would have on the availability, transportation, and potential extraction of construction aggregate materials26 within the jurisdiction of the local government, as well as on the region and the state as a whole. Additionally, local government may not impose a moratorium lasting longer than 12 months on the mining or extraction of construction aggregate materials.
5) HB 985 purports to provide municipalities with the statutory authority to allow and regulate wall murals27 within their jurisdictions, but approval of the FDOT and Federal Highway Administration will be needed before such signs can be installed within 660 feet from an interstate highway or federal-aid primary system. Wall murals that are in these locations and are commercial in nature must be located within an industrial or commercial zoning area. Also, the municipality must set and enforce size, lighting, and spacing requirements for the industrial or commercial zoning areas in accordance with the Highway Beautification Act of 1965.
Conclusion
Over the next year, local governments will have to make several changes to their comprehensive plans and land development codes to address HB 7203, HB 1375, and HB 985, and continue implementing SB 360. They will also want to consider whether to take advantage of new statutory options. In implementing these statutes, local governments should consider the following:
1) Actions that must be taken —
• Evaluate the capital improvement element for financial feasibility under the new definition.
• Update concurrency management systems to include the new transportation proportionate share mitigation option for projects reasonably related to mobility demands created by the development, and involving one or more modes of travel.
• Assure that if a developer or property owner voluntarily contributes right-of-way and constructs or expands a local or state transportation facility or segment, this contribution is credited towards any future transportation concurrency requirements.
• Amend the public school facility planning interlocal agreement, comprehensive plan, and land development code in order to implement public school concurrency.
• Ensure that adequate sites for future affordable workforce housing are provided for in the housing element of the local comprehensive plan as required by HB 1375.
• Assure that the affordable housing advisory committee required by the SHIP program is making reports, and that the local government is considering those reports.
• Pilot communities will have to determine whether to opt out of the Alternative State Review Process Pilot Program, and implement the changed process if they participate in the program.
2) Changes to law that should be recognized in reviewing development applications —
• Recognize the three-year extensions to DRI deadlines, increased hotel thresholds, and the ability of DRIs to be modified to become more affordable without additional regional review.
• Recognize that comprehensive plan amendments implementing a Community Workforce Housing Innovation Program project are not subject to the twice a year limit on plan amendments and are now entitled to expedited processing.
• Recognize the limitations that HB 985 placed on the ability of local government to regulate the mining of construction aggregate materials.
• Recognize that development agreements now may have up to a 20-year term.
3) New statutory options that should be considered —
• Consider the new tax increment financing options for concurrency backlog areas and for conservation lands, and determine if any of them would be appropriate.
• Consider whether to create and adopt the new transportation concurrency exception areas.
• Consider whether to participate in a multimodal transportation concurrency district pilot project with another local government.
• Consider whether there is a need to approach FDOT to prioritize projects that are not part of the strategic intermodal system, but are part of the local metropolitan planning organization cost feasible transportation improvement plan or long-range transportation plan.
• Consider adopting an ordinance to defer taxes and assessments on affordable rental housing as permitted by HB 1375.
• Consider whether to amend the comprehensive plan to implement an expedited process to adopt comprehensive plan amendments that are consistent with the local housing incentive strategies outlined in the State Housing Initiatives Partnership.
1 Fla. Stat. §163.3180(9)(a).
2 Fla. Stat. §163.3182.
3 For purposes of this section only, a “transportation concurrency backlog” is defined as an identified deficiency where the existing extent of traffic volume exceeds the level of service standard adopted in a local government comprehensive plan for a transportation facility. Fla. Stat. §163.3182(1)(d).
4 The term “affordable workforce housing” means housing that is affordable to a person earning less than 120 percent of the median income within the city or, if the median purchase price for an existing single-family home in the city exceeds the statewide median, to a person earning less than 140 percent of the median income within the city. See Fla. Stat. §380.0651(3)(j).
5 Fla. Stat. §163.3177(6)(f)(1)(d). There is no deadline for this change, so it should be made at or before the time of the next evaluation and appraisal report.
6 Fla. Stat. §163.3177(6)(f)(1)(h).
7 Fla. Stat. §163.3177(6)(f)(1)(i).
8 Fla. Stat. §163.3184(19). The local housing incentive strategies under SHIP are outlined in Fla. Stat. §§420.9076 and 420.9071(16).
