Title: The Environmental Law Section and The Local Government Law Section Of The Florida Bar Present: Updating the Land Use Game in Florida
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00004216/00001
 Material Information
Title: The Environmental Law Section and The Local Government Law Section Of The Florida Bar Present: Updating the Land Use Game in Florida
Physical Description: Book
Language: English
Publisher: The Florida Bar
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - The Environmental Law Section and The Local Government Law Section Of The Florida Bar Present: Updating the Land Use Game in Florida (JDV Box 43)
General Note: Box 18, Folder 4 ( Environmental Information - 1977-1980 ), Item 6
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004216
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

.ur ,. .. 4
:..-
-.4.i... -I-.
4.. 4..., 1 s'!..'4 *w -*- -..t.Z .j


.4i1 % *"


2' *. ~ I~..


~< '& e '. i
;'sz'..-v... '*, 441




.4 4 -~h

.34h~i 9ii 44 4c ~

.4. -j" i~~r



.zg Jz... -:'Z.~ :~t. 1


is .." .


4r y






rr 6 ...'-, -




-.~ -r- .. -
-i~ '.



.~~t -.:~ ,_ S;..c








THE ENVIRONMENTAL LAW SECTION
AND
THE LOCAL GOVERNMENT LAW SECTION
OF THE FLORIDA BAR

PRESENT:



UPDATING THE LAND USE GAME IN FLORIDA


Sheraton Twin Towers
Orlando, Florida
March 18, 1977


,.











W IIIi% v I )m -cI'or
.arsiall II. (.a.ssedy
'.Assiat.i[ I \' cutil\ Director
Peter J. IFanioni
I )'"ittation i )rector
Svivain Strickland


Name of course:


Sponsor:


THE FLORIDA BAR
Florida Designation Plan

Tallahassee, Florida 32304
(904) 222-5286

December 28, 1976

COURSE APPROVAL


Updating the Land Use Game in Florida


Local Government Law Section and Environmental Requlation


uCommittee or The Florida Bar
Date of course: March 18, 1977

The Florida Bar has approved this course under the
Designation Plan for credit in the areas and for the numbers
indicated below:


(X)
( )
( )
( )
( )
( )
(X)
( )
( X)
( )
( )
( )
( )
( )
( )
(X)
(X)
( ) .
( )
( )
( )


Administrative and Governmental Law
Admiralty
Antitrust and Trade Regulation Law
Appellate Practice
Bankruptcy
Consumer Law
Corporation and Business Law
Criminal Law
Environmental Law
Estate Planning and Administration
Family Law
International Law
Labor Law
Patent, Trademark and Copyright
Personal Injury and Wrongful Death
Real Property Law
Registered General Practice
Securities
Taxation
Trial Practice
Workmen's Compensation


Florida
of hours


7 hours
hours
hours
hours
hours
hours
7 hours
hours
7 hours
hours
hours
hours
hours
hours
hours
7 hours
7 hours
hours
hours
hours
hours


The maximum total credit that one lawyer may obtain
this course is 7 hours.


f rom


Policy does not permit double credit. For example, a
five-hour course approved for five hours in each of two areas ciiii
give a maximum of five hours of credit to any one lawyer. If he
has permission to designate both areas, he may allocate five hours
to one area or part of the credit to each area.

Each lawyer must keep records of earned credits and itemize
them in his application for renewal of permission near the end of
his three-year period.
t. / C


~L









THE FLORIDA BAR
F ionitiv. Director Florida Designation Plan
Marshall H. Cassedy
A%%istanit Ex~ecutilv Director Tallahassee, Florida 32304
Peter J. Fannon (904) 222-5286
)Designatio( Director
S h an Strickland

MEMORANDUM ON RECORDS OF ATTENDANCE AT
CONTINUING LEGAL EDUCATION COURSES APPROVED
UNDER THE FLORIDA DESIGNATION PLAN


One of the policies adopted by The Florida Bar for imple-
mentation of the Designation Plan is that it will not monitor at-
tendance at CLE courses. The honor system will be used. The
Florida Bar will not make individual records of attendance through-
out the three-year period.

Each member is responsible for keeping his own records of
attendance. It will be necessary that he itemize his accumulated
hours of approved continuing legal education in his application
for renewal of permission to designate near the end of the three-
year period. An application form will be furnished then. It will
require name of course, name of sponsor, date and place of attendance,
and the number of hours of credit in each area of practice that the
member is claiming for each course. So, it is suggested that each
member set up a special file for filing this information throughout
the three-year period.

The CLE Committee will not issue certificates of attendance
at its courses, and they are not required for any courses.

A record of attendance at courses sponsored by the CLE
Committee of The Florida Bar will be kept en masse but will not be
transferred to individual files of members. It may be used to "spot-
check" the accuracy of a percentage of applications for renewal.

Misrepresentation of a material fact concerning eligibility
for permission to designate or for renewal of permission may consti-
tute an ethical violation subjecting one to disciplinary proceedings
under the Code of Professional Responsibility.

Each member should ascertain from sponsors' advertising,
lists published in the Florida Bar News or otherwise that each course
has been approved.


12/76








THE FLORIDA BAR
F. ecijtive Director Florida Designation Plan
Marshall R. Cassedy
%sistint executivee Director Tallahassee, Florida 32304
Peter J. Fannon (904) 222-5286
I )'sig i i iI )ii Director
Sylvan Strickland
EXPLANATION OF MULTIPLE CREDIT POLICY
UNDER THE DESIGNATION PLAN


The minimum number of hours of actual participation in
continuing legal education required for renewal of permission after
three years is 30 for a lawyer who has designated one area, 60 for
one who has designated two areas and 90 for one who has designated
three areas.

One continuing legal education course may be given credit
in several designated areas of practice. When that occurs and a
lawyer who attends the course has designated two or three of those
areas, he may choose one area to which all of the credit will be
applied or he may choose to apply specified parts of the credit to
each of two or three areas. But he may not receive double credit;
he may not receive credit in two areas for the same hours of a course.

This is illustrated by a hypothetical two-day bankruptcy
course that has five hours of actual lecture time on each day for
a total of 10 hours. It may be appropriate that credit be given in
the amounts of 10 hours in Bankruptcy, 10 hours in Corporation and
Business Law, 4 hours in Real Property Law, 10 hours in Registered
General Practice and 2 hours in Taxation. This may appear to some
to be a total of 36 hours, but it is a total of only 10 hours for
any one lawyer.

One who has designated only Bankruptcy can receive 10 hours.
One who has designated only Real Property Law can receive only 4
hours. One who has designated only Taxation can receive only 2
hours. One who has designated Bankruptcy, Corporation and Business
Law and Real Property Law cannot obtain 24 hours of credit. His
maximum of 10 hours may be allocated by him to Bankruptcy or to
Corporation and Business Law, or 6 hours to one of those and 4 hours
to Real Property Law, or 2 hours to Real Property Law and 8 hours
to Bankruptcy, or any other combination among those three areas
that amounts to a total of 10 hours.

A lawyer's allocation of alternative credit to specific
areas is not done necessarily at the time of attendance. During
the early part of his three-year period he may delay the decision
to await developments as to course opportunities, but perhaps no
later than the end of his second year of permission he should
analyze his accrued credits and needs.


12/76






RE-DRAFT SUBMITTED FOR PUBLICATION IN THE JANUARY 1977
FLORIDA ENVIRONMENTAL AND URBAN ISSUES, FAU/FIU.
FOR YOUR INFORMATION
* BY DANIEL W. O'CONNELL
Status Report On The Local Government Comprehensive Planning

Act of 1975: Problems and Prospects


By: Daniel W. O'Connell, former executive director of the

ELMS Committee, Loeb Fellow (advanced environmental

studies) at Harvard Graduate School of Design and now

practicing law in Tallahassee.

(This is a revised part of a speech given to the 26th

Annual Conference of the Florida Planning and Zoning

Association in Clearwater, Florida, November 18, 1976.)



The purpose of this article is to summarize briefly the

Florida experience with the Local Government Comprehensive

Planning Act (ss. 163.3161 163.3211, F.S., 1975) in this

second year of its operation. The contemporary need for local

government comprehensive planning was recognized as early as

1969 when the Florida Legislature enacted Chapter 163, Part II,

which provided permissive authority for county and municipal

planning for future development. The limitations of Chapter 163,

Part II, F.S. are discussed in the Summary Report of the

Environmental Law Management Study Committee's Conference on

Land use/Miami/June 11-12, 1973, as well as in Environmental

Land Mangement, final report to the Governor and Legislature by

the ELMS Committee/December 1973.

Pressure for additional reform was .voiced in December of 1970

by the Southeastern Regional Assembly on "The States and the Urban

Crisis". The policy statement of the assembly, which included

many of Florida's leaders stated: The region's mounting urban









problems stem from unplanned sprawling growth as well as from

spreading city decay and unmet human needs. The problems are

also those of local governments unprepared for meeting urban

problems. The situation is further compounded by a rapidly

expanding population and their often unresponsive elected

representatives; neither are yet willing to recognize the cost

of being urban and the ominous implications of unplanned future

growth...For lack of land use controls and plans to guide and

coordinate growth, subdivisions hastily built a decade ago have

generated the school, transportation, and sewage crises of today."

The pressures for reform continued to mount in 1971 and 1972.

Major land use reform occurred with the enactment by the 1972

Florida Legislature of Chapters 23, 259, 373 and 380, F.S. In

existence, but not filed, was a draft bill which would have

required all local governments to adopt land development ordinances

by December 31, 1974. This draft was referred to the Florida

Environmental Land Management Study Committee, which had been

given the responsibility for further recommendations on land use

matters by the Florida Legislature (see s.380.09, F.S., 1975).

The direction of the ELMS Committee on local government plan-

ning began to take shape at their Conference on Land Use in Miami

on June 11-12, 1973 (see ELMS Committee Summary Report.) Their

final recommendations are contained in the ELMS final report

Environmental Land Management, which included a draft bill entitled

"The Local Government Comprehensive Planning Act of 1974." "The

. Local Government Comprehensive Planning Act of 1975" enacted by the

Legislature the next year substantially follows the recommendations

of the ELMS Committee. Having lived through this progression of

6"









events on local land use reform and this past years experience,

I find myself empathizing with Walt Kelly's character Pogo, when

he said: "We are confronted with insurmountable opportunities!"

The first critical compliance date in the LPA is found in

ss. 163.3167(8) and 163.3174(1), F.S., 1975, the former stating

that: "On or before July 1, 1976, each unit of local government

shall officially inform the state land planning agency and the

appropriate regional planning agency of its designation of a

local planning agency pursuant to s.163.3174." 460 local govern-

ment entities come under the act in Florida (390 municipalities,

66 counties, and 3 special districts.) Of the 390 municipalities,

370 municipalities have designated LPA's (this includes 24

municipalities in Pinellas County where the LPA was designated

by special legislation.) 13 municipalities have been granted

extensions, and 5 municipalities did not designate LPA's and

did not respond to the Division of State Planning communications.

In this case the following counties were designated to assume plan-

ning responsibilities as required by s.163.3167(8), F.S., 1975:

Walton County for Paxton, Broward County for Pembroke Pines,

Holmes County for Ponce de Leon and Esto, and Jackson County for

Greenwood. 2 municipalities stated that they would not participate,

which meant that Gulf County took over the responsibilities for

Ward Ridge and Washington County for Wausau.

Of the 67 counties in Florida, 63 counties have designated

LPA's. 4 counties have been granted extensions (Franklin, Calhoun,

Suwanee, and Okeechobee.)

Reedy Creek Improvement District, Canaveral Port Authority,


6









and Port of Palm Beach have all designated LPA's.

Recognizing the flexibility in the law in regard to the

type entity that can be appointed as the LPA, local governments

have designated the following entities: city councils, county

commissions, local planning or zoning boards, planning depart-

ments, new planning agencies on top of existing ones, and 1

designated a single city commissioner.

The other critical date in the LPA is contained in

s.163.3167(2), F.S., 1975, which provides: "On or before

July 1, 1979, each county and each municipality in this state

shall prepare and adopt a comprehensive plan of the type and

in the manner set out in this Act." The Division of State

Planning in its review role under s.163.3184(2) has received

plans or portions of plans from 25 local governments for formal

review. This includes 5 counties and 20 municipalities. During

the period from August 1975 to June 7, 1976 the following plans

or portions of plans were received: Sanford (complete plan),

Winter Park, Riviera Beach, Charlotte County, Highland Beach,

Sanibel (complete plan), Pasco County, St. Petersburg,

Treasure Island and Sunrise. During the following 6 months,

June 1976 to December1976, the following 15 plans or portions

of plans were received: Manalapan, Lake Clark Shores, Malabar,

Mangonia Park, Boca Raton, Clewiston, Oakland Park, Alachua

County, Hallandale, Opalocka, Hypoluxo, Lake County, Orange County,
Miami and Clearwater.
It is apparent from this information that most local govern-

ments are "surmounting the opportunities" of the Act. Based on

the number of local plans received to date by the Division of

State Planning, the Division has estimated that they will be
-7











reviewing approximately 10 plans a month in FY 1977-1978, which

totals 120 plans. Also, in FY 1978-1979 the need to review 222

additional plans is recognized. However, it is not likely that

400 plans will be prepared because of voluntary and mandated joint

planning in many areas of the state. The Division of

State Planning is organized to give 9 days of staff time for

each plan reviewed. This includes 2 days for each of 4

reviews plus 1 day to prepare the consolidated comments and

letter of reply. The 4 reviews are divided generally into the

following areas: 1) the project coordinator who reviews the

local plan from the state plan perspective and other state

agency concerns, 2) human resources review, 3) environmental

review, and 4) a structural review, which deals with govern-

ment and fiscal organization, power plan siting, and inter-

governmental coordination.

The Division of State Planning has properly interpreted

their responsibilities of review to be fairly limited. In the

document entitled Questions and Answers/Positions Pertaining to

the Local Government Comprehensive Planning Act, January 15,

1976, the Division of State Planning describes its standard

of review: "Upon receipt of a plan or element from local

government DSP makes an initial check to determine: if the local

planning agency has been designated as outlines in Ch.163.3174,

F.S.; if the plan was forwarded by the governing body; if

the date, time, and place of the public hearing for intended

adoption is included; and if the packet contains complete

information, i.e. maps, etc., as necessary. If the plan checks

1 9









out of these basic points it is accepted for review.

During the actual review by state agencies each plan or element

will be checked to insure appropriate coverage of materials

required by Ch.163.3177, F.S. In addition, each plan or element

will be considered in relation to the state comprehensive plan

and the lawful responsibility of state agencies. No specific

standards have been established. However, these general

standards are being followed." This interpretation of the state

law is also articulated in the recent Department of Community

Affairs document dated September, 1976 entitled: A Local Officials

Guide to the Local Government Comprehensive Planning Act, at

pages 1-2, and 6-12.

Of the 4 complete plans already submitted (Sanford, Sanibel,

Opalocka, and Hypoluxo), the most comprehensive is the Comprehen-

sive Land Use Plan of the city of Sanibel with its 20 elements.

This plan took 11 months to prepare and the city spent 20% of

its first year municipal budget, approximately $150,000 to fund

completion of the plan.

Thus, there appears to be substantial compliance with the

initial requirements of the Act. Despite these favorable

statistics there still remain problems with the Local Planning

Act. One is the contrasting positions of the 2 organized

lobbying organizations for local government. Mike Morell from

the State Association of County Commissioners writes: "Within

our Association, interest in the LGCPA remains high. Local

comprehensive planning has been the subject of numerous panel

discussions at recent SACC conferences and conventions. These

sessions have been well attended by both elected and appointed

9









local officials. The quality of questions raised during these

forums leads me to believe that local officials are beginning to

grasp the procedural framework needed to comply with the require-

ments of the act...As with any new piece of innovative legisla-

tion, the LGCPA seems to be raising more legal questions in the

minds of planners than the legislature probably intended. This

concern with legal interpretation has been most evident at work-

shops that the Department of Community Affairs has been holding

around the State. I mention this seemingly inevitable situation

for two reasons: First, excessive preoccupation with legal

technicalities and interpretation may ultimately restrict the

design of work programs that comply with the deadline requirement

set forth in the law. Secondly, these legal questions, although

reflective of both legitimate planning and legal concerns, are

being raised without concern for the positive action or home-rule

spirit of the law. Rather than taking a passive 'show me'

attitude to the questions raised by the legislation, planners

ought to be contributing to the development of greater public

understanding of the role of planning in dealing with growth-

management problems."

Ray Sittig from the Florida League of Cities writes: "I

maintain my serious concern over the inclusion of governmental

construction; the difficulties involved in the amendatory

process; the lack of appropriate planning personnel; the inter-

relationship with other mandatory planning requirements; the

* legal status; and, of course, an appropriate funding source that

would produce the $50 million estimated by the ELMS Committee to

be the cost of this program." It continues to be the judgement


10









of this author that the opposition from the League of Cities

undermines their home rule responsibilities. In 1967 Harvey

Perloff wrote: "In an urban age traditional concepts about who

does what begin to melt away and urbanites turn to levels of

government that promise to get necessary things done." The

counties recognize this by supporting the planning act,

recognizing their acceptance of the responsibility to do local

planning. Their enlightened self-interest is best illustrated

by the story of the big city protection.agency representative

and a small store owner. He asked the store owner if he would

like to purchase protection insurance. The owner said: "No

thank you, I don't need it." The next day the same representa-

tive returned and said: "Do you want the insurance today?"

The owner again said: "No thank you, I really don't need it."

The third day the representative returned and said: "If you

don't buy the insurance I am going to break your neck." The

owner said: "Okay I'll buy the insurance", causing a response

from the representative: "Why have you wasted my time for three

days?" The owner responded: "I didn't understand the advantages

until now."

Another problem has been the misunderstanding of the act

and in some cases its misrepresentation. However I think this

is being overcome by most people now following Cann's Axiom,

which states: "When all else fails, read the instructions."

One will then recognize that the Local Planning Act did not
* address all of the urban ills of society but restricted itself

to solving the dozen or so local planning issues documented in

the Environmental Land Management, the final report to the Governor

(1










S and the Legislature by the Environmental Land Management Study

Committee/December 1973 at pages 21-25. The administration and

implementation of most all new laws lead to the recognition of

Peer's Law: "The solution to a problem changes the problem,"

and Sevarenid's Law: "The chief cause of problems is solutions."

Thus, problems not addressed by the Act and new problems may

require additional attention by way of amendment or new legislation.

Another one of the major problems continues to be the question

of adequate funding for implementation of the Local Government

Comprehensive Planning Act. The excessive demands by the League

of Cities for $50 million dollars is as extreme as those that

argue no additional funds are necessary. A more reasonable

approach is to recognize that local government has the major

funding responsibility for local government comprehensive planning,

but this should be supplemented by state and federal funds.

Already the state of Florida is receiving millions of dollars in

federal funds for various planning programs, including 10.4

million dollars from April/June 1976 to April/June 1978 for

Section 208 regional water management planning under the Federal

Water Pollution Control Act of 1972. Florida also continues to

receive Section 701 Federal Housing Act funds, which totaled in

Florida during the current fiscal year $2,783.379. In addition,

there are federal funds from the Community Development Act,

Coastal Zone Management Act, and other federal funding sources that

combine with those already provided by state and local governments.

Thus, there already exists an adequate financial base to build on

for many of the provisions in the Local Planning Act. However,

the state recognizes its obligation and the Department of Community

o 12.










Affairs has placed a $2 million dollar supplementary budget

item in this year's executive budget for a trust fund to help

local governments implement the Local Government Comprehensive

Planning Act.

Despite these and other problems (What constitutes an

acceptable land use plan?, etc.), I am cautiously optimistic

that local governments will increasingly recognize that their

lack of support of, or failure to comply with, the Local Plan-

ning Act will result in the erosion of their home rule powers

in planning and zoning matters. The ultimate reality will be

the performance by all government agencies as they comply with

the Local Planning Act. This will provide the basis for future

judgements of the Florida Legislature on whether or not to

continue to leave with local government the major responsibility

for growth management. Preliminary indications are that local

governments are recognizing the LPA "Ain't all that bad." Many

cities and counties are providing excellent leadership, which

should be recognized and encouraged more.

In summary, Florida is off to a fairly good start on

implementing the Local Government Comprehensive Planning Act.

The problem of funding is being addressed, the educational

process of understanding the act is well underway, and many

implementation problems are being resolved as they occur.






