Title: New Process: Plan Amentments
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Permanent Link: http://ufdc.ufl.edu/WL00004512/00001
 Material Information
Title: New Process: Plan Amentments
Physical Description: Book
Language: English
Publisher: Growth Management - Jan 1994
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - New Process: Plan Amentments (JDV Box 91)
General Note: Box 23, Folder 1 ( Miscellaneous Water Papers, Studies, Reports, Newsletters, Booklets, Annual Reports, etc. - 1973 -1992 ), Item 15
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004512
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

NEW PROCESS: PLAN AMENDMENTS


By DAVID L. POWELL
Some of the major changes to the local comprehensive planning program made by the
Legislature in 1993 were the revisions of the plan amendment process. Since they became
effective on July 1, 1993, these changes have caused uncertainty and concern on the part of
many municipal officials throughout Florida.
Here, in a question and answer format, is a primer on the new plan amendment process
enacted by the Legislature and based on the recommendations of the third Environmental
Land Management Study (ELMS III) Committee.
Q. Why did the ELMS III legislation alter the plan amendment process?
A. Throughout the growth management policy review conducted in 1992 by the ELMS III
.Committee, one recurring concern was the length of time necessary to amend a local
comprehensive plan and receive a compliance determination from the Department of
Community Affairs (DCA). Local government and private-sector representatives alike pointed
out that it can take months to complete this process, even if everything goes well. They also
argued that the state reviews are too bureaucratic and intrusive. So, the ELMS III Committee
recommended-and the Legislature enacted-some major changes in the way plan amend-
ments are reviewed.
Q. In general, how does the 1993 legislation respond to these concerns?
A. The new law allows the elimination of what previously was a mandatory step in the plan
amendment process, the pre-adoption review by DCA of every plan amendment proposed by
a local government. This pre-adoption review will now be optional, cutting the time required
for most local plan amendments by at least two months and maybe more.
Q. How did the plan amendment process work prior to the ELMS III legislation?
A. Under pre-existing law, each plan amendmentwas reviewed twice by DCA. First, it was
reviewed as a transmittal draft, prior to adoption by the local government. After agreeing on
a form for the proposed amend-
ment, the local government trans-
mitted it to DCA, which forwarded
the process for most copies to variety of state, regional
and local agencies. These agen-
plan amendments will be cies reviewed the amendment and
sentwritten comments to DCA within
sped up 45 days. Based on this
intergovernmental review and its
own internal review, DCA had an-
other 45 days to prepare a report of
STI is* ISl its objections, recommendations
N HIS ISSUE:* and comments (commonly known
ias an ORC report.) The ORC report
Hearings: new ELMS growth management re- was returned to the local govem-
quirements. ment.
Page 2 The local government then had
60 days to review the report, adopt
* Urban sprawl rule challenge update the amendment in final form, and
Page 2 submit it to DCA for a second re-
view. DCA had 45 days to conduct
* Governor Chiles appoints Land Use and Water the compliance review and decide
Planning Task Force. whether it believed the adopted
Page 2 amendment was in compliance or
not in compliance with state law.
* Florida Supreme Court issues long-awaited Under pre-existing law, this proce-
Snyder decision. dure was followed for each plan
Page 3 amendment from all 458 cities and
counties.
* Florida coastal information exchange bulletin
board system


(Please See PLAN, page 3)


"I









P3



















Volume 5
Number 1
January 1994
6














January 1994


Page 6





































LAND USE AND WATER PLANNING TASK
FORCE

The governor-appointed Land Use and Water Plan-
ning Task Force held its first meeting in Tallahassee on
December 15, 1993. Under the recently enacted
ELMS legislation, Section 77, Chapter 93-206, Laws
of Florida, this task force was asked to "formulate
recommendations for legislative action on the most
appropriate legal relationship between district water
management plans, on the one hand, and the growth
management portion of the state comprehensive plan,
strategic regional policy plans, and local comprehen-
sive plans, on the other." The task force will submit its
recommendation to the president of the Senate and
the speaker of the House of Representatives by Octo-
ber 1, 1994. The 17-member task force is chaired by
former Department of Environmental Regulation Sec-
retary Vicki Tschinkel; City of Tampa City Attomey
Pam Akin represents the interest of municipalities. For
more information contact Teresa Tinker, office of the
governor, (904) 488-7793.


