Title: Comprehensive Planning in Florida: Past, Present and Future
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 Material Information
Title: Comprehensive Planning in Florida: Past, Present and Future
Physical Description: Book
Language: English
Publisher: Technical Memo Vol 5, No. 8 Sept. 1990
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Comprehensive Planning in Florida: Past, Present and Future (JDV Box 91)
General Note: Box 23, Folder 1 ( Miscellaneous Water Papers, Studies, Reports, Newsletters, Booklets, Annual Reports, etc. - 1973 -1992 ), Item 47
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Volume ID: VID00001
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Full Text











TECHNICAL MEMO

INFORMATION FROM THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS


VOLUME 5 NUMBER 8


SEPTEMBER 1990


The Planning Process:
Reflecting on the Past and
Contemplating the Future

J ust over two years ago, the first
local government comprehensive
plans were submitted to the De-
partment of Community Affairs for
review. We are "

a posi-
tion that allows reflection on past ac-
complishments and contemplation of
future tasks.


SECRETARY'S COLUMN
THOMAS G. PELHAM


At this point, the
thapplicablelaws
and rules than it had in the past.




Given the
complexity and difficulty of the growth
management act, the process has been a
remarkable success so far. I believe this is
due in large part to the cooperative spirit
and dedication demonstrated by most
local governments and their citizens.
The local governments in the rapidly
growing coastal areas of urban south
Florida were the first to submit their
plans. Now the local governments in the
slow-growth rural areas of north-central
Florida and the Panhandle are submit-
ting their plans.
continued on page 2


FEATURE

Comprehensive Planning in Florida:

Past, Present, and Future


T he Local Government Compre-
hensive Planning and Land De-
velopment Regulation Act was
enacted in 1985. This act conferred on
local officials the statutory authority and
responsibility to plan and regulate the
use of land by adopting local govern-
ment comprehensive plans and land de-
velopment regulations.
It has been approximately 28 months
since Brevard County and several of its
cities submitted to the Department of
Community Affairs the first local com-
prehensive plans to be reviewed under
the 1985 law. Since then, the DCA has
reviewed about half of the local compre-
hensive plans to be submitted by Flor-
ida's 457 local governments.
At this point in the local comprehen-
sive planning process, the DCA can
assess what has taken place, what is pres-
ently happening, and the future of com-
prehensive planning in Florida after all
the local plans have been reviewed.


The Past 28 Months
With the enactment of the "Local
Government Comprehensive Planning
and Land Development Regulation Act"
in 1985 came strengthened planning and
plan implementation requirements. These
requirements mandated that local gov-
ernments adopt comprehensive plans that
meet minimum planning standards and
implement those plans through land


development regulations. Unlike the
previous laws, the 1985 act provides
sanctions for noncompliance.
With the exception of a "glitch" bill in
1986, the 1985 act has remained basically
unchanged; however, some statutory
requirements, which were generally stated
in the act, became specific following
administrative hearings and through
Departmental rule and policy making.

Administrative Hearings
Since the DCAbegan reviewing plans
in the summer of 1988,

that have
shaped the implementation of the 1985
act. are the
i the and the
hearings.

Cocoa Plan Hearing. This hearing is
significant because the DCA originally
found the Cocoa plan to be in compli-
continued on page 4

INSIDE
Policy Update 2,9
New DRI Transportation Impact Method
Regulations 3
Protecting Potable Water Wellfields
Ask DCA 8
Legal Status ofPlan, Public Hearing
Correction
Planning Notes 7,12












from page 1
The DCA is sensitive to the differ-
ences in growth pressures between re-
gions and has adjusted its plan review
approach to accommodate them. Fur-
ther, to help rural local governments
understand how to address their needs
and meet planning requirements, the DCA
has held a technical conference on rural
planning and has published an issue of
the Technical Memo on rural planning
techniques.
The DCA will finish its reviews of all
457 local comprehensive plans in the
spring of 1992, completing the first phase
of the process. By July 1992, all local
governments should have plan-imple-
menting land development regulations
in force. Then, the DCA's role in the
state's local comprehensive planning
process will shift to assisting local gov-
ernments in implementing their plans
through its review of plan amendments
and evaluation and appraisal reports.
While public participation has played
an integral role in the planning process,
its importance will increase during the
plan implementation phase. By statutory
design, a jurisdiction's citizens have the
legal standing to require the local gov-
ernment to follow its plan.
Thus, one key to ensuring the contin-
ued success of local comprehensive plan-
ning efforts is an informed, concerned
citizenry. The general requirements of
growth management laws should become
common knowledge. To promote this
knowledge, the DCA, in conjunction with
the Department of Education, is prepar-
ing a course in growth management.
This course will be offered through
the DOE's Continuing Education Pro-
gram, at its 335 community education
centers around the state. Hopefully,
through such avenues, citizens can ac-
quire the knowledge and skills to en-
hance the effectiveness of local compre-
hensive planning in Florida.
I cannot overstate the importance of
education and public participation in the
local comprehensive planning process.
As the state's oversight responsibilities
shift, it will be a responsible, knowledge-
able citizenry that will keep this process
viable. F


POLICY UPDATE

I DRI Transportation Impact Methodology Revised
On June 29,1990, the Department of Community Affairs issued a binding letter
that applies a

wwith planning laws and rules.
The methodology is consistent with the amendments to the DRI Transportation
Policy Rule (Rule 9J-2.0255, Florida Administrative Code), which establishes crite-
ria for the DCA's review of development orders. That rule was amended to further
the consistency of DRI reviews with the comprehensive plan requirements, pursuant
to Chapter 163, Part II, Florida Statutes. The rule became effective in January 1990
(see February 1990 Technical Memo).
In reviewing the transportation impact criteria for making determinations on
binding letters and preliminary development agreements, the DCA recognized a
need to make revisions to ensure consistency with the DRI Transportation Policy
Rule. The new criteria will be applied to reviews of developments in jurisdictions that
have local comprehensive plans found to be in compliance. The existing transporta-
tion impact criteria that have been used for binding letter and preliminary develop-
ment agreement reviews for many years will be applied to reviews of developments
in jurisdictions that have local comprehensive plans found not to be in compliance.
Therefore,