CHARLES L. SIEMON, CHICAGO, ILLINOIS


I. The Local Government Comprehensive Planning Act,
163.3161 et seq. Fla. Stat. (1975).

A. Substantive requirements of the Act

1. Planning elements
2. Consistency requirement
3. Planning Agency ordinance
4. Public participation

B. Procedural Requirements of the Act

1. Local activities
2. Regional, County and State review

II. Land Development Regulations under the Act

A. Substantive requirements

B. Limitations and restrictions, conflicts with other
requirements of law

C. Subdivision regulations

III. Issues During the Planning Process

A. Preserving the status quo

B. Interim Development approval, transition cases

C. Individual Development Proposal v. Jurisdictionwide
Issues

D. Doing it in the Sunshine

IV. The Amendment Requirements of the Act

V. The Sanibel Experience

A. The Planning Process

1. Public participation
2. The Planning Commission

B. Interim regulation, sliding standards

C. The Sanibel Comprehensive Land Use Plan









"4









- 2 -


D. Regulations in the Plan

E. The administrative framework under the Plan

F. The amendatory process under the Plan


Statutes

* 163.3161 et seq. Fla. Stat. (1975) including 163.3181 Fla.
Stat. (Supp. 1976), Local Government Comprehensive Planning
Act

* Ch. 163, Part II, Fla. Stat. (1975), County and Municipal
Planning for Future Development

* Ch. 166 Fla. Stat. (1975), Municipalities

* Ch. 177, Part I Fla. Stat. (1975), Platting












TABLE OF CONTENTS


ACKNOWLEDGEMENTS


PROLOGUE

ARTICLE 1 PREAMBLE


Section 1.1: Purpose and Objectives
Section 1.2: Consistency and Feasibility
of Plan
Section 1.3: Economic Assumptions of Plan
Section 1.4: Coordination of Plan with
Plans of Surrounding Areas
Section 1.5: Implementation of Plan

ARTICLE 2 ELEMENTS OF THE PLAN


Part 2.1 Safety

Section 2.1.1: Hurricanes
Section 2.1.2: Fire Safety

Part 2.2 Human Support Systems


Section 2.2.1:
Section 2.2.2:
Section 2.2.3:
Section 2.2.4:
Section 2.2.5:
Section 2.2.6:
Sect ion 2.2.7:
Section 2.2.8:
Section 2.2.9:

Section 2.2.10:
Section 2.2.11:


Water Supply
Circulation
Sewage Treatment
Solid Waste
Power
Storm Drainage
Fi re
Police
Medical Facilities
& Public Health
Education
Insect Control


1'art 2.3 Protection of Natural
Environmental, Economi-c and Scenic
Resources


Section 2.3.1: Preservation of Ecological
Functions Relating to Health
Safety and Welfare
Section 2.3.2: Coastal Zone Protection
Section 2.3.3: Wetland Protection
Section 2.3.4: Wildlife Preservation
Section 2.3.5: Vegetation Preservation
Section 2.3.6: Historic Preservation
Section 2.3.7: Scenic Preservation


- ] -






2 -

Part 2.4 Tnt e rovernim-nta l Coordination

Section 2.4.1: In tergovernmc{,ntal Coordination
Section 2.4.2: Effect of Plan on Adjacent
Areas

Part 2.5 Land Use

Section 2.5.1: Permitted Uses
Section 2.5.2: Residential Development In-
tensi ty
Section 2.5.3: Housing
Sect ion 2.5.4: Commercial
Section 2.5.5: Institutions
Section 2.5.6: Recreation and Open Space
Section 2.5.7: Conservation
Section 2.5.8: Community Design

ARTICLE 3 DEVELOPMENT REGULATIONS


Part 3.1 Definitions

Section 3.1.1: Amusement, Entertain-
ment or Commercial Recrea-
tion Establishment
Section 3.1.2: Automobile Service Station
Section 3.1.3: Coastal Construction Set-
back Line
Section 3.1.4: Developer
Section 3.1.5: Development
Section 3.1.6: Drive-In
Section 3.1.7: Dwelling Unit
Section 3.1.8: Duplex
Section 3.1.9: Exotic Species of Plant
Section 3.1.10: Land
Section 3.1.11: Lawfully Existing Use
Section 3.1.12: Lot
Section 3.1 .1-3: Mobile Home
Section 3.1.14: Mobile Home Park
Section 3.1.15: Multifamily Dwelling
Section 3.1.16: Native Plants
Section 3.1.17: Non-competing Species of
Plant
Section 3.1.18: Open Body of Water
Section 3.1.19: Parcel of Land
Section 3.1.20: Person
Section 3.1.21: Plan
Section 3.1.22: Recreation Vehicle
Section 3.1.23: Resort Housing
Section 3.1.24: Restaurant
Section 3.1.25: Secondary Treatment
,;cLin in 3.1.26: Site Alteration
Sect ion 3.1.27: Street Classification
Section 3.1.28: Structure
Section 3.1.29: Subdivision


1-







Part 3. 2 Maps

Section 3.2.1: Map Status
Section 3.2.2: Development Intensity Map
Section 3.2.3: Permitted Uses Map
Section 3.2.4: Ecological Zones Map

Part 3.3 General Requirements

Section 3.3.1: Residential Densities
Section 3.3.2: Residential Yard Require-
ments
Section 3.3.3: Clustering
Section 3.3.4: Commercial Uses
Section 3.3.5: Commercial Yard Require-
ments
Section 3.3.6: Screening and Location of
Commercial Uses on Land
Adjoining Residential Uses
Section 3.3.7: Home Occupations
Section 3.3.8: Height Restriction
Section 3.3.9: Accessory Uses
Section 3.3.10: Off-Street Parking
Section 3.3.11: Lawfully Existing Uses
Section 3.3.12: Partially Developed Land


Part 3.4 Permitted Uses


Section 3.4.1:
Section 3.4.2:
Section 3.4.3:
Section 3.4.4:
Section 3.4.5:
Section 3.4.6:
Section 3.4.7:


Permitted Uses
Gulf Beach
Gulf Beach Ridge
Special Blind Pass Area
Interior Wetland Uplands
Interior Wetland Lowlands
Mid-Island Ridge


Section 3.4.8: Mangjrove Forest
Sect ion 3.4.9: Bay Beach
Section 3.4.10: Filled Land

Part 3.5 Subdivisions

Section 3.5.1: Plat Required
Section 3.5.2: Design Standards

Part 3.6 Mobile Homes and Recreation
Vehicles


Section 3.6.1:

Sec-tion 3.6.2:

Section 3.6.3:
Section 3.6.4:
Section 3.6.5:

Section 3.6.6:


Us e of a Mobile Home
is Development
Mobile Home Construction
Standards
Existing Mobile Homes
Recreation Vehicles
Temporary Construction
Offices
Other Regulations






-. 4 -
Part 3.7 Flood and Storn Proofing

Section 3.7.1: Flood Proofing
Section 3.7.2: Certification of Flood
Proofing
Section 3.7.3: Emergency Shelter Space
Section 3.7.4: Emergency Water
Section 3.7.5: Non-residential Structures

Part 3.8 Site Preparation

Section 3.8.1: Site Preparation

Part 3.9 Environmental Performance Standards

Section 3.9.1: Development in the Gulf
D,.ici rC'1 l ich P.i (dg0 and
Special Blind Pass Zones

Section 3.9.2: Development in the Interior
Wetland Zone
Section 3.9.3: Development in the Mid-
Island Ridge Zone
Section 3.9.4: Development in the Mangrove
Forest Zone
Section 3.9.5: Development in or affecting
the Bay Beach Zone
Section 3.9.6: Development in the Filled
Land Zone
Section 3.9.7: Coverage and Clearance in
Commercial C Districts

Part 3. 10 Paved Surface Construction Standards

Section 3.10.1: Paving Materials

ARTICLE 4 ADMINISTRATIVE REGULATE ONS

Part 4.1 Introduction

Part 4.2 Authority and Purpose

Section 4.2.1: Legal Authority
Section 4.2.2: Designation of Local Planning
Agency
Section 4.2.3: Relation to Comprehensive
Plan

Part 4.3 Definitions

Section 4.3.1: Statutory Definitions
Section 4.3.2: Other Definitions

Part 4.4 -- Standards

Section 4.4.1: Permit Required
Section 4.4.2: Basis for Issuance of Permit
Section 4.4'.3: Permits Required for Govern-
mental Development






5 -

Section 4.4.4: Compliance with Other
Laws

Part 4.5 Short Form Permits

Section 4.5.1: Development for which
Applicable
Section 4.5.2: Procedure for Issuance
of Development Permit-
Short Form
Section 4.5.3: Commencement and Completion
Section 4.5.4: Development Permit-Short
Form Permit Conditions

Part 4.6 Development Permits

Section 4.6.1: Application Requirements
Section 4.6.2: Prehearing.Public Meeting
Section 4.6.3: Technical Assistance
Section 4.6.4: Hearing Before Planning
Commission
Section 4.6.5: Order Approving or Denying
Development Permit
Section 4.6.6: Commencement and Completion
Section 4.6.7: Subdivision Plats

Part 4.7 Completion Permits

Section 4.7.1: When Required
Section 4.7.2: Standards for Issuance

Part 4.8 Amendments to Plan

Section 4.8.1: Persons Entitled to Propose
Amendments
Section 4.8.2: Application Procedure
Section 4.8.3: Specific Amendments
Section 4.8.4: General Amendments

Part 4.9 Notice, Hearing and Decision on
Amendments

Section 4.9.1: Public Meeting
Section 4.9.2: Technical Assistance
Section 4.9.3: Hearing Before Planning
Commission
Section 4.9.4: Recommended Decision
Section 4.9.5: Council Action





2

20






- 6 -


ILLUSTRATIONS


1944 Aerial Photograph of
Sanibel
1975 Aerial Photograph of
Sanibel
Location of Sanibel Island

Growth Pattern of Sanibel
1870-1926
Growth Pattern of Sanibel
1927-1944
Growth Pattern of Sanibel
1945-1961
Growth Pattern of Sanibel
1962-1974
Unplanned Future Growth Trend
Current Development Trends 1975
State of Florida-Regional
Planning Councils
Geological Sections
Circulation Plan
Bikeways
Existing Package Plants
Contemporary Fire History

Acreage in Ecological Zones
Ecological Zones: Existing
Ecological Zones: Historical
Acres Developed by Sector and
Ecological Zone
History of Special Blind Pass
Area 1859-1961
Ecological Zones: Inventory
Ecological Zones: Functions
Ecological Zones: Management
Guidelines
Fresh Water Management
Exceptional Vegetation
Historic Sites
Legend for Permitted Uses
Permitted Uses
Development Intensity
Modern Platted Subdivisions
Institutions with Physical
Facilities
Off-Street Parking Standards








COURSE OUTLINE


Ken van Assenderp and Thomas G. Wright,
Jr.

I. Prefatory Statement

A. Assignment and purpose.

We propose to follow literally the assignment and
the purpose for our subject as set forth in your
course materials.

Our subject is the interrelationship of three
documents:

(1) The Local Government Comprehensive Planning
Act of 1975, ch. 75-257, Laws of Florida,
as amended.

(2) The Broward County Charter, as amended.

(3) The proposed Broward County Land Use Plan.

Our purpose is to analyze this three-fold subject
from two perspectives:

(1) The perspective of the Broward County
Planning Council.

(2) The perspective of all landowners in Broward
County (public and private, large and small,
corporate and individual).

Our assignment, in seeking to provide you this
dual perspective, is:

(1) To identify applicable legal issues of
importance to the subject in order to .

(2) Give you an update of these issues.

Finally, we have been asked to assume that all
participants, already intimately familiar with the
many legal issues dealing with land use, are
interested specifically in:

(1) Which of those legal issues apply to the
Broward County situation; and

(2) How those issues are updated.


B. Format.

The following outline identifies the topics (from
which the issues derive) we deem, from our dual per-
spective, most applicable to our subject. During the
oral presentation, we propose to discuss as many of
them as time allows.


221










II. Organization of the Issue Topics

A. Threshold Type. We have lumped together key topics,
some general and some specific, which constitute
the basis from which certain preliminary threshold
issues derive.

B. Specific Type. Against the backdrop of the threshold
issues, we propose to identify the topics from which
the most important specific issues derive.

C. General Type. This portion of the discussion seeks
to tie the specific issues and the threshold issues
into some timely and overall constitutional and
other issues of significance to the Broward County
situation. It is hoped that from these points, tie-
ins to your own particular situation can be easily
made.


III. The Issue Topics Outline

A. Threshold.

1. Home rule.

2. Present situation (the current legal and policy
interrelationship of the Act, the Charter and
the Plan).

3. The Plan.

a. History

(1) General legal history over the last 50 years.

(2) Specific Broward County Charter and Plan
history.

(3) The need for balance:

(a) Static "zoning map" syndrome.

(b) The absolutist control and regulatory
syndrome by "implementation" methods.

(c) The dynamics of process.

b. Goals and objectives.

c. Regional planning considerations.

(1) Population

(2) Housing

(3) Economy

(4) Transportation

(5) Regional utility system

(a) Water

(b) Waste

(c) Drainage

(d) Solid waste

(e) Other








(6) Regional and community facilities

(7) Parks and commercial recreation

(8) Coastal zone matters

(9) Agriculture

(10) Intergovernmental relations
B. Specific issue topics.

1. Grants and limitations of power.

a. In the Charter (including an understanding
of the term "in the area of land use planning"
and consequences of that understanding).

b. Related to State legislation.

2. County-municipal aspects.

a. Preparation of the county land use plan by
the Planning Council (treating the issue of
inclusion or rejection by the Council of
proposed municipal plans).

b. Adoption by the County Commission.

c. Certification of municipal plans.

(1) Substantial conformity.

(2) Legal effect of certification and non-
certification.

(3) Role of the Council as to certification
and non-certification.

d. Rezoning within one year.

(1) Sole grant of power?

(2) A limitation upon power? ("grace period")

e. Platting.

f. Zoning as to permitted uses and densities.

3. Identification of special purpose tax districts in
the community development and community management
fields and their role in the Broward County scheme
of things.

C. General issue topics.

1. Constitutional issues.

a. Due process: procedural.

b. Due process: the substantive progression and
how it evolves in Broward County an
amalgam.

(1) Substantive due process per se, emphasizing
the "rational relationship" and "fairness"
precepts.


24








(2) Police power regulation and its specific
application in Broward County to land use.

(3) The "taking" concept limitation.

(4) The countervailing consideration stemming
from the "public sovereignty" concept.

c. Exclusionary zoning.

(1) Current legal status as it impacts
upon Broward County.

(2) Political and policy implications in
Broward County.

2. Other significant issues.

a. "Vested rights."

(1) General Charter concept.
(2) Relation to Chapter 380, Florida Statutes.

(3) Special improvement tax districts for
community development and community
management purposes: The relationship
of their proper use to the goals and
objectives of the Plan, the regulatory
scheme contemplated by the Plan, and,
thereby, the accumulation of vested
rights.

b. "Other legal rights."

(1) Unduly restrictive.

(2) Takings

(3) Other

c, Relationship of Chapter 380, Florida Statutes,
to the Broward County Plan.

(1) Municipal power to amend development
orders dealing with developments of
regional impact'

(2) The legal effect of the Act as to any
amendatory powers of municipalities:

(a) An expansion.

(b) A contraction.


IV. Conclusion.






Florida Statutes 163.3161


163.3161 Short title; intent and purpose.-
(1) This act shall be known and may be cited as
the "Local Government Comprehensive Planning
Act of 1975."
(2) In conformity with, and in furtherance of, the
purpose of the Florida Environmental Land and Wa-
ter Management Act of 1972, chapter 380, it is the
purpose of this act to utilize and strengthen the ex-
isting role, processes, and powers of local govern-
ments in the establishment and implementation of
comprehensive planning programs to guide and con-
trol future development.
(3) It is the intent of this act that its adoption is
necessary so that local governments can preserve
and enhance present advantages; encourage the
most appropriate use of land, water, and resources,
consistent with the public interest; overcome
present handicaps; and deal effectively with future
problems that may result from the use and develop-
ment of land within their jurisdictions. Through the
process of comprehensive planning, it is intended
that units of local government can preserve, pro-
mote, protect, and improve the public health, safety,
comfort, good order, appearance, convenience, law
enforcement and fire prevention, and general wel-
fare; prevent the overcrowding of land and avoid
undue concentration of population; facilitate the ad-
equate and efficient provision of transportation, wa-
ter, sewerage, schools, parks, recreational facilities,
housing, and other requirements and services; and
conserve, develop, utilize, and protect natural re-
sources within their jurisdictions.
(4) It is the intent of this act to encourage and
assure cooperation between and among municipal-.
ities and counties and to encourage and assure coor-.,
dination of planning and development activities of
units of local government with the planning activi-
ties of regional agencies and state government in
accord with applicable provisions of law.
(5) It is the intent of this act that adopted com.-
prehensive plans shall have the legal status set out -,
in this act and that no public or private development
shall be permitted except in conformity with corn---
prehensive plans, or elements or portions thereof.
prepared and adopted in conformity with this act.
(6) It is the intent of this act that the activities of
units of local government in the preparation and
adoption of comprehensive plans, or elements or por--
tions therefore, shall be conducted in conformity with
the provisions of this act. .
(7) The provisions of this act in their interpreta-.
tion and application are declared to be the minimum
requirements necessary to accomplish the stated in-
tent, purposes, and objectives of this act; to protect
human, environmental, social, and economic re-
sources; and to maintain, through orderly growth
and development, the character and stability of
present and future land use and development in this-
state.
Hittory.--3. 1, 2. ch. 75-257.


163.3164 Definitions.-As used in this act:
(1) "Area" or "area of jurisdiction" means the
total area qualifying under the provisions of this act.
whether this be all of the lands lying within the
limits of an incorporated municipality, lands in and
adjacent to incorporated municipalities, all unincor-
porated lands within a county, or areas comprising
combinations of the lands in incorporated munici-
palities and unincorporated areas of counties. In the
case of municipalities where reserve areas have been
designated for future annexation by law, the term
"area" shall include, as being under the jurisdiction
of the municipality for the purposes of this act, such
unincorporated but designated and reserved lands.
(2) "Comprehensive plan" means a plan that
meets the requirements of s. 163.3177.
(3) "Developer" means any person, including a
governmental agency, undertaking any develop-
ment as defined in this act.
(4) "Development" has the meaning given it in 3.
380.04.
(5) "Development order" means any order grant-
ing, denying, or granting with conditions an applica-
tion for a development permit.
(6) "Development permit" includes any building
permit, zoning permit, subdivision approval, rezon-
ing, certification, special exception, variance, or any
other official action of local government having the
effect of permitting the development of land.
(7) "Governing body" means the board of county
commissioners of a county, the commission or coun-
cil of an incorporated municipality, or any other
chief governing body of a unit of local government.
however designated, or the combination of such bod-
ies where joint utilization of the provisions of this act
is accomplished as provided herein.
(8) "Governmental agency" means:
(a) The United States or any department, com-
mission, agency, or other instrumentality thereof.
(b) This state or any department, commission,
agency, or other instrumentality thereof.
(c) Any local government, as defined in this sec-
tion, or any department, commission, agency, or oth-
er instrumentality thereof.
(d) Any school board or other special district, au-
tlority, or governmental entity.
(9) "Land" means the earth, water, and air,
above, below, or on the surface, and includes any
improvements or structures customarily regarded as
land.
(10) "Land use" means the development that has
occurred on the land, the development that is pro-
posed by a developer on the land, or the use that is
permitted or permissible on the land under an adopt-
ed comprehensive plan or element or portion there-
of, land development regulations, or a land
development code, as the context may indicate.
(11) "Local government" means any county or
municipality or any special district or local govern-
mental entity established pursuant to law which ex-
ercises regulatory authority over, and grants
development permits for, land development.







(12) "Local planning agency" means the agency
designated to prepare the comprehensive plan re-
quired by this act.
(13) A "newspaper ofgeneral circulation" means
a newspaper published at least on a weekly basis and
printed in the language most commonly spoken in
the area within which it circulates, but does not in-
clude a newspaper intended primarily for members
of a particular professional or occupational group, a
newspaper whose primary function is to carry legal
notices, or a newspaper that is given away primarily
to distribute advertising.
(14) "Parcel of land" means any quantity of land
capable of being described with such definiteness
that its locations and boundaries may be established,
which is designated by its owner or developer as land
to be used, or developed as, a unit or which has been
used or developed as a unit.
(15) "Person" means an individual, corporation,
governmental agency, business trust, estate, trust,
partnership, association, two or more persons hav-
ing a joint or common interest, or any other legal
entity.
(16) "Public notice" or "due public notice" as
used in connection with the phrase "public hearing"
or "hearing to be held after due public notice" means
publication of notice of the time, place, and purpose
of such hearing at least twice in a newspaper of gen-
eral circulation in the area, with the first publica-
tion not less than 14 days prior to the date of the
hearing and the second to be at least 5 days prior to
the hearing.
(17) "Regional planning agency" means the
agency designated by the state land planning agency
to exercise responsibilities under law in a particular
region of the state.
(18) "State land planning agency" means the Di-
vision of State Planning.
(19) "Structure" has the meaning given it by sub-
section 380.031(17).
History.-s. 3. ch. 75-257.

163.3167 Scope of act.-
(1) The several incorporated municipalities, the
several counties, and certain special districts or local
governmental entities set out in this act shall have
power and responsibility:
(a) To plan for their future development and
growth.
(b) To adopt and amend comprehensive plans, or
elements or portions thereof, to guide their future
development and growth.
(c) To implement adopted or amended compre-
hensive plans by the adoption of appropriate land
development regulations or elements thereof.
(d) To establish, support, and maintain adminis-
trative instruments and procedures to carry out the
provisions and purposes of this act.
The powers and authority set out in this act may be
employed by incorporated municipalities, counties,
and certain special districts individually or jointly
by mutual agreement in accord with the provisions
of this act and in such combinations as their common
interests may dictate and require.
(2) On or before July 1, 1979, each county and
each municipality in this state shall prepare and
adopt a comprehensive plan of the type and in the
manner set out in this act.


(3) On or before July 1, 1979, each special district
or local governmental entity under subsection
163.3171(4) shall prepare and adopt a comprehen-
sive plan of the type and in the manner set out in this
act.
(4) When a municipality within a county under
subsection (2) or when a special district or local gov-
ernmental entity under subsection (3) has not pre-
pared and adopted a comprehensive plan by July 1,
1979, as required by this act, the comprehensive plan
of the county in which such municipality or special
district or local governmental entity is situate shall
govern. Such county shall have the responsibility to
specifically review the application of its comprehen-
sive plan to such municipality or special district or
local governmental entity by not later than one year
from the date by which such other local government
was required to adopt its comprehensive plan.
(5) When a county under subsection (2) has not
prepared and adopted a comprehensive plan by July
1,1979, the state land planning agency shall prepare
a comprehensive plan for such county and any mu-
nicipalities or special districts or local governmental
entities therein not having met the requirements of
this act by July 1, 1979, and shall recommend its
adoption to the Administration Commission which
shall have authority to adopt the comprehensive
plan.
(6) Municipal corporations established after the
effective date of this act shall prepare and adopt a
comprehensive plan of the type and in the manner
set out in this act within 3 years of the date of such
incorporation. However, no comprehensive plan
need be adopted prior to July 1, 1979. A county com-
prehensive plan adopted prior to or after the date of
incorporation shall be deemed controlling until the
municipality adopts a comprehensive plan in accord
with the provisions of this act. After July 1, 1979, if,
upon the expiration of the 3-year time limit, the
municipality has not adopted a comprehensive plan
and no county comprehensive plan has been adopt-
ed, the state land planning agency shall prepare and
recommend to the Administration Commission a
comprehensive plan for such municipality.
(7) The time limits set out in subsections (2), (3),
(4), (5), and (6) shall be extended by the state land
planning agency for a period not to exceed one year
upon application to the state land planning agency
by the local unit of government involved and on due
cause shown that good faith efforts to meet the re-
quirements of this act have been and are being made.
In addition to the time extension herein, the state
land planning agency shall also extend '[the time
limit] for one additional time period, not to exceed an
additional year, upon application in the same man-
ner and with the same burden of proof as provided
for the initial extension.


27









(8) On or before July 1, 1976, each unit of local
Government shall officially inform the state land
planning agency and the appropriate regional plan-
ning agency of its designation of a local planning
agency pursuant to s. 163.3174. This time limit shall
be extended by the state land planning agency for a
period not to exceed 1 year upon application to the
agency and on due cause shown that good faith ef-
forts to meet the requirements of this act have been
and are being made. If the designation has not been
made within the required time period, the appropri-
ate county land planning agency, pursuant to notifi-
cation by the state land planning agency in the case
of a nondesignating municipality or special district,
or the state land planning agency, in the case of a
nondesignating county or a nondesignating county
and nondesignating municipalities or special dis-
tricts therein, shall assume the responsibilities of a
local planning agency for the area involved upon
adoption of an ordinance or rule, as the case may be,
and after due notification to the governing body of
the area involved, until such time as the required
designation has been made.
(9) Upon assumption of responsibility under sub-
section (8), the state land planning agency shall ap-
prove the estimated cost of assumption by a county
land planning agency or shall determine the esti-
mated costs when the state land planning agency is
assuming responsibility for a nondesignating coun-
ty. Invoices for costs involved shall be rendered quar-
terly to the governing body involved and, upon
failure to pay such invoices, the division, or the divi-
sion upon request of a county land planning agency,
as the case may be, is authorized, upon filing proper
vouchers with the State Comptroller, to request pay-
ment from the State Comptroller from unencum-
bered revenue or other tax sharing funds due such
nondesignating local government from the state for
work actually performed; however, the amount of
such payment shall not exceed 50 percent of such
funds due such local government.
(10) Nothing in this act shall limit or modify the
rights of any person to complete any development
that has been authorized as a development ofregion-
al impact pursuant to chapter 380.
History.-s. 4, ch 75-257.
'Note.-Bracket.d language inserted by the editors for clarity.

