Title: Local Comprehensive Planning and Land Development Citizen Standing and Appeal
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Permanent Link: http://ufdc.ufl.edu/WL00004277/00001
 Material Information
Title: Local Comprehensive Planning and Land Development Citizen Standing and Appeal
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Local Comprehensive Planning and Land Development Citizen Standing and Appeal (JDV Box 89)
General Note: Box 19, Folder 6 ( Local Comprehensive Planning and Development Regulations - - 1991 ), Item 6
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004277
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












LOCAL COMPREHENSIVE PLANNING
AND
LAND DEVELOPMENT

Adam Carnagie
Dames & Moore
One North Dale Mabry
Suite 700
Tampa, FL 33609
(813) 875-1115

Paul Bradshaw
Director of Cabinet Affairs
Office of the Governor
Room 210 The Capitol
Tallahassee, FL 32399
(904) 488-5152

Richard Davis
Holland & Knight
400 North Ashley, Suite 2300
Tampa, FL 33602
(813) 227-8500

David Kovacs, Director
City of Delray Beach
Department of Planning and Zoning
100 Northwest 1st Avenue
Delray Beach, FL 33444
(407) 243-7040












LOCAL COMPREHENSIVE PLANNING AND LAND DEVELOPMENT
CITIZEN STANDING AND APPEAL
RICHARD E. DAVIS
HOLLAND & KNIGHT
400 NORTH ASHLEY
TAMPA, FLORIDA 33602
(813) 227-8500


I. INTRODUCTION

With the adoption of the "Local Government Comprehensive
Planning and Land Development Regulation Act" (the Act) in 1985,
Section 163.3161 et seq. Florida Statutes, the Florida
Legislature altered the process for review and challenge of local
comprehensive plans, land development regulations, and develop-
ment permits issued pursuant to the terms of the local land
development regulations. The Act creates new procedures, and
defines standing for individuals seeking to challenge local
governmental actions. In addition, certain proceedings are the
exclusive administrative avenue for challenge. Therefore, it is
essential that individuals involved in the comprehensive planning
process become familiar with the remedies contained in the
statute.

II. DEFINITION OF "AFFECTED PERSON" AND "IN COMPLIANCE"

The phrases "affected person" and "in compliance" are key
statutory provisions which affect the decision to challenge a
comprehensive plan. Both phrases are defined in
Section 163.3184(1), Florida Statutes (1989) as follows:

(a) "Affected Person" includes the affected local
government; persons owning property, residing
or owning or operating a business within the
boundaries of the local government whose plan
is the subject of review; and adjoining local
governments that demonstrate that adoption of
the plan as proposed would produce substantial
impacts on the increased need for publicly
funded infrastructure or substantial impacts
on areas designated for protection or special
treatment within their jurisdiction. Each
person, other than an adjoining local
government, in order to qualify under this
definition, shall also have submitted oral or
written objections during the local government
review and adoption proceedings.

(b) "In Compliance" means consistent with the
requirements of S 163.3177, 163.3178, and
163.3191, the state comprehensive plan, the
appropriate regional policy plan, and Rule 9J-











LOCAL COMPREHENSIVE PLANNING AND LAND DEVELOPMENT
CITIZEN STANDING AND APPEAL
Richard E. Davis
Page 2


5, F.A.C., where such rule is not inconsistent
with Chapter 163, Part II.

III. ADOPTION OF COMPREHENSIVE PLAN

A. Notice of Intent

The state land planning agency upon receipt of the
local government's comprehensive plan has 45 days for review and
to determine if the plan is in compliance with the Act. Sec-
tion 163.3184(8), Florida Statutes (1989). At the close of the
45 day review period, the state land planning agency will issue a
notice of intent to either find the comprehensive plan in
compliance with the Act or find the comprehensive plan not in
compliance with the Act. Section 163.3184(8), Florida Statutes
(1989).

B. Finding of Compliance

1. If the state land planning agency issues a
notice of intent to find the comprehensive plan in compliance
with the Act, any affected person within 21 days after the
publication of notice may file a petition with the state land
planning agency pursuant to Section 120.57, Florida Statutes.
Section 163.3184(9), Florida Statutes (1989). A hearing will be
conducted by a hearing officer who shall submit a recommended
order to the state land planning agency.

2. The local plan or plan amendment shall be deter-
mined to be in compliance if the local government's determination
of compliance is fairly debatable. Section 163.3184(9), Florida
Statutes (1989).

3. If the state land planning agency determines
that the plan is in compliance it shall issue a final order
within 30 days after receipt of the recommended order. If the
state land planning agency determines that the plan is not in
compliance, the agency shall submit, within 30 days after
receipt, the recommended order to the Administration Commission
for final agency action. Section 163.3184(9), Florida Statutes
(1989).

C. Finding of Non-compliance

1. If the state land planning agency issues a
notice of intent to find the comprehensive plan or plan amendment
not in compliance with the Act, an "affected person" may
intervene in a proceeding conducted pursuant to the terms of










LOCAL COMPREHENSIVE PLANNING AND LAND DEVELOPMENT
CITIZEN STANDING AND APPEAL
Richard E. Davis
Page 3


120.57 by a hearing officer in the affected local jurisdiction.
Section 163.3184(10), Florida Statutes (1989).

2. The local government's determination that the
comprehensive plan or plan amendment is in compliance is presumed
to be correct. It shall be sustained unless it is shown by a
preponderance of the evidence that the comprehensive plan or plan
amendment is not in compliance. The local government's deter-
mination that elements of the plan are related to and consistent
with each other shall be sustained if the determination is fairly
debatable. At the close of this proceeding, the hearing officer
shall submit a recommended order to the Administration Commission
for final agency action. Section 163.3184(10), Florida Statutes
(1989).