9 Plan amendment adoption hearings are governed by Fla. Stat. §163.3184(15)(b)(2). Under this section, the public hearing can take place within five days of the publication of the advertisement, rather than the seven-day requirement for first public hearings under the normal, nonexpedited plan amendment process.
10 Fla. Stat. §163.3187(1)(p).
11 Fla. Stat. §§197.307(1) and (2). The guidelines of the Affordable Housing Planning and Community Assistance Act are contained in Fla. Stat. Ch. 420.
12 Fla. Stat. §197.3071.
13 Fla. Stat. §197.307(5).
14 “Workforce housing” is defined as housing that natural persons or families with an annual household income under 140 percent of the area income, adjusted for household size, in areas of critical state concern, can afford. Fla. Stat. §420.5095(3)(a).
15 “Essential services personnel” is defined as those persons working in occupations or professions that are defined as such by the individual county or municipality. Fla. Stat. §420.5095(3)(b).
16 Fla. Stat. §420.5095(1).
17 Fla. Stat. §420.5095(6)(a)-(b).
18 Notably, to qualify as a “pilot” community, such community was required to be either 1) a highly developed county including the municipalities within the county; or 2) a highly populated municipality.
19 At this time, Broward County has indicated that it is supportive of the pilot program, and no local government within Broward County has yet indicated that it will opt out of the pilot program.
20 This exception to the pilot program is extremely broad, and it is unclear what will be considered “new” statutory requirements. For example, would the public school concurrency comprehensive plan amendments required by SB 360 be considered a “new” statutory requirement or would only those requirements enacted after the effective date of HB 7203 (July 1, 2007) be considered “new”? A possible interpretation is that any statutory requirement that the local government has not yet complied with is a “new” requirement, regardless of when it was enacted. However, at this time, DCA has not provided official guidance on this issue.
21 The pilot program is similar to the certification program in that there is a reduction in DCA’s review of comprehensive plan amendments. However, the types of amendments which continue to require full DCA review under the pilot program differ from that of the certification program. For example, the certification program requires comprehensive plan amendments which increase hurricane evacuation times or the need for shelter capacity on lands within the coastal high-hazard area to be subject to full DCA review; the pilot program does not.
22 Separate transmittal letters should be provided for amendments that qualify for expedited review and those that do not to ensure that the entire package is treated as only one amendment cycle under Fla. Stat. §163.3184(3)(d). The affected regional planning councils are also figuring out how they will comment on and process the expedited amendments.
23 The amendment shall be deemed complete if it “contains a full, executed copy of the adoption ordinance or ordinances; in the case of a text amendment, a full copy of the amended language in legislative format with new words inserted in the text underlined, and words to be deleted lined through with hyphens; in the case of a future land use map amendment, a copy of the future land use map clearly depicting the parcel, its existing future land use designation, and its adopted designation; and a copy of any data and analyses the local government deems appropriate.” Fla. Stat. §163.32465(6)(b).
24 Fla. Stat. §163.32465(6)(d).
25 Fla. Stat. §163.32465(9).
26 The term “construction aggregate materials” is defined as crushed stone, limestone, dolomite, limerock, shell rock, cemented coquina, sand for use as a component of mortars, concrete, bituminous mixtures, or underdrain filters, and other mined resources providing the basic material for concrete, asphalt, and road base.
27 The term “wall mural” is defined as a sign, painting, or artistic work that displays a commercial or noncommercial message, relies on the wall of the building for support, and is either painted directly on the building or on a material that is attached to the surface of the building. This term does not include any painting or structure that is attached to the building for the purpose of signage.
Susan L. Trevarthen, AICP, is a member of Weiss, Serota, Helfman, Pastoriza, Cole & Boniske, P.L. She practices in the Ft. Lauderdale office and chairs the firm’s municipal land use and zoning law group.
Chad S. Friedman is a 2004 graduate of Stetson University College of Law and is an associate in the group.
Michelle Vos is a student at St. Thomas University School of Law, expected to graduate in 2008, and is a law clerk for the group.
This column is submitted on behalf of the City, County and Local Government Law Section, Elizabeth M. Hernandez, chair, and Jewel W. Cole, editor.