"URBAN SPRAWL" RULE CHALLENGE UPDATE

The challenge to the Rule 9J-5 urban sprawl provi-
sion, which started two years ago, is still pending. Filed
by St. Joe Paper Company and others, the challenge
was narrowed to a review of the validity of the provi-
sions of the rule that relate to the minimum criteria DCA
uses when it evaluates whether a plan or plan amend-
ment encourages urban sprawl. The Florida League
of Cities intervened in the rule challenge proceeding to
support the position of DCA.
The formal hearing was completed in September
and all post-hearing filings have been submitted. The
parties are now awaiting the final order of the hearing
officer. No deadline is set for the receipt of the final
order. We will keep you posted.

If you would like to submit an article or offer ideas
for this publication, please forward to :The Growth
Management Report, FLC, P.O. Box 1757, Tallahas-
see, FL 32302-1757; fax (904) 222-3806.


Page 2


HEARINGS: NEW ELMS GROWTH MANAGEMENT REQUIREMENTS

The Department of Community Affairs has published rules proposed to implement the ELMS III legislation
in Vol. 19, No. 48, December 3, 1993 issue of the Florida Administrative Weekly. These rules represent a
significant departure from current local practices and cover a broad spectrum of changes to the Minimum
Criteria for the Review of Local Plans, Rule 9J-5, F.A.C. for: concurrency management, transportation,
housing, coastal management, intergovernmental coordination, and evaluation and appraisal reports, among
other things; Development of Regional Impact Uniform Standard Rules 9J-2, F.A.C.; the Schedule for the
Transmission of Evaluation and Appraisal Reports, Rule 9J-33; and the Schedule for Submission of Revised
Intergovernmental Coordination Elements, Rule 9J-40, F.A.C.
Rule adoption hearings are scheduled for the following dates and locations:
Development of Regional Impact Rules 9J-2
HELD January 6, 1994 (9 am noon), Tampa Bay Regional Planning Council
HELD January 7, 1994 (9 am noon), Ft. Lauderdale City Hall
January 12, 1994 (9 am noon), Forrest Building, Room 350, Tallahassee
Minimum Criteria Rule for Review of Local Plans Rule 9J-5 and Evaluation and Appraisal Report
Schedule Rule 9J-33
HELD January 10, 1994 (9 am noon), Orange County Commission Chambers
HELD January 11, 1994 (9 am noon), Southwest Florida Regional Planning Council
January 12, 1994 (1 pm 4 pm), Forrest Building, Room 350, Tallahassee
Intergovernmental Coordination Element and Schedule Rule and Land Development Regulation Rule
9J-24
January 24, 1994 (1 pm 4 pm), Southwest Florida Regional Planning Council
January 25, 1994 (10 am 1 pm), Broward County Library, Ft. Lauderdale
January 26, 1994 (9 am noon), Orange County Commission Work Session Room
January 28, 1994 (1 pm 4 pm), Forrest Building, Room 350, Tallahassee
Copies of the rules are available from DCA at a cost of $.15 per page, or on a 3 1/2" diskette in WordPerfect
5.1; double-sided double density disk at $.50; double-sided high density disk at $1.00 and may be obtained
by contacting: Cherie Trainor at (904)488-2356. Copies have also been distributed to all local and regional
league offices.
Please review these rules and present your concerns at the adoption hearings. Written comment will be
accepted by DCA until February 7, 1994, to the attention of Charles Pattison, 2740 Centerview Drive,
Tallahassee, FL 32399. Please send a copy of your written comments to Diane Salz at the League office.






