TO: The Honorable Mayor and Members of the City Commission
FROM: M. A. Galbraith, Jr., City Attorney
RE: 1989 Legislature and the "Concurrency" Requirement
DATE: January 5, 1989
I request your authorization for Jim Massie and myself to lobby for the repeal of
the "concurrency" requirement during the 1989 legislative session.
You are beginning to read accounts in the news media of the effect of the
"concurrency" requirement on local governments, examples of which are attached.
Briefly stated, "concurrency" means that needed public facilities and services such as
highways must be available concurrently with new development, or the new
development should not be approved. Approval of a development in violation of this
requirement can result in a lawsuit by a neighbor or other "aggrieved or adversely
affected party," for injunctive or "other" relief. Disapproval, of course, can result in
litigation with the risk of having to pay the owner both damages and attorney's fees if
the owner is successful in a "taking" claim. It is not likely that the State or a regional
planning council will help pay the damages or the fees in any such case.
r, In November, I attended a seminar in Tampa on state and regional review of
local comprehensive plans, along with a number of other local government and land-
use lawyers. Among other things, we heard a discussion by a panel composed of a
state planner, a regional planner, and a representative of one of the first cities to
submit a new comprehensive plan. At the conclusion of the discussion, I asked the
I represent a city in Pinellas County, and the concurrency requirement
scares me. We have U. S. Highway 19, with a level of service grade Z-
minus. Hypothetically, if the owner of the last remaining vacant lot on
Highway 19 comes in for a permit, and is denied because of the
concurrency requirement, the owner can make strong claim that a taking
has occurred. In that event, I may have to advise my city to disregard the
statute and grant the permit, taking our chances with the neighbors instead
of the owner. I would like to know what you think of such advice [a ripple
of laughter spread across the room] and, for those who might disagree, tell
me if your agency will agree to be a codefendant and share in the payment
of any damages awarded.
This question actually drew a round of applause from the audience, but no
member of the panel attempted to reply! A few minutes later, the panel moderator
stated that he thought I was being "rhetorical."
My concern is not mere rhetoric, as you can see from the recent press stories.
Although Florida's DOT seems to have money not only for an unnecessary turnpike
from Tampa to Jacksonville and a series of roads in the forests of the Panhandle, it
cannot afford improvements to U.S. 19 at the Countryside intersection or State Road
580 to the Oldsmar bridge. The logical next step will be to force local government to
pay for state road improvements in the urban areas, or risk the consequences of a
moratorium. The courts, let me add, do not favor moratoria except for a limited time
period and only if the government is actually working to solve the problem causing the
need for a moratorium. It has not been decided, yet, if a moratorium is a compensable
Repealing the concurrency requirement is not a "pro-developer" idea. To the
contrary, repealing the requirement will prevent some developers from profiting twice
-- once at the expense of the taxpayers, and again when development actually occurs.
Such a repeal will also eliminate a growth acceleration factor; under present law,
developers have an incentive to develop now, before the concurrency requirement
becomes a reality (i.e., before the new local comprehensive plans have been adopted).
There may be an alternative to repealing the requirement, such as letting the
state pay any resulting damages, but don't count on it.
In conclusion, authorization to lobby for the repeal of the concurrency
requirement is requested.
Ron H. Rabun, City Manager
Paula Harvey, Planning Director
James C. Massie, Esquire
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