163.3171 Areas under this act.--
(1) When exercising authority under this act, a
municipality shall exercise such authority for the
total area under its jurisdiction upon the passage of
an appropriate ordinance declaring its intent to do
so. Unincorporated areas adjacent to incorporated
municipalities may be included in the area ofmunic-
ipal jurisdiction for the purposes of this act if the
governing bodies of the municipality and the county
in which the area is located agree on the boundaries
of such additional areas, procedures fbr joint action
in the preparation and adoption of the comprehen-
sive plan, procedures for the administration of land
development regulations or the land development
code applicable thereto, and the manner of represen-
tation on any joint body or instrument that may be
created under the joint agreement. Such joint agree-
--ment shall be formally stated and approved in appro-
priate official action by the governing bodies
.nvolved.


(2) A county shall exercise authority under this
act for the total unincorporated area under its juris-
diction or in such unincorporated areas as are not
included in any joint agreement with municipalities
established under the provisions of subsection (1). A
county shall exercise such additional authority over
municipalities within its boundaries under the cir-
cumstances and as set out in subsection 163.3167(4).
The board of county commissioners shall by ordi-
nance declare its intent to exercise the authority set
out in this act. In the case of chartered counties, the
county may exercise such additional authority over
municipalities or districts within its boundaries as is
provided for in its charter.
(3) Combinations of municipalities within a
county, or counties, or an incorporated municipality
or municipalities and a county or counties, or an
incorporated municipality or municipalities and
portions of a county or counties may jointly exercise
the powers granted under the provisions of this act
upon formal adoption of an official agreement by the
governing bodies involved pursuant to law. No such
official agreement shall be adopted by the governing
bodies involved until a public hearing on the subject
with due public notice has been held by each govern-
ing body involved. The general administration of
any joint agreement shall be governed by the provi-
sions ofs. 163.01 except that when there is conflict
with this act the provisions of this act shall govern.
(4) The Reedy Creek Improvement District shall
exercise the authority of this act, consistent with the
legislative act under which it was established, over
the total area under its jurisdiction. The Reedy
Creek Improvement District may jointly exercise
said authority with municipalities and counties in a
manner consistent with subsection (3).
History.-s. 5, ch. 7-257.

163.3174 Local planning agency.-
(1) Local governing bodies, individually or in
combination as provided in s. 163.3171, shall desig-
nate and establish a "local planning agency." This
agency shall prepare the comprehensive plan after
hearings to be held after due public notice and shall
make recommendations to the governing body re-
garding the adoption of such plan or element or por-
tion thereof. The agency may be a local planning
commission, the planning department of the local
government, or other instrumentality, including a
council of local government officials created pursu-
ant to s. 163.02, provided the composition of the
council is fairly representative of all the governing
bodies in the county or planning area; however:
(a) If a joint planning entity is in existence on the
effective date of this act which authorizes the gov-
erning bodies to promulgate and enforce a land use
plan effective throughout the joint planning area,
that entity shall be the agency for those local govern-
ments until such time as the authority of the joint
planning entity is modified by law, and
(b) In the case of chartered counties, the plan-
ning responsibility between the county and the sev-
eral municipalities therein shall be as stipulated in
the charter.


29







(2) The ordinance establishing the local planning
agency shall, if applicable:
(a) Establish the method of choosing the mem-
bers of the agency.
-- (b) Require the agency to set rules of procedure
id to choose its officers.
(c) Provide a method of financial support for the
staffing and the work of the agency.
(d) Require that all meetings of the agency shall
be public meetings and that its records shall be pub-
lic records.
(e) Set out the duties and responsibilities of the
agency and its relationships to the governing body.
(f) Provide for other appropriate matters.
(3) Nothing in this act shall prevent the govern-
ing body of an incorporated municipality or county
that participates in creating a local planning agency
serving two or more jurisdictions from continuing or
creating its own local planning agency. A governing
body may assign to the local planning agency serv-
ing two or more jurisdictions any or all of the func-
tions, powers, and duties of its own local planning
agency. Thereafter, such functions, s nns, powers, and du-
ties shall be exercised by the local planning agency
serving two or more jurisdictions; however, the gov-
erning body may rescind such assignment upon pas-
sage of a resolution at a duly publicized public
meeting.
(4) The governing body or bodies may appropri-
ate funds for salaries, fees, and expenses necessary
in the conduct of the work of the local planning agen-
cy and also establish a schedule of fees to be charged
by the agency. To accomplish the purposes and ac-
tivities authorized by this act, the local planning
agency, with the approval of the governing body or
bodies and in accord with the fiscal practices thereof,
has the authority to expend all sums so appropriated
and other sums made available for use from fees,
gifts, state or federal grants, state or federal loans,
and other sources; however, acceptance of loans
must be approved by the governing bodies involved.
(5t The governing body of a municipality or coun-
ty or combinations thereof shall assign to the local
planning agency the general responsibility for the
conduct of the comprehensive planning program and
the preparation of the comprehensive plan or ele-
ments or portions thereof. The governing body in
cooperation with the local planning agency may des-
ignate any agency, committee, department, or per-
son to prepare the comprehensive plan or any
element thereof, but the responsibility for final rec-
ommendation of the adoption of such plan to the
governing body shall be the responsibility of the local
planning agency. The local planning agency shall
monitor and oversee the effectiveness and status of
the comprehensive plan and recommend to the gov-
erning body such changes in the comprehensive plan
as may from time to time be required. The responsi-
bilities, powers, and duties of the local planning
agency shall be set out in the ordinance establishing
the agency, subject to the particular requirements of
this act.
History.-s. 6, ch. 75-257.


163.3177 Required and optional elements of
comprehensive plan; studies and surveys.-
(1) The comprehensive plan shall consist of ma-
terials in such descriptive form, written or graphic,
as may be appropriate to the prescription of princi-
ples, guidelines, and standards for the orderly and
balanced future economic, social, physical, environ-
mental, and fiscal development of the area.
(2) Coordination of the several elements of the
local comprehensive plan shall be a major objective
of the planning process. The several elements of the
comprehensive plan shall be consistent and the com-
prehensive plan shall be economically feasible.
(3) The economic assumptions on which the plan
is based and any amendments thereto shall be ana-
lyzed and set out as a part of the plan. Those ele-
ments of the comprehensive plan requiring the
expenditure of public funds for capital improve-
ments shall carry fiscal proposals relating thereto,
including, but not limited to, estimated costs, priori-
ty ranking relative to other proposed capital expend-
itures, and proposed funding sources.
(4) Coordination of the local comprehensive plan
with the comprehensive plans of adjacent municipal-
ities, the county, adjacent counties, or region and
'[with] the state comprehensive plan shall be a ma-
jor objective of the local comprehensive planning
process. To that end, in the preparation of a compre-
hensive plan or element thereof, and in the compre-
hensive plan or element as adopted, the governing
body shall include a specific policy statement indi-
cating the relationship of the proposed development
of the area to the comprehensive plans of adjacent
municipalities, the county, adjacent counties, or re-
gion and to the state comprehensive plan, as the case
may require and as such adopted plans or plans in
preparation may exist.
(5) The comprehensive plan and its elements
shall contain policy recommendations for the imple-
mentation of the plan and its elements.
(6) In addition to the general requirements of
subsections (1)-(5), the comprehensive plan shall in-
clude the following elements:
(a) A future land use plan element designating
proposed future general distribution, location, and
extent of the uses of land for housing, business, in-
dustry, agriculture, recreation, conservation, educa-
tion, public buildings and grounds, other public facil-
ities, and other categories of the public and private
uses of land. The future land use plan shall include
a statement of the standards to be followed in the
control and distribution of population densities and
building and structure intensity as recommended for
the various portions of the area. The future land use
plan may designate areas for future planned devel-
opment use involving combinations of types of uses
for which special regulations may be necessary to
insure development in accord with the principles
and standards of the comprehensive plan and this
act.









(b) A traffic circulation element consisting of the
types, locations, and extent of existing and proposed
'" major thoroughfares and transportation routes.
-(c) A general sanitary sewer, solid waste, drain-
age, and potable water element correlated to princi-
ples and guidelines for future land use indicating
ways to provide for future potable water, drainage,
sanitary sewer, and solid waste requirements for the
area. The element may be a detailed engineering
plan for such facilities. The element shall describe
the problems and needs and the general facilities
that will be required for solution of the problems and
needs.
(d) A conservation element for the conservation,
development, utilization, and protection of natural
resources in the area, including, as the situation may
be, air, water, estuarine marshes, soils, beaches,
shores, flood plains, rivers, lakes, harbors, forests,
fisheries and wildlife, minerals, and other natural
and environmental resources.
(e) A recreation and open space element indicat-
ing a comprehensive system of public and private
sites for recreation, including, but not limited to:
natural reservations, parks and playgrounds, park-
ways, beaches and public access to beaches, open
spaces, and other recreational facilities.
(f) A housing element consisting of standards,
plans, and principles to be followed in:
1. The provision of housing for existing residents
and the anticipated population growth of the area.
2. The elimination of substandard dwelling con-
ditions.
3. The improvement of existing housing.
4. The provision of adequate sites for future
housing, including housing for low-and moderate-
income families and mobile homes, with supporting
infrastructure and community facilities as described
in paragraphs (6Xc) and (7)(e) and (f.
5. Provision for relocation housing and identifi-
cation of housing for purposes of conservation, reha-
bilitation, or replacement.
6. The formulation of housing implementation
programs.
(g) For those units of local government lying in
part or in whole in the coastal zone as defined by the
Coastal Zone Management Act of 1972, 2[Title] 16,
United States Code s. 1453(a), a coastal zone protec-
tion element, appropriately related to the particular
requirements of paragraphs (d) and (e), including
surveys of existing vegetation types which need to be
preserved for natural control of dune and beach ero-
sion and surveys of traditional patterns of public
access and use of beach resources, setting out the
policies for:
1. Maintenance, restoration, and enhancemer.
of the overall quality of the coastal zone environ.
ment, including, but not limited to, its amenities and
aesthetic values.
2. Continued existence of optimum populations
of all species of wildlife.
3. The orderly and balanced utilization and pre-
ervation, consistent with sound conservation prici--
ples, of all living and nonliving coastal zona
resources.
4. Avoidance of irreversible and irretrievable.
commitments of coastal zone resources.
5. Ecological planning principles and assume.
tions to be used in the determination of suitability
and extent of permitted development.
6. Proposed management and regulatory tech.-
niques.


In addition, at least 60 days before the adoption by
a governing body of the coastal zone protection ele--
ment, the governing body shall transmit a copy of
the proposed element to the '[Division of lResource
Management of the Department of Natural Re.
sources] or its successor for written comment pursu-
ant to s. 163.3184.
(h) An intergovernmental coordination element
showing relationships and stating principles and
guidelines to he used in the accomplishment ofcoor-
dination of the adopted comprehensive plan with the
plans of school boards and other units of local gov-
ernment providing services but not having regulato-
ry authority over the use of land, with the
comprehensive plans of adjacent municipalities, the
county, adjacent counties, or the region, and '[with]
the state comprehensive plan, as the case may re-
quire and as such adopted plans or plans in prepara-
tion may exist. This element of the local
comprehensive plan shall demonstrate considera-
tion of the particular effects of the local plan, when
adopted, upon the development of adjacent munici-
palities, the county, adjacent counties, or the region
or on the state comprehensive plan, as the case may
require.
(i) A utility element in conformance with the 10 -
year site plan required by] the Florida Electrical
Power Plant Siting Act, Part II, chapter 403.
(j) The optional elements of the comprehensive-
plan in paragraphs (7)(a) and (b) are required ele-
ments for those units of local government having
populations greater than 50,000, as determined un-
der s. 23.019.
(7) The comprehensive plan may include the fol-
lowing additional elements, or portions or phases
thereof:
(a) As a part of the circulation element of para-
graph (6)(b) or as a separate element, a mass transit
element showing proposed methods for the moving
of people, rights of way, terminals, related facilities,
and fiscal considerations for the accomplishment of
the element.
(b) As a part of the circulation element of para-
graph(6)(b) or as a separate element, plans for port.
aviation, and related facilities coordinated with the
general circulation apd transportation element -
(c) As a part of the circulation element of oara-
graph (6)(b) and in coordination with paragraph
(6)(e). where applicable, a plan element for the circu-
lation of nonautomotive vehicular and pedestrian
traffic, including bicycle paths and bikeways, exer-
cise trails, riding facilities, and such other matters
as may be related to the improvement and safety of
movement of all types of vehicular and pedestrian
traffic or to recreational aspects of circulation.
(d) As a part of the circulation element of para-
graph (6)(b) or as a separate element, a plan element
for the development of off-street parking facilities
for motor vehicles and the fiscal considerations for
the accomplishment of the element.
(e) A public service.; and facilities element, not
including the solid waste, potable water, drainage,
and sewer element which is required under para-
graph (6)(c) or plans required by paragraph (6(i),
showing general plans for local utilities, rights-of-
way easements, and facilities..







(f) A public buildings and related facilities ele-
ment showing locations and arrangements of civic
and community centers, public schools, hospitals, li-
braries, police and fire stations, and other public
"'" buildings. This plan element should show particular-
ly how it is proposed to effect coordination with gov-
ernmental units, such as school boards or hospital
authorities, having public development and service
responsibilities, capabilities, and potential but not
having land development regulatory authority. This
element may include plans for architecture and
landscape treatment of their grounds.
(g) A recommended community design element
which may consist of design recommendations for
land subdivision, neighborhood development and re-
development, design of open space locations, and
similar matters to the end that such recommenda-
tions may be available as aids and guides to develop-
ers in the future planning and development of land
in the area.
(h) A general area redevelopment element con-
sisting of plans and programs for the redevelopment
of slums and blighted locations in the area and for
community redevelopment, including housing sites,
business and industrial sites, public buildings sites,
recreational facilities, and other purposes author-
ized by law.
(i) A safety element for the protection of resi-
dents and property of the area from fire, hurricane,
or man-made or natural catastrophe, including such
necessary features for protection as evacuation
routes and their control in an emergency, water sup-
ply requirements, minimum road widths, clearances
around and elevations of structures, and similar
matters.
(j) An historical and scenic preservation element
setting out plans and programs for those structures
or lands in the area having historical, archaeolog-
ical, architectural, scenic, or similar significance.
(k) An economic element setting forth principles
and guidelines for the commercial and industrial de-
velopment, if any, and the employment and man-
power utilization within the area. The element may
detail th type of commercial and industrial develop-
ment sought, correlated to the present and projected
employment needs of the area and to other elements
of the plans, and may set forth methods by which a
balanced and stable economic base will be pursued.
(1) Such other elements as may be peculiar to,
and necessary for, the area concerned and as are
added to the comprehensive plan by the governing
body upon the recommendation of the local planning
agency.
(8) All elements of the comprehensive plan,
whether mandatory or optional, shall be based upon
data appropriate to the element involved. Surveys
and studies utilized in the preparation of the com-
prehensive plan shall not be deemed a part of the
comprehensive plan unless adopted as a part of it.
Copies of such studies, surveys, and supporting docu-
ments shall be made available to public inspection,
and copies of such plans shall be made available to
the public upon payment of reasonable charges for
reproduction.
History.-s. 7. ch. 75-257.
'Note.-Bracketed word substituted for "to" by the editors for clarity.
'Note.-Bracketed word substituted for "volume" by the editors for clarity
Note.-Bracketed language substituted for "Coa(tal Coordinating Coun-
cil" to conform to s 18, ch. 7522
*Note.-Bracketed words substituted for "of" by the editors for clarity


163.3181 Public participation in the compre-
hensive planning process; notice.-
(1) It is the intent of the Legislature that the
public participate in the comprehensive planning
process to the fullest extent possible. Towards this
end, local planning agencies and local governmental
units are directed to adopt procedures designed to
provide effective public participation in the compre-
ensive planning process and to provide individual
real property owners with notice of all actions which
will affect the use of their property. The provisions
and procedures required in this section are set out as
the minimum requirements towards this end.
(2) During considerationderao of the proposed plan or
amendments thereto by the local planning agency or
by the local governing body, the procedures shall
provide for broad dissemination of the proposals and
alternatives, opportunity for written comments,
public hearings after due public notice as provided
for in s. 163.3164(16), provisions for open discussion,
communications programs, information services,
and consideration of and response to public com-
ments.
(3) In addition to the procedures required in sub-
section (2), whenever a local governing body consid-
ers the enactment of an ordinance dealing with the
land use element of a comprehensive plan, the fol-
lowing procedures shall be followed:
(a) In cases in which the proposed ordinance
deals with less than 5 percent of the total land area
of the local governmental unit, the governing body
shall direct the clerk of the governing body to notify
by mail each real property owner '[the use of] whose
land the governmental agency will restrict or limit
by enactment of the ordinance and whose address is
known by reference to the latest ad valorem tax
records. The notice shall state the substance of the
proposed ordinance as it affects that property owner
and shall set a time and place for one or more public
hearings on such ordinance. Such notice shall be
given at least 30 days prior to the date set for the
public hearing, and a copy of such notice shall be
kept in a separate book which shall be open to public
inspection during the regular business hours of the
office of the clerk of the governing body. The govern-
ing body shall hold a public hearing on the proposed
ordinance not more than 60 days nor less than 30
days prior to the date set for adoption of the ordi-
nance.
(b) In cases in which the proposed ordinance
deals with more than 5 percent of the total land area
of the local governmental unit doing the planning,
the governing body shall provide for public notice
and hearings as follows:
1. The local governing body shall hold two adver-
tised public hearings on the proposed ordinance.
Both hearings shall be held after 5 p.m. on a week-
day, and the first shall be held approximately 7 days
after the day that the first advertisement is pub-
lished. The second hearing shall be held approxi-
mately 2 weeks after the first hearing and shall be
advertised approximately 5 days prior to the public
hearing. The day, time, and place at which the sec-
ond public hearing will be held shall be announced
at the first public hearing.









2. The required advertisements shall be no less
than one-quarter page in a standard size or a tabloid
- size newspaper, and the headline in the advertise-
ment shall be in a type no smaller than 18 point. The
advertisement shall not be placed in that portion of
the newspaper where legal notices and classified ad-
vertisements appear. The advertisement shall be
published in a newspaper ofgeneral paid circulation
in the county and of general interest and readership
in the community, not one of limited subject matter,
pursuant to chapter 50. It is the legislative intent
that, whenever possible, the advertisement shall ap-
pear in a newspaper that is published at least 5 days
a week unless the only newspaper in the community
is published less than 5 days a week. The advertise-
ment shall be in the following form:

NOTICE OF RESTRICTION ON LAND USE
The .(name.of IocaI.goYerental.uit). proposes to re-
strict the use of land within the area shown in the
map in this advertisement.
A public hearing on the increase will be held on
_. ane); ud tirmeL. at meetingsngp! acr )...
The advertisement shall also contain a geographic
location map which clearly indicates the area cov-
ered by the proposed ordinance. The map shall in-
clude major street names as a means of identifica-
tion of the area.
3. In lieu of publishing the advertisements set
out in this paragraph, the local governmental unit
may mail a notice to each person owning real proper-
ty within the area covered by the ordinance. Such
notice shall clearly explain the proposed ordinance
and shall notify the person of the time, place, and
location of both public hearings on the proposed ordi-
nance.
History.- 8, ch. 75-257; s. 3, ch. 76-155.
'Note.-Bracketed words inserted by the editors
163.3184 Adoption of comprehensive plan or
element or portion thereof.-
(1) At least 60 days before the adoption by a gov-
erning body of a comprehensive plan or element or
portion thereof, or before the adoption of an amend-
ment to a previously adopted comprehensive plan or
element or portion thereof, the governing body shall:
(a) Transmit a copy of the proposed comprehen-
sive plan or element or portion thereof to the state
land planning agency for written comment. The
state land planning agency shall promptly publish
the fact of the local government's intended adoption
of the comprehensive plan or element or portion
thereofin the weekly publication required by subsec-
tion 380.06(9) and shall indicate therein the date,
time, and place of the public hearing to be held
thereon. It shall be the responsibility of the state
land planning agency to circulate all or appropriate
elements of the intended plan to appropriate state
agencies for comment and advice.
(b) Transmit a copy of the proposed comprehen-
sive plan or element or portion thereof to the region-
al planning agency having responsibility over the
area for written comment.
(c) If it is a municipality or a unit of local govern-
ment under subsection 163.3171(4) '[transmit] a
copy of the proposed comprehensive plan or element
or portion thereof to the local planning agency of the
county for written comment or, if there is no county


land planning agency, to the clerk of the circuit
court or the administrative officer of the county com-
mission.
(d) Transmit a copy of the proposed comprehen-
sive plan or element or portion thereof to any other
unit of local government or governmental agency in
the state that has filed with the governing body a
request for copies of all proposed comprehensive
plans or elements or portions thereof
(e) Determine that the local planning agency has
held a public hearing on the proposed plan or ele-
ment or portion thereof with due public notice.
(2) Within 60 days, or any longer period to which
the governing body has agreed, after a local govern-
ment has transmitted a proposed comprehensive
plan or element or portion thereof to the state land
planning agency, the state land planning agency
shall submit in writing its comments on the pro-
posed comprehensive plan or element or portion
thereof, together with the comments of any state
agencies to which the state land planning agency
may have referred the plan. The state land planning
agency shall specify any objections and may make
recommendations for modifications. The review of
the state land planning agency shall be primarily in
the context of the relationship and effect, under
chapter 23, of the locally submitted plan or element
or portion thereof to or on the comprehensive plan
or element or portion thereof, and in the context of
the impact of the locally submitted plan or element
or portion thereof on the lawful responsibility of
state agencies. If the state land planning agency
transmits objections to the proposed comprehensive
plan or element or portion thereof, the governing
body shall transmit a written statement in reply
thereto within 4 weeks. The governing body shall
take no action to adopt the comprehensive plan or
element or portion thereof until 2 weeks have
elapsed following the transmittal of the governing
body's letter of reply. The written materials of the
state land planning agency and the governing body
required by this subsection shall become a perma-
nent part of the public record in the matter.
(3) The procedure of subsection (2) shall apply to
2[review by] the regional planning agency. The time
sequence of subsections (2) and (3) shall run concur-
rently upon appropriate transmittal. Review '[by]
the regional planning agency shall be primarily in
the context of the relationship and effect of the local-
ly submitted plan or element or portion thereof to or
on any regional comprehensive plan.
(4) The procedure of subsection (2) shall apply to
"[review by] the county land planning agency. The
time sequence of subsections (2) and (4) shall run
concurrently upon appropriate transmittal. Review
by the county land planning agency shall be primari-
ly in the context of the relationship and effect of the
locally submitted plan or element or portion thereof
to or on any county comprehensive plan or element
or portion thereof.
(5) Any comments, recommendations, or objec-
tions of the state land planning agency or the region-
al or county land planning agencies and any reply
thereto shall be public documents, a part of the per-
manent record in the matter, and admissible in any
proceeding in which the comprehensive plan or ele-








meat or portion thereof may be at issue.
(6) The governing body shall consider all com-
ments received from any person, agency, or govern-
' -nt. It may adopt, or adopt with changes or
endments, the proposed comprehensive plan or
.ement or portion thereof despite any adverse com-
ment received.
(7) By not less than a majority of the total mem-
bership of the governing body, the governing body
may in a manner prescribed by law adopt the pro-
posed comprehensive plan or element or portion
thereof or adopt it with changes or amendments.
Upon adoption, the governing body shall transmit a
copy of the approved comprehensive plan or element
or portion thereof to the state land planning agency,
appropriate regional agency, county land planning
agency, and any other unit of local government
which has filed with the governing body a request for
copies of adopted comprehensive plans or elements
or portions thereof.
History.-s 9. ch. 75-257.
'Note.-Bracketed word inserted by the editors in substitution for the
phrase "shall be transmitted" enacted as following the words "portion there-
of" in this sentence.
Note.-Bracketed language inserted by the editors.
*Note.--"By" substituted for "of' by the editors.