D. Good Faith Filing Requirement

Section 163.3184(12) provides a "good faith filing"
requirement for pleadings, motions or other papers filed in the
previously described proceedings. If a pleading, motion or other
paper is signed in violation of this requirement, the hearing
officer shall impose upon the person who signed it, a represented
party or both an appropriate sanction which may include an order
to pay to the other party or parties the amount of reasonable
expenses incurred because of the filing of the pleading, motion
or other paper, including a reasonable attorneys' fee.

E. Sole Proceedings

1. Section 163.3184(13) provides that the proceed-
ings described in the preceding paragraphs are the sole proceed-
ing or action for determination of whether a local government's
plan, element or amendment is in compliance with the Act.

2. As part of initiating the exclusive proceedings
described above, the affected person must file in conjunction
with its petition evidence of its involvement in the process
before the local government. Participants should maintain a
verbatim transcript of all presentations made to the local
government and obtain copies of all documents submitted to the
local government appropriately authenticated by the clerk to the
county commission or city council.

IV. REVIEW OF LAND DEVELOPMENT REGULATIONS


A. Adoption of Land Development Regulations










LOCAL COMPREHENSIVE PLANNING AND LAND DEVELOPMENT
CITIZEN STANDING AND APPEAL
Richard E. Davis
Page 4


Section 163.3202, Florida Statutes (1989) mandates
that local governments within one year after submission of the
revised comprehensive plans adopt or amend and enforce land
development regulations that are consistent with and implement
the adopted comprehensive plan.

B. Challenge to Land Development Regulations

1. A "substantially affected person" may within 12
months after final adoption of the land development regulations
challenge a land development regulation on the basis that it is
inconsistent with the local comprehensive plan. In order to
initiate such a challenge, the substantially affected person
shall file a petition with the local government outlining the
facts upon which the inconsistency is based. The local govern-
ment shall have 30 days after receipt of the petition to respond.
Thereafter, the substantially affected person may petition the
state land planning agency to determine whether the regulation is
consistent. Section 163.3213(3), Florida Statutes (1989).

2. The proceedings conducted by the state land
planning agency shall be informal and shall not include hearings
pursuant to Section 120.57(1), Florida Statutes. The state land
planning agency shall send a copy of its decision to the local
government, and the petitioning substantially affected person.
If the state land planning agency determines that the regulation
is consistent with the local comprehensive plan, the substantial-
ly affected person may within 21 days request a hearing from the
Division of Administrative Hearings. Section 163.32135(a),
Florida Statutes (1989).

3. The adoption of a land development regulation by
a local government is legislative in nature and shall not be
found to be inconsistent with the local plan if it is fairly
debatable that it is consistent with the plan. The hearing
before the administrative hearing officer shall be held pursuant
to 120.57(1) except that the order of the hearing officer shall
be a final order. Section 163.3213(5)(a), Florida Statutes
(1989). If the state land planning agency determines that the
regulation is inconsistent with the local comprehensive plan then
the agency shall request a hearing before a hearing officer. The
hearing shall be held pursuant to 120.57(1) and the order of the
hearing officer shall be a final order. The land development
regulation shall not be found to be inconsistent if it is fairly
debatable that it is consistent with the plan. Section
163.3213(5)(b), Florida Statutes (1989).










LOCAL COMPREHENSIVE PLANNING AND LAND DEVELOPMENT
CITIZEN STANDING AND APPEAL
Richard E. Davis
Page 5


4. If a land development regulation is not
challenged within 12 months it shall be deemed to be consistent
with the adopted local plan. Section 163.3213(6), Florida
Statutes (1989).

5. A development order or land development
regulation shall be consistent with the comprehensive plan if the
land uses. densities or intensities, and other aspects of
development permitted by such order or regulation are compatible
with and further the objectives, policies, land uses, and
densities or intensities in the comprehensive plan and if it
meets all other criteria enumerated by the local government.
Section 163.3194(3)(a), Florida Statutes (1989).

C. Sole Proceedings

1. The administrative proceedings described above
are the sole proceedings available to challenge the consistency
of the land development regulation with a comprehensive plan
adopted under the Act. Section 163.3213(7), Florida Statutes
(1989).

2. The initiation of administrative review relating
to the inconsistency of land development regulations with the
plan does not affect the validity of the regulations or a
development order issued pursuant to the regulations. Sec-
tion 163.3213(9), Florida Statutes (1989).

D. Good Faith Filing Requirement

Petitions, motions or other papers filed in the
administrative proceedings described above are subject to a good
faith filing requirement. Section 163.3213(8), Florida Statutes
(1989).

V. REVIEW OF DEVELOPMENT ORDERS

A. Challenges to Development Orders

1. An aggrieved or adversely affected party may
maintain an action for injunctive or other relief against a
local government to prevent the local government from taking any
action on a development order which materially alters the use or
density or intensity of use on property that is not consistent
with the comprehensive plan. Section 163.3215(1), Florida
Statutes (1989).











LOCAL COMPREHENSIVE PLANNING AND LAND DEVELOPMENT
CITIZEN STANDING AND APPEAL
Richard E. Davis
Page 6


2. Aggrieved or adversely affected party is defined
in Section 163.3215(2), Florida Statutes (1989), as follows:

(2) Aggrieved or adversely affected party is a person or
local government which will suffer an adverse affect
to an interest protected or furthered by the local
government comprehensive plan, including interests
related to health and safety, police and fire protec-
tion service systems, densities or intensities of
development, transportation facilities, health care
facilities, equipment or services, or environmental
or natural resources. The alleged adverse interest
may be shared in common with others members of the
community at large, but shall exceed in degree the
general interests in community good shared by all
persons.

3. Protected interests may be found not only in
the land use element but also in other elements of the comprehen-
sive plan such as capital improvements, transportation, and
conservation elements.

B. Petition Local Government for Relief

In order to maintain an action under this section,
the aggrieved or adversely affected party must first have
petitioned the local government seeking relief from the alleged
inconsistent action. The party must file a verified complaint
with the local government which complaint must contain a
statement of the facts upon which it is based and a request for
relief. The local government shall respond to the complaint
within 30 days after receipt. Thereafter, the adversely affected
party may institute the action authorized in this section.
Failure to comply with this provision does not prevent the filing
of an action for a temporary restraining order to prevent
immediate and irreparable harm. Section 163.3215(4), Florida
Statutes (1989).