Test for Imoacts if Plan is "In ComDliance."


estabnisnea te following criteria:


The new criteria differ from the DCA's existing criteria in that they allow for
incorporation of many LOS standards which may be designated in local comprehen-
sive plans. The new criteria also differ in that th ses


TThe lower LOS "E" is used in the new criteria, in part, because
it is achievable and calculable even when there are a large number of intersections on
a given roadway link.

Test for Impacts if Plan is "Not In Compliance." The DCA will continue to use
the transportation impact criteria applied in earlier binding letters for projects
located within jurisdictions
Under these criteria, both of the following conditions must be met for
the DCA to determine that a project will have a substantial or material adverse
impact on a regionally significant roadway link:

1. The

2. The

Contact: Alex Magee, (904)488-4925, SC 278-4925.


continued on page 9


TECHNICAL MEMO


p


I 1 I


%'-W -


r










REGULATIONS


Developing LDRs to Protect Wellfields


According to the U.S. Environ- tends to be less expensive than other
mental Protection Agency, 95 sources of potable water. The low cost of
percent of rural America and, in groundwater is attributed, in part, to its
total, about one-half of the nation's being better protected from pollution


population relies on
groundwater as its primary
source of potable water.
The importance of ground-
water in Florida is illus-
trated by two facts avail-
able from the
(1) in 1986,
Florida ranked sixth in the I!
nation in the use of ground- .
water; and (2)


In a rapidly developing
state like Florida,


f


Figure 1
Cone of Influence


I. MOTOR-


:TuAL MATER PUM PUIU'
aIFMCE MILE:
HIE W JIELUEN ~

PUMPING WATER LEVEL%,


b.-'. J4 -.ii:

mOne


way local governments can protect their
groundwater is through adopting land
development regulations that prohibit
land uses around wellfields and aquifer
recharge areas that can contaminate the
underlying aquifers.
Groundwater can be contaminated by
many hazardous materials, such as pesti-
cides, fertilizers, organic chemicals, and
human wastes. The degreeof contamina-
tion resulting from exposure to hazard-
ous materials depends on the character-
istics of the soil and the contaminant,
groundwater flow, and other factors. Por-
ous, sandy soils are common in Florida
and shallow aquifers underlying sandy
soils are quite susceptible to contamina-
tion. Deep aquifers located in heavy clay
soils are less susceptible.
Once contaminated, aquifers are dif-
ficult and expensive to clean up. For
example, local governments or respon-
sible parties may have to pay for site
studies, remediation, and property dam-
age. The most cost-effective approach,
therefore, is to prevent contamination.
Protecting high-quality groundwater
is also important because groundwater


than surface water. In addition, it is often
found directly beneath population cen-
ters, which eliminates the expense of
pumping and treating water from distant
reservoirs.


Determining Areas to Protect
To ensure that the aquifers around
wellheads are protected, their cones of
influence must be determined so that
land uses within the area can be regu-
lated. Florida
Statutes,


Rule 9J-
5.003(21), Florida Administrative Code,
defines cone ofinfluence as "an area around
one or more major water wells the bound-
ary of which is determined by the govern-
ment agency having specific authority to
make such a determination based on
groundwater travel or drawdown depth."


While this definition stresses the ju-
risdictional aspect of the term, organiza-
tions like Florida's water management
districts and the Department of Environ-
mental Regulation define the
cone of influence in more hy-
drogeological terms. Simply put,


(see Figure 1).
SWhen a well is pumped, the
uATE water level in the well falls be-
BEFORE
S allow the water level in the aqui-
.:. fer. Water immediately begins
: to flow from all directions to-
ward the well. As a result, the
free water surface in the aquifer
takes the shape of an inverted
cone or curved funnel-the cone
of influence.
If the material of the aquifer trans-
mits water easily, the cone is flat and
widespread. If it transmits poorly, the
cone will be steep. Moreover, the cone
does not have a fixed shape; it becomes
deeper and wider as the well is pumped.
The science of aquifer hydraulics has
been built around the shape and behav-
ior of this cone.


Local Responsibilities
Local land development codes must
contain standards for wellfield protec-
tion. These standards should reflect the
local government's desire to protect its
wellfields and should take into account
such factors as existing land uses imme-
diately adjacent towellfields, the severity
of potential contamination, and response
time in the event of an accident.




This requirement is also expressed in
Rule 9J-24.003(1)(c), F.A.C. Therefore,
it is mandatory that the plan's imple-

continued on page 11


SEPTEMBER 1990


,-.,. i '.'.










FEATURE


from page 1
ance, but the hearing officer overturned
this finding after it was challenged by
citizens. The hearing officer held that
public participation requirements can be
evaluated in a plan comp dance proceed-
ing and that a


He also reaffirmed that adequate protec-
tive measures must be included in a local
comprehensive plan, including showing
wetlands on the land use maps. The DCA
left this hearingwithh

and it has
reviewed subsequent plans accordingly.