163.3187 Amendment of adopted comprehen-
sive plan.-The procedure for amendment of an
adopted comprehensive plan or element or portion
thereof, or a specific amendment thereto, shall be as
for the original adoption of the comprehensive plan
or element or portion thereof unless, by not less than
a majority vote of '[its membership], the governing
body, after due public notice and a public hearing,
adopts a specific amendment to an adopted land use
element of a comprehensive plan, other than a com-
prehensive amendment to the land use element of a
comprehensive plan. For the purpose of this section,
a specific amendment is one which proposes to
change a use in the land use element of the adopted
comprehensive plan or proposes to change residen-
tial density on a parcel or parcels of land, provided
that the change in either land use or residential
density comprises less than 5 percent of the land
area of the jurisdiction involved. All other amend-
ments to the land use element of the adopted com-
prehensive plan shall be deemed comprehensive
amendments. If any amendment to the land use ele-
ment would be inconsistent with any other element
of the plan previously adopted, the governing body
shall also amend such other element and may do so
by a vote of a majority of the total membership of the
governing body. Corrections, updates, or modifica-
tions of current costs which were set out as part of
the comprehensive plan shall not, for the purposes of
this act, be deemed to be comprehensive or specific
amendments.
HIstory.-s. 10, ch. 75-257.
'Note.--Bracketed words substituted for "the membership of" by the edi-
tors for clarity.

163.3191 Evaluation and appraisal of com-
prehensive plan.-
(1) The planning program shall be a continuous
and ongoing process. The local planning agency shall
prepare periodic reports on the comprehensive plan,
which shall be sent to the governing body at least
once every 5 years after the adoption of the compre-


hensive plan or element or portion thereof. Reports
may be transmitted at lesser intervals as may be
required or upon request of the governing body.
(2) The report shall represent an assessment and
evaluation of the success or failure of the compre-
hensive plan or element or portion thereof and shall
contain appropriate statements (using words, maps,
illustrations, or other forms) related to:
(a) The major problems of development, physical
deterioration, and the location of land uses and the
social and economic effects of such uses in the area.
(b) The condition of each element in the compre-
hensive plan at the time of adoption and at date of
report.
(c) The comprehensive plan objectives as com-
pared with actual results at date of report.
(d) The extent to which unanticipated and un-
foreseen problems and opportunities occurred be-
tween date of adoption and date of report.
(3) The report may also suggest changes in the
comprehensive plan or elements or portions thereof,
including reformulated objectives, policies, and
standards.
(4) The report shall be transmitted to the state
land planning agency, to the regional agency having
responsibility over the area, and, for municipalities,
to the county planning agency.
(5) Action on the report constitutes action as for
ah amendment to the comprehensive plan or portion
or element thereof. The governing body may adopt
the report or a portion or portions thereof or may
adopt the report with changes or amendments after
taking the steps required by s. 163.3184 and subject
to the limitations of s. 163.3187. The adoption of the
report amends the comprehensive plan or element
or portion thereof to the extent specified in the re-
port required by this section.
History-s.11, ch.75-257.

163.3194 Legal status of comprehensive
plan.-
(1) After a comprehensive plan or element or
portion thereof has been adopted in conformity with
this act, all development undertaken by, and all ac-
tions taken in regard to development orders by, gov-
ernmental agencies in regard to land covered by
such plan or element shall be consistent with such
plan or element as adopted. All land development
regulations enacted or amended shall be consistent
with the adopted comprehensive plan or element or
portion thereof.
(2Xa) After a comprehensive plan for the area, or
element or portion thereof, is adopted by the govern-
ing body, no land development regulation, land de-
velopment code, or amendment thereto shall be
adopted by the governing body until such regulation,
code, or amendment has been referred to the local
planning agency for review and recommendation as
to the relationship of such proposal to the adopted
comprehensive plan or element or portion thereof.
Said recommendation shall be made within a reason-
able time, but no later than within 2 months '[after]
the time of reference. If a recommendation is not
made within the time provided, then the governing
body may act on the adoption.
(b) For purposes of this subsection, "land devel-
opment regulations" or "regulations for the develop-







33








meant of land" include any local government zoning,
subdivision, building and construction, or other reg-
ulations controlling the development of land. The
various types of local government regulations or
laws dealing with the development of land within a
jurisdiction may be combined in their totality in a
single document known as the "land development
code" of the jurisdiction.
(3Xa) A court, in reviewing local governmental
action or development regulations under this act,
may consider, inter alia, the reasonableness of the
comprehensive plan or element or elements thereof
relating to the issue justiciably raised or the appro-
priateness and completeness of the comprehensive
plan or element or elements thereof in relation to
the governmental action or development regulation
under consideration. The court may consider the re-
lationship of the comprehensive plan or element or
elements thereof to the governmental action taken
or the development regulation involved in litigation,
but private property shall not be taken without due
process of law and the payment of just compensa-
tion.
(b) It is the intent of this act that the comprehen-
sive plan set general guidelines and principles con-
cerning its purposes and contents and that this act
shall be construed broadly to accomplish its stated
purposes and objectives.
istory.--s. 12, ch. 75-257.
'Note.-Bracketed word inserted by the editors.

163.3197 Legal status of prior comprehensive
plan.-Where, prior to the effective date of this act,
a local government had adopted a comprehensive
plan or element or portion thereof, such adopted
plan or element or portion thereof shall have such
force and effect as it had at the date of adoption and
until appropriate action is taken to adopt a new com-
prehensive plan as required by this act. The prior
adopted plan or element or portion thereof may be
the basis for meeting the requirement of comprehen-
sive plan adoption set out in this act, provided all
requirements of this act are met.
History.---s 13, ch. 75-257.

163.3201 Relationship of comprehensive
plan to exercise of land development regulatory
authority.-It is the intent of this act that adopted
comprehensive plans or elements thereof shall be
implemented, in part, by the adoption and enforce-
ment of appropriate local regulations on the develop-
ment of lands and waters within an area. It is the
intent of this act that the adoption and enforcement
by a governing body of regulations for the develop-
ment of land or the adoption and enforcement by a
governing body of a land development code, as de-
fined in paragraph 163.3194(2)(b), for an area shall
be based on, related to, and a means of implementa-
tion for an adopted comprehensive plan as required
by this act.
History.--s. 14, ch. 75-257.

163.3204 Cooperation by state and regional
agencies.-The Interdepartmental Coordinating
Council on Community Services created by subsec-
tion 20.18(4), '[Division of Resource Management of
the Department of Natural Resources] or its succes-


sor, and any ad hoc working groups appointed by the
divisiono, and all regional agencies involved in the
administration and implementation of this act shall
cooperate and work with units of local government
and technical advisory committees in the prepara-
tion and adoption of comprehensive plans or ele-
ments or portions thereof.
History.--s. 15. ch. 75-257.
'Note.o -Drcketed language substituted for "staff director of the Coastal
Coordinating Council to conform to a. 1 ch. 75-22.
'Note.--BrC.ke1,-d I mguge substituted for "chairman of the council."

163.3207 Technical advisory committees.-In
order to coordinate technical elements of a compre-
hensive plan and to advise local planning agencies
and local governing bodies, each unit of local govern-
ment shall appoint one person to a technical adviso-
ry committee to be established within the
jurisdictional boundaries of a single county. Special
districts which include within their jurisdictions
land that is within the boundary of one or more
counties may appoint one person to the technical
advisory committee in each county. Members of each
committee shall be appointed on the basis of their
professional or technical background, and each com-
mittee shall elect a chairman from among its mem-
bership. Committees shall meet from time to time in
order to achieve the required coordination and coop-
eration required by this act.
History.--. 16. ch. 75-257.

163.3211 Conflict with other statutes.-
Where this act may be in conflict with any other
provision or provisions of law relating to local gov-
ernments having authority to regulate the develop-
ment of land, the provisions of this act shall govern
unless the provisions of this act are met or exceeded
by other provision or provisions- of law relating to
local government. Nothing in this act is intended to
withdraw or diminish any legal powers or responsi-
bilities of state agencies or change any requirement
of existing law that local regulations comply with
state standards or rules.
History.- 17, ch. 75-257.






IV I M P L E M E N T A T IO N O F T H E C O tU :1 -.
------- ----------- --
LAND U S E PLAN

Section 1: DEFINITIONS AS USED IN THIS CHAPTER:


1.01 "Certified land use plan" means a local land use plan which has been
certified by the Planning Council as being in substantial conformity with the
County Land Use Plan and which has been adopted by a unit of local
government in compliance with the requirements of the Planning Act.


1.02 "County Commission" means the Board of County Commissioners of
Broward County.

1.03 "County Land Use Plan" means the future land use plan element for all of
Broward County adopted by the County Commission in conformance with the
requirements of the Broward County Charter and the Planning Act.

1.04 "Developed area" means a neighborhood or other urbanized area with
existing structures which are generally sound.

1.05 "Developer" means any person, including a governmental agency,
undertaking any development as defined in this section.

1.06 "Development" has the meaning given in Section 380.04, Florida Statutes,
but does not include the modification or expansion of an existing dwelling unit.

1.07 "Development order" means any order granting, denying, or granting with
conditions, an application for a development permit.

1.08 "Development permit" means any building permit, zoning permit,
subdivision or plat approval, rezoning, special exception, variance or any other
official action of the unit of local government having the effect of permitting
the development of land.

1.09 "Dwelling unit" means a house, an apartment, a condominium unit, a
group of rooms, or a single room intended for occupancy as a separate living
quarter with direct access from the outside of the building or through a
common hall and with complete kitchen facilities for the exclusive use of the
occupants and includes rental units contained in a multi-unit structure or
complex which are licensed by the State Department of Business Regulation,
Division of Hotels and Restaurants,as "apartments", "rental condominiums" and
"retirement housing."

1.10 "Flexibility zone" means a geographic area, as delineated on the
flexibility zone boundary maps in the appendix to the County Land Use Plan,
within which residential densities and land uses may be redistributed by units
of local government as permitted in this chapter.

1.11 "Governmental agency" means:
(a) The United States or any department, commission, agency, or other
instrumentality thereof.


-213-










(b) This state or any department, commission, agency, or other
instrumentality thereof.
(c) Any unit of local government; or any department, commis n,
agency, or other instrumentality thereof.
(d) Any school board or other special district, authority, or
governmental entity.


1.12 "Land" means the earth, water, and air, above, below, or on the surface,
and includes any improvements or structures customarily regarded as land.

1.13 "Land development code" means the various types of regulations for the
development of land within the jurisdiction of a unit of local government when
combined into a single document.

1.14 "Land development regulations" or "regulations for the development of
land" means any local governmental unit regulations for zoning, subdivision,
platting, building and construction, development review process or other
regulations controlling the development of land, including zoning as to
permitted uses and densities.

1.15 "Land use" means the development that has occurred on the land, the
development that may be proposed on the land, or the use that is permitted or
permissable on the land under the County Land Use Plan, a certified land use
plan, land development regulations or a land development code, as the context
may indicate.

1.16 "Local land use plan" means a future land use plan element of a unit of
local government that meets the requirements of the County Land Use Plan
and of Section 163.3177, Florida Statutes.

1.17 "Parcel of land" means any quantity of land capable of being described
with such definiteness that its location and boundaries may be established,
which is designated by its owner or developer as land to be used' or developed
as a unit or which has been used or developed as a unit.

1.18 "Person" means an individual, corporation, governmental agency, business
trust, estate trust, partnership, association, two or more persons having a joint
or common interest, or any other legal entity.

1.19 "Planning Act" means the Local Government Comprehensive Planning
Act of 1975, Sections 163.3161 et. seq., Florida Statutes.

1.20 "Planning Council" means the Broward County Planning Council.

1.21 "Public notice" or "due public notice," as used in connection with the
phrase "public hearing" or "hearing to be held after due public notice," means
publication of notice of the time, place and purpose of such hearing at least
twice in a newspaper of general circulation in the area, with the first
publication not less than 14 days prior to the date of the hearing and the
second to be at least 5 days prior to the hearing.


-214-


3(0










1.22 "Structure" means anything constructed, installed, or portable, the use of
which requires a location on a parcel of land, such as buildings, trailers,
fences, billboards, swimming pools, poles, pipelines, transmission lines, tracks
and advertising signs.

1.23 "Tourist unit" means a house, an apartment, a group of rooms, or a single
room occupied or intended for occupancy as a separate living quarter which is
licensed, or intended for license as a "hotel" or "motel" by the State
Department of Business Regulation, Division of Hotels and Restaurants.

1.24 "Unit of local government" or "local governmental unit" means Broward
County, as to the unincorporated area, or each municipality, as to the area
within its jurisdiction, or, where relevant, any joint airport zoning board,
special district or other local governmental entity established pursuant to law
which exercises regulatory authority over and grants development permits for
land development.




































215- 37











Section 2: GENERAL REQUIREMENTS OF THE COUNTY LAND USE PLPN


2.01 Any development undertaken, and any action taken in regard to
development orders by a unit of local government, shall be consistent with the
following requirements:

(a) For a period of one year following the effective date of the County
Land Use Plan, a unit of government which does not have a
certified local land use plan shall not grant any development permit
unless:

(1) All development review process requirements set out in
Section 5.02 of this chapter have been met.

(2) All local zoning regulations as to permitted uses and densities
which were either in existence upon the effective date of the
County Land Use Plan or were amended in a manner
consistent with the requirements of Section 4 of this chapter
have been met.

(b) After the expiration of one year following the effective date of the
County Land Use Plan, a unit of local government which does not
have a certified local land use plan shall not grant any development
permit unless:

(1) All development review process requirements set out in
Section 5 of this chapter have been met.

(2) The proposed development permit has been reviewed and
approved by the Planning Council as being in compliance with
Sections 4 and 5 of this chapter.

(3) The proposed development is in compliance with all local land
development regulations which are consistent with the
requirements of Sections 4 and 5 of this Chapter.

(c) After the effective date of a certified local land use plan, a unit of
local government shall not grant any development permit unless:

(1) All development review permitting requirements set out in
Section 5 of this chapter have been met.

(2) All requirements of the certified land use plan have been
met.

(3) The proposed development is in compliance with all local land
development regulations, which are consistent with the
requirements of Sections 4 and 5 of this Chapter.



-216- 3g








(4) All requirements of amendments to the County Land Use Plan
which become effective after the date of certification of the
local land use plan by the Planning Council have been met.


2.02 Within one year after the effective date of the County .Land Use Plan,
each unit of local government must:

(a) Adopt or amend land development regulations and zone all parcels
of land within its jurisdiction as to permitted uses and densities in
compliance with the requirements of Section 4 of this chapter.

(1) A proposed or adopted land development code and a proposed
or adopted zoning map reflecting permitted uses and
densities, must be submitted to the Planning Council for
review within nine months after the effective date of the
County Land Use Plan.

(2) Land development regulations, including zoning as to
permitted uses and densities, may be more restrictive than
the requirements of the County Land Use Plan but may not
allow any development which is not expressly permitted by
the County Land Use Plan or by certified land use plan.

(b) Adopt a development review process in compliance with the
requirements of Section 5 of this chapter.

(I) A proposed or adopted development review process must be
submitted to the Planning Council for review within nine
months after the effective date of the County Land Use Plan.

(c) Submit to the Planning Council, within thirty days after official
action, copies of adopted land development regulations,
development orders or amendments thereto, and granted
development permits.


2.03 Land development regulations, including zoning as to permitted uses and
densities and future land use plan elements which may be enacted or amended
by any unit of local government after the effective date of the County Land
Use Plan, shall be consistent with the requirements of the County Land Use
Plan.

(a) No land development regulation, land development code or
amendment thereto shall be adopted by a unit of local government
until such proposed regulation, code, or amendment has been
referred to the Planning Council for review and determination as to
the compliance of such proposal with the County Land Use Plan.
The Planning Council's determination shall be made within a
reasonable time but no later than forty-five calendar days after
the date of referral and, if a determination is not made within the
time provided, then the unit of local government may act on the
adoption.


-217-







































.1








I..


t~II

III'


-218-


J (b) After the effective dateof a certified local land use plan and so
long as the requirements of this chapter have been met, 'and
development regulations, land development codes and amend nts
thereto shall be referred to the designated Local Planning Agency
of the jurisdiction for review and comment as required by law.

(1) Whenever the Planning Council determines that a unit of
local government has granted a development permit which is
not in compliance with its certified land use plan, its
development review process or its land development
regulations, including zoning as to permitted uses and
densities, then the County Commission may require that unit
of local government to comply, for a specified period of time,
with Section 2.01 (b) of this chapter prior to granting any
further development permits.

2.04 The County Land Use Plan may be amended by the County Commission in
the manner provided by the Broward County Charter and the Planning Act.

(a) Amendments to the County Land Use Plan may be formally
proposed by the Planning Council at any time after consideration at
two public hearings.

(b) The Planning Council shall consider suggested proposals for
amendment of the County Land Use Plan which the governing body
of a unit of local government, or other governmental agency
substantially affected by land development within Broward County,
may formally submit either during the certification process,
described in Section 3 of this Chapter, or once during each twelve-
month period following the effective date of the County Land Use
Plan.

(1) Suggested proposals for amendment of the County Land Use
Plan Map which directly affect land uses and residential
densities within the jurisdiction of a unit of local government
may be formally submitted only by the governing body of that
unit of local government.

(c) The Planning Council, after consideration of formally submitted
suggested proposals for amendment of the County Land Use Plan,
may either formally propose amendments to the County Land Use
Plan or submit to the County Commission the reasons for rejection
in whole or in part of the suggested proposals for amendment of the
County Land Use Plan.

(d) Any person may request a unit of local government or other
governmental agency to formally submit to the Planning Council a
suggested proposal for amendment of the County Land Use Plan.









(e) Each unit of local government whose area of jurisdiction will be
substantially affected by a proposed amendment to the County
Land Use Plan shall be notified in writing by the Planning Council
at least fourteen days prior to the first public hearing on the
proposed amendment to be held by the County Commission.

(f) An amendment to the County Land Use Plan shall take effect
immediately upon adoption by the County Commission, except to
the extent that any portion of an amendment which would further
restrict local governmental unit zoning as to permitted uses and
densities shall become effective one year following its date of
adoption.

(g) Upon the adoption of any amendment to the County Land Use Plan
by the County Commission, the Planning Council shall review and
determine whether affected certified land use plans remain in
substantial conformity with the County Land Use Plan as amended
and shall, within thirty days, notify each affected unit of local
government that:

(1) Its certified land use plan is in substantial conformity with
the County Land Use Plan as amended and shall continue as
the effective land use plan for the unit of local government,
or that

(2) Its certified land use plan is no longer in substantial
conformity with the County Land Use Plan as amended and
has been or will be de-certified.

(h) When only a portion of a certified land use plan is no longer in
substantial conformity with the County Land Use Plan as amended,
only that portion shall be de-certified.

(i) During the period that a local land use plan has been de-certified,
the County Land Use Plan as amended shall be the effective land
use plan for the unit of local government as to the de-certified
portion of its local land use plan.

(j) A unit of local government may submit to the Planning Council
proposed amendments to its local land use plan for re-certification
in the same manner described in Section 3 of this chapter for the
initial certification of local land use plans. After re-certification
by the Planning Council, the re-certified land use plan shall again
become the effective land use plan for that unit of local
government.

2.05 Pursuant to the Broward County Charter, the Planning Council shall
adopt such rules and regulations as may be necessary to provide for:

-- (a) The certification, de-certification and re-certification of local land
use plans,

-219-

4'
I. Il








(b) The proposal of amendments to the County Land Use Plan,


(c) The addition, deletion, or amendment of flexibility one
boundaries,

(d) The granting of density bonuses and density transfers,

(e) The surveillance of the County Land Use Plan and certified land
use plan enforcement,

(f) The establishment of the Regional Transportation Review Program,
described in Section 5.04 (c) of this Chapter,

(g) Other matters pertinent to the goals, objectives, policies and
requirements of the County Land Use Plan.


2.06 The County Land Use Plan shall be implemented by the adoption and
enforcement of appropriate local regulations on the development of lands and
waters within the jurisdiction of each unit of local government and no public or
private development may be permitted except in compliance with the County
Land Use Plan and with certified land use plans.

(a) The Planning Council shall, on an informal basis, provide technical
assistance to units of local government on matters of
interpretation and implementation of the County Land Use Plan
and certified land use plans.

(b) Whenever a substantial question has not been resolved on an
informal basis, a unit of local government shall request the
Planning Council to issue a formal letter of interpretation on the
matter prior to the adoption, by a unit of local government, of a
proposed land development regulation, development order or
development permit. The Planning Council shall issue a formal
letter of interpretation to the governing body or designated
planning agency of a unit of local government which submits a
request containing the following information:

(1) A statement of the question.

(2) A statement of the facts.

(3) Copies of existing and proposed land development regulations
and the proposed development order or development permit
as applicable.

(4) A statement of the position of the unit of local government
on the matter.




220-

Lk2


i.n i I ii I II












Section 3: CERTIFICATION OF LOCAL LAND USE PLANS


3.01 Each unit of local government may prepare, in conformance with the
requirements of the County Land Use Plan and the Planning Act, a local land
use plan for submittal to the Planning Council. The local land use plan shall be
certified by the Planning Council prior to its final adoption by a unit of local
government, in conformance with the Planning Act.

3.02 The Planning Council shall review every local land use plan submitted for
certification and shall certify each local land use plan which is in substantial
conformity with the County Land Use Plan.

3.03 As a minimum requirement for a local land use plan to be reviewed for
certification by the Planning Council a unit of local government must submit
the following:

(a) A land use plan map reflecting the proposed allocation of land uses
and residential densities. The following information must be
indicated either on the land use plan map or on a transparent
overlay on the land use plan map.

(1) The gross acreage of each separate area of land within each
land use classification within each flexibility zone.

(2) The number of existing dwelling units within each separate
area of developed land within each land use classification
within each flexibility zone.

(3) The number of permitted dwelling units within each separate
area of undeveloped land within each land use classification
within each flexibility zone.

(4) Gross acreage, existing dwelling unit figures for developed
land and permitted dwelling unit figures for undeveloped land,
summarized for each flexibility zone.

(b) A land use and density classification system which must include a
detailed listing of permitted land uses and densities allowed within
each local land use classification.

(1) A permitted land use within a land use category in the County
Land Use Plan may be prohibited or limited by a local land
use plan.

(2) A land use classification system may propose other permitted
land uses, consistent with the goals, objectives and policies of
the County Land Use Plan, in addition to the land uses
specifically permitted by the County Land Use Plan.