The long awaited decision in Board of County Commissioners of Brevard County, Florida v.
Jack B. Snyderwas rendered bythe FloridaSupreme Courton October7,1993. The main issue
in the case was whether a small rezoning proceeding was a legislative act or whether the action
was "quasi-judicial" in nature. Underthe facts of Snyder, the Supreme Court ruled thatdecisions
affecting a small rezonings are quasi-judicial.
The difference between a legislative decision and a quasi-judicial decision might be explained
LEcAl as follows. A legislative decision, if challenged, is given deference by the court and is usually
q upheld unless it is proven that the decision was arbitrary and capricious. A quasi-judicial act
CORNER requires the decision-makerto provide a higherdegree of due process than if the decision-maker
were acting in a legislative forum. Usually, the due process required in a quasi-judicial
proceeding requires that both parties be noticed, given an opportunity to be heard and cross-examine each other.
A record of the proceeding must be made, and the decision-maker must issue a written order listing findings of
fact and conclusions of law based on the record. Further, the decision maker is bound by the rule of avoiding
exparte communications.
However, the Supreme Court stated that findings of fact were not necessary in a Snyder rezoning proceeding.
The Supreme Court, also, recognized that planning and zoning are two different functions. A developer is not
entitled to the maximum density allowed on his property by the city's comprehensive plan. The city maintains the
right to zone within its planned densities and intensities as long as its decision is consistent with the plan and
accomplishes a legitimate public purpose.
Thus, rezonings affecting a large portion of the public are legislative in nature. But, rezonings are quasi-judicial
if they impact a limited number of persons, or identifiable parties and interests, and if the decision is contingent
on facts derived from distinct alternatives presented at a hearing or if the decision can be viewed as policy
application rather than policy setting.


PLAN, from page 1
Q. How did the ELMS III legislation change the
plan amendment process?
A. The new law sets up a screening process to
determine which plan amendments should receive the
60-day intergovernmental review resulting in an ORC
report, that is the biggest change. In doing so, the
process for most plan amendments will be sped up
without compromising adherence to state planning
policies, and limited state resources will focus on


DCA is no longer required
to send a representative to
the governing board's
meeting for the adoption
hearing, if requested by
the local government.


review of the most important or controversial local plan
amendments.
Q. How does this screening process work?
A. Under the new law, a local government must
send a copy of the transmittal draft of its proposed plan
amendmentto DCA, the appropriate regional planning
council, the Department of Environmental Protection
(DEP), and the Department of Transportation (DOT).


These agencies are then expected to considerwhether
the amendment raises any planning issues of state or
regional concern, such as those which implicate the
State Comprehensive Plan or the applicable regional
policy plan.
The reviewing agencies are not supposed to assess
any local issues or any issues outside the scope of
their authority and expertise. They are not required to
take a position for or against further review of any
proposed amendment. They are not even required to
send DCA comments on each proposed amendment.
The new law merely directs each agency to screen
each proposed amendment with respect to the issues
within its jurisdiction.
Q. What happens then?
A. DCA must initiate a full-fledged
intergovernmental review of the proposed amend-
ment if one is requested in writing by the regional
planning council, an "affected person" as defined in
state law, or the local government that is proposing the
amendment. DCA has no discretion in the matter.
Such a request must be received by DCA within 45
days from transmittal of the proposed amendment to
DCA. The regional planning council or an affected
person must send notice of their request to the trans-
mitting local government and to any person who has
asked for such a notice.
Q. And the local government transmitting the
amendment can ask for an ORC report on a proposed
amendment?
A. Yes. DCA is required to prepare an ORC report
on each amendment for which the transmitting local
government requests such a report. It's a good idea to
coordinate closely with the DCA staff when numbering
the proposed amendments to clearly identify those the
Page 3





local government wants reviewed at the transmittal
stage.
Q. What about an adjoining local government?
Can it force an intergovernmental review and ORC
report on a proposed amendment?
A. Yes, but only if it can meet the criteria for status
as an "affected person" under Section 163.3184(1)(a),
Florida Statutes.
Q. Can DCA initiate an intergovernmental review
even if nobody asks for one?
A. Yes. But DCA must give written notice to the
local government that is proposing the amendment