Charlotte County. The hearing officer in
the Charlotte County case 1


Some of the more no-
table findings in this recommended or-
der include the following:
SA plan that promotes urban sprawl
can have significant impacts on natural
resources, the efficient use of land, and
the provision of adequate public facili-
ties and services.
including the fu-
ture land use element,
e data and
analysis must demonstrate a need for
specific actions and the plan must pro-
vide appropriate measures in response
to identified needs in order to comply
with legal requirements.
-


Islandia The final orders in the Islandia
and the Charlotte County cases are con-
sistent in that the hearing officers found
that land uses designated in the plan
must be consistent with and supported by
the analysis of available data. The hear-
ing officer in the Islandia case held that a
local governing body cannot predeter-
mine densities and intensities of land use
before the data collection and analysis
are complete. He also found that plan-


ning for six dwelling units per is acre is
unsound when homes would have to be
built on stilts and when sewer, drinking
water, and other services could not be
provided. The hearing officer thereby
reaffirmed the DCA's approach in re-
viewing local plans.

Concurrency
The concurrency requirement is at the
center of the act's implementation and
plays a central role in the DCA's deter-
mination of whether a local plan is in or
is not in compliance. Secretary Tom


"It is the intent of the Legislature
that public facilities and services
needed to support development
shall be available concurrent
with the impacts of such
development. "



Pelham has called the concurrency re-
quirement "the teeth of the Growth
Management Act." This requirement is
found in Section 163.3177(10)(h), F.S.,
which states,'


Since the law was
enacted, the concurrency requirement
has evolved from this mandate to the
Departmental rule for concurrency
management, Rule 9J-5.0055, F.A.C.,
adopted in November 1989.
Three important events shaped this
evolution: a letter from Secretary Pel-
ham to State Senator Gwen Margolis;
the DCA's Statement of Intent to find
the Brevard County plan not in compli-
ance; and the response of the Governor's
Office to issues raised by Representative
C. Fred Jones, Chairman of the House
Committee on Community Affairs (see
the Fall 1989 Technical Memo).
The concurrency management rule
codifies this mandate with the necessary
flexibility to prevent widespread morato-
riums on development in the state. Sec-
retary Pelhamwrote in his letter to Sena-


tor Margolis, "Although the concurrency
requirement is tough, it will not bring the
state to a screeching halt if it is applied
with common sense and in a reasonable
and flexible manner. Any planning proc-
ess, to be effective, must have flexibility.
However, flexibility is not to be equated
with meaningless." The concurrency man-
agement rule balances meaningful with
flexible. It is meaningful in that it re-
quires the following:
. 11


- Assurance tnat aaoptea Lus stan-
dards will be maintained before the local
government issues a development per-
mit. A local government shall not issue a
development permit that results in a
reduction of an adopted level of service.
* The capital improvements element
must set forth a
(five-year plan) which demonstrates that
the local government can achieve and
maintain the adopted LOS standards.
Although these requirements are strin-
gent, they are made flexible through other
provisions of the rule. For example, the
rule permits local governments to adopt
for the LOS


Sanctions Policies
On October 24, 1989, the Governor
and Cabinet, sitting as the Administra-
tion Commission, established policies to
withhold state revenue from local gov-
ernments that fail to submit comprehen-
sive plans on time or have plans that are
found not in compliance with planning
requirements. These sanctions are au-
thorized by Section 163.3184(11), F.S.
The Administration Commission's
policy on nonsubmission of comprehen-
sive plans permits the withholding of
one-day's worth (1/365) of state revenue-


1 TECHNICAL MEMO










FEATURE


sharing funds from the local government
for each day that the plan is late. Under
the policy, sanctions are calculated from
the first day after a late plan's due date, as
established by Rule Chapter 9J-12, FAC.,
to the date the plan is actuallysubmitted.
After approving the nonsubmission
sanctions policy, the Administration
Commission imposed sanctions against
three cities that submitted late plans:
Pembroke Park, Indian Creek Village,
and Virginia Gardens. These were the
first sanctions imposed under the Local
Government Comprehensive Planning
and Land Development Regulation Act.
The Administration Commission's
policy for imposing sanctions against local
governments that have plans found not
in compliance by the commission is simi-
lar to its policy for nonsubmission. The
policy is that 1/365 of the state revenue-
sharing funds will be withheld for each
day the plan is out of compliance. The
time period used for calculating the
amount of the sanctions to be imposed
varies depending on the DCA's original
compliance determination.
After the Administration Commission
established its sanctions policy and adopt-
ed a rule that established procedures that
the commission would follow if a local
government failed to meet its plan sub-
mission date, the policy and the rule were
challenged by the Florida League of Cit-
ies, the Town of Pembroke Park, and the
Village of Virginia Gardens. In March
1990, an administrative hearing officer
dismissed the challenges after finding the
rule and the sanctions policies valid.
In August 1990, the Administration
Commission again imposed sanctions on
a municipality for submitting its local
comprehensive plan late. This time it
was Pierson, in Volusia County, that
submitted its proposed plan to the DCA
eight months after its Chapter 9J-12,
F.AC., due date.



The Present


inese agreements identity remedial ac-
tions which, if adopted as plan amend-
ments, will bring the plan into compli-
ance with planning requirements.
In addition to reviewing plans and
negotiating stipulated settlement agree-
ments, the DCA is reviewing proposed
amendments to the newly adopted com-
prehensive plans. The agency is also ac-
tive in helping local governments de-
velop land development regulations by
administering an LDR grant program
and by providing administrative review
of local regulations when called upon.