-221- 3












(c) A proposed or adopted land development code which must include:

(1) A local development review process which meets the
minimum requirements set out in Section 5 of this Chapter,
and

(2) A zoning map reflecting permitted uses and densities which
are in compliance with the local land use plan.

(d) A commitment by the local governmental unit to:

(I) Participate in the preparation and yearly update of the
Transportation Review Program described in Section 5.04 (c)
of this Chapter, and

(2) Submit copies of proposed and adopted development permits
and land development regulations as required in this Chapter.


3.04 Areas designated for residential land uses by the County Land Use Plan
Map may be assigned:

(a) Land use classifications which permit land uses and residential
densities in compliance with Section 4.02 (a) of this Chapter, or

(b) A redistributed pattern of residential densities and the land uses
listed on page 60 of the County Land Use Plan.

(1) The total number of dwelling units within each flexibility
zone may not exceed the total number of dwelling units
permitted by the County Land Use Plan within that flexibility
zone.

(2) The residential .density and land use redistribution pattern
must be consistent with the goals, objectives and policies of
the County Land Use Plan.

(3) When a parcel of land is located within a single local
governmental unit and is split by a flexibility zone boundary,
residential densities may be transferred within the parcel
across flexibility zone boundaries.

(4) Whenever a unit of local government proposes a redistribution
of residential densities or land uses in a manner which would
increase the residential density of any parcel of land which
abuts a local governmental unit boundary, the unit of local
government must notify the adjacent unit of local
government at least 30 days prior to the Planning Council's
public hearing upon certification. The adjacent local
governmental unit may object to the proposed redistribution
of densities and land uses in writing to the Planning Council

-222-q








within 15 days after the receipt of the notice and the
Planning Council shall consider arguments for and against the
redistribution at the public hearing on certification.

(5) Office and retail land uses may be permitted within
residential buildings in areas designated for medium-high and
high density residential uses by the County Land Use Plan
Map.

(6) When the existing residential density of a developed area is
less than the residential density classification designated by
the County Land Use Plan Map, the difference between the
number of dwelling units represented on the County Land Use
Plan Map and the number of existing dwelling units may not
be redistributed. Residential areas designated for
redevelopment by a local land use plan may be assigned
the gross residential density which would be permitted
if the land were undeveloped.

3.05 Areas designated for commercial land uses on the County Land Use Plan
Map may be assigned any of the land use classifications I through 8 listed on
pages 77 and 78 of the County Land Use Plan.

(a) Areas designated for commercial land uses on the County Land Use
Plan Map may be increased or decreased by twenty percent and
may be redistributed within a flexibility zone.

(b) Residential land uses may be assigned to areas designated for
commercial land uses by the County Land Use Plan Map so long as
the commercial area that is redesignated for residential use on the
local land use plan does not reduce the designated amount of
commercial land area within the flexibility zone by more than
twenty percent and does not increase the number of dwelling units
permitted within the flexibility zone.

3.06 Areas designated for industrial land uses by the County Land Use Plan
Map may be assigned any of the use classifications listed on pages 79 and 80 of
the County Land Use Plan.

3.07 Areas designated for crrmnunity facilities, parks and recreation,
commercial recreation, utilities, transportation or agriculture by
the County L U: i IJse Plan rMlap must be designated by the local land use plan
and assigned appropriate land use classifications which permit such uses.
Additional areas for such uses may be assigned by the local land use plan so
long as the size or location of the use will not cause any substantial adverse
impact on other units of local government, and so long as the assigned use is
consistent with the goals, objectives and policies of the County Land Use Plan.

3.08 Each unit of local government is encouraged to develop innovative
methods to regulate the development of land through its local land use plan
and other land development regulations which may be incorporated in its local
land use plan. During the certification process, the Planning Council shall
review and may approve such requests which are consistent with the goals,

-223-










objectives and policies of the County Land Use Plan.


3.09 Maps designating flexibility zone boundaries are included in the appendix
to the County Land Use Plan. Flexibility zone boundaries may be added,
modified or deleted by the Planning Council after it has held at least one
public hearing, with due public notice, and with at least thirty days written
notice to affected units of local government, provided:

(1) Such change will not cause any substantial adverse effect
upon a neighboring jurisdiction, and

(2) Such change is consistent with the goals, objectives and
policies of the County Land Use Plan.

3.10 Boundaries between land use designations as shown on the County Land
Use Plan Map should be made more precise in a local land use plan and minor
variations which can be reasonably related to the goals, objectives and policies
of the County Land Use Plan may be approved by the Planning Council during
the certification process.

3.11 When a flexibility zone is divided by one or more local governmental unit
boundaries, the portion of that flexibility zone within the jurisdiction of a local
governmental unit may be considered a separate flexibility zone. Two or more
local governmental units sharing a flexibility zone may agree to transfer land
uses or residential densities whenever such transfer has been approved by the
Planning Council through the certification process.

























-224-












Section 4: ZONING AS TO PERMITTED USES AND DENSITIES


4.01 Within one year after the effective date of the County Land Use Plan, all
local governmental unit zoning as to permitted uses and densities must either
be in compliance with the County Land Use Plan by meeting the requirements
of Section 4.02 of this chapter or a certified land use plan by meeting the
requirements of Section 4.03 of this chapter.

4.02 Local governmental unit zoning as to permitted uses and densities which
meets the following requirements shall be in compliance with the County Land
Use Plan.

(a) Each parcel of land within an area which is designated in a
residential land use category by the County Land Use Plan Map
must be zoned in one or more of the following zoning
classifications:

(1) Any residential zoning classification which permits a gross
residential zoning density that does not exceed the maximum
gross residential density designated for the area by the
County Land Use Plan Map. The residential density color
code of the County Land Use Plan Map and the explanation of
gross residential density are set out on pages 58 and 59 of the
County Land Use Plan. A residential zoning classification
may also permit those land uses in classifications 1 through 7
listed on page 60 of the County Land Use Plan which are
compatible with the primary residential use.

(2) Any nonresidential zoning classification which permits land
use classifications 1 through 7 listed on page 60 of the County
Land Use Plan. Such nonresidential zoning classifications
shall not permit any use which is not specifically permitted in
residential areas by the County Land Use Plan or any use
which is incompatible with residential uses.

(b) Each parcel of land within an area which is designated in a
commercial land use category by the County Land Use Plan Map
must be zoned in one or more of the following zoning
classifications:

(1) Any commercial zoning classification which permits the land
uses in classifications 1 through 4 listed on page 77 of the
County Land Use Plan. A commercial zoning classification
may also permit those land uses in classifications 5 through 8
listed on page 77 of the County Land Use Plan which are
compatible with the primary commercial use.

(2) Any noncommercial zoning classificaiton which permits the
land uses in classifications 5 through 8 listed on page 77 of



-225-










the County Land UL, Plan. Such noncommercial zoning
classifications shall not permit any use which is -) t
specifically permitted' in commercial areas by the Co, .y
Land Use Plan or any use which is incompatible with
commercial uses.

(c) Each parcel of land withuini a~-rea which is designated in an
industrial land use category by the County Land Use Map must be
zoned in one or more of the following zoning classifications:

(1) Any industrial zoning classification which permits the land
uses in classifications I through 4 listed on page 79 of the
County Land Use Plan. An industrial zoning classification
may also permit those land uses in classifications 5 through 7
listed on page 80 of the County Land Use Plan which are
compatible with the primary industrial use.

(2) Any nonindustrial zoning classification which permits the land
uses in classifications 5 through 7 listed on page 80 of the
County Land Use Plan. Such nonindustrial zoning
classifications shall not per mit any use which is not
specifically permitted in industrial areas by the County Land
Use Plan or any use which is incompatible with industrial
uses.

(d) Each parcel of land within an area which is designated in a
transportation land use category by the County Land Use Plan Map
must be zoned in a transportation zoning classification which
permits only those uses described on pages 93 and 95 of the County
Land Use Plan.

(1) A parcel of land within an area which is designated by the
County Land Use Plan Map as a portion of a proposed
expressway or major interchange may be zoned in a
transportation zoning classification or in any zoning
classification which meets the requirements of this section
for the area abutting that portion of the proposed expressway
or major interchange as designated on the County Land Use
Plan Map.

(2) No land use or structure which substantially alters the
character of the land may be permitted within any portion of
a proposed expressway or major interchange.

(e) Each parcel of land within an area designated in a utility category
by the County Land Uso PFiar, v.an a --j .ac parcel of land five
acres or more in size rd pel for ut!'.;' !and uses rrm.- : be zoned
in a utility zoning ciassil{,r-tiorn which mi-:-nlts only those land uses
in classifications 1 through 5 listed or page 147 of the County Land
Use Plan.


-226-










(1) Proposed sites for utility land uses and parcels of land les-
than five acres in size developed for utility land uses may be
zoned in any zoning classification which permits such uses
and which meets the requirements of this Section for the area
as designated by the County Land Use Plan Map.

(f) Each parcel of land within an area designated in a community
facility land use category by the County Land Use Map and each
parcel of land five acres or more in size developed for community
facility land uses must be zoned in a community facility zoning
classification which permits only those uses described on page 151
of the County Land Use Plan.

(1) Proposed sites for community facility land uses and parcels of
land less than five acres in size developed for community
facility land uses may be zoned in any zoning classification
which permits such uses and which meets the requirements of
this Section for the area as designated by the County Land
Use Plan Map.

(g) Each parcel of land within an area designated in a park and
recreation land use category by the County Land Use Plan Map and
each parcel of land five acres or more in size developed or reserved
for park, recreation or open space land uses, must be zoned in an
open space or park and recreation zoning classification as
described on page 172 of the County Land Use Plan.

(1) Proposed sites for park, recreation or open space land uses
and parcels of land less than five acres in size developed or
reserved for park, recreation, or open space land uses may be
zoned in any zoning classification which permits such uses
and which meets the requirements of this Section for the area
as designated by the County Land Use Plan Map.

(h) Each parcel of land within an area designated in a commercial
recreation category by the County Land Use Plan Map, and each
parcel of land five acres or more in size developed for commercial
recreation land uses must be zoned in either an open space or
commercial-recreation zoning classification which permits only
those uses as described on pages 172 and 174 of the County Land
Use Plan.

(1) Proposed sites for commercial recreation land uses and
parcels of land less than five acres in size developed for
commercial recreation land uses may be zoned in any zoning
classification which permits such uses and which meets the
requirements of this Section for the area as designated by the
County Land Use Plan Map.

(i) Each parcel of land within the designated Conservation Area must
be zoned in one or more zoning classifications which permit only


-227-


I _A _








those land uses in classifications I through 5 listed on page 202 of
the County Land Use Plan.

(j) Each parcel of land within an area designated in an agricultural
land use category by the County Land Use Plan Map may be zoned
either in an agricultural zoning classification which permits only
the land uses in classification 1 listed on page 207 of the County
Land Use Plan or in a nonagricultural zoning classification which
permits only those land uses in classifications 2 through 6 listed on
page 207 of the County Land Use Plan which are compatible with
the primary agricultural use.

(1) A parcel of land within any land use category designated by
the County Land Use Plan Map may be zoned in an
agricultural zoning classification which permits those land
uses in classification I listed on page 207 of the County Land
Use Plan.


4.03 Local governmental unit zoning as to permitted uses and densities which
is in compliance with a certified land use plan shall be in compliance with the
County Land Use Plan.

4.04 Whenever the Planning Council determines that a local governmental
unit's zoning as to permitted uses and densities is not in compliance with the
County Land Use Plan as required by this Section, the County Commission may
require that unit of local government to comply, for a specified period of time,
with Section 2.01 (b) of this Chapter prior to granting any further development
permits.























-228-

5t


III a ---- 1~ I II i IIsIlli,












Section 5: DEVELOPMENT REVIEW PROCESS REQUIREMENTS


5.01 Within one year after the effective date of the County Land Use Plan,
each unit of local government shall adopt and enforce a development review
process.

(a) The development review process must be sufficient to provide the
governmental unit with a framework within which to evaluate the
ability of local and regional services to support the future
requirements of proposed development and must be consistent with
the requirements of Sections 5.02, 5.03 and 5.04 of this Chapter.

(b) The Planning Council shall provide guidelines for a model
development review process which may be adopted by units of local
government in order to provide a reasonably standard development
review procedure among the jurisdictions of Broward County. The
method of implementing a development review process should be
specifically designed to reflect the organizational structure of the
local governmental unit.

(c) A proposed or adopted development review process must be
submitted to the Planning Council for review within nine months
after the effective date of the County Land Use Plan or prior to
certification of a local land use plan by the Planning Council,
whichever occurs first.

(d) Whenever the Planning Council determines that a unit of local
government has granted a development permit which is not in
compliance with its development review process or with the
requirements of this Section, then the County Commission may
require that unit of local government to comply, for a specified
period of time, with Section 2.01 (b) of this Chapter prior to
granting any further development permits.

5.02 After the effective date of the County Land Use Plan, no development
permit shall be granted by any unit of local government within Broward County
until it has been demonstrated that the proposed development is in compliance
with the following minimum permitting requirements:

(a) Potable water service will be available to provide for the needs of
the proposed development prior to occupancy and it has been
demonstrated that:

(1) An existing water treatment facility which meets all
applicable Federal, State and local requirements has reserved
sufficient capacity for the potable water needs of the
proposed development, or

(2) The developer has obtained all applicable Federal, State and


51


)0Q











local permits and has demonstrated ability to provide a water
treatment facility or well service with sufficient capacity for
the potable water needs of the proposed development.

(b) \Wastewater treatment and disposal service will be available to
provide for the needs of the proposed development prior to
occupancy and it has been demonstrated that:

(1) An existing wastewater treatment and disposal facility which
meets all applicable Federal, State and local requirements
has reserved sufficient capacity for the sewage disposal needs
of the proposed development, or

(2) The developer has obtained all applicable Federal, State and
local permits and has demonstrated ability either to provide a
wastewater treatment and disposal facility or provide septic
tanks with sufficient capacity for the sewage disposal needs
of the proposed development.

(c) Solid waste collection and disposal service will be available to
provide for the needs of the proposed development prior to
occupancy and it has been demonstrated that:

(I) A solid waste collection firm or governmental agency has
demonstrated that it will have the necessary equipment and
staff to service the solid waste collection needs of the
proposed development and

(2) An existing solid waste disposal facility which meets all
applicable Federal, State and local requirements has reserved
sufficient capacity to accept, process and dispose of the solid
waste to be collected from the proposed development, or

(3) The developer has obtained all Federal, State and local
permits and has demonstrated ability to provide solid waste
collection and disposal services with the necessary
equipment, staff and disposal capacity for the solid waste
collection and disposal needs of the proposed development.

(d) Drainage systems will provide for the storm water disposal needs of
the proposed development without any adverse effect on any other
properties, and

(1) All applicable Federal, State, Central and Southern Florida
Flood Control District and local water quality, design and
capacity requirements will be met, and

(2) The drainage system for the site of the proposed development
will protect occupied structures from a one in one hundred-
year flood stage and the road network from a one in ten-year,



-230- 2












twenty-four-hour flood stage, and


(3) The drainage network will be sufficient to handle the amount
of water released by the proposed development without any
adverse effect on surrounding properties or other properties
connected through a common drainage network.

(e) The developer will provide land or its monetary equivalent which
will be adequate to provide for public park and recreational needs
prior to occupancy, and

(I) Each development must meet the following mandatory
dedication requirement for the provision of public park and
recreational land as a condition precedent to the approval of
any development order:

The Proposed Population Required Acreage for Parks
of the Project is: and Recreation Facilities

Less than 5,000 2 acres/1,000 Population
Between 5,000 30,000 3 acres/1,000 Population
Between 30,000 50,000 5 acres/1,000 Population
Between 50,000 200,000 6 acres/1,000 Population

(2) Local governmental units should adopt and enforce higher
standards for mandatory dedication of public park and
recreational land by developers whenever justified by
community needs and by the additional impact which will be
created by the development.

5.03 Within one year after the effective date of the County Land Use Plan,
each unit of local government shall adopt and enforce minimum standards for
the provision of an adequate level of governmental services and facilities for
its citizens. No development permit may be granted unless the unit of local
government has determined, after consideration of the following factors, that
an adequate level of governmental services and facilities will be available to
serve the needs of its citizens and of the proposed development prior to
occupancy:

(a) Police service will be adequately manned, trained and equipped to
protect people and property in the community.

(b) Fire service will be adequately manned, trained and equipped to
protect people and property in the community.

(c) Local roads will provide adequate access from the proposed
Development to the regional highway network described in the
County Land Use Plan.

(d) Park and recreational facilities will be adequate to serve the
community. Each unit of local government shall develop an overall
'-2-3
-231-










community program with minimum park and recreational standards
and should limit further development until it can meet its own
standards. The guidelines and recommendations on pages 153
through 177 of the County Land Use Plan should be considered in
light of local conditions during the development of an overall
community program.


5.04 After the expiration of one year following the effective date of the
County Land Use Plan, no development permit shall be granted or granted with
conditions by any unit of local government within Broward County unless:

(a) The Broward County School Board has determined:

(1) That physical plant facilities will be available to serve the
needs of the future occupants of a proposed residential
development throughout all phases of construction and
occupancy.

(2) That satisfactory sites for additional schools which may be
necessary to serve the future occupants of a proposed
residential development have been or will be secured prior to
occupancy of a proposed residential development.

(b) The Florida Power and Light Corporation has determined:

(1) That it has the reserve electrical power capacity to supply
the anticipated electrical needs of the proposed development,
and

(2) That all necessary easements and substation sites within the
area of the proposed development have been or will be
secured.

(c) The Planning Council has determined that the regional
transportation network will have sufficient capacity to serve the
additional traffic which may be generated by proposed residential
development:

(1) The Planning Council shall notify each unit of local
government as to the number of additional residential
dwelling units which may be permitted within the various
portions of its area of jurisdiction.

(2) The number of additional residential dwelling units which may
be permitted within an area will be determined by computer
analysis of the existing capacity of the regional
transportation network, existing traffic counts, projected
growth within a two-year horizon, improvements to the
regional transportation network and the level of service
standard adopted by the County Commission.


-232- ,











ARTICLE VI
LAND USE PLANNING
Section 6.01. CREATION OF BROWARD COUNTY PLANNING COUNCIL.
There shall be a Broward County Planning Council, hereinafter referred to as the "Council."

Section 6.02. ABOLITION OF TIHE BROWARI) COUNTY AREA PLANNING BOARD ACT.
The Broward County Area Planning Board Act, Chapter 59-1154 of the Laws of the State of Florida,
Special Acts of 1959, as amended, is hereby repealed as provided below:
The functions, responsibilities, duties and obligations of the Broward County Area Planning Board Act
as provided in Chapter 59-1154, Laws of Florida, Special Acts of 1959, as amcncded, and the functions,
responsibilities, duties and obligations vested in the Broward County Area Planning Board by the various
agencies and departments of the State and Federal governments are hereby transferred and vested in the
Council. The Broward County Area Planning Board Act is hereby repealed.
A. There shall be fifteen (15) members ofthe Council. The initial Council shall be duly appointed by
the County Commission within forty-five (45) days of the effective date of this Charter.
B. One (1) member shall be a County Commissioner selected by majority vote of the Commission to
represent it for a time specified by the Commission.
C. Further, the Commission shall appoint two (2) members from each of the five (5) Commission districts,
with one (1) in each district being an elected municipal official and one (1) being an elector not holding an
elected public office. Four (4) members shall be appointed from throughout the County at-large, two (2)
of which shall be elected municipal officials and two (2) being electors not being elected public officials.
If no elected municipal official from a particular geographical area is willing to accept such appointment, then
that seat will be filled by an elector not being an elected public official.
D. Except for the Commission member, no more than two (2) members of the Council shall reside within
the same municipality, provided that no municipality with a population of less than 50,000 according to the
last decennial census shall have more than one (1) representative therein.

Section 6.03. VACANCIES.
A. If a member who is an elected municipal official ceases to be such, the
membership on the Council shall terminate, and the position shall be deemed
vacant. Any person who moves from that County Commission district in which the
person was required to reside at the time of appointment shall cease to be a
member of this Council, and that position will be deemed vacant. Other vacan-
cies shall be filled by the Commission.
B. If a conflict should occur due to a change of municipal boundaries so that greater representation than
provided in this section occurs, all affected seats shall be considered vacant, and reappointments shall be
made by the Commission.
Section 6.04. TERMS OF OFFICE.
The term of each appointed Council member shall coincide with the term of the County Commissioner
who has mutual residency requirements.
Section 6.05. POWERS AND FUNCTION.
A. The Council shall employ an administrator and such other administrative, professional, expert and
clerical assistants as is necessary to carry out the duties authorized by this Charter.
B. Any local governmental unit may request and the Council may furnish, if requested, any technical and
staff assistance to that local governmental unit, in which case the local governmental unit shall reimburse the
County for the Council's direct costs.
C. The Council shall adopt and may amend a uniform countywide general zoning glossary of terms in con-
sultation with other governmental units. Nothing in this paragraph shall, however, prohibit other governmental
units within the County from specifying specific prohibited or permitted uses or various other restrictions
as may be deemed necessary to be in the best interest of the governmental unit.

6






Section 6.05. POWERS AND FUNCTION.


D. The Council shall establish prepare and propose adept
~,. a land use plan for Broward County for adoption by the Commis-

Ele-Geuo eil- If, after ninety (90) days from the organizational
meeting of the Council, any governmental unit submits -to the
Council its land use plan, then the Council, within sixty (60)
days from the date of submission, shall schedule, as soon as -
practicable, a public hearing to consider that plan for inclu-
sion in the County Land Use Plan and/or certification. The
Council shall take into consideration such factors as: profes-
sional service employed, consideration given to utilities and
adjoining areas with regard to. impact on roads and general
environmental quality, sufficient notice to surrounding areas
and proper opportunity for the public to review and comment on
the proposed Plan, etc. The Council may, at this hearing or a
subsequent regular meeting, by a simple majority of its member-
ship, adopt or reject such inclusion and/or certification of,
or amendment to, such governmental unit plan. The Council
shall state its reasons- for rejection, alterations or modifi-
cations in writing to the affected governmental unit. The
Council may ame-d-er-eheage propose amendments to the-County
Land Use Plan at any time after consideration at two public
hearings.