C. Sole Proceedings

Filing an action under this section is the sole
action available to challenge the consistency of a development
order with a comprehensive plan. All filings are subject to a
good faith filing requirement. No settlements shall be entered
into unless the terms of the settlement have been the subject of
a public hearing. Section 163.3215(7), Florida Statutes (1989).











LOCAL COMPREHENSIVE PLANNING AND LAND DEVELOPMENT
CITIZEN STANDING AND APPEAL
Richard E. Davis
Page 7


D. Application of the Strict Scrutiny Test to Deter-
minations of Consistency.

Consistency of land use decisions with the
comprehensive plan. Machado v. Musqrove, 519 So. 2d 629 (3rd
DCA 1987).

VI. ENFORCEMENT OF DEVELOPMENT AGREEMENTS

A party, any aggrieved or adversely affected person as
defined in Section 163.3215(2) or the state land planning agency
may file an action for injunctive relief in the circuit court to
enforce the terms of a development agreement or to challenge the
compliance of the development agreement with appropriate
statutes. Section 163.3243, Florida Statutes (1989).

VII. COMPLIANCE AGREEMENTS BETWEEN THE STATE LAND PLANNING
AGENCY AND LOCAL GOVERNMENTS

Opportunities for participation in the compliance
agreement process and the subsequent amendment of the local
comprehensive plan to conform to the terms of the compliance
agreement.

VIII. RECENT STATUTORY CHANGES AFFECTING CHALLENGE OF
COMPREHENSIVE PLANS, DEVELOPMENT REGULATIONS, AND
DEVELOPMENT PERMITS.

Review of any changes to Chapter 163 adopted during recent
legislature session which alter the procedures for challenge of
comprehensive plans, development regulations, and development
permits.


95000P CLEMEMO:126












COMPREHENSIVE PLAN REQUIREMENTS


R. Adam Carnegie, AICP
Senior Planner/GIS Manager
Dames & Moore
One North Dale Mabry, Suite 700
Tampa, Florida 33609
(813) 875-1115

Outline Provided
Courtesy of:
Rick Drummond
Chief Planner, Long Range Planning Division
Sarasota County Planning Department


I. COMPREHENSIVE PLANNING PROCESS

The 1985 Growth Management legislation, as amended, mandated local
governments to strengthen the role of their comprehensive plan in guiding and
controlling future development. Local government comprehensive plans must,
therefore, be of sufficient form and content to permit long term aspirations to
be realized through the comprehensive planning process.

Comprehensive plans are developed through the process whereby issues
identified by the community, agencies and local government officials are refined
into goals, objectives and policies which form the basis of the comprehensive
plan. Goals, objectives and policies are defined in 9J-5, FA.C. as follows:

A. GOALS

Long term ends toward which programs or activities are ultimately
directed.

B. OBJECTIVES

Specific, measurable, intermediate ends that are achievable and mark
programs toward a goal.

C. POLICIES

The way in which programs and activities are conducted to achieve an
identified goal.


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In order to encourage appropriate actions which would further the intent of the
comprehensive plan, policies must clearly show the relationship to the respective
goals and objectives.

II. LEGISLATIVE REQUIREMENTS

A. CHAPTER 163, FLORIDA STATUTES

Chapter 163, F.S. requires Local Planning Agencies (LPA) to promulgate
comprehensive plans which contain mandatory elements, address specified
issues based on required data and analysis, and establish specific criteria
to effectively tie development to adequate and necessary urban services.
Additionally, local government comprehensive plans must identify
programs and regulations which implement the comprehensive plan and
its elements, and must identify mechanisms and procedures for the future
monitoring, evaluation and appraisal of the plan.

1. Required Elements

At a minimum, Chapter 163 F.S. requires all local government
comprehensive plans to contain the following elements:

Future Land Use
Traffic Circulation
Mass Transit (50,000 or greater population)
Port, Aviation and Related Facilities (50,000 or greater
population)
Housing
Sanitary Sewer, Solid Waste, Drainage, Potable Water and
Natural Groundwater Aquifer Recharge
Coastal Management (coastal areas)
Conservation
Recreation and Open Space
Intergovernmental Coordination
Capital Improvements

2. Optional Elements

Chapter 163 F.S. lists other possible optional elements which may
be included in comprehensive plans:

Economy
Offstreet Parking Facilities
Public Buildings and Related Facilities


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Community Design
General Area Redevelopment
Safety
S Historical and Scenic Preservation

3. Public Notice Requirements

The LPA is required to hold at least one public hearing with due
public notice and forward the proposed revised comprehensive
plan and elements to the respective governing body. The governing
body shall then hold at least one advertised public hearing and
then, immediately transmit the complete proposed comprehensive
plan to the Department of Community Affairs (DCA), the state land
planning agency, for written comments. Copies of the complete
proposed plan shall be sent to any other local government or
governmental agency in the state which has filed a written request
with the local government.

Within 60 days of receiving written comments from DCA, the local
government may adopt or adopt with changes, the revised
comprehensive plan. After adoption, the local government shall
submit the adopted comprehensive plan to the DCA for a 45 day
review to determine whether or not the intent of Chapters 163, F.S.
and 9J-5, F.A.C. has been met.

4. Public Participation

The requirements of both State law and good planning practice
necessitate the development of an effective public participation
program as part of the update of Sarasota County's Comprehensive
Plan, Apoxsee.

Section 163.3181, F.S., "Public Participation in the Comprehensive
Planning Process" explains that intent of the Legislature is 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 comprehensive planning process and to
provide real property owners with notice of all official
actions which will regulate the use of their property.