"Emergency, DRI-related, and
small-scale development amend-
ments ... must be submitted to
the DCA for review and compli-
ance determination in the same
manner as comprehensive plans
and other plan amendments. "


Other plan amendments respond to spe-
cific local proposals and changing local
conditions.
So far, local governments have sub-
mitted more than 158 plan amendments
to the DCA for review. In recent months,
the DCA has received an average of three
plan amendments every work day.
Local governments proposing plan
amendments must transmit them to the
DCA for review in accordance with the
provisions of Section 163.3187, F.S., and
Rule Chapter 9J-11, F.A.C. The statute
limits the number of times a local com-
prehensive plan can be amended to twice


a calendar year, unless an amendment is
directly related to one of the following
three conditions:
1. a public emergency and is unani-
mously approved by the local governing
body; or
2. a proposed development of regional
impact; or
3. any number of small-scale devel-
opments up to a cumulative total of 30
acres per calendar year.


i neymust oesuomluea to
the DCA for review and compliance
determination in the same manner as
comprehensive plans and other plan
amendments.


ne L: A reviews proposed amendments
for consistency with applicable rules and
statutes as well as with the rest of the
adopted local comprehensive plan, the
State Comprehensive Plan, and the ap-
propriate comprehensive regional pol-
icy plan.
As with proposed plans, an Objec-
tions, Recommendations, and Comments
Report for proposed plan amendments
is issued and follows the same format as
the ORC Reports for proposed plans. If
supporting data and analysis required by
Rule Chapter 9J-5, F.A.C., are missing
from the submission package, the DCA
will object to the omission in its report.


1 i me proposed amena-
ments are adopted, they, like compre-
hensive plans, must be returned to the
DCA for a determination of compliance.
The DCA will review plan amend-
ments for consistency with local govern-
ment comprehensive planning require-
ments. Citizens, enabled by the public

continued on page 6


SEPTEMBER 1990 5


I










FEATURE


from page 5
participation provisions of Section
163.3181, F.S., are responsible for shap-
ing the future growth of their communi-
ties through participating in the plan
amendment process.

Land Development Regulations
The act strengthened planning and
plan implementation requirements that
not only mandate the adoption of com-
prehensive plans but implement those
plans through land development regula-
tions. Land development regulations
must be consistent with and implement
the plan by putting into effect the specific
and detailed land use controls and pro-
grams that are called for in the compre-
hensive plan in accordance with the re-
quirements listed in Section 163.3202,
F.S. The statute also requires that LDRs
be "combined and complied into a single
land development code" (see sidebar).
(The DCA is publishing a series of ar-
ticles on the LDR requirements in the
Technical Memo, the first of which ap-
peared in the Fall 1989 issue.)
As established by Section 163.3213,
F.S., and described in Rule Chapter 9J-
24, F.A.C., the DCA's role in the local
land development regulation process is
limited. Unlike comprehensive plans, local
governments are not required to submit
their LDRs for Departmental review,


"Land development regulations
must be consistent with and
implement the plan by putting
into effect the specific and
detailed land use controls and
programs called for in the
comprehensive plan. ."


except under limited circumstances. The
DCA may compel a local government to
submit its regulations for a review to
determine whether the required regula-
tions have been adopted, if the DCA has
reasonable cause to believe the regula-
tions have not been adopted. Citizens
may also petition the DCA for an admin-


Unified Land Development Codes Aid

Public's Participation in Planning Process

Section 163.3202(8), F.S., requires that the land development regulations for a
local government be "combined and compiled into a single land development
code." The Department of Community Affairs interprets this requirement broadly.
For example, a local government's unified land development code could follow
the formal of the Model Land Development Code for Florida Cities and Counties.
This model code, which was prepared for the DCA by the University of Florida's
Center for Governmental Responsibility, is composed of 12 interdependent
articles that are contained in a single volume. Alternatively, a unified code may be
composed of several separately bound, mutuallyconsistent ordinances that a local
government has adopted as a single code.
The administrative rules and thestatutesdo not specify prescribed format for
unified codes, and the DCA has no format preference. However, the DCA, in
keeping with the expressed legislative intent for public participation in the devel-
opment and implementation of local government comprehensive planning, does
interpret the law as requiring that a unified code be kept together at a single
location. The DCA believes that unified land development codes, like the compre-
hensive plans they implement, should be readily accessible to citizens.


istrative review of a local government's
LDRs if they have reason to believe that
the local government has adopted regu-
lations that are inconsistent with the plan.
If the DCA finds that a local govern-
ment has not adopted the required LDRs
or that the LDRs are not consistent with
the local plan, then the DCA can insti-
tute action against the local government
in circuit court. So far, there has been
little citizen activity regarding local
LDRs, and the types of orders a court
might enter against noncompliant local
governments have not been established.
To help local governments prepare
their LDRs, the DCA hopes to offer a
total of $11.3 million in grants over three
years. Last year, the DCA distributed
$7.4 million to local governments to defray
a portion of their expenses in adopting
new land development regulations or
revising existing regulations. The DCA
has initiated rule making for this year's
grant program, which will distribute over
$2.1 million in grants for LDRs over the
1990-91 fiscal year. Next year the DCA
will request a legislative appropriation
of an additional $1.8 million for LDR
grants.


The Future
The success or failure of local com-
prehensive planning following plan re-
view will be determined by local land
development regulations, plan amend-
ments, evaluation and appraisal reports,
intergovernmental coordination, and citi-
zen participation. The DCA will have a
limited role in the implementation and
enforcement of local comprehensive
plans. It will continue to offer local gov-
ernments technical assistance and will
continue to review plan amendments and
EARs; however, the actual enforcers of a
community's local comprehensive plan
will be members of the community.

Evaluation and Appraisal
Reports
Like plan amendments, the evaluation
and appraisal reports, which local gov-
ernments must submit every five years
following plan adoption, are designed to
ensure a continuous and viable planning
process. And like the plan development
and amendment process, the same statu-
tory provisions for public participation
apply to the development of EARs.