E. Within six (6) months after adoption of the County Land Use Plan each governmental unit may submit
its own land use plan. In the event that a plan prepared and adopted by a governmental unit is determined
upon review, analysis and determination by the Council to be rejected, in accordance with Section 6.05D,
such reasons for rejection shall also be in writing.
If the governmental unit plan is in substantialconformity witl the CountyLand Use Plan of the Council,
it shall be deemed certified. Until such time as the governmental unit plan is in substantial-oh-fo-Tfiiity-ith-
t' Te County Land Use Plan, as interpreted by the Council, the County Land Use Plan will be the effective
plan for the governmental unit involved. If a governmental unit fails to submit a plan in due course, then
the County Land Use Plan will be effective.
F. The Council shall, within ninety (90) days after the appointment of the initial members of the Council,
make such rules and regulations covering certification, appeals, and all other pertinent matters. The Council
shall also adopt such reasonable rules of procedure to govern the conduct of its meetings and the performance
of its duties.
G. Within one (1 year after the adoption of the County Land Us Plan governmental unit zoning a .
_pLritred d i sha comply withthe County Land Use Plan as adopted and, from time to time,
amended and/or its own land use plan as certified according to this section. Nothing herein shall prohibit
any governmental unit from adopting more restrictive zoningas to permitted uses and densities than those
provided for in the countywide or certified plan.
Section 6.06. VESTED RIGHTS.
A. If a person, firm or corporation has, by actions in reliance on prior regulations, obtained vested or other
legal rights that in law would have prevented a local government from changing those regulations in a way
adverse to its interests, then nothing in this Charter authorizes any governmental agency to abridge those
rights.
B. Nothing in this Charter authorizes any governmental agency to adopt a rule or regulation or issue any
order that is unduly restrictive or constitutes a taking of property without the payment of full compensation,
in violation of the Constitution of the State of Florida or of the United States.
Section 6.07. GIFTS AND GRANTS.
-" The Council may contract and may accept gifts, grants, and/or assistance from Federal, State or local
governmental units or agencies for the conduct of its work and the realization of its objectives, provided
that no condition or limitation be attached, such as gifts, grants, aid or assistance inconsistent with provisions
of this Act. All funds shall be deposited in the General Fund of Broward County.








Section 6.08. FUNDING OBLIGATION OF COUNTY COMMISSION.
The Commission is required and empowered to include in the general fund of its annual budget for each
fiscal year such sum as is necessary to carry out the duties prescribed herein.

Section 6.09 IMPLEMENTATION

The Comission shall by ordinance adopt i
or amend the County Land Use Plan by no less than a majority of
the total membership. The-plan--as-sabs-ited-by--th- -Goeinei-in
writi.g-ad-any--ameieda^ms--"e--shl,- be-enaeted --Ee-law
saless-^here-is-an-ma-c.n^en-vece-ef-tHe-Geyiissiion- -rejeee

Section 6.10. UNINCORPORATED AREAS.
The County shall immediately adopt within the time frame and conditions imposed on all other govern-
mental units, a comprehensive land use plan for all unincorporated areas of the County and shall submit the
plan to the Council for approval or rejection. If an unincorporated area included in the County plan is
annexed by a municipality, then such area shall be included within the comprehensive land use plan of the
municipality which annexed it and shall be submitted to the Council for approval.

Section 6.11. CENTRAL EXAMINING BOARDS
A. The following central examining boards are hereby established:
(1) plumbing and specialty plumbing contractors
(2) electrical and specialty electrical contractors
(3) general and specialty building contractors
(4) mechanical and specialty mechanical (including air conditioning) contractors
(5) liquified petroleum gas contractors
(6) engineering and specialty engineering contractors
B. Each Board shall consist of six (6) members who shall have been active in
their crafts or trade for not less than ten (10) years within Broward County.
Three (3) members of each board shall be appointed by the County Cornmission and
three (3) members shall be appointed by the League of Cities. The initial
appointments shall be initially for one, two and three years.
C. As to its respective craft or trade, each board shall have the powers and
duties to:
(1) submit to the Board of County Commissioners for enactment by ordinance
reasonable rules and regulations with regard to the requirements for issuance
and revocation of certificates of competency.
(2) contract with independent testing services to compose, administer and
grade tests; provided, however, that no testing agency shall be selected which,
through itself or any subsidiary, offers instruction to applicants on passing
the tests.
(3) to adopt reasonable fees to be paid by applicants to cover the costs of
the board, including a secretary to be supplied by the Broward County Admin-
istrator.
I). Certificates of competency issued by each board created hereunder shall be
valid county-wide.
E. After adoption of this provision no municipality shall issue a new cer-
tificate of competency based on examination in any of the above trades or crafts.
Municipalities may hereafter renew those certificates of competency previously
issued by the municipalities between October 1, 1975 and the adoption of this
provision.
F. Each board shall be supplied office space by Broward County and shall meet
once a month.



57


_






G. The appointing authority may remove any board member for misconduct,
incompetency or neglect of duty on its own motion or upon recommendation of a
majority of the board. Vacancies shall be filled by the appointing agency for
the remainder of the former member's term.
H. All existing members of central exnaining boards in existence upon the
adoption of this section shall continue in office until their successors are
qualified. All existing certificates of competency issued by said boards shall
remain in effect unless revoked for cause.
I. The office of the Broward County General Counsel shall represent each of
the boards created hereunder.
J. Chapter 61-1959, Laws of Florida, as amended, and Chapter 59-1129, Laws of
Florida, as amended, are hereby transferred and vested in the Charter govern-
ment; and said Acts are hereby repealed.

Section 6.12. PLAT ORDINANCE.
The legislative body of each municipality within Broward County
and the County Commission for the unincorporated area shall, within
six (6) months after the effective date of this Charter, create a
mandatory plat ordinance.
No plat of lands lying within Broward County, either in the
incorpDorated or unincoroorate areas, may be recorded the
Ofrficial Records prior to approval y the County Cormmission.
The County Commission shall enact an ordinance establishing
standards, procedures and minimum requirements to regu.rate and
control tl-e plattin f lands withi tne incorporated and unin-
corkorated areas of Broward County. The governing bodjy of each
uniciality .may enact an ordinance establisning additional
sta aarcs, proc-edures and requirem-ents as_ may be necessary to
reipuate and control- the_ latting or lands witin its daondariies.











ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. CI CARTER AMENDMENT BY COUNTY COMMISSION.
The Commission by a vote of five (5) members shall have the authority to propose amendments to this
Cli- tt'r subject to referendum of lihe general electorate. However, they may not exercise such power within
one (1) year of the effective date of this Charter.
Section 8.02. CHARTER REVIEW COMMISSION.
A. There shall be a Charter Review Commission appointed by the County Commission.
B. The Charter Review Commission shall consist of seven (7) members. One
(1) shall reside in each of the County Commission Districts.

C. The initial members of the Charter Review Commission shall be appointed within six (6) months
from the effective date of the Charter. Three (3) initial members of the Charter Review Commission shall
serve terms of one (1) year. The remaining four (4) initial members shall serve terms of two (2) years, and
the length of term of the initial members shall be determined by lot.
D. All members of the Charter Review Commission shall be electors of the County.
E. After the expiration of the terms of the initial members, the terms shall be for two (2) years. Any
vacancy occurring shall be filled by the County Commission for the remaining part of the unexpired term
from which district the vacancy occurs.
F. All members of the Charter Review Commission shall be eligible for reappointment.
Section 8.03. POWER OF THE CHARTER REVIEW COMMISSION.
A. The Charter Review Commission shall be empowered to conduct a comprehensive study of any or all
phases of county government.
B. By a vote of five (5) it may propose a proposition to amend the Charter to the County Commission.
The Charter Review Commission may not submit Charter changes within one (1) year from the effective
date of the Charter.
C. All proposed amendments must be presented by the County Commission to the electorate at the next
general or special election unless submitted within sixty (60) days of said election; or, the County Commission,
upon two-thirds (2/3) affirmative vote, may call a special election to present the Charter changes to the
electorate.
D. The Charter Review Commission shall create and elect appropriate officers as it deems necessary and
proper for the orderly conduct of its specific duties.
E. The Charter Review Commission shall be funded by the County Commission.
Section 8.04. CONFLICT OF COUNTY ORDINANCES WITH MUNICIPAL ORDINANCES.
Notwithstanding any other provisions of this Charter, any county ordinance in conflict with a municipal
ordinance shall not be effective within the municipality to the extent of such conflict regardless of whether
such municipal ordinance was adopted or enacted before or after the County ordinance, provided that the
county ordinance shall prevail over municipal ordinances whenever the County shall set minimum standards
protecting the environment by prohibiting or regulating air or water pollution, or the destruction of the
resources of the County belonging to the general public within the parameters set forth in Section 8.17 of this
Charter. As set forth in this Charter, a county ordinance shall also prevail over a municipal ordinance in the
area of land use planning. In the event a county ordinance and a municipal ordinance shall cover the same
subject matter without conflict, both the municipal ordinance and the county ordinance shall be effective,
each being deemed supplemental, one to the other.
Section 8.05. SPECIAL TAXING DISTRICTS OR UNITS.
The County Comminission shall have full power to create, alter or abolish special municipal taxing districts
or uniiki'tl the full extent gi antcd by the Constitution and the I.aws of Florida-, provided, however, that the
aforemientioncd power to lter or abolish shall not extend to water management, water control, or drainage
districts in existence at the tine of the adoption of this Charter.

65"









Section 8.06 EFFECT ON LOCAL LAWS.
All :,isti g l.iws, ordin.o; es regulations and resol, tio ;ns of :1ll units of t he fori-mer government shlill
relnaill operative except where inconsistent or in direct conflict of this Chartcr.
Section 8.07. LlI(;AL ACTIONS INVOLVING COUNTY.
In any legal actions by or against the County, the County as a corporate body shall be the party named and
shall appear and participate in the cause on behalf of the department, officer or employee in such cause.
Section 8.08. EXISTING CONTRACTS.
No provision of this Charter shall be construed to interfere with any valid contract entered into by the
former county government.
Section 8.09. UNIFORM BUDGET PROCEDURE.
All county departments, offices, agencies and boards shall operate under a unified and uniform budget
system. No officer or employee of the County shall be compensated by fees, and all fees collected by any
office, department, agency or board shall be deposited in the county treasury.
Section 8.10. POST AUDIT.
The County Commission may provide annually for an independent opinion audit of the accounts and other
evidence of financial transactions of the County and of every county department, office and agency. The
audit shall be made by Certified Public Accountant designated by the Commission who has no personal
interest, direct or indirect, in the fiscal affairs of the County or of any of its departments, offices or agencies.
The designated accountant shall be thoroughly qualified by training and experience to perform the audit.
If the State makes such an audit, the Commission may accept it as satisfying the requirements of this
section. In the absence of the Auditor General's audit, the County shall provide for an independent audit.
Section 8.11. FIRE PROTECTION.
A. There shall be a system of fire protection established to serve the entire area of Broward County not
protected by municipal fire departments or other appropriate service.
B. The functions, responsibilities, duties and obligations of the Broward County Fire Control Commission
as provided in Chapter 69-911, Laws of Florida, Special Acts of 1969, as amended, are hereby transferred and
vested in the charter government, and said Fire Control Commission shall cease to exist within eighteen (18)
months of the effective date of this charter upon a date specified by the County Commission; and the Act
is hereby repealed.
C.It shall be the duty of the County Commission to charter fire departments in the unincorporated areas
of the County. It shall further be the duty of the County Commission to provide for the methods of funding
for fire departments in the unincorporated areas of the County and areas not otherwise protected.
Section 8.12. BROWARD COUNTY FIRE COORDINATOR.
There may be an office of the Broward County Fire Coordinator whose duties, functions and responsibilities
shall be set by Administrative Code.
Section 8.13. LAW ENFORCEMENT.
A. The County Commission may expend from the general treasury to finance the facilities and non-
certified sworn personnel to create regional or county wide law enforcement groups to share in a cooperative
law enforcement effort.
B. The County Commission may expend funds from the general treasury to create, maintain and operate
a centralized criminal record system that would be a cooperative effort with the municipalities. This duty
should be placed and the duties of operation and maintenance of this office should be an obligation of the
Sheriff of Broward County.
C. It shall be the duty of the County Commission to at least provide for methods of funding for law
enforcement services to the BIroward County Sheriff in the unincorporated areas of the County and other areas
not otherwise protected.
D. lWhen authorized by general law, the County Commission may supplement the
appropriations of the State of Florida to the Office of the State Attorney of
that Judicial Circuit serving Broward County for salaries and equipment that are
related to said office.







Section 8.14. QUALIFICATIONS OF ELECTORS.
All citizens qualified by the Constitution and other laws of the State of Florida to vote in the County shall
be qualified voters of the County within the meaning of this Charter if they satisfy the requirements for
registrationn prescribed by law.
Section 8.15. DEVELOPMENT AUTHORITIES.
The County Commission may create such development authorities with duties and powers designated by
the County Commission and in compliance with the Constitution and the Laws of Florida. Such development
autlioritics shall be under the general administrative authority of the county government. No such authority
or its actiolls shall be in conflict with the Land Us:; Plan for Broward County or in conflict with any other
affected governmental unit.
Section 8.16. COUNCIL. OF TI'EI ARTS.
There Imay be a Council of the Arts with such du' i,.s, functions and staff as designated in the Administrative
Code. The Council of the Arts shall be under the general administrative authority of the Administrator.
Section 8.17. B11OWARD COUNTY ENVIRlONMENTAL QUALITY CONTROL BOARD.
A. There shall bIe an Environlimelntal Quality Control Board. The Broward County Pollution Control Board
Act, Chapter 65-1338 of the Laws of Florida, Special Act of 1965, as amended, is hereby repealed as provided
below:
The functions, responsibilities, duties and obligations of the Broward County Pollution Control Act as
provided in chapter 65-1338 of the Laws of Florida, and the Special Acts of 1965, as amended, and the functions
responsibilities, duties and obligations vested in the Broward County Pollution Control Board by the various
agencies and departments of the State and Federal governments are hereby transferred and vested in the
Broward County Environmental Quality Control Board.
B. There shall be thirteen (13) members of the Environmental Quality Control Board. These members
shall include:
(1) Two (2) professional engineers admitted to practice in the State of Florida;
(2) The Director of the Broward County Health Department or a designate;
(3) One (1) physician, licensed to practice in the State of Florida;
(4) Three (3) individuals chosen from the general public;
(5) Two (2) directors of municipal utility systems;
(6) One (1) individual engaged in business related to agriculture;
(7) One (1) member of the Water Resources Advisory Board mentioned hereinafter and chosen by a
majority vote of the Water Resources Advisory Board;
(8) One (1) member of the Erosion Prevention District Advisory Committee hereinafter mentioned. That
member shall be chosen by a majority vote of the members of the Erosion Prevention District Advisory
Committee.
(9) One (1) individual with special knowledge in the field of conservation which shall include but not be
restricted to marine biology, fish, game and other wildlife preservation.
C. The Erosion Prevention District Advisory Committee shall continue to be appointed by the County
Commission and shall serve as an advisory body to the Environmental Quality Control Board.
D. The functions, responsibilities, duties and obligations of the Water Resources Development Act as
provided in Chapter 61-1969, Laws of Florida, Special Acts of 1961, as amended, are hereby transferred
and vested in the Charter Government; and said duties, responsibilities and obligations shall continue to
exist within the Environmental Quality Control Board; and said Act is hereby repealed. The Water
Resources Advisory Board shall continue to be appointed by the County Commission and shall serve
as an advisory body to the Environmental Quality Control Board.
E. The duties, functions and responsibilities of the Broward County Board of Noise Control shall be
transferred to the Environmental Quality Control Board.







(&2







Section 8.18. SOUTH FLORIDA BUILDING CODE AND BOARD OF RULES AND APPEALS.
A. There shall be a Broward County Board of Rules and Appeals composed of
nineteen (19) members as follows:
(1) (a) Seven (7) members appointed by the Broward County Commission including
one (1) architect, one (1) general contractor, one (1) air conditioning contractor,
one (1) mechanical engineer, one (1) electrical engineer, one (1) master electri-
cian, and one (1) consumer advocate.
(b) Twelve (12) members appointed by the Broward County League of Cities,
consisting of one (1) architect, one (1) general contractor, two (2) structural
engineers, one (1) mechanical engineer, one (1) electrical engineer, one (1)
master electrician, two (2) master plumbers, one (1) fireman, one (1) swimming
pool contractor and one (1) consumer advocate.
(c) Except for the consumer advocates, all members appointed by the Broward
County Commission and the Broward County League of Cities shall be qualified by
being registered as a professional or by having been licensed as a contractor,
and by having been active in their respective profession or trade for not less
than ten (10) years. Members shall be residents of Broward County and shall
have served in their professional capacity in the State of Florida for a period
of two (2) years.
(d) All existing members of the Board shall continue in office until their
successors are duly appointed.
(e) Ten (10) members of the Board shall constitute a quorum and decisions
shall be reached by a majority of those present.
(2) On January 1, 1977:
(a) The Board of County Commissioners shall appoint:
1. an architect and a general contractor for a term of one (1) year; and
2. an air conditioning contractor, a mechanical engineer and an electrical
engineer for a term of two (2) years; and
3. a master electrician and a consumer advocate for a term of three (3)
years.
(b) The League of Cities shall appoint:
1. a master electrician, a consumer advocate, a master plumber and a
structural engineer for a term of one (1) year; and
2. a master plumber, a fireman, a structural engineer and a swimming
pool contractor for a term of two (2) years; and
3. an architect, a general contractor, an electrical engineer and a
mechanical engineer for a term of three (3) years.
(c) All appointments made on or after January 1, 1978, shall be for a term
of three (3) years.
B. The Broward County Commission or Broward County League of Cities, whichever is
the appointing authority, may remove, either by its own action or upon recommendation
of the majority of the Board of Rules and Appeals, any member for misconduct, incom-
petenty, or neglect of duty.
C. Any vacancies occurring on the Board of Rules and Appeals shall be filled for
the remainder of the former member's term of office by appointment of the County
Commission when the former member was an appointee of the Commission, or by the
League of Cities when the former member was an appointee of the league.
D. It shall be the function of the Broward County Board of Rules and Appeals,
created by this Charter, to exercise the powers, duties, responsibilities, and obli-
gations as set forth and established in Chapter 71-575, Law; of Florida, Special Acts
of 1971, as amended by Chapters 72-482 and 72-485, Laws of Florida, Special Acts of
1972; Chapter 73-437, and 74-448, Laws of Florida, Special Acts of 1974; and the
South Florida Building Code as enacted and amended by Chapter 71-575, as amended.
E. The provisions of the South Florida Building Code shall be amended only by
the Board of Rules and Appeals and only to the extent and in the manner specified in
the Code. Neither the Board of County Commissioners nor any municipality within
Broward County may enact any ordinance in conflict with Chapter 71-575, as amended,
or the South Florida Building Code.
p 2








STATE OF FLORIDA
l j uy DEPARTMENT OF LEGAL AFFAIRS
OFFICE OF THE ATTORNEY GENERAL
SOFF
THE CAPITOL
ROBERT L. SHEVIN TALLAHASSEE. FLORIDA 32304
Attorney General
0
November 14, 1975 4


? 075-280


Miss Betty Lynn Lee
General Counsel
Board of County Commissioners
Broward County Courthouse
Room 248, 201 S.E. 6th Street
Fort Lauderdale, Florida 33301

Re: LOCAL GOVERNMENT COMPREHENSIVE PLANNING ACT OF 1975--
applicability of Broward County Charter Act provisions
in approving proposed comprehensive plans. Ch. 75-257,
Laws of Florida; 125.60-.65, and 166.041, F.S.;
4, Art. VIII, Fla. Const.

Dear Miss Lee:

This is in response to your request for an opinion, joined in
by the Association of County Commissioners, upon substantially
the following question:

DOES 9(7) OF CH. 75-257, LAWS OF FLORIDA
(THE LOCAL GOVERNMENT COMPREHENSIVE PLAN-
NING ACT OF 1975), REQUIRING AT LEAST A
MAJORITY OF THE TOTAL MEMBERSHIP OF THE
GOVERNING BODY FOR ENACTMENT OF A COMPRE-
HENSIVE PLAN OR ELEMENT THEREOF, CONFLICT
WITH AND TAKE PRECEDENCE OVER 6.09 OF THE
BROWARD COUNTY CHARTER, WHICH PROVIDES
THAT THE LAND-USE PLAN ADOPTED PURSUANT TO
ITS PROVISIONS SHALL BE ENACTED UNLESS
THERE IS A UNANIMOUS VOTE OF THE COUNTY
COMMISSION TO REJECT THE PLAN?

The Local Government Comprehensive Planning Act of 1975 (the
1975 Act, hereafter) was intended to provide a uniform method
for local governments to use in establishing and implementing









Miss Betty Lynn Lee 075-280
Page Two



comprehensive planning programs to guide and control future
development in this state, including not only the area of
land-use planning but also of traffic control, sewage, drain-
age, water supply, conservation and development of natural
resources, recreation, and housing. It requires cities and
counties and other local governmental entities as defined
therein to develop a comprehensive growth plan in the areas
referred to above not later than July 1, 1979, and to desig-
nate a "local planning agency" not later than July 1, 1976,
to prepare and recommend to the governing body of the city
or county or other entity a comprehensive plan after due
notice and public hearings. Section 9 requires the govern-
ing body to submit the proposed plan to the state and regional
planning agencies and, if a municipal plan, to the county
planning agency for review. Under subsection 9(6), the gov-
erning body "shall consider all comments received from any
person, agency, or government. It may adopt, or adopt with
changes or amendments, the proposed comprehensive plan, or
element or portion thereof, despite any adverse comment re-
ceived." And subsection 9(7), id., provides that

By not less than a majority of the total
membership of the governing body, the
governing body may in a manner prescribed
by law adopt the proposed comprehensive
plan, or element or portion thereof, or
adopt it with changes or amendments .

There can be no doubt that the 1975 Act was intended to apply
to chartered as well as non-chartered counties. See 5(2),
Ch. 75-257, supra, providing that in chartered counties the
county "may exercise such additional authority over munici-
palities or districts within its boundaries as is provided
for in its charter;" and 6(1), id., authorizing local gov-
erning bodies, individually or in combination, to-designate a
"local planning agency," provides that "in the case of chartered
counties, the planning responsibility between the county and
the several municipalities therein shall be as stipulated in
the charter."

Against this background, you have requested my opinion as to
whether the provisions of the Broward County Charter respect-
ing approval by the County Commission of the proposed land-use
plan submitted to it by the Broward County Planning Council,








Miss Betty Lynn Lee 075-280
Page Three



created therein for this purpose, are superseded by the provi-
sions of the 1975 Act providing for the approval by the gov-
erning body of the county of a comprehensive growth plan pre-
pared by the county's"local planning agency." The Broward
County Charter provides that the land-use plan as submitted
by the Planning Council in writing and any amendments thereto
"shall be enacted into law [by the County Commission] unless
there is a unanimous vote of the Commission to reject."

The Planning Council has apparently completed a proposed land-
use plan for Broward County and the municipalities therein, as
required by Art. VI of the Broward County Charter; but this is
only one of the planning areas (or "elements" as they are
referred to in the 1975 Act) that are mandatorily required to
be included in the county's comprehensive growth plan, as noted
above. Broward County's governing body must still comply with
the requirements of the 1975 Act by designating a"local plan-
ning agency" on or before July 1, 1976, for the preparation of
a comprehensive plan covering all "elements" of development in
the county as required by the 1975 Act, including land-use
planning, and by submitting the plan, or any element thereof,
to the state and regional planning agencies for review. And,
as noted above, following review of the plan or any element
thereof by these agencies, the governing body of the county
"may adopt, or adopt with changes or amendments, the proposed
comprehensive plan, or element or portion thereof, despite any
adverse comment received." Section 9(6), Ch. 75-257, supra.