Chapter 9J-5, F.A.C., sets forward minimum requirements for
public participation procedures, including:


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a. Provisions to assure that real property owners are put
on notice, through advertisement in a newspaper of
general circulation in the area or other method
adopted by the local government, of official actions
that will affect the use of their property;

b. Provisions for notice to keep the general public
informed;

c. Provisions to assure that there are opportunities for
the public to provide written comments;

d. Provisions to assure that the required public hearings
are held;

e. provisions to assure the consideration of and response
to public comments; and

f. Local governments are encouraged to make executive
summaries of the comprehensive plan available to the
general public and should, while the planning process
is ongoing, release information at regular intervals to
keep its citizenry apprised of planning activities.

B. CHAPTER 9J-5, FLORIDA ADMINISTRATIVE CODE

Section 163.3177, F.S. requires DCA to establish rules to use in evaluating
local governments' compliance with Chapter 163, F.S. Consistent with this
requirement, Chapter 9J-5, F.A.C. established the minimum criteria for the
preparation, review, and determination of compliance for local
government comprehensive plans and sets forth the following:

1. Requires local government comprehensive plans to be consistent
with the respective Regional Policy Plan and the State
Comprehensive Plan;

2. Establishes the minimum requirements for determining if local
government comprehensive plans are in compliance with the
respective Regional Policy Plan and State Comprehensive Plan;

3. Establishes the minimum standards for comprehensive plan
elements;

4. Sets the basic format of the criteria which requires each element


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to utilize specified data and analyses and address specific issues in
goals, objectives and policies; and

5. Requires the promulgation of additional rules relating to the
procedural aspects as required by Chapter 163, F.S.

C. CHAPTER 9J-12, FLORIDA ADMINISTRATIVE CODE

Section 163.3167, F.S., requires DCA to adopt a schedule of specific dates
for local governments to follow in submitting their comprehensive plans.
Chapter 9J-12, F.A.C., establishes that schedule for the submission of local
government comprehensive plans to DCA. This'schedule requires coastal
counties to submit their plans before noncoastal counties and, unless
otherwise noted, requires all municipalities to submit their plans in the
same time frame as their respective county.

II. LAND DEVELOPMENT REGULATIONS

Chapter 163, F.S. intends for local government comprehensive plans to be used
in the coordination of planning and development activities. In order for these
plans to carry out the legal mandate, Section 163.3202, F.S. requires each local
government to adopt or amend and enforce land development regulations that
implement and are consistent with their comprehensive plan within one year
after submission of the plan. Land development regulations are not required
to be included in the comprehensive plan; however, Subsection 9J-5.005(6),
F.A.C., does require the identification of those programs, activities and
regulations, that will be part of the strategy for implementing the comprehensive
plan, and its goals, objectives and policies.

In addition, not later than one year after a comprehensive plan is scheduled to
be submitted to DCA, a local government shall not issue a development order
or permit which results in a reduction in the level of services for the affected
public facilities below the level of service provided in the comprehensive plan.

IV. EVALUATION AND MONITORING

A. Section 163.3191, F.S. This section requires local governments to prepare
periodic reports on the comprehensive plan at least once every 5 years.
These reports must evaluate the success or failure of the adopted
comprehensive plan or its elements. These Evaluation and Appraisal
Reports (EAR), must address:

1. Major problems of development in the area;

2. The condition of each element from the time of adoption to the


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date of the report;

3. The effectiveness of plan objectives in achieving results; and

4. The extent of which unanticipated and unforseen problems and
opportunities occurred since the date of adoption.

B. CHAPTER 9J-5.005(7), F..C.

This chapter requires comprehensive plans to contain a section identifying
monitoring and evaluation procedures which will be utilized in the five-
year EAR. This section will address the following:

1. Citizen participation in the process;

2. Updated baseline data for both the first five-year period and the
long-term period;

3. Accomplishments describing the achievement of the stated goals,
objectives or policies;

4. Obstacles resulting in the underachievement of stated goals,
objectives or policies;

5. Revisions or additions to the goals, objectives and policies as a
result of the above; and

6. Means of assuring continuous monitoring and evaluation of the
plan during the five-year period.


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PRESENTATION OUTLINE


FLORIDA CHAMBER OF COMMERCE, SUMMER PERMITTING PROGRAM, 1990

LOCAL COMPREHENSIVE PLANNING AND LAND DEVELOPMENT


FOCUS:


Implementing Land Development Regulations


Presenter: David J. Kovacs, A.I.C.P.
Director of Planning and Zoning
Delray Beach, Florida

I. THE BASICS Mandatory Regulations

A. Land Use Management System (Zoning)

B. Land Development Requirements
1. Subdivision Regulations
2. Design Regulations
District zoning regulations
(Area, Height, Setbacks, Coverage, etc)
Signing regulations
Parking regulations
3. Environmental Regulations
Flood Plain
Coastal Construction
Environmentally Sensitive Sites
Areas of Critical State Concern

C. Concurrency Management System
1. Procedural requirements and vesting
2. Standards for compliance
3. Tracking and updating systems

D. Other items specific to your Comprehensive Plan


Groundwater protection ?
Historic Preservation ?
Developer Extractions ?
Prohibition of invasive species ?


E. Procedures
1. Role of the Local Planning Agency
findings of consistency
review of your own projects
2. Administering the basics
3. Don't forget the Comprehensive Plan
Land Use Review compliance
Performance compliance
4. Intergovernmental Coordination
5. Codifying the Capital Improvement Element











Presentation Outline
Florida Chamber of Commerce
Summer Permitting Program, 1990



II. ALTERNATIVE APPROACHES

A. Traditional separate zoning, subdivision, and
environmental regulations and procedures for each
contained therein to this, add concurrency
management

B. The Integrated Approach one volume, coordinated
administration, separate chapters for zoning,
subdivision, design, and environmental regulations

C. Performance Manuals/Flexible Regulations
--- forget it unless you already have it

D. The Model Code(s)
--- walk before you run

III. PREPARATION AND ADOPTION

A. Adoption requirements
1. one year after Plan submittal? adoption?
compliance agreement?
2. What governs in the meantime?

B. D.C.A. Grant Assistance
1. availability of funding assistance
2. delivering the goods
3. extensions

C. D.C.A. Review and Certification Requirements
1. minimal reasonable basis for assuming
non-compliance
2. citizen challenge

D. Local Considerations
1. Are you rezoning the City?
2. Local notice requirements is it enough?
3. Citizen participation (?) how much is too
much?
4. Use of consultants
5. Don't forget the Chief Building Official
6. Don't forget the City Engineer
7. Don't forget the local customs (i.e. your
screwed-up code is that way for a reason)
8. Working with Attorneys (?)

E. A great opportunity -- do not under estimate it!













LOCAL COMPREHENSIVE PLANNING AND LAND DEVELOPMENT


Key Legal and Administrative Decisions

by
Paul R. Bradshaw

A. Significant Outcomes of Administrative Hearings on Local
Comprehensive Plans

As of May 31, 1990, administrative hearings have
been conducted on three local comprehensive plans that
the Department of Community Affairs originally found
not in compliance with planning requirements. These
plans include Charlotte County, Lee County, and the
City of Islandia.

Administrative hearings have also been held on
five plans as the result of citizen challenges to the
Department's finding the plan in compliance with plan-
ning requirements. These plans include the Broward
County, Sarasota County, the City of Cocoa, the City of
Oakland Park, and the City of Miami Beach.

1. Charlotte County Plan Hearing

a. The hearing officer accepted the Department's
interpretation and application of requirements
to discourage urban sprawl.

b. The hearing officer held that a plan that
promotes urban sprawl can have significant
adverse impacts on natural resources, on the
efficient use of land, and on the provision of
adequate public facilities and services.

c. The requirement that all plan elements, including
the future land use element, be based on adequate
data and analysis was reaffirmed by the hearing
officer. He said that if the data and analysis
demonstrate a need for specific actions and the
plan does provide appropriate measures in response
to identified needs, the plan does not comply with
legal requirements.

d. The hearing officer found that representatives of
the Department present at a plan adoption hearing
are not required to inject themselves into the
adoption hearing to satisfy Section
163.3184(8)(a), Florida Statutes.













2. Cocoa Plan Hearing


a. The hearing officer held that public participation
requirements can be evaluated in a plan compliance
proceeding and that a plan can be found not in
compliance for failure to provide adequate public
participation opportunities.

b. The requirement that adequate protective measures
for wetlands must be included in a local
comprehensive plan, including showing wetlands on
the land use maps was reaffirmed by the hearing
officer.

3. Islandia Plan Hearing

a. Consistent with the order in the Charlotte County
case that land uses designated in the plan must be
consistent with and supported by the analysis of
available data, the hearing officer in this case
held that a local governing body cannot predeter-
mine densities and intensities of land use before
the data collection and analysis are complete.

b. The hearing officer in this case also found that
planning for six dwelling units per acre when
homes would have to be built on stilts and sewer,
drinking water, and other services could not be
provided was not sound planning.

B. Significant Local Comprehensive Planning Requirements

1. Concurrency

a. The Department's rule for concurrency management
is codified in Rule 9J-5.0055, Florida Administra-
tive Code.

b. The rule requires the following:

1) Level of service standards which are adequate
and realistic, must be adopted for public
services and facilities located within each
local government's jurisdiction. Included
are sanitary sewer, solid waste, drainage,
potable water, parks and recreation, roads,
and mass transit, if applicable.

2) Assurance that adopted LOS standards will be
maintained before the local government issues
a development permit. A local government
shall not issue a development permit that














results in a reduction of an adopted LOS
standard.

3) The capital improvements element must set
forth a financially feasible plan (five-year
schedule) which demonstrates that the local
government can achieve and maintain the
adopted LOS standards.

2. Discouraging Urban Sprawl

a. A legal challenge to the Department's interpre-
tation and application of the legal requirements
that local comprehensive plans discourage urban
sprawl was dismissed by a hearing officer.

b. In the order dismissing the challenge, the hearing
officer held that the Department's approach to
discouraging urban sprawl is balanced and that the
Department has provided local governments with
adequate and practical guidance.

c. In its review of local government comprehensive
plans, the Department considers differences be
tween slowly growing areas and rapidly growing
areas.



















LOCAL GOVERNMENT COMPREHENSIVE PLANNING


Nancy Graham
Moyle, Flanigan, Katz,
Fitzgerald & Sheehan
625 N. Flagler Drive
9th Floor
West Palm Beach, FL 33401
(407) 659-7500


Jim Murley
1000 Friends of Florida
Post Office Box 5948
Tallahassee, FL 32302
(904) 222-6277


Georgianne Ratliff
Dames and Moore
3655 Cortez Road, Suite 110
Bradenton, FL 34210
(813) 753-3065


Roy Rogers
Arvida/JMB Partners
1200 Weston Road
Ft. Lauderdale, FL 33326
(305) 384-8000







Nancy Malley Graham, Esquire
Moyle, Flanigan, Katz,
FitzGerald & Sheehan, P.A.
9th Floor, Barnett Centre
625 North Flagler Drive
West Palm Beach, FL 33401
Telephone: (407) 659-7500


LOCAL GOVERNMENT COMPREHENSIVE PLANNING

Challenges to Land Development Regulations
and Development Orders


After much discussion and several years of planning,
comprehensive plans mandated under Chapter 163, Florida Statutes
are now being filed with and reviewed by the Department of
Community Affairs ("DCA"). The filing of a comprehensive plan
triggers the one-year time period within which land development
regulations must be implemented which are consistent with the
local comprehensive plan. The adoption and implementation of land
development regulations will likely result in increased legal
challenges.

I. Legal Status of Comprehensive Plans.

After a comprehensive plan, or element or portion
thereof, has been adopted in conformity with the Act, all
developments undertaken by, and all actions taken in regard to
development orders by, governmental agencies must be consistent
with such plan or element as adopted. All land development
regulations enacted or amended must be consistent with the adopted
comprehensive plan. During the interim period between the
adoption of the comprehensive plan when the land development
regulations are inconsistent, the provision of the most recently
adopted comprehensive plan shall govern any action taken in regard
to an application for a development order. (F.S. 163.3194)

II. Land Development Regulations.

Land development regulations are adopted by ordinance to
implement an approved local comprehensive plan, which regulations
apply to "any aspect of development". (F.S. 163.3213). While DCA
does not routinely review such ordinances for consistency with a
local comprehensive plan, it will do so when formally petitioned
by a citizen to do so. As a condition precedent to bringing a
suit, a person must file a petition with the local government
setting forth reasons why the ordinance is inconsistent with the
local comprehensive plan.











If the local government does not make the requested
changes or does not respond, a "substantially affected person" (as
defined in Chapter 120, F.S.) may file a petition with DCA
alleging inconsistency and requesting that DCA make a
determination. If DCA finds the ordinance consistent, there is an
automatic hearing and the petitioner may intervene. Challenges to
the consistency of an ordinance must be brought within twelve
months of the final adoption of the ordinance.

DCA does not have the right to make a determination as to
proviate property rights Buckley v. Dept of Health & Rehab. Serv.
516 So.2d 1008 (1st DCA 1987). Thus, challenges to land
development regulations on the basis of vested rights/estoppel can
only be brought in the circuit court by way of an action for
injunctive or declaratory relief.

Further, land development regulations may be challenged as
unconstitutional, both on their face and as applied, by filing an
action in Circuit Court.

III. Development Orders.

All development undertaken and all actions taken in
regard to development orders must be consistent with the adopted
comprehensive plan. 163.3194(a)(a), F.S.

A "development order" is the granting, granting with
conditions, or denial of:

"any building permit, zoning permit,
subdivision approval, rezoning, certification,
special exception, variance, or any other
official action of local government having the
effect of permitting the development of land",

163.3194(6), F.S.

A development order which is consistent with the plan is
one in which:

"the land uses, densities, or intensities, and
other aspects of development permitted by such
order or regulation are compatible with and
further the objectives, policies, land uses,
and densities or intensities in the
comprehensive plan and if it meets all other
criteria enumerated by the local government",

163.3194(3)(a), F.S.


- 2 -


1











An "aggrieved or adversely affected party" who believes
that a development order is inconsistent with the local plan may
seek an injunction or other relief in circuit court. Temporary
restraining orders are available to prevent immediate and
irreparable harm. An "aggrieved or adversely affected party" is a
person or local government:

"which will suffer an adverse effect to an
interest protected or furthered by the local
government comprehensive plan...The alleged
adverse interest may be shared in common with
other members of the community at large, but
shall exceed in degree the gneeral interest in
community good shared by all persons",

163.3215(2), F.S. (This language is taken directly from Renard
v. Dade County, 261 So.2d 832 (Fla. 1972) in which the Florida
Supreme Court set forth the test for citizen's standing to contest
a local government action under common law.) The legislature went
beyone Renard by its expansion of the second part of the test,
that is, the "zone of interest" -- those things which are meant to
be protected by the act (and, therefore, those things which the
court will consider in hearing a case). The legislature moved
from those interests generally recognized in zoning cases at
common law to a considerably broader range of issues. Case law
construing the Act appears to support broadened citizens' standing
for challenging development orders.

IV. "Consistency" Challenges.

The standard of review used by the court in reviewing
challenges addressing the issue of "consistency" is important when
considering whether or not the land development regulation and
development orders granted pursuant thereto will be upheld.

Section 163.3194(4)(a), Florida Statutes, sets forth various
factors which the court may consider when reviewing challenges to
development regulations which are applicable to challenges based
on consistency, or lack thereof:

"A court, in reviewing local government action on
development regulations under this act, may consider,
among other things, the reasonableness of the
comprehensive plan, or element or elements thereof,
relating to the issue justiciably raised or the
appropriateness and completeness of the comprehensive
plan, or element or elements thereof, in relation to the


- 3 -











governmental action or development regulation under
consideration. The court may consider the relationship
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 compensation."
s. 163.3194(4)(a), F.S.



A. Judicial Standard of Review

The Act is clear in providing the complaining party with a
right to challenge a development order in circuit court; however,
the courts are split over what standard of review should be
applied in resolving consistency questions.

1. The "Strict Scrutiny" test mandates that all
elements of a plan must be consistent with all other
elements. If the furtherance of one element is contrary to
another element, the local development order is deemed
inconsistent by definition.

2. The "Fairly Debatable" or balancing of the public
interest tests give great deference to local government in
weighing competing goals and objectives of its plan and
determining what is in the best interests of its citizens.

3. The "Stricter Scrutiny" test adopted by the Fourth
District Court of Appeal in Southwest Ranches Homeowners'
Association. Inc. v. County of Broward, 502 So.2d 931 (Fla.
4th DCA 1987) (discussed below) falls somewhere in between the
tests set forth in the preceding paragraphs and is applied
only when the development order challenged allows a more
intensive use than that proposed by the comprehensive plan.


B. Application of the Standards:

1. The consistency issue was addressed by the Fourth
District Court of Appeal in Southwest Ranches Homeowners'
Association, Inc. v. County of Broward, 502 So.2d 931 (Fla.
4th DCA 1987). In Southwest Ranches, the court had to
determine whether the rezoning of a parcel of land to
facilitate the location of a sanitary landfill and resource


- 4 -


1











recovery plant was inconsistent with the County's
comprehensive plan. Neighbors objected, arguing that the
proposed use was inconsistent with the coastal zone protection
element, the potable water element, and the solid waste
element of the comprehensive plan.

The Southwest Ranches court found that zoning
decisions should not only be fairly debatable but also should
be consistent with the comprehensive plan. The test for
review of zoning which is more intensive than the
comprehensive plan was modified slightly by the Southwest
Ranches court, however to provide that such decisions must be
subject to "stricteL scrutiny" than the fairly debatable
standard.

The court in Southwest Ranches found that the state
legislature intended to give local governments some
flexibility in applying their comprehensive plans. The court
observed that government is saddled with the reality of making
provisions for controversial land uses and that in managing
growth under a comprehensive plan with a wide array of
elements a County may select between conflicting goals and
priorities.

2. The Third District relied on the Southwest Ranches
case in Norwood-Norland Homeowners' Association. Inc. v. Dade
County, 511 So.2d 1009 (Fla. 3d DCA 1987) (The "Dolphin
Stadium" case). The court upheld the zoning and agreed that
zoning which is more intensive than that proposed by the plan
must be subject to "stricter scrutiny" than the fairly
debatable standard comtemplates. The court quoted the
statutory definition of consistency contained in Section
163.3194(3), F.S. (1985) and placed particular emphasis on the
statutory requirement that the zoning be compatible with the
objectives and policies of the comprehensive plan. The court
resolved the consistency issue by examining the evidence
contained within the record concerning the stadium's
compatibility.

3. Less than two months after it had decided the
Dolphin Stadium case, the Third District ruled in Machado v.
Musgrove, 519 So.2d 629 (Fla. 3d DCA 1987). In Machado, the
owner obtained rezoning of an 8.5 acre tract of land from an
"interim" zoning classification to a "professional office"
zone. The property was located at the intersection of two
four-lane arterial roadways in an area designated on the land
use plan map as "estate residential," a category which also


- 5 -











permits community commercial establishments. A neighborhood
study adopted by Dade County in 1981 identified the property
as agricultural. Ojecting neighbors appealed to the circuit
court, which reversed the rezoning on the ground that it was
not fairly debatable.

The property owner filed a petition for writ of
certiorari in the Third District. In a retreat from its own
opinion in the Dolphin Stadium case, the court disapproved of
Southwest Ranches' flexible approach and adopted instead the
"strict scrutiny" test. The court stated that judicial review
under strict scrutiny implies rigid exactness and minute
investigation. The court reasoned, however, that the
comprehensive plan consists solely of the land use plan map
and accompanying text (i.e., the future land use element) and
neighborhood studies.

The Florida Supreme Court denied review in both
Southwest Ranches and Machado, in spite of the fact that there
is a clear conflict between the cases.

4. The Fourth District Court of appeal recently had the
opportunity to readdress the standard of review issue in the
case of Palm Beach County v. The Allen Morris Company, et al,
14 FLW 1762 (August 4, 1989).

Palm Beach County approved a rezoning and special
exception for a mini-warehouse facility on a parcel of land
200 feet wide fronting on Military Trail (a major
thoroughfare) and 1200 feet deep. Prior to rezoning, the
zoning designated the front 200 feet as commercial and the
rear 1,000 feet as residential. The Allen Morris Company, the
owner of property immediately north of the subject parcel,
challenged the rezoning and special exception on numerous
grounds, including the issue that the development order and
land use regulations were not consistent with the County's
comprehensive plan.

The procedural nightmare which arose from the
various challenges raised was alone enough to merit a separate
article. Certain challenges had to be raised by a petition
for writ of certiorari which limits the parties to the record
developed at the hearing before the County, while the statute
requires challenges to consistency be brought in an action for
declaratory relief which are "de novo" permitting new evidence
to be submitted at trial. As a practical matter, how does the
trial court and appellate court apply the appropriate standard


- 6 -











of review in both a certiorari review and de novo proceeding
arising out of the same transaction which are before the same
judges? (See example and discussion of the procedural
difficulties in Gregory v. City of Alachua, et al, 14 FLW 2524
(November 3, 1989).

The County's comprehensive plan was somewhat vague
regarding the overlay designation on the subject property.
Additionally, in determining that the development was
consistent with the County's comprehensive plan, the County
staff applied an unwritten "single lot-of-record" policy. The
trial court upheld the rezoning on certiorari review as being
"fairly debatable" and held following a trial on the
"consistency" issue that the rezoning was consistent with the
County's comprehensive plan. The holdings of the trial court
were affirmed by the Fourth District Court of Appeal.

The significance of the Fourth District's opinion
was that, presented with an opportunity to recede from its
earlier opinion in Southwest Ranches in light of the Third
District's later opinion in Machado which conflicted with
Southwest Ranches, the Fourth District did not do so. The
Fourth District in Palm Beach County v. The Allen Morris
Company, found that the trial court satisfied the "stricter
scrutiny" requirements set forth in Southwest Ranches since
the rezoning approved a more intensive use that that proposed
by the comprehensive plan. However, it should be noted that
the Southwest Ranches "stricter scrutiny" standard, while more
stringent than the "fairly debatable" standard, is much less
stringent than the "strict scrutiny" standard adopted in
Machado.

C. Procedural Issues.

In order to bring a legal challenge to a rezoning or
development order based on the issue of "consistency", the
challenging party must first raise the consistency question before
the local governing body which rules on the application. First
CitY Savings Corp. of Texas v. Orange County. Florida, 14 FLW 1896
(August 25, 1989).

The party seeking a zoning change has the burden of proving
that the requested zoning for the property will conform to the
plan and its elements. Shops of Sunset, Ltd. v. Cohen, 14 FLW
2663 (November 24, 1989.) However, the party challenging the
approval of the rezoning and development order in circuit court
has the burden of proving that the rezoning is not consistent.


- 7 -












1000 FRIENDS OF FLORIDA
POST OFFICE BOX 5948 TALLAHASSEE, FLORIDA 32314 904-222-6277
A mtax exempt corpotkintm pursinat to Sectian 507i)(3) fithfe Interiwl erStlue C0f.,


I. Plans submitted for review



Local governments have been submitting draft plans for

review by the Florida Department of Community Affairs (DCA)

pursuant to Rule 9J-12, F. A. C..

A. 210 plans submitted

1. 189 city plans and 21 county plans

B. DCA has issued objection, review, and comment

(ORC) reports for 188 plans.

C. 5 plans were submitted late.

1. The Administration Commission, Governor and

Cabinet, has adopted a policy that imposes

financial sanctions in proportion number of days

late over 365 times the amount of the local

government's annual state revenue sharing.

II. Plan receiving notices of intent to find compliance

(NOIS)

A. The Department of Community Affairs has issued NOIS

for 144 local governments.

1. 130 cities and 14 counties.

2. 69 plans were found in compliance and 75

plans were found not in compliance.












III. Plans receiving compliance agreements.

A. DCA, local governments and intervening parties have

pending or have signed 24 compliance agreements

1. The agreements are stipulated settlements under

Chapter 120, F.S., which defer state

administrative hearings for up to one year while

local governments prepare amendments to bring

their plans into compliance.

IV. Three plans subject to state administrative hearings.

A. The City of Cocoa, Brevard County, had their

plan found in compliance by DCA.

1. Residents of Cocoa sought a state

administrative hearing on issues of historic

preservation, wetland protection and citizen

participation.

2. The state hearing officer found the Cocoa plan

not in compliance and recommended to the

Administrative Commission reverse DCA.

3. DCA agreed with the hearing officer, and signed

a compliance agreement with Cocoa, which became

the basis of the Administrative Commission's

final order delaying sanctions while the

agreement was in force.

B. The Department of Community Affairs found the

Charlotte County plan not in compliance for reasons


1









natural resources and coastal barrier islands.

1. DCA, Charlotte County and a number of

interveners participated in the required

administrative hearings.

2. The state hearing officer has recommended

to the Administrative Commission that they

issue a final order finding the Charlotte Plan

not in compliance.

C. DCA found the City of Islandia's plan not in

compliance.

1. DCA, the City, Dade County and interveners have

participated in the required administrative

hearing.

V. Emerging issues dealing with local government

comprehensive plan review and compliance processes.

A. Review process issues.

1. Level of review for small cities.

2. Time available to respond to DCA ORC report.

3. Status of interagency review comments.

4. Role of regional planning councils.

B. Compliance review issues.

1. Findings of DCA supporting compliance decisions.

2. Discussions between DCA, local governments and

interested parties.

3. Relative weight of review criteria, ie. Rule

955, the applicable comprehensive regional

policy plan, the State Comprehensive Plan.








C. Compliance Agreement issues.

1. Notice to interested parties.

2. Enforceability.

3. Status of plans during agreement period.

D. State Administrative Hearing issues.

1. Role of interveners.

2. Scope of review by hearing officers.

E. Administrative Commission issues.

1. Policy for imposing sanctions.

2. Status of parties and interested persons before

the Commission.

3. Modification to final order.












1990 ENVIRONMENTAL PERMITTING
SHORT COURSE
JANUARY 24-26, 1990


COURSE V
LOCAL GOVERNMENT COMPREHENSIVE PLANNING


Georgianne Ratliff
Dames & Moore
3655 Cortez Road West, Suite 110
Bradenton, FL 34210
(813) 753-3065


STRATEGIES FOR DEALING
WITH URBAN SPRAWL


I. INTRODUCTION

In June of 1989 the Governor's Task Force on Urban
Growth Patterns released its final report. This
report described urban sprawl as a major state-wide
problem and recommended actions to eliminate it. Some
43 recommendations were included, one of which was
establishing "urban service areas." Several
comprehensive plans have subsequently been reviewed by
DCA in light of their effectiveness in dealing with
urban sprawl. We can now see how this new "policy" is
effecting plan review and acceptance by the state.


II. URBAN SPRAWL, Defined

As defined by the Governor's Task Force: "--- a
development pattern characterized by scattered,
unplanned, low density development that is not
functionally related to adjacent land uses."

As defined by DCA: "We'll know it when we see
it!"


III. URBAN SPRAWL, Strategies to Eliminate

Urban Service Areas/Urban Expansion Areas;

Controlling densities in rural/agricultural
areas;












Course V
Local Government Comprehensive Planning
Page Two



Policies requiring mixed-use development;

Cost-pricing policies;

Incentives to promote concentrated urban
development.


IV. URBAN SPRAWL, Case Studies

Sarasota County Urban Service Areas/Urban
Expansion Areas

Pasco County Mixed-Use policies; differential
Levels of Service Standards as incentives.








OUTLINE


FLORIDA CHAMBER'S ENVIRONMENTAL
PERMITTING SHORT COURSE


LOCAL GOVERNMENT COMPREHENSIVE
PLANNING SESSION


ROY ROGERS



I. CONCURRENCY INTRODUCTION

A. Historical Overview

1. Who is affected?
2. DCA's response to vesting
a. DRI vested projects
b. Development order amendments
c. Specific limitation
d. Final local development orders
e. Binding letters of interpretation

B. Broward County's Situation

II. THE REALITY OF CONCURRENCY IN BROWARD

A. The mad rush for plat approval
B. Implications on downtown redevelopment
C. Over capacity roads
D. Affected areas of development
E. Plat and permit denials

III. POSSIBLE SOLUTIONS

A. Assess trip generation accounting system
B. Reassess capacity standards
C. Transfer of capacity rights
D. Concurrency banking
E. Liberal standards
F. Other


IV. CONCLUSIONS













PALM BEACH COUNTY
BROWARD COUNTY ----


OVER-CAPACITY -
ROADWAYS AND
AFFECTED AREAS /
OF DEVELOPMENT

COMPREHENSIVE PLAN
CONCURRENCY REQUIREMENT



-OVER-CAPACIT
ROAD SEGMENT
-__- DEFERRAL AREA /
DEVELOPMENT
IMPACT -(EXEMPT)

.d dot. a, of Nove.b., 1. 1989


NOVEMBER 1989


"- / I "u
SCALE IN MILES t


I 2
,, S.

-S4






















DADE COUNTY
Rpoj i,.







AOA Clo
S- FIC OF PLAVINSG
N __" ...... ..-- I







I-, : : I ?--- i --_:-- f c."


DADE COUNTY
OFFICE OF PLANNING




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