... an adopted plan
amendment will not
become legally effective
until the amendment
has been finally deter-
mined to be in compli-
ance by DCA or the
governor and cabinet.


and to any other person who requested notice that it
intends to initiate an intergovernmental review of the
proposed amendment. The DCA notice must be made
within 30 days from transmittal by the local govern-
ment.
I think DCA would best serve everyone if it would
establish some clearly defined categories of plan
amendments that it would not review unless asked to
do so by a regional planning council or an affected
person. And it could specify which categories forwhich
it would automatically initiate an intergovernmental
review. Such steps would put everyone on notice as to
the procedural treatment they should expect for cer-
tain types of plan amendments.
Q. What if DEP, DOT or the water management
district believes the proposed amendment should re-
ceive an intergovernmental review?
A. These agencies cannot trigger a mandatory
intergovernmental review. They are expected to call
state or regional natural resource or transportation
issues (as the case maybe) to the attention of DCA, but
they cannot compel DCA to initiate an
intergovernmental review unless they establish status
as an affected person. Rather, they must persuade
DCA, the regional planning council or an affected
person to require a review.


Q. What if, within the statutory time periods, no
one asks DCA to initiate an intergovernmental review
and DCA decides not to conduct one on its own
authority?
A. The local government ordinarily may adopt the
proposed amendment so long as other legal require-
ments, such as public notice, are observed. If the plan
amendment is one that is necessary for a proposed
DRI or a change to an approved DRI, the new law
requires the local government to wait 30 days before
adoption of the proposed amendment after a determi-
nation that DCA will not prepare an ORC report. This
change is intended to allow the local government to
consider the proposed plan amendment and DRI
development order at the same time.
Q. Under the old law, a local government could
change a proposed plan amendment after it received
the ORC report. Under the new law, can the local
government alter the proposed plan amendment at
adoption if there has not been an ORC report?
A. The new law does not prohibit the local govern-
ment from altering the proposed amendment at the
adoption stage when there has not been an
intergovernmental review resulting in an ORC report,
but I think a prudent local government would refrain
from making a material change at the adoption stage.
Q. Does the local government have to adopt the
proposed amendment right away?
A. No. It can wait until any proposed amendments
that are subject to intergovernmental review complete
that process and then adopt all the proposed amend-
ments at the same time. In fact, some local govern-
ments prefer to adopt all proposed plan amendments
in each amendment cycle at the same time. The new
law does not prevent them from doing so.
Q. Does the new law alter the general prohibition
on amending a local comprehensive plan more than
two times a year?
A. It doesn't change it at all. All the proposed
amendments submitted to DCA and the reviewing
agencies at the transmittal stage will still comprise one
amendment cycle for purposes of the twice-a-year
requirement. It doesn't make any difference if some
proposed amendments can proceed immediately to
adoption without an ORC report while others in the
same amendment cycle are subject to the
intergovernmental review process.
Q. What happens if DCA initiates an
intergovernmental review of a proposed plan amend-
ment?
A. Within five working days, DCA must transmit
copies of the proposed amendment to the appropriate
governmental agencies. The reviewing agencies then
have 30 days to submit their comments to DCA. This
step used to take 45 days under the old law. As a
practical matter, DCA should not be required to send
a copy to the agencies that already have received it-
DEP, DOT, the water management district and the
regional planning council. A notice of the need for such
an agency's comments, and a deadline for receipt of
them, should suffice.
Page 4