It is noteworthy, also, that 6(5) of Ch. 75-257 provides that
the "responsibilities, powers, and duties of the local planning
agency shall be set out in the ordinance establishing the
agency, subject to the particular requirements of this act."
As noted in AGO 071-109, "unless express constitutional author-
ity therefore can be found, a county charter may not be incon-
sistent with a legislative program or plan provided by general
law for the particular governmental or public function or
service in question." There are no constitutional provisions
which either expressly or by necessary implication create or
authorize the creation of land planning agencies. Thus, unless
there is something in the 1975 Act itself which expressly pre-
serves in full force and effect existing provisions of county
charters or special acts relating to growth and development
planning in a county, it must be concluded that the general
law takes precedence over the provisions of the Broward County
Charter in this respect.






(p








Miss Betty Lynn Lee 075-280
Page Four



Only two provisions of the 1975 Act have been found which
might possibly be construed to have been intended to pre-
serve existing special laws or county charters relating to
growth planning. (It is assumed for the purpose of argu-
ment that county charters adopted under general-law author-
ity, SS125.60-.65, F.S., should be given the same effect as
special laws in this context.) Section 9(7) of the 1975
Act, quoted above, authorizes a majority of the members of
the governing body of the local governmental entity to adopt
a comprehensive plan, or any element thereof, "in a manner
prescribed by law. And Section 17 of Ch. 75-257 pro-
vides that

Where this act may be in conflict with
any other provision or provisions of
law relating to local governments having
authority to regulate the development of
land, the provisions of this act shall
govern unless the provisions of this act
are met or exceeded by other provision or
provisions of law relating to local govern-
ment. (e.s.)

As to 9(7), supra: "Manner" is defined by Black's Law Diction-
ary, 4th Ed., as "a way, mode, method of doing anything, or mode
of proceeding in any case or situation." The manner prescribed
by law, 1, Art. VIII, Fla. Const., as implemented by 166.041,
F.S., for the exercise by a county of its home-rule powers is an
ordinance. Accord: 166.041, F.S., as to municipal action of
"a general and permanent nature and enforceable as a local law."
(Cf. 4, Art. VIII, Fla. Const., providing for the transfer of
powers between cities, counties and special districts "by law
or by resolution of the governing bodies" which are parties to
the transfer.) However, a special district or other local gov-
ernmental entity having planning power might under the act
creating it exercise its powers by resolution.

It is well settled that all parts of a statute must be con-
strued together so as to give full force and effect to each
of them, if possible. State v. State Racing Commission, 112
So.2d 825 (Fla. 1961). The 1975 Act itself has prescribed in
detail the uniform procedure to be followed by local governing
bodies in adopting comprehensive growth plans, see 8 and 9
of the 1975 Act, as well as the vote required to adopt the








Miss Betty Lynn Lee 075-280
Page Five



comprehensive plan recommended by the local planning agency--
not less than a majority of the members of the governing body.
While it preserves existing growth plans adopted prior to the
effective date of the 1975 Act, they may continue in effect
only "until appropriate action is taken to adopt a new compre-
hensive plan as required by this act." Section 13, Ch. 75-257.
It must be concluded, therefore, that the Legislature intended
the "manner prescribed by law" by which a local governmental
entity may exercise its powers under the Act to refer to the
"mode of proceeding"--by ordinance, in the case of a county--
and not to the substantive and procedural requirements spelled
out in the 1975 Act itself. (No question is presented and no
opinion is expressed as to whether any "land development regu-
lations" [defined in 12(2) (b) of the Act to include local gov-
ernment zoning and similar regulations controlling land develop-
ment] may be adopted by a city or county or other local govern-
mental entity in accordance with other applicable procedures
pending the adoption of its comprehensive growth plan or element
thereof. Cf. 12[2][a] and 12 [1], id., specifically prescrib-
ing the procedure to be followed in adopting such local land
development regulations after a comprehensive growth plan or
element thereof has been adopted by the local governing body,
and requiring such regulations to be "consistent with the adopted
comprehensive plan, or element or portion thereof.")

Nor does 17 of the 1975 Act, quoted above, require a different
conclusion. This provision confirms the legislative intent that
the provisions of the 1975 Act shall control over conflicting
provisions of law "unless the provisions of this act are met or
exceeded by other provision or provisions of law relating to
local government. ." (e.s.) This appears to mean that local
laws relating to growth planning and development in a particular
locality may provide additional requirements that must be
included in a comprehensive plan to be adopted by a particular
local governmental entity. See subsections (1)-(6) of 7 of the
1975 Act, listing the elements that must be included in the com-
prehensive plan, and subsection (7) of 7 listing the additional
elements that may be included in the comprehensive plan. Addi-
tional notifications, additional hearings, and similar additional
requirements that "exceed" those prescribed by the 1975 Act could
also be carried out under a local law so providing. However, the
provision of a special act (or, perhaps, county charter, as is
the case here) that would be contrary to the overall scheme or
plan of the 1975 Act, vesting in the governing body of the county
the ultimate responsibility for adopting the comprehensive plan
by not less than a majority of the members of that body, does not
appear to be within the purview of 17, supra. And, pending leg-
islative or judicial clarification, you are so advised.






075-280
Miss Betty Lynn Lee
Page Six



SUMMARY

A land-use plan for Broward County, recom-
mended by the Broward County Planning Coun-
cil created by the Broward County Charter
for that purpose, should comply with and be
adopted in accordance with the procedures
prescribed by Ch. 75-257, Laws of Florida
(the Local Government Comprehensive Planning
Act of 1975), including the provision that it
may be adopted by not less than a majority of
the members of the Broward County Commission
as provided by 9(7) of the 1975 Act.

Sincerely, -



CO T SIVIN
ATTORNEY GENERAL

Prepared By:



Rebecca Bowles Hawkins
Assistant Attorney General

RLS/RBH/sf

cc: State Association of County Commissioners
Post Office Box 1386
Tallahassee, Florida 32302











BROWARD COUNTY PLANNING COUNCIL
16(00 S.E.10th. TERRACE. FORT LAUDERUALE. FLA. 3316(,
Telephone: 3S5- 765 5110


September 24, 1976







Honorable Robert L. Shevin
Attorney General of the State of Florida
The Capitol
Tallahassee, Florida 32304

Dear General Shevin:

By a majority vote, the Broward County Planning Council has authorized me
to request your opinion concerning the effect of the Local Government
Comprehensive Planning Act of 1975 (Sections 163.3161 et. seq., Florida
Statutes), hereinafter referred to as the "Act" and, in particular,
Section 163.3167(10) of the Act, on the Broward County Land Use Plan as
related to those developments which have been authorized as developments
of regional impact pursuant to Chapter 380, Florida Statutes."

Subject to the common-law doctrine of equitable estoppel:

Question 1: Does a municipality have the power to amend an existing
ordinance or resolution which authorized a development
of regional impact?


Question 2:





Question 3:


In regard to developments of regional impact, does a
municipality have the power to take governmental actions
and enact or amend land development regulations which
are consistent with a reasonable, appropriate and complete
comprehensive plan or element thereof, adopted in conformity
with the Act?

If the answers to Question 1 and Questions 2 are in the
affirmative, does Section 163.3167(10), Florida Statutes,
expressly prohibit the exercise of those powers by a
municipality?


These questions must be answered within the framework established by the
Florida Constitution. A State Constitution is a limitation on power and
the 1968 revision of the Florida Constitution placed restrictions and
limited the power which would otherwise have been vested in the State. One
of the fundamental restrictions on the powers of the State is contained
within Article VIII, Section 2(b) of the Florida Constitution which expressly
recognizes that municipalities "...may exercise any power for municipal
purposes except as otherwise provided by law." This simply means that,
unless the Legislature has expressly provided otherwise, the home rule power
of municipalities is a limitation on the power of the State.








(6q















Honorable Robert L. Shevin


Prior to the 1968 Florida Constitution, a grant of power from the Legislature
to a municipality was necessary but under the Municipal Home Rule Powers Act,
Chapter 166, Florida Statutes, enacted in 1973, the Legislature has recognized
that the 1968 Florida Constitution itself grants to the municipalities all
governmental powers necessary for municipal government that theretofore had to
be procured from the Legislature in the form of general laws and special
acts. The clear intent of the Florida Legislature was to implement, legislatively,
the constitutional grant of power to municipalities.

In the landmark case of City of Miami Beach vs. Forte Towers, Inc., 302 So.2nd
764 (1974), the Florida Supreme Court held that the Municipal Home Rule Powers
Act is constitutional for the very reason that it is the legislative implementa-
tion of a constitutional provision and that municipalities have the same
legislative power as the Florida Legislature itself. The power of the Florida
Legislature over municipalities'is limited to the enactment of general laws
which expressly prohibit the exercise of the governmental powers retained by
the municipalities. Neither the Municipal Home Rule Powers Act nor any other
general law delegates legislative powers to municipalities because no delega-
tion of powers is necessary and both Chapter 380 and the Act must be construed
in that light.

The Broward County Charter has now been judicially construed so as to require
all municipalities within Broward County to conform to the County Land Use
Plan. The passage by any municipality of a land use plan less restrictive
than the County Land Use Plan would be an ultra vires act and, as such, is
prohibited by Article VI of the Charter. The County Land Use Plan will be the
effective land use plan for the municipalities of Broward County from the
date that the Broward County Commission adopts it by ordinance and the munici-
palities must amend their zoning codes as to permitted uses and densities to
be in conformance with the County Land Use Plan Within one year after its
effective date. (Copies of the Final Declaratory Judgment and Order of
Clarification in City of Fort Lauderdale vs. Broward County, Case no. 76,1244,
are enclosed.)

The Broward County Planning Council intends to carry out its planning respon-
sibilities and exercise its authority over municipalities as provided by the
Broward County Charter and as expressly permitted by Sections 163.3171(2),
163.3174(1)(b), and 166.021(3)(d), Florida Statutes. The Planning Council
has determined, during its preparation of the County Land Use Plan, that
many developments have been mistakenly authorized by some units of local
government without adequate knowledge or consideration of their fiscal
feasibility or their future impact. It goes beyond question that the Planning
Council's responsibilities under the Charter include the regulation of develop-
ments of regional impact which will have their greatest effect upon the health,
safety and welfare of the present and future citizens of Broward County.


70


September 24, 1976















Honorable Robert L. Shevin


The purpose of Chapter 380, as expressed by the Legislature in Section
380.21, Florida Statutes, was to establish state land and water management
policies in order to protect natural resources, the environment, our limited
water resources and the health, welfare, safety and quality of life of the
residents of the State. To the maximum extent feasible, it is the responsi-
bility of local governments to implement those state policies through their
own processes for the guidance of growth and development. The State has the
limited role of providing guidance and coordination of those local decisions
as may be necessary to protect the interests of the State.

The intent and purpose of the Act as expressed by the Legislature in
Section 163.3161, Florida Statutes, was not to weaken but to strengthen the
existing role, processes and powers of local governments by requiring them to
exercise their home rule police power through the establishment and implementa-
tion of a comprehensive planning program in order to preserve and enhance pre-
sent advantages, to overcome present handicaps and to deal effectively with
future problems .that may result from the use and development of land within
their jurisdictions.

The power to adopt comprehensive plans, to adopt and amend development orders
and to enact or amend land development regulations is inherent within the
home rule police power of a municipality. The Act and Chapter 380 do not
grant or delegate any power to a municipality because that power already
exists; what the Act and Chapter 380 do is to mandate the exercise of that
existing power, in order to achieve the intent and purpose of the Legislature.

Section 163.3167(10), Florida Statutes, provides that "Nothing in this Act
shall limit or modify the right of any person to complete any development that
has been authorized as a development of regional impact pursuant to Chapter 380."
This simply means that nothing in the Act should be construed as a special
grant of power to limit or modify a person's existing rights. But, there is
nothing in the Act which expressly prohibits a municipality from exercising its
existing powers.

The Second District Court of Appeals in the case of Sarasota County vs. General
Development Corp., 325 So. 245, held that, although a county has no standing
to appeal the decision of a municipality to grant a development order to the
Florida Land and Water Adjudicatory Commission under Chapter 380, the issue
as to whether the county had an independent right to exercise control over a
municipality based upon some other authority had to be addressed because
"Chapter 380 does not purport to affect whatever authority the county may have
had under these [other] statutes." If Chapter 380 does not purport to affect
a county's control over development within municipalities when based upon
other regulations, then surely neither Chapter 380 nor the Act purports to
affect whatever authority a county may have under its Charter or which a
municipality itself may have under other regulations adopted pursuant to its
home rule police powers.


September 24. 1976















Honorable Robert L. Shevin


Chapter 380 recognizes that all development must be consistent with local
land development regulations. Section 330.08, Florida Statutes, specifically
provides for the protection of land owners' rights but no-where in that
section, or in Chapter 380 as a whole, is there any express prohibition
against the amendment of a development order or against the enactment or
amendment of land development regulations by a municipality so long as
"...all the existing rights of private property are preserved in accord
with the constitution of this state and of the United States."

Many developers in Broward County have contended that Section 163.3167(10)
Florida Statutes, over-rides the doctrine of equitable estoppel as established
by the Florida Supreme Court and that the thirty words in that subsection
created a new "vested right" with its sole element being the existence of
either a development order granted by a unit of local government pursuant to
Chapter 380, Florida Statutes, or a binding letter of interpretation as to
vested rights issued by the Division of State Planning pursuant to Chapter 380,
Florida Statutes. This contention ignores the intent and purpose of Chapter
380 and the Act and there is nothing in Chapter 380, Florida Statutes, or in
the Act which expressly or impliedly prohibits a municipality from exercising
its home rule police power by amending a development order or by enacting or
amending land development regulations.

Developments of regional impact do not exist in a vacuum. There are many
other developments which are not of regional impact. A development of regional
impact has a substantial effect on the citizens of neighboring counties but
both classes of development have a substantial effect on the resources and
on the citizens of the municipality and county in which they are located.
These two classes may be distinguished by the Florida Legislature based upon
their effect on the interest of the state, but as to a municipality their
effect is different only in degree, not in kind.: Granting a special privilege
to one class of development necessarily comes at the expense of the other class
of development. The distinction between these two similarly situated classes
is not sufficient to permit a municipality to discriminate between them so as
to deny one class the equal protection of the law required by the Federal and
State Constitutions.

Obviously the Planning Council and the municipalities do not have, nor should
they have, the power to over-ride constitutional mandates protecting the rights
of property owners and to the extent that a property owner's rights have become
vested, based upon the doctrine of equitable estoppel, those rights must also
be protected and preserved by the Courts. But, the Planning Council's respon-
sibilities under the Charter do not permit it to ignore those past mistakes
made by the municipalities of Broward County which are still subject to
correction without violation of a property owners constitutional or vested
rights.

It is the position of the Broward County Planning Council that the Act does
not divest the Planning Council of any of the authority granted to it by the
Broward County Charter. To the extent that the municipalities have the home










72-


September 24. 1976














Honorable Robert L. Shevin


rule police power to carry out the mandates of the County Land Use Plan, they
are required to do so by the Charter. Developments of regional impact,
authorized by Chapter 380, Florida Statutes, have not been exempted from that
mandate by Section 163.3167(10), Florida Statutes.

Question 1 and Question 2 should be answered in the affirmative. Question 3
should be answered in the negative.

Section 163.3167(10), Florida Statutes, can and should be construed to be in
harmony with the intent and purpose of the Act and should not be construed to
be in derogation of the common law doctrine of equitable estoppel. Whenever
a development has been authorized as a development of regional impact pursuant
to Chapter 380, Florida Statutes, then, to the extent that a persons rights to
complete that development have become vested under the doctrine of equitable
estoppel, nothing in the Act should be construed to limit or modify those
rights but to the extent that a persons rights have not become vested under
the doctrine of equitable estoppel then, subject to constitutional limitations,
a municipality may amend a development order, enact or amend land development
regulations and take governmental actions which are consistent with an adopted
comprehensive plan or element thereof.

With the health, safety and welfare of the present and future citizens of
Broward County at stake, the Act must not be construed so as to prohibit the
Planning Council and the municipalities of Broward County from dealing
effectively with future problems by overcoming present handicaps created when
units of local government mistakenly thought that Chapter 380 was a substitute
for comprehensive planning. There is still time to correct some of those
mistakes without violating a property owner's constitutional or vested rights,
and the Legislature never intended to strip the municipalities of their home
rule police powers as to developments of regional: impact.

Respectfully,



Thomas G. Wright, Jr.
Attorney for the Broward
County Planning Council

TGWJr.:sm

Enclosures


73


September 24, 1976








IN THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRCUIT, IN AND FOR BROWARD
COUNTY, FLORIDA
CITY OF FORT LAUDERDALE, etc, CASE NO. 76-1244 Judge Gonzalez

Plaintiff, )

vs

BROWARD COUNTY, etc., )

Defendant.


FINAL DECLARATORY JUDGMENT


THIS CAUSE came on to be heard August 19, 1976, upon the motion

of the Plaintiff, City of Fort Lauderdale, for a summary judgment in the

above styled cause. The court has considered the pleadings and exhibits

on file, has heard the argument of able counsel, and finds and declares

that there is no genuine issue as to any material fact and that Plaintiff,

City of Fort Lauderdale, is entitled to a declaration of its rights as

a matter of law pursuant to Chapter 86, Florida Statutes.

Accordingly, the Court ADJUDGES and DECLARES as follows:

1. That Section 8.04 of the Broward County Charter is a

separate and affirmative grant of power to Broward County except as

limited by said Charter.

2. That Section 8.04 of the Broward County Charter which

provides that, "As set forth in this Charter, a County ordinance shall

also prevail over a municipal ordinance in the area of land use

planning" must be read in conjunction with Article VI of the Charter,

said Article being the only portion of the Broward County Charter

dealing with the subject of land use planning, and which Article contains

the limitations of the powers of Broward County in the area of land use

planning.

3. That pursuant to Section 8.04 of the Broward County Charter

a county ordinance shall prevail over a municipal ordinance in the area

of land use planning except as limited by Article VI of said Charter.

4. That the power of the Broward County Commission to enact

ordinances in the area of land use planning is limited by Article VI

of the Charter, and specifically by Section 6.09 thereof, which mandates


71q







the County Commission to adopt in ordinance form only such land use"

plan, or amendment thereto, as is submitted by the Broward County

Planning Council in writing, unless said plan or amendment be unanimously

rejected by the commission.

5. That another limitation upon the County under the Charter

in the area of land use planning is contained in Section 6.05G of the

Broward County Charter which provides that governmental unit zoning

as to permitted uses and densities need not comply with the County

Land Use Plan, or the local plan as certified, for a period of one (1)

year after the effective date of the adoption of a County Land Use Plan,

or the certification of a local plan.

6. That pursuant to Section 6.05E, the County Land Use Plan'

when adopted in ordinance form pursuant to Section 6.09 will be the

effective land use plan for all governmental units involved until such

time as any governmental unit plan is in substantial conformity with

the County Land Use Plan except as to permitted uses and densities.

7. That pursuant to Section 6.05G within one (1) year after

the adoption of the County Land Use Plan all governmental unit zoning

as to permitted uses and densities must comply with the County Land

Use Plan as adopted, or its own land use plan as certified.

8. That during the one (1) year period next following adoption

of the County Land Use Plan pursuant to Section 6.09, any use or

density permitted under any municipal or governmental unit zoning

existing as of the date of the effective date of the land use plan

will be allowed although in conflict with the County Lans Use Plan.

9. That pursuant to Section 6.05G, governmental units may

adopt more restrictive zoning as to permitted uses and densities than

those provided for in the County Land Use Plan; but no municipality or

governmental unit may adopt less restrictive zoning as to permitted

uses and densities than those provided for in the County Land Use Plan

at any time following the effective date of such plan.

10. That the land use plan established and adopted for

Bro:.ard County, or the local plan as certified, will control land use



75"





within Broward County after one (1) year next following the effective

date of said plan, except where more restrictive zoning is adopted.
11. That the passage by a municipality or governmental unit

of a land use plan less restrictive than the County Land Use Plan
-as -regards permitted uses and densities after the effective date of

the County Land Use Plan is a ultra vires act and as such is prohibited

by Article VI of the Charter.

12. That Section 6.05G is applicable to any amendments which

may be adopted pursuant to Sections 6.09 and 6.05D of the Charter,
and as to such amendments, the powers of the County vis a vis any

governmental unit will be identical to its powers in implementing the
original County Land Use Plan and shall be controlled by the principles

hereinabove set forth.
13. That governmental unit zoning as to permitted uses and

densities shall comply with any amendment to the County Land Use Plan

within one (1) year of the effective date of the adoption of any

amendment to the County Land Use Plan, and during said one (1) year

period the previliges, exceptions, limitations and restrictions

imposed on any municipality or governmental unit will be identical to

those hereinabove set forth.

14. That the Court retains jurisdiction of the parties and

subject matter pursuant to Section 86.061, Florida Statutes, for the

granting of such supplemental relief as may be necessary or proper.

15. That each party will bear its own costs.

DONE AND ORDERED this I_" day of August, 1976.





-CIRCUIT JUDGE













76











IN THE CIRCUIT COURT OF THE S;EVE.TE-n:II
JUDICIAL CIAf-'tfi; .ISKo FOR BROWARD
COUNTY, FPLOiTDA

CITY OF FORT LAUD~RDALE, CASE NO. 76-1244 Judge Gonzalez
etc.,
Plaintiff,

vs

UROWARD COUNTY, etc.,
Defendant.

ORDER OF CLARIFICATION


THIS CAUSE came on to be heard upon the motion of the Plaintiff,

City of Fort Lauderdale, for a rehearing and clarification of this

Court's final declaratory judgment dated August 19, 1976; and upon the

motion of the Defendant, Broward County, for rehearing of the same final

declaratory judgment issued by this Court on August 19, 1976; and the

Court having considered said motions and argument of counsel, it is

accordingly
ADJUDGED AUID DECLARE a. follows-

1. That pursuant to Rule 1.140 (f) the Court on its own

motion does hereby strike all except the first sentence of paragraph

two of Defendant's Motion for Rehearing; and the words "...overlooks

and omits consideration of said Attorney General's opinion and further

...." in paragraph three thereof on grounds the matters therein contained

are immaterial.

2. That the respective motions of the parties are granted and

the Final Judgment herein is hereinafter clarified as set forth.

3. That as declared in paragraph one through four of the Final

Declaratory Judgment of this Court dated August 19, 1976, the power of

the Broward County Commission to enact an ordinance in the area of land

use planning, which ordinance would be binding upon a city and would
prevail over city ordinances regardless of conflict, is limited by
Article VI of the Broward County Charter and specifically by Section

6.09 thereof.
4. That the only ordinances which the Droward County Conmmission
nma lawfully enact in the area of land use planning are ordinances

77









adopting the land use plan, or making aniendnents thereto, which

amendments must be adopted by following the same procedures required

for the adoption of the original Land Use Plan.

5. That any land use plan, or amendments thereto, as adopted

by ordinance of the Broward County Cormission pursuant to Section 6.09

of the Broward County Charter, or any local plan as certified, shall

control land use throughout Droward County immediately upon adoption,

except that permitted uses and densities need not comply until after

one year next following the date of the adoption of said ordinance.

6. That Section 6.09 of the Broward County Charter mandates

the County Commission to adopt in ordinance form only such land use

plan, or amendment thereto, as is submitted by the Broward County

Planning Council, in writing, unless said plan be unanimously rejected

by the Commission.