TECHNICAL MEMO








F 1 1


FEATURE


The dynamic nature of comprehen-
sive planning demands that local govern-
ments establish formal procedures by
which their plans can be periodically
reviewed. There are a number of reasons
for periodically reassessing local plans.
Population growth and land development
may make it necessary to update the plan
and the data upon which the plan is based.
Also, community values and conditions
may have changed to the extent that many
of the goals, objectives, and policies in
the plan need to be reformulated. The
comprehensive plan evaluation should
be directed toward accomplishing more
than simply updating plan policies and
data, however. It must also evaluate the
effectiveness of the plan as a basis for
local decisions that lead to the attain-
ment of its goals and objectives.
When local governments submit the
plans they developed to satisfy the re-
quirements of the 1985 act, they must
submit EARs that evaluate the plans
they produced under the 1975 law. The


"The dynamic nature of
comprehensive planning
demands that local govern-
ments establish formal
procedures by which their
plans can beperiodically
reviewed. "


DCA does not conduct a detailed review
of EARs for the 1975 plans. It will, how-
ever, review the EARs that evaluate the
post-1985 plans more closely. The first of
these EARs is due in three years.

Intergovernmental
Coordination
Intergovernmental coordination is cen-
tral to the implementation of the act. Its
importance is expressed in Section
163.3161(4), F.S.:

It is the intent of this act to en-
courage and assure cooperation
between and among municipali-
ties and counties and to encour-
age and assure coordination of


planning and development activi-
ties of units of local government
with the planning activities of
regional agencies and state gov-
ernment in accord with applicable
provisions of law.

This statute reflects the vertically and
horizontally integrated nature of Flor-
ida's comprehensive planning process.
Vertical integration-the coordination
of state, regional, and local plans-is
assured at the plan review stagewhen the
DCA and the regional planning councils
check local plans for consistencywith the
State Comprehensive Plan and the ap-
propriate regional policy plan.
Horizontal integration-the adoption
of land development regulations and co-
ordination among local governments -
begins when local plans are prepared and
continues after they have been adopted.
Issues such as annexation and the provi-
sion of services and utilities will have to
be dealt with through mechanisms such
as interlocal agreements and memoranda
of understanding. For intergovernmen-
tal coordination to be effective, commu-
nication between governmental entities
must be clear and the desire to further
the public good must prevail.

Citizen Participation
The Florida Legislature makes clear
in Section 163.3181, F.S., that the public
is to participate in all phases of the local
comprehensive planning process, from
the formulation of the plan to the adop-
tion of land development regulations and
beyond. The role of the DCA in the local
planning process, as determined by Flor-
ida Statutes, will diminish in the latter
stages of the process.
It is tempting for local governments to
set aside their concerns about compre-
hensive planning after their plans have
been reviewed and approved. However,
it is at that point that the hard work of
actually implementing the plans begins.
With the shift in responsibility from the
state to the local level following plan
adoption, the effectiveness of the plan-
ning process will be determined by all of
Florida's citizens and their locally elected
officials. []


PLANNING NOTES

1 Land Development Regulation
Funding Rule to be Adopted. The
DCA has adopted its rule to distribute
$2.1 million in land development regula-
tion assistance grants. The rule provides
that counties and cities that must adopt
their land development regulations be-
tween April 1, 1991, and December 1,
1991, will be eligible for these grants. A
public hearing on proposed Rule Chap-
ter 9J-30, F.A.C., was held August 13,
1990, in Tallahassee. Information about
grant amounts and how to apply will be
mailed to the 93 eligible local govern-
ments in September. Application forms
must be completed and returned by Oc-
tober 31, 1990. Contact: Dale R. Eacker,
(904)487-4545, SC 277-4545.

E Rural Planning Conference Tapes
Available. Audiocassette tapes of the
DCA's technical conference, "Compre-
hensive Planning in Rural and Agricul-
tural Areas: Tools, Techniques, and
Options," are available for purchase.
Contact: Debbie Skelton, (904)488-8466,
SC 278-8466.

SConnecticut River Valley Study. One
set of design techniques discussed during
the DCA's rural planning conference is
detailed in Dealing with Change in the
Connecticut River Valley: A Design Man-
ual for Conservation and Development.
Contact: Publishers Business Sevice, Post
Office Box 447, Brookline Village, Mas-
sachussetts 02147, orcall (800)848-7236.

N The Governor's Conference on Ur-
ban Form and Design. This conference
will be held October 30 and 31, 1990, in
Tampa. Registration is $80. The first Gov-
ernor's Urban Design Awards will be
given out at the conference. Contact:
Virginia Roo, (813)974-2345.

1 Coastal Management Conference
Scheduled. The 1990 Coastal Manage-
ment Conference will be held September
26-28, 1990, in Clearwater. Registration
is $135. Contact: Cindy Cosper, (904)
488-6221, SC 278-6221 or Elli Gilberg,
(813)896-8626, SC 523-1011.

continued on page 12


SEPTEMBER 1990









ASK DCA


Legal Status of a Local Comprehensive Plan

After DCA's Determination of Noncompliance


Questions
Two months ago the Department of
Community Affairs determined that my
community's comprehensiveplan isnotin
compliance with local government com-
prehensiveplanningrequirements. The local
governing body negotiated a settlement
agreement for amending the plan to bring
it into compliance and approved the agree-
ment at a duly noticed public hearing. The
amendments will involve sigficant changes
in future land use designations. My ques-
tion is two-Dart. First.


Response:
In response to your first question.


*. Therefore, the provisions of
Section 163.3194, F.S., apply to the
adopted plan.


Now to your second question. Be-
cause the adopted plan governs all land
use decisions made by a local govern-
ment,a stipulated settlement agreement


cannot form the basis for those decisions.
If, however, a local government has given
public notice of its intent to amend the
adopted plan (as in the case of approving
a settlement agreement at a public hear-



"Neither the DCAs finding of
noncompliance nor a settlement
agreement between the DCA and
a local government operates to
change or renders inoperative the
initially adopted plan. "


ing) it is not required to act on and ap-
prove a request for a development order
under the adopted plan. Local govern-
ments may adopt ordinances to establish
procedures for deferring development
orders that would be affected by pending
amendments. Florida case law, as well as
that of federal courts, has upheld defer-
rals or moratoriums on development ap-


plications during the development of
plans or regulatory changes.
Remember, each local government
must adopt a comprehensive plan that
complies with applicable laws and rules
by the date specified in law and ru


.If
the hearing officer upholds the DCA's
finding, the local government may be
subject to monetary sanctions.
To avoid this costly, time-consuming
process, the DCA and the local govern-
ment may enter into a stipulated settle-
ment agreement. Typically, a settlement
agreement provides that the DCA will
not recommend sanctions if the local
government agrees to adopt remedial
amendments needed to bring the plan
into compliance. The DCA makes this
stipulation only in an effort to amicably
resolve a case. Under Section 163.3184,
F.S., a local government may be subject
to sanctions regardless of whether the
adopted plan is subsequently amended


Conducting Required Public Hearings on Plans
When Local Governing Body Serves as LPA

In the April 1990 Technical Memo, we responded to a two-part question
about public hearing procedures for local governing bodies which also serve
as the local planning agency. The reader's second question asked whether
the required public hearing in which the LPA recommends the plan to itself
as the local governing body had to be held separately from regularly
scheduled public hearings of the LPA. Our response to this question was
partly in error.
We reported that when the LPA and the governing body are the same
group, the public hearing for recommending the plan for adoption must
follow requirements specified in Chapter 125, Florida Statutes, (counties),
or Chapter 166, F.S., (cities). Actually, the public notice provisions of
Section 163.3184(15), F.S.,supersede the requirements of Chapter 125 and
Chapter 166, F.S., for this public hearing just as they supersede require-
ments for the transmittal and adoption hearings as was correctly reported
in our response.
Contact: Robert Arredondo, (904)487-4545, SC 277-4545.


{ TECHNICAL MEMO










ASK DCA


to bring it into compliance.
While a local government works to
bring its plan into compliance pursuant
to a settlement agreement, the potential
for it to issue development orders that
would negate the effect of the plan amend-
ments-and thus run counter to good
growth management-is great If the DCA
has reason to believe that a local govern-
ment is not making a good faith effort to
amend its plan in a manner that will
subject most, if not all, new development
to a plan that is in compliance, the agency
may be reluctant to settle a case. If a
settlement agreement has already been
executed, the DCA might deem a local
government's granting of significant
development approvals under the exist-
ing, as yet unamended plan, as grounds
for exercising its right to a hearing on the
adopted plan.
A local government that wishes to
give the greatest effect to its growth
management efforts could adopt an ordi-


nance specifying the manner in and the
extent to which decisions on develop-
ment proposals will be deferred while
compliance negotiations and plan amend-
ments are pending. Given existing case
law, if a local government deferred mak-
ing a decision on a development pro-
posal that would be affected by compre-
hensive plan amendments that will be
adopted within a reasonable time (typi-
cally nine or 10 months), such a decision
would likely be upheld by a court.
Moreover, if a local government grants
a development order while plan amend-
ments are pending, the order may not
necessarily confer vested rights. This is
because the person granted the order is
deemed to be on notice of specific, pend-
ing regulatory changes that may require
the alteration of the development plans.
In summary, although a local govern-
ment may not base its land use decisions
on a stipulated settlement agreement that
has not yet been translated into a plan


amendment, it is not necessarily required
to act on and approve requests for devel-
opment orders that may be consistent
with an existing plan if amendments to
that plan which would impact such devel-
opment are being negotiated or prepared
for adoption.
Contact: David Russ, Senior Attor-
ney, (904)488-0410, SC 278-0410.



Have a planning question? Each
month, as space permits, well answer
questions selected from those sent in
by readers. Send your questions to:

Editor, Technical Memo
Division of Resource Planning
and Management
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100


POLICY UPDATE
from page 2

H DCA Revises Policy on Use of Should in Plans


As a result of a recent court decision,
Department of Community Affairs Sec-
retary Tom Pelham has revised the De-
partment's position on the use of should
in the goals, objectives, and policies of
local plans. Under the policy, the goals,
objectives, and policies of a local com-
prehensive plan must be written using
the words shall or must instead of should
unless the local government includes in
the plan language plainly stating that the
word should is to be interpreted to be
mandatory and not discretionary.
The case that precipitated the posi-
tion change is

i559 So.2d 252,258 (Fla. 1st
DCA 1990). McCormick and the county
sought to prevent the city's construction
of a sanitary landfill near Durbin Creek
swamp. They


McCormick and the county argued
that the landfill project is inconsistent


with four of the plan's policies, namely
policies that say that filling, clearing, and
developing wetlands, and locating landfills
in or near wetlands should be discour-
aged. The city, however, successfully
argued that the plan is more flexible than
is claimed by McCormick and the county.
TheY


The First District Court of Appeals
ruled in favor of the city. It i


Such an interpretation and use of should
is inconsistent with planning requirements
that objectives be written to provide
specific, measurable, intermediate ends
that mark progress toward a goal and
that policies specify clearly defined ac-
tions to achieve each objective.
Using should to indicate that follow-
ing adopted objectives and policies is dis-
cretionary does not meet the tests for
specificity and measurability. Local plans
must clearly specify what actions will be
taken within an established time frame
and mark progress toward achieving
stated goals.
Contact: Maria Abadal, Plan Review
Administrator, (904)487-4545, SC 277-
4545.


SEPTEMBER 1990 Q











Plan Assignments Made To Review Teams
Tentative plan review assignments for local government teams are provided below to assist local officials in contacting
comprehensive plans to be submitted between August 1990 the appropriate team leader for assistance. Plan review
and January 1990 have been made to the Bureau of Local assignments are subject to change, however, due to unexpected
Planning's three plan review teams. The plan review teams are workload. The plan processing team is available to answer
available to provide technical assistance to local governments questions about submission requirements. Contact: the
beginning three months before a local government is scheduled appropriate Team Leader, or Maria Abadal, Plan Review
to submit its plan for review. Assignments to the plan review Administrator, (904)487-4545, SC 277-4545.

Plan Review Plan Review Plan Review
Month Team A Team B Team C
Bob Dennis Paul Noll Meredith Dahlrose


AUGUST


SEPTEMBER


Bonifay
Esto
Holmes County
Noma
Ponce de Leon
Westville

Clewiston
Hendry County
LaBelle


Baker County
Glen St. Mary
MacClenny


Eagle Lake
Hillcrest Heights
Polk County


Arcadia
DeSoto County


Bowling Green
Hardee County
Okeechobee
Okeechobee County
Wauchula
Zolfo Springs


Caryville
Chipley
Ebro
Vernon
Washington County
Wausau


Fort Meade
Lake Alfred
Lake Hamilton
Lake Wales


NOVEMBER





DECEMBER


JANUARY


Frostproof
Haines City
Mulberry



Cottondale
Grand Ridge
Greenwood
Marianna
Sneads


Apopka
Belle Island
Bristol
Liberty County


Bartow
Highland Park
Lakeland
Polk City
Winter Haven

Eatonville
Edgewood
Oakland
Windermere


Columbia County
Fort White
Hamilton County
Jasper
Jennings
Lake City
White Springs


Alford
Bascom
Jackson County
Jacob City
Malone

Bay Lake
Campbellton
Graceville
Lake Buena Vista
Orange County
Reedy Creek

Ocoee
Orlando
Maitland
Winter Garden
Winter Park


in TECHNICAL MEMO


OCTOBER


Auburndale
Davenport
Dundee










REGULATIONS


from page 3
meeting land development regulations
control land uses within identified cones
of influence forwaterwells andwellfields
to protect the potable water supply.
Designating a cone of influence is
difficult because the characteristics of an
aquifer and the amount of water pumped
out of the well will vary. Consequently,
determining a cone of influence may re-
quire extensive study by professionals
with hydrology or engineering expertise.
Accurately determining the cone of
influence is important for two reasons.
First, the radius of the protection area is
a function of the method chosen to calcu-
late the cone of influence. Second, it
forms the basis for regulating land uses
to protect the potable water supply.
Because certain land uses have the
potential to contaminate groundwater,
wellhead protection is an integral com-
ponent of land use planning and regula-
tion. Land uses that should be prohibited
from cones of influence and aquifer re-
charge areas include sanitary landfills,
animal feed lots, wastewater treatment
facilities, petroleum and pesticide stor-
age facilities, and other land uses that
store, handle, or generate toxic wastes.
Although not as damaging as the land
uses previously listed, commercial areas
and high-density residential areas could
harm aquifers due to the stormwater runoff
these areas generate. More desirable land
uses for wellhead and aquifer recharge
areas include vegetated open space and
recreation areas and low-density residen-
tial areas. Some local governments may
choose land use controls that become
less stringent with increasing distance
from wellfields.
The DCA's ModelLand Development
Code for Florida's Cities and Counties
recommends a 200-foot zone around
wellheads within which all development
is prohibited. Beyond that zone, the model
code recommends a larger area, based on
local geologic and hydrologic conditions,
where development is allowed, but care-
fully regulated. These recommendations,
however, may not ensure adequate ground-
water protection in all cases.
Due to the many variables involved in
determining the area of a cone of influ-


ence, there is no preferred way to ensure
adequate wellhead protection. Therefore,
local governments should seek technical
assistance from the DER, the water
management districts, or qualified con-
sultants when writing land development
regulations to protect wellfields.


State Regulation
The DER and the five water manage-
ment districts regulate water wells that
serve water and sewer systems having
total sewage flows greater than 2,000
gallons per day. They require that these
wells be placed no closer than 200 feet
from on-site sewage disposal systems and
100 feet from other sanitary hazards.
Municipal and county well systems must
also be permitted by these agencies.
The Department of Health and Re-
habilitative Services enforces require-
ments for smaller water treatment and
distribution systems through county health
departments. Also, to protect groundwa-
ter, the DER regulates stationary tanks
of more than 550 gallons capacity that
receive, store, or use petroleum.
If a local government determines that
water well regulations of the DER or the
water management district are sufficient
to protect the potable water supply, the
local governing body may adopt the
agency's regulations by specific reference
as part of its land development code.
This option to meeting the require-
ment to adopt regulations to protect
potable water wellfields is available under
Rule 9J-24.003(3), F.A.C. The rule per-
mits a local government to incorporate
in its land development code the existing
regulations applied within its jurisdic-
tion by other agencies. If a local govern-
ment chooses this approach, it must
determine that the regulations to be in-
corporated are sufficient to meet require-
ments of Section 163.3202(2), F.S., and
the criteria of Rule 9J-24.003(1), F.A.C.
Florida has more available ground-
water than any other state; however, its
supply is not infinite, as is being realized
in highly developed, drought-stricken
south Florida. Statutory provisions re-
quiring protection of potable water well-
fields offers Florida a chance to save


valuable groundwater.
For more information about land
development regulations, call Mike
McDaniel, (904)488-4925, SC 2784925.
For more information about groundwa-
ter protection, call a local DER regional
office or water management district.

Recommended further reading:

U.S. Environmental Protection
Agency, Office of Groundwater
Protection. Wellhead Protection
Programs: Tools for Local Govern-
ments. Washington, D.C.,: OGWP,
1989.

Blatt, David J.L. "From the Groundwa-
ter Up: Local Land Use Planning
and Aquifer Protection." Journal of
Land Use and Environmental Law.
Vol. 2, No. 2. Tallahassee, Florida:
Florida State University, Fall
1986. [



TechnicalMemo is published
monthly by the Department of
Community Affairs to provide
technical assistance to Florida's
counties and cities in implement-
ing requirements of Florida's growth
management laws. Material in TechnicalMemo
may be reproduced; credit the Department of
Community Affairs. Address comments or
inquiries to:
Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
(904)487-4545, SC 277-4545

Thomas G. Pelham, Secretary
Robert G. Nave,Director, Division
of Resource Planning and Management
Robert Pennock, Chief, Bureau
ofLocal Planning
Tom Beck, Chief Bureau
of State Planning
Dale R. Eacker, AICP, Adminisuator,
Grants and Publications Section
Tracy D. Suber, Editor
Tom Blackshear, I'nicr
Stephen D. Gavigan Writer
Nita Driggers Word Processor

Contributors: Tom Beck and Richard Grosso

This publication was produced at a cost of
S2.609.51 or $0.84 per copy under authority of
Section 163.3177(9)(h), F.S.


SEPTEMBER 1990 11










PLANNING NOTES


from page 7

U DRI Rulemaking Update. The
DCA continues its rulemaking activities
to amend the Rules of Procedure and
Practice Pertaining to Developments of
Regional Impact, Rule Chapter 9J-2,
Florida Administrative Code. Recent
activities are summarized below.

Rule Chapter 9J-2, F.A.C., Rules
of Procedure and Practice Pertaining
to DRIs. The notice of proposed rule-
making for this rule chapter was pub-
lished in the August 3, 1990, Florida
Administrative Weekly. The amendments
implement provisions of Section 380.06,
F.S., which have been amended, added,
or deleted since 1984, to make the rule
consistent with the existing statute. The
amendments structurally reorganize the
rule chapter to reflect the flow of the
DRI process, revise existing DRI forms,
create new forms, incorporate all DRI-
related forms, and provide consistency of
terms. These amendments do not relate
to review fees, upland habitat, and DRI


abandonment. Contact: Chris McCay,
(904)488-4925, SC 278-4925.

Rule 9J-2.0251, F.A.C., Abandon-
ment of DRI Development Orders.
This draft rule proposes to establish the
process for local governments to follow
in the event a developer seeks to aban-
don a DRI after a local government has
issued a final development order. The
draft rule also proposes to regulate post-
abandonment activities by the developer
and denies approval of abandonment if
subsequent development exceeds 80
percent of any DRI threshold. The DCA
tentatively plans to publish the notice of
proposed rulemaking on the abandon-
ment rule in September. Contact: Alto
Thomas, (904)488-4925, SC 278-4925.

Rule 9J-2.0252, F.A.C., DRI
Review Fees. This proposed rule will
establish policies and procedures for
regional planning councils' use in assess-
ing and collecting fees for the review of
DRIs and Florida Quality Developments.
The DCA held a workshop on the draft


DCA Seeks Input for 1991 Update

of State Land Development Plan
The Department of Community Affairs is requesting input for its 1991
update of the State Land Development Plan. The plan is developed every two
years pursuant to Chapters 186 and 380, Florida Statutes.
If you have suggestions or comments for consideration during this
update, please send them in writing by October 15, 1990, to: Strategic
Planningand Policy Coordination Unit, Florida Department of Community
Affairs, 2740 Centerview Drive, Tallahassee, Florida 32399-2100. A copy of
the State Land Development Plan may beobtained bywriting to that address
or by calling Debbie Skelton at (904)488-8466, SC 278-8466.


rule in May. As proposed, this rule would
apply only to DRIs and FQDs that have
not filed an Application for Develop-
ment Approval by the time the rule takes
effect. The proposed rule also sets out a
fee schedule for substantial deviation de-
terminations, annual reports, and other
types of reviews. A hearing on the pro-
posed rule was held August 21, 1990, in
Tallahassee. Contact: Alex Magee,
(904)488-4925, SC 278-4925.

Rules 9J-2.0256 and 9J-2.0257,
FA.C., DRI Hurricane Preparedness.
These rule amendments became effec-
tive in July. The amendments updated
the hurricane preparedness studies iden-
tified in the rules to be consistent with
recently completed studies and clarified
that the rules apply to mobile homes and
recreational vehicles. The rules estab-
lished acceptable hurricane preparedness
mitigation alternatives for DRIs in areas
of Sarasota, Charlotte, Lee, and Collier
counties designated as a special hurri-
cane preparedness district Contact: Alex
Magee, (904)488-4925, SC 278-4925.

9J-2.0258 Upland Vegetation
and Wildlife Policy Rule. This proposed
rule establishes the DCA's criteria for
evaluating impacts of a proposed devel-
opment on upland vegetation and wild-
life resources in all DRI-related reviews.
It includes site preservation requirements
for natural communities and for the
habitats of animal and plant species listed
as endangered, threatened, or of special
concern. Workshops were held in Orlando
and Tallahassee on August 28 and 30,
1990, respectively. Contact: Henry Bit-
taker, (904)488-4925, SC 278-4925.


Department of Community Affairs
Division of Resource Planning
and Management
Bureau of Local Planning
2740 Centerview Drive
Tallahassee, FL 32399-2100


12 TECHNICAL MEMO




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