Q. What happens then?
A. DCA has 30 days from receipt of those com-
ments to compile its ORC report and send it to the local
government. This step also took 45 days under the old
law.
Q. Why can't the plan review function be del-
egated from DCA to the regional planning councils?
A. The ELMS committee discussed that possibil-
ity, but chose not to recommend it for several reasons.
For one thing, there was the problem of getting every-
body to agree on the kinds of amendments that would
be reviewed by the councils and those that would still
be reviewed by DCA. Another concern was assuring a
consistent interpretation of the State Comprehensive
Plan by all the regional planning councils. Still another
concern was how DCA-which is legally responsible
for assuring the compliance of local plan amendments
with state planning laws-could be bound by a compli-
ance review conducted by a regional planning council.
Delegating the compliance review function to some
institution closer to the local government is a good
idea, but these are some of the barriers to developing
a workable system for doing it. They are not insur-
mountable. I believe everybody should keep thinking
and talking about this idea, so we can find a way to do
it in the future.
Q. During the compliance review of an adopted
amendment, how must DCA determine whether to
issue a notice of intent to find the amendment in
compliance or not in compliance?
A. If an intergovernmental review were conducted
of the amendment at the transmittal stage, then the
determination must be based solely on an issue raised
by DCA in its ORC report or any changes made by the
local government to the amendment at adoption. This
has been the law since 1985. If an ORC report was not
prepared for the proposed amendment, then the com-
pliance determination must be based on the amend-
ment as adopted. This standard is intended to result in
the same substantive conclusion about the adopted
amendment as if an ORC report had been prepared.
Q. Are there any other changes in DCA's respon-
sibilities?
A. Yes. DCA is no longer required to send a
representative to the goveming board's meeting for
the adoption hearing, if requested by the local govern-
ment. There are several reasons for this change. First,
in most cases DCA will not have reviewed the pro-
posed amendment anyway. Second, DCA is stretched
thin, and this change will conserve its resources.
Besides, DCA had made this requirement meaning-
less by often sending representatives who were not
authorized to engage in a genuine dialogue that local
government officials could rely upon when adopting an
amendment.
Q. When does a plan amendment become legally
effective under this new law?
A. The rules on this issue have changed several
times in recent years. Prior to 1992, the late DCA
Secretary Bill Sadowski persuaded the Legislature to


set up an alternative plan amendment process so that
a local government would not be subjected to sanc-
tions if it adopted its plan amendment in a form that
prevented the amendment from becoming legally ef-
fective until it was in compliance. The ELMS Commit-
tee liked that approach so much it recommended it for
all plan amendments. So the new law provides that, for
local governments whose local plans are in compli-
ance, an adopted plan amendment will not become
legally effective until the amendment has been finally
determined to be in compliance by DCA or the gover-
nor and cabinet. That new rule applies whether or not
the amendment received an intergovernment review
and ORC report. In exchange, the local government
cannot be subject to any sanctions for an amendment
which is not in compliance.
Q. Are there any exceptions to this provision?
A. Yes. After a final determination that a plan
amendment is not in compliance, the local government
may still make the amendment legally effective by
passing a resolution saying so. But the trade-off is that
the local government will be subject to sanctions-just
like before-if it puts into effect a plan amendment that
has been determined to be not in compliance with state
law.
Q. But compliance proceedings can take months
or years. If the legal effect of a plan amendment is held
up until the amendment is determined to be in compli-
ance, an amendment that is the subject of a formal
compliance proceeding before a state hearing officer
may not become effective for a year or more.
A. The Florida League of Cities and the Florida
Association of Counties pointed that out to the Legis-


... most plan amend-
ments will be saved at
least two months of DCA
review time and perhaps
more.


lature, so lawmakers added a provision which is in-
tended to speed up compliance proceedings. Once an
adopted amendment has been sent to the Division of
Administrative Hearings for a formal evidentiary hear-
ing on whether it is in compliance with state law, the
local govemmentwhich adopted the amendment or an
effected person who is a party to the proceeding may
demand "expeditious resolution" of the case. The
demand must be in the form of a written notice served
on DCA, all other parties, and the hearing officer.
When the hearing officer receives a written notice


Page 5





demanding expeditious resolution, they must set the
matter for final hearing no more.than 30 days from
receipt of the notice.
Q. Is there any chance of a further delay?
A. No further continuance and no additional time
for post-hearing submittals may be granted unless all
the parties agree in writing or the hearing officer finds
"extraordinary circumstances." And the new law pro-
vides that extraordinary circumstances do not include
"matters relating to workload or need for additional
time for preparation or negotiation." It must be a real
emergency.
Q. What happens then?
A. A final order must be entered within 45 days
after the hearing officer submits their recommended
order.
Q. So, will this new plan amendment process
really save time for local governments and their citi-
zens?
A. Yes, if people will use it. The people at ELMS
III who designed these changes expected that most
amendments would not be subject to an ORC report
because they would not be significant enough to merit
one. If that proves true, then most plan amendments
will be saved at least two months of DCA review time
and perhaps more. For those proposed amendments
that are reviewed for preparation of an ORC report, the
whole process is supposed to take only two weeks
longer than before. And any plan amendment that
ends up in a formal compliance proceeding can be
hurried through the process through the new expedi-
tious resolution provision.
But local governments also have additional respon-
sibilities under the revised plan amendment process.
They have a greater need to be right in preparing their
plan amendments because the odds are most will not
be subjected to an intergovernmental review. DCA
and the state agencies will not serve as a backstop on
those amendments, warning local planners about any
deficiencies in the proposed amendment, such as
inadequate data and analysis. There will be a premium
on getting it right the first time.
These provisions are not perfect; many can be
improved, eitherthrough rulemaking by DCA or further
legislative action in coming years. But these changes
represent positive steps forward in the local planning
program and responses to the concerns of many local
governments and private citizens regarding the local
plan amendment process.

DAVID L. POWELL IS A SHAREHOLDER WITH THE TALLAHASSEE
LAW FIRM OF HOPPING BOYD GREEN & SAMS. HE SERVED AS
EXECUTIVE DIRECTOR OF THE ELMS fII COMMITTEE.


FLORIDA COASTAL INFORMATION
EXCHANGE BULLETIN BOARD SYSTEM

There is now a computer Bulletin Board System
available to the general public and planning profes-
sionals that promotes the exchange of information
regarding coastal issues. This system, called the
Coastal Information Exchange Bulletin Board System
(CIE-BBS), was developed by the Florida Coastal
Management Program.
The CIE-BBS is a free on-line information service
available to users throughout Florida. Housed at the
Environmental Protection Agency's Gulf of Mexico
Program, the CIE-BBS is one component of a larger
system that provides an information network for the
gulf states region.
Among the information categories included on the
CIE-BBS are: Bibliographical references to research
projects, reports, and newsletters; legislative issues
and model ordinances (including draft ELMS III rules);
ongoing management activities, actions, and con-
tacts; grants and other funding sources; pertinent
handbooks and manuals; a directory of key managers
and expert speakers; and special events and activities
(including upcoming rule-making hearings).
The target users of the CIE-BBS are coastal re-
source managers and individuals interested in the
protection, conservation, and management of Florida's
coastal areas. However, anyone can use the system.
Contributing agencies participating in the CIE-BBS are
the Regional Planning Councils, Water Management
Districts, Florida Department of Community Affairs,
Florida Department of Health and Rehabilitative Ser-
vices, Florida Department of Environmental Protec-
tion, Florida Department of State, National Park Ser-
vice, National Oceanic and Atmospheric Administra-
tion, universities, municipal and city government, and
other environmental groups.
The electronic bulletin board system allows users to
communicate to other individuals by sending and
receiving messages, searching databases on special-
ists and bibliographical references, reading dynamic
news bulletins on current events, and scanning the
Florida Information section for scheduled events,
management and research programs, newsletters,
grant opportunities, and legislation.
To learn more about the CIE-BBS, contact Helene
Wetherington, (904) 922-5438 or Kay MacGovern
(601) 688-7671. Training sessions are available upon
request and are free.


Page 6




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