7. That paragraph eleven of the Final Judgment is amended by

striking the words ".....as regards permitted uses and densities-...

therefrom and hence now reads:

11. That the passage by a municipality or governmental

unit of a land use plan less restrictive than the County Land Use Plan

after the effective date of the County Land Use Plan is an ultra vires

act and as such is prohibited by Article VI of the Charter.

S. That the final declaratory judgment entered by this Court

on August 19, 1976 is otherwise hereby ratified and confirmed in all

respects except as clarified herein.

DON.E AND ORDERED this day of September, 1976.






CIRCUIT "JU;DG-


Copies furnished:

Donald R. Hall
Re:: Conrad
Betty Lynn Leo






( (



SEEKING JUDICIAL REVIEW OF LAND USE RULES


William L. Earl
Peeples, Earl & Blank, P. A.
Miami, Florida


I. Authority of Commission to Promulgate Land Use
Regulations

A. Designation as Area of Critical State
Concern, Fla. Stat. 380.05(1)(a)(1975)

B. Failure of Local Government to Transmit
Land Development Regulations after
Designation, Fla. Stat. S380.05(8)(1975)

C. Broad Authority as Contrasted with
Restrictions upon Rulemaking Power to
Designate Areas of Critical State
Concern, Compare Fla. Stat. 380.05
(1)(a)(1975) with Fla. Stat. 380.05
(8)(1975).


II. Alternative Forums for Review of Land Use Rules

A. Administrative Review, Fla. Stat.
Ch. 120(1975)

B. Appellate Review of Final Agency Action,
Fla. Stat. 120.68(1975)

C. Declaratory Judgment in Circuit Court,
Fla. Stat. Ch. 86(1975); Fla. Stat.
120.78(1975)

C. Inverse Condemantion Proceeding in
Circuit Court


III. Grounds for Challenging Land Use Rules

A. Procedural Defects

B. Substantive Challenges

1. Delegation Doctrine

2. Taking/Invalid Exercise of Police Power

3. Other Grounds
7t










IV. Jurisdictional & Practical Problems in Seeking Judicial
Review

A. When Is Agency Action Final? See
Riley-Field Co. v. Askew, 336 So.2d
383(lst D.C.A. Fla. 1976)

B. Filing Petition for Judicial Review
Does Not Stay Enforcement, Fla. Laws
Ch. 76-132, 13

C. Other Pitfalls


-2-









Louis Hubener


CLE TOPIC

LEGAL REMEDIES IN SECURING DEVELOPMENT ORDERS
FOR DEVELOPMENTS OF REGIONAL IMPACT AND
DEVELOPMENT ORDERS IN AREAS OF CRITICAL
STATE CONCERN

OUTLINE -


I. Accommodating the State's Interest

A. Content of Application for Development Approval

(1) The application for development approval (ADA)
is required to be filed with the local government
having jurisdiction over the proposed DRI. Copies
must be provided to the appropriate regional plan-
ning council and the Division of State Planning.
The application is available from the regional
planning council or the Division of State Planning
and requires extensive information as to the poten-
tial impact of the proposed DRI. The applicant is
required to address the following subjects:

a. a statement of intent of the developer,

b. permit information (type of local permit
sought,

c. applicant information,

d. development information,

e. environmental impact,

f. impact on natural resources,

g. fiscal characteristics,

h. employment characteristics,

i. user characteristics,

j. subsidiary developments anticipated,

k. sanitary sewers,








'g1












1. storm water disposal,


m. waste supply,

n. solid waste,

o. power supply,

p. other public facilities affected,

q. public transportation considerations,

r. housing considerations, and

s. other general considerations of the impact
of the development.

(2) The application form is the same for all of the
12 DRI types identified in Chapter 22F-2, F.A.C. The
Developer should try to ascertain from the regional
planning council what particular aspects of his DRI
should be emphasized in the analysis and planning
proposals he must submit in the completed application.
Appeals to the Land and Water Adjudicatory Commission
have been taken because inadequate information was
presented to the regional planning council in the
review process.

B. The Regional Planning Council Report and Recommendations

(1) The regional planning council report must address
the statutory criteria set forth in Section 380.06(8),
F.S. The regional planning council must consider
whether and the extent to which:

a. The development will have a favorable or
unfavorable impact on the environment and
natural resources of the region;

b. The development will have a favorable or
unfavorable impact on the economy of the
region;

c. The development will efficiently use or
unduly burden water, sewer, solid waste
disposal, or other necessary public facil-
ities;


-2-



OT7.













d. The development will efficiently use or
unduly burden public transportation facil-
ities;

e. The development will favorably or adversely
affect the ability of people to find ade-
quate housing reasonably accessible to their
places of employment; and

f. The development complies or does not comply
with such other criteria for determining
regional impact as the regional planning
agency shall deem appropriate.

(2) The report is provided to the local government
prior to its decision to approve or deny the DRI. A
copy is also provided the Division of State Planning
to assist in its analysis of the proposed development.
The Division of State Planning relies heavily on the
report in its review.

(3) The report may also include recommendations such
as suggested conditions the regional planning council
thinks should be imposed on the DRI to resolve or
ameliorate identified problems. Since under Section
380.06(11), F.S., the local government must consider
whether the proposed development is consistent with
the report and recommendations, serious attention
should be given suggested conditions.

(4) The main legal remedy of the Division of State
Planning in the DRI process is to take an appeal of
the local government decision to the Florida Land
and Water Adjudicatory Commission. Appeals have
been filed where ADA's were deficient and important
issues consequently were inadequately addressed in
the regional planning council report and also where
significant recommended conditions were ignored in
the issuance of a development order.

C. Content of Development Orders

(1) A development order is that written document
issued by the local government expressing the approval
or the denial of a DRI. It should contain all condi-
tions the local government decides to impose upon a
DRI. The importance of a carefully drafted development


-3-













order to the local government cannot be over-
emphasized. It is the best vehicle for assuring
continued control and for requiring adherence to
desired planning techniques. It is also the
instrument in which the local government should
address the concerns of the regional planning
council and the Division of State Planning. The
order is carefully reviewed by both agencies.

(2) All conditions, restrictions, or limitations
to be imposed on the DRI should be included in
the development order. The Division of State Plan-
ning is currently preparing a manual on development
orders which will contain conditions that have been
imposed on approved DRI's relating to a wide
variety of problems and concerns.

D. Issues Raised in Various DRI Appeals

(1) As of January 1, 1977, 39 appeals have been
filed with the Florida Land and Water Adjudicatory
Commission. These include 25 residential develop-
ments, 4 shopping centers, 3 phosphate mines, and
2 yacht clubs. The Division of State Planning has
filed 9 appeals.

(2) Selected appeals of the Division of State Plan-
ning.

a. Three Rivers in Lake County (Docket No.
74-2) -- insufficient details in ADA.
Land and Water Adjudicatory Commission
reversed local government and denied
development approval.

b. Northeast Quadrant in Duval County
(Docket 75-2) -- transportation, sewage
treatment, and drainage problems resolved
by stipulated conditions.

c. Lake Tarpon Village (Docket No. 75.6) --
water, transportation, and drainage
problems resolved by stipulated conditions.

(3) Denials of DRI's by Local Government. Community
Alpha (Sarasota County) Beneva Lakes (Sarasota County)
and MGIC-Janis Properties, Inc., (Marion County) all
denied by the local governments and denial was sustained


-4-












by the Adjudicatory Commission. Currently in the
administrative adjudication process are two other
DRI's denied by local governments, Indian Trace
(Broward County) and the Estuaries (Lee County).
The Adjudicatory Commission has not to date reversed
a denial of a DRI by a local government.







































-5-


c5






., 4


UNITED STATES ENVIRONMENTALL PROTECTION Ad~CCY


WASHINGTON, n. C. 20460 F Ronal Mastriana and
F. Ronald Mastriana and
Roger D. Schwenke

DECISION OF THE GENERAt. COUNSEL ON MATTERS
OF LAW PURSUANT TO 40 C.F.R. 9125.35(m)
No. 46


In the matter of National Pollutant Discharce Elimination

System permit for Public Service Company of New Hampshire,

Seabrook Station, Units 1 and 2, NH0020338 ("PSC"), the Pre-

isiding Officer has certified an issue of law to the General

SCounsel for decision pursuant to 40 C.F.R. 125.36(m). The

parties, having had the opportunity to provide briefs in suo-

port of their respective positions, present the following issue:

ISSUF OF LAW

Question Presented
S--1-2/
"Under the facts set forth in the attached stimulation,

is the subject facility a 'new source' within the meaning of

section 306 of P.L. 92-500?"


7/ Donald B. Ross, a party to the NPDES oroceed in has not signed
the stipulation. Counsel for Mr. Ross informed counsel for Public
Service Company that if Mr. Ross failed to brief, he should be
treated as having waived his right to participate in this esnect
of the proceeding. No brief has been received from Mr. Ross but
Mr. Ross' rights granted under the NPDES regulations shall not be
deemed waived. As a party, Mr. Ross, may petition for review of the
initial decision to the Administrator and he may participate in the
development of the facts at any hearing held pursuant to 40 C.F.R.
Part 125. Further, since Mr. Ross has not signed the stimulation,
this legal opinion is binding upon the Regional Administrator only
to the extent that his findings of fact coincide with the stipulated
facts.

2/ A copy of this stipulation is attached. Because of their lerath,
however, the exhibits to that Stipulation are not reproduced.


_ __ __









Conclusion

On the basis of the facts presented, Seabrook Station is

not a new source within the meaning of section 306 of the

Federal Water Pollution Control Act, as amended (the "Act").

Discussion

The term "new source" is defined in section 306(a)(2) of

the Act as:

any source, the construction of
which is commenced after the oublica-
tion of proposed regulations pre-
scribing a standard of performance un-
der this section which will be aoolic-
able to such source, if such final
standard is thereafter promulgated in
accordance with this section.

"Construction" is defined in section 306(a)(5) of the Act

as:

any placement, assembly, or
installation of facilities or
equipment includingq contractual
obligations to purchase such facili-
ties or equipment) at the premises
where such equipment will be used,
including preparation work at such
premises.

And sourcee" is defined in section 306(a)(3) as:

any building, structure, facil-
ity, or installation from which there
is or may be the discharge of pollu-
tants.

On March 4, 1974 (39 Fed. Rea. 8294), EPA published orooosed

standards of performance under the authority of section 306 which

are applicable to the Seabrook Station. Such standards were there-


__ _____. _~____~_







3


after promulgated on October 8, 1974 (40 C.F.R. Part 423).

Thus, the question presented is whether construction of Sea-

brook Station had commenced, within the meaning of section

306, on or before March 4, 1974.

I

The definition of "construction" includes "any olace-

ment, assembly, or installation of facilities or eauioment

S. at the premises where such equipment will be used ...

PSC argues that the installation of a meteorological tower

at the Seabrook Station site, Drior to March 4, 1974, falls

within the ambit of this portion of the statutory definition.

The stipulation reveals that the tower was installed at

the cost of $22,483. Presumably its function is to acquire

information about weather conditions orevailina at the site

in order to prepare environmental reports and complete

necessary license applications. I do not believe that a

meteorological tower constitutes "facilities" or "eauinment"

as those terms are used in section 306. In my view, the in-

tended reference is to items which form a permanent oart of

the source itself and which are used in its operation rather

than to unrelated or preliminary items. Certainly, the re-

ference to installation at the site "where such eauioment

will be used" supports this reading as, indeed, does the in-

clusion of the word "facility" in the definition of the term


*- *'C






4


" source" in section 306(a)(3). Accordinqlv, the existence

of the meteorological tower in advance of March 4, 1974 does

not prevent the Seabrook Station from heina classified as a
3/
*new source.

II

A second category of activity that may constitute "con-

struction" is."preparation work at such premises" --i.e.,

the premises where the equipment and facilities will be used.

PSC points to various environmental, geological, hydro-

graphic, etc. studies and surveys which it had conducted, at

a cost of several million dollars, in connection with the

Seabrook Station. This, however, mistakes feasibility and

design studies for site preparation. In mv opinion, the use

of the term preparation work at the premises denotes physical

preparation of the site for construction -- for example,

clearing of the land or excavation. It does not include

mere preliminary investigations, particularly where, as here,


3/ W-hile not controlling, the proposed regulations aovernina
the anilication of the National Environmental Policy Act to new
sources also support this reading of the statute. Aooendix A
to those regulations, entitled Guidance on Determniina A New
Source provides "Facilities and equipment shall include only
the major items listed below .

(a) structures; or
(b) structural materials; or
(c) machinery; or
(6) process ecuioment; or
(e) construction eauioment."

(40 Federal Register 47715, 47720, October 9, 1975.)








5


it appears that much of those investigations were directed

toward establishing the feasibility of the oroiect and were

not conducted at the plant site. To accent PSC's argument

to the contrary would mean that virtually any observations

of and reports on aspects of a potential site would con-

stitute "construction" -- a result cuite at odds with the
4/
language of the section and its apparent purpose.

III

The third and final type of activity that is relevant

to the determination of whether or not a facility is a new


7 Anny distinction between existingc" and "new" Plants as of
a given date is, necessarily, arbitrary to some extent. As
both the Region and the permitted point out, the process of
Development of a new industrial facility proceeds along a
spectrum from conception to operation and there is, for most
purposes, no need to categorize the facility as having started
construction as of a particular day. However, the Act admits
of but two categories of sources and requires that the classif-
ication be made as of a specific date. The legislative history
does indicate a Congressional recognition of the areater flexi-
bility in accomodating to stringent pollution control reauire-
ments possessed by plants which are not yet operational, as
compared to those in existence for which compliance would en-
tail retrofitting. For example, Reoort of the housee Committee
on Public Works observed that the provisions of section 306
afforded "recognition of the significantly lower expense of
attaining a given level of effluent control in a new facility
as compared to the future cost of retrofitting a facility to
meet stringent water pollution control measures." Leq. Hist.
at 797. See also the remarks of Senator Muskie during debate
on the bill which emerged from conference. Lea. -ist. at 172.
On the other hand, the distinction was drawn by Conoress in
terms of construction, not design or other preliminary non-
physical and non-site-specific preparatory activities. The in-
clusion of the design and environmental studies carried out here
as within the meaning of "construction" would push the exception
From new source standards well past the ooint at which substan-
tial, indeed nearly total, flexibility in meeting those stan-
dards remains.



q0







6


source is "contractual obligations to purchase" Facilities

and equipment of the sort previously described.

The Stipulation reveals that PSC had entered into sev-

eral contracts prior to March 4, 1974. The question is

whether these contracts constitute contractual obligations

of the type required by section 306. Each will be analyzed

in turn.

(1) Nuclear Steam Supply Contract

According to the Stipulation, PSC had entered into a

contract with Westinghouse Electric Corporation on January

23, 1973, effective "as of" June 7, 1972. The contract,

according to the Stipulation, "provides for the purchase by

PSC of two nuclear steam supply systems at a total rice in

excess of $65 million [A]s of March 1, 1974 PSC had

paid approximately $754,000 for 'Costs of Desiqn, Enqineerina

and Licensino', which was the amount then due under the NSS

contract. PSC could have terminated the NSSS contract on or

about March 4, 1974 without additional liability."

There is no question that the steam supply system con-

stitutes "facilities or eauioment" within the meanina of sec-

tion 306(a)(5) since that system is an item basic and neces-

sary to the operation of the generating facility. There is,

however, much dispute between the Region and PSC as to whether

the contract represented, as of March 4, 1974, a "contractual






q9








7


obligation" to purchase these items of eauioment. According

to the Region, the NSSS contract was structured by the par-

ties, in recognition of the dependence of the project on

approval by various governmental regulatory agencies, so

that it could be terminated with little or no liability by

the Company prior to the time those regulatory decisions were

expected to be made. Thus, the Region points out, as of

March 4, 1974, PSC had paid $754,000 under the contract all

of which was for design and engineering services rather than

for actual fabrication of the steam supply systems them-

selves. At that point, PSC could have terminated the con-

stract without any additional obligation to oav. Hence,

argues the Region, no contractual obligation to purchase

equipment had arisen on or before March 4, 1974.

PSC disputes the Region's analysis. It argues that the

terms "contractual obligation" and "contract" should be viewed

as synonymous or, if a distinction is to be drawn, that the

former term is broader and more encompassing than the latter.

And it points out that termination would entail a loss to

.PSC -- namely its investment of $754,000 already expended.

As to the former proposition, the Region's position is

more persuasive and more in accord with what appears to be

Congress' intent. It is not necessary to enter upon an extend-

ed analysis of the complex field of contract law in order to








8


conclude that Congress' concern was with the reality of the

financial and physical process by which industrial sources

are developed and not with the labels aoolied to the arranae-

ments to develop those facilities. By including the paren-

thetical phrase "(including contractual obligations to our-

chase such facilities and eauioment)" Conoress established

the point at which a facility was to be considered an ex-

isting source a step earlier in the developmental process

than any physical activity on site -- requisites of the other

two elements of the statutory test. Presumably, its purpose

in so doinq was to recognize that substantial financial com-

mitments can be incurred (and flexibility thereby diminished)

Through contractual obligations to purchase specially de-

signed equipment and facilities as well as by their actual

assembly or installation on site. However, Congress ore-

sumably did not intend that any document denominated a "con-

tract" satisfy this test regardless of whether its actual

terms imposed any obligations on the owner of the source.

Thus PSC's contention that the Aaency should look no further

than to discover if a'document entitled "contract" exists

would permit widespread evasion of the new source standards

through the simple expedient of arranainq for what are in ef-

fect "options" to purchase, revocable at little or no cost, not








9


constraining the flexibility of the owner and amounting, in

effect, to cheap insurance against the application of section

306 and the potential application of the National Fnviron-

mental Policy Act.

As to the second proposition, Congress exoressly did

not intend that any contractual obligation associated with

a facility qualifies it as an existing source. It is only

obligations to purchase facilities and eauioment which so

qualify; obligations undertaken for design or enaineerinq

work are not sufficient. And again, I believe the position

of the Region is more reasonable -- i.e., that it may analyze

the terms of the contract to determine whether, as of the

Critical date, an obligation existed under it to purchase

such facilities. Hence, the "loss" of $754,000 alluded to

by PSC is irrelevant to the narrow question of whether the

project was an existing or new source at the pertinent date,

since it represents payment for personal services, not pro-

gress payments for the purchase of facilities or eauioment.

However, I need not resolve these issues in order to

conclude that the NSSS contract is not one which satisfies the

statutory criteria. The Act requires the existence of a con-

tractual obligation to purchase "such facilities or eauiD-

ment" -- namely the facilities or equipment to be installed








10


"at the premises" where such equipment will be used. Here,

from the face of the contract, it is aooarent that the ele-

ment of geographic specificity is lacking. The "Preamble"

to the NSSS contract provides, in part:

The Nuclear Steam Supply Systems fur-
nished by Westinghouse Electric CorD-
oration will be incorporated by the
Public Service Company of New Hamoshire
and its assignees in nuclear qenera-
ting units proposed to be constructed
at its installation site located 'at
Seabrooke, Rockingham County, in the
State of New Hamoshire or at Litchfield,
Htllsborough County, in the State of
New Hampshire. (Emphasis added.)

In light of this express negation, in the contract, of a

commitment to the Seabrook site, it is impossible to say that

the NSSS contract constitutes a contractual obligation to our-

chase equipment or facilities which are to be installed at the

premises of the source now claimed to be an existing source on

the basis of the contract.

(2) Fuel Contract

The stimulated facts reveal that, also in January 1973, PSC

and Westinghouse entered into a contract for the fabrication of

nuclear fuel for the Seabrook Station. The total price of the

fuel ordered was in excess of $25 million. However, as of

March 4, 1974, no payments were due under the Fuel Contract and

it could have been terminated without liability.








11


The Region contends the Fuel Contract is not relevant

to the question of whether or not the Seabrook Station is

a new source for two reasons: First, it contends that the

contract is not one for "facilities or equipment" within the

meaning of those terms in section 306. Second, the Peqion

urges that'PSC had no obligation under this contract as of

March 4, 1974 since it could have terminated the contract

without liability. PSC disputes the latter proposition but

does not offer any argument in opposition to the first. I

believe PSC's reticence reflects the strength of the Peqion's

position. The question of what sort of items constitute

facilities and equipment for purposes of section 306 has

F been considered above in connection with PSC's reliance on

the actual installation of a meteorological tower. The inter-

pretation outlined there, that "facilities and equipment" re-

fers to items "which form a permanent part of the source it-

self and which are used in its operation," applies here as

well. Fuel is used in the operation of the facility but, un-

like those items normally considered to be equipmentt", it

is consumed in the process. Moreover, fuel is normally a

fungible commodity, the acquisition of which does not reduce
5/
the flexibility in construction of a facility. The Penion


5/ There -may be aspects of nuclear fuel which render it unique
Sn this regard and distinguish it from barrels of oil or tanks
of natural gas. Nothing appears in the stioulated facts, how-
ever, which supports this and PSC does not arque the noint.




q(p





'-----


12


has not cited any authority in suDnort of its contention that

fuel does not constitute equipment, other than the guidelines

which appear as an aooendix to the proposed regulations aoolv-

ing NEPA to new sources, 40 Fed. Req. 47715. These.are in-

structive but, as indicated above, not determinative since

they have not been finally promulgated. PSC offers no arau-

ment on the point whatsoever. In the absence of assistance

from the parties, I have consulted the Uniform Commercial Code

for guidance as to the commonly accepted commercial classifi-

cation of fuel. The UCC suooorts the conclusion that fuel

is not normally considered as enuiDment. Section 9-109 dis-

tinguishes between "eouiompent" and "inventory", including with-

r in the latter "raw materials or materials used or con-

sumed ir a business" section 9-109(4). The commentary to this

section cites, as an example of materials used or consumed in a

business, and thus inventory, "fuel to be used in operations."

Section 9-109(4) provides exolicitly that "inventory of a

person is not to be classified as his eauioment."

In light of this, and in the absence of any countervailing

evidence in the legislative history, I conclude that the con-

tract for nuclear fuel does not constitute a contract for facil-

ities or eouioment within the meaning of section 306.










q7











(3) The "E/C Contract"

On October 19, 1973, PSC entered into a contract with

United Engineers and Contractors ("UE&C") to provide en-

gineering, design, and construction management services for

the Seabrook Station. UE&C's services were to include the

preparation of plans and specifications for eauioment and

construction work, the recommendation of materials, assis-

tance in the preparation of bid solicitations and the let-

ting of purchase orders. Exhibit 4 to the stimulation in-

dicates that PSC had paid UE&C $6,628,550 as of February 28,

1974 under this contract and that this sum "Includes costs,

expenses and fee for the architect engineer who is resnonible

for the engineering and design of the project. These costs

include the work done by United Engineers and Contractors

and (sic) support of our licensina applications."

The Region rejects this contract on the grounds that it

is not a contract for the purchase of facilities and eouio-

ment. PSC does not dispute the accuracy this characteriza-

tion and does not specifically address the problem which this

would seem to present to its reliance on the E/C Contract.

Instead, its argument on this ooint is a broad one -- "The

scope of the application of section 306 argues independ-

ently for a definition of 'new sources' which excludes projects




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs