Title: 9th Annual Local Government Law in Florida Seminar
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 Material Information
Title: 9th Annual Local Government Law in Florida Seminar
Physical Description: Book
Language: English
Publisher: Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - 9th Annual Local Government Law in Florida Seminar (JDV Box 90)
General Note: Box 24, Folder 1 ( Governmental Rules, Regulations, Legislation and Administrative Laws - 1996 ), 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: WL00004561
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.

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CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P. A.

ATTORNEYS AT LAW


ONE HARBOUR PLACE
P. O. BOX 3239
TAMPA, FLORIDA 33601
(813) 223 7000


CNA BUILDING
P O. BOX 1171
ORLANDO, FLORIDA 32802
(305) 849-0300


200 EAST GOVERNMENT ST.
P. O. BOX 12426
PENSACOLA, FLORIDA 32582
(904) 434-0142


LEWIS STATE BANK BUILDING
P. O. DRAWER 190
TALLAHASSEE, FLORIDA 32302
(904) 224-1585


PLEASE REPLY TO:













9th ANNUAL LOCAL
GOVERNMENT LAW IN
FLORIDA SEMINAR



March 1986



FLORIDA'S GROWTH MANAGEMENT LEGISLATION -
A LAWYER'S PERSPECTIVE



by


JACOB D. VARN
Carlton, Fields, Ward, Emmanuel, Smith, and Cutler, P.A.
Post Office Drawer 190
Tallahassee, Florida
(904) 224-1585











I. INTRODUCTION 1985 GROWTH MANAGEMENT LEGISLATION
A. Chapter 85-55 (CS/CS HB 287)
1. Local Government Comprehensive Plan,
Sections 1-19
2. Coastal Construction/Protection, Sections
33-40
3. Development of Regional Impact Process,
Sections 41-49
4. Regional Policy, Section 23
B. Chapter 85.57 The State Comprehensive Plan
C. Florida's Planning Process
1. Consistency
2. Top- Down

II. LOCAL GOVERNMENT COMPREHENSIVE PLANNING
A. Perceived shortcomings of Local Government
Comprehensive Planning Act of 1975
1. Lack of qualtiy
2. Consistency in local plans
3. Failure to implement
B. Solution to earlier shortcomings
1. Consistent with state and regional plans
Section 163.3177, 163.3178 and 163.3191,
F.S.
2. "In compliance" definition. Section
163.3184(3) (b) F.S.
C. Major changes
1. Required elements in 1975 and 1985 acts.
Section 163.3177, F.S.
a. Land use
b. Traffic
c. Sanitary sewer, solid waste,
drainage, and potable water
d. Conservation
e. Recreaton and open space
f. Housing
g. Intergovernmental coordination
h. Mass transit (local gov't with
population greater than 50,000)
i. Port, aviation and related
facilities (local gov't with
population greater than 50,000)
2. New elements
a. Capital improvemtns element. Section
163.3177(3) (a), F.S.
b. Coastal management element. Section
163. 3178, F.S.
3. Elements deleted
a. Utility










b. Public building and related
facilities element was deleted as
optional element.
4. Elements amended
a. Land use element. Now requires more
specificity including land use map.
Section 163.3177(6)(a), F.S.
b. Conservation element. Now includes
considerations for recharge areas,
wetlands, waterwells, bays and marine
habitat. Section 163.3177(6) (d),
F.S.
c. Sanitary sewer, solid waste, drainage
and potable water element. Now
includes natural groundwater aquifer
recharge as consideration. Chapter
85-42, Laws of Florida
5. Definition of Administration Commission
Section 163.3164(1), F.S.
D. Opportunities for hearings/appeals
1. If a local gov't fails to adopt all of the
required elements, the regional planning
council shall prepare and adopt by rule the
missing provisions. (Step 1) Section
163.3176(4), Governed by Chapter 120, F.S.
2. Adoption of local gov't comprehensive plan
and 5-year updates.
a. If DCA determines the plan/update to
be "in compliance", DCA's notice is
subject to "appeal" by "affected
person". See Step 7. See "affected
person" definition Section
163.3184(3)(a), F.S. "Fairly
debatable" is standard of review.
b. If DCA determines the plan/update to
be not "in compliance", there is a
mandatory Section 120.57 hearing in
affected jurisdiction. See Steps 20
and 21. Note that local government's
determination that plan/update is "in
compliance" is presumed to be
correct. Section 163.3184(7)(b),
F.S.. Also "affected person" may
intervene.
3. Land development regulations
a. "Substantially affected" person may
initiate if:
(1) filed within 12 months of
adoption,
(2) petition filed with local


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government setting forth its
reasons why regulations are
inconsistent, (local
government has opportunity to
respond)
(3) after 30 days, person may file
petition with DCA alleging
inconsistency. DCA shall hold
informal proceeding.
(4) if DCA determines regulations
are consistent, person may
file petition for Section
120.57 hearing.
(5) if DCA determines regulations
are not consistent, DCA shall
initiate Section 120.57
hearing.
b. DCA can only initiate proceeding
following petition being filed; it
cannot initiate proceeding.
c. If local government fails to adopt
required land development
regulations, DCA may go to circuit
court seeking injunction to force
adoption. May be initiated in event
of total failure to adopt, but cannot
be used if regulations are
inconsistent or of poor quality.
4. Development orders
a. See definition of "development
order", Section 163.3164(5), F.S.,
and "development permit", Section
163.3164(6), F.S.
b. Development orders must be consistent
with local government comprehensive
plan. Section 163.3194(3) (a), F.S.
c. Any "aggrieved or adversely affected
party" may initiate, See Renard v.
Dade County, 261 So.2d 832 (Fla.
1972) and Section 163.3215(2), F.S.
d. Action is initiated in circuit
court. Verified complaint must first
be filed with the local government.
"Fairly debatable" is the basis of
review.
E. Potential pitfalls
1. Consistency requirements.
2. Public facilities element
3. Traffic element
4. Amendments only twice per year, exception


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for DRIs and emergency.


III. Chapter 380 Development of Regional Impact
A. Standing and appeals. Section 380.07, F.S. No
change
B. Guidelines and standards. Sections 380.06(2)(6)
and (d) and 380.0651, F.S.
1. Guidelines and standards to be applied are
those in effect when "developer received
authorization to commence development from
the local government."
2. "Banded" numeral thresholds for DRIs.
Section 380.06(2), F.S.
a. Developments under 80% of numeral
threshold are not DRIs.
b. Developments between 80% and 100% of
a numeral threshold are presumed not
to be a DRI.
c. Developments between 100% and 120% of
a numeral threshold are presumed to
be a DRI.
d. Developments at or above 120% of a
numeral threshold are DRIs.
3. Numeral thresholds may be increased or
decreased by 50% by Administration
Commission, Section 380.06(3), F.S.
a. Petition may be filed by DCA, RPC or
local government.
b. Changes must be approved by
Legislature.
4. Statewide Guidelines and Standards. Section
380.0651, F.S.
a. Airports. Amended to be more
specific. DRI if construction
includes: (1) new airport with paved
runways, (2) new paved runway, (3)
new passenger terminal, or (4)
expansion of existing runway or
terminal by more than 25%.
b. Attractions and Recreation
Facilities. Essentially unchanged.
c. Electrical Generating Facilities and
Transmission Lines. No changes.
d. Hospitals. No changes.
e. Industrial Plants and Industrial
Parks. Parking increased from 1500
vehicles to 2500 vehicles. Site
acreage lowered from 640 acres to 320
acres.


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f. Mining Operatons. No changes.
g. Office Parks.
(1) For county with less than
500,000
(a) 300,000 square ft. of
gross floor area or
(b) site greater than 30
acres
(2) For county with more than
500,000
(a) 600,000 square feet of
gross floor area and
(b) site specifically
designated in local
gov't comp. plan and
comprehensive regional
policy plan.
h. Petroleum Storage Facilities. No
changes
i. Port Facilities. Any waterport or
marina except:
(1) those with mooring for less
than 100 boats;
(2) dry storage of less than 150
boats;
(3) wet or dry storage or mooring
of less than 300 boats subject
to marina siting plan;
(4) dry storage of less than 300
boats at marina constructed
and in operation prior to July
1, 1985.
j. Residential Developments. One
change. No rule may be adopted
concerning residential developments
which treats a residential
development in one county as being
located in a less populated adjacent
county unless more than 25% of the
development is located with 2 or more
miles of the less populated adjacent
county.
k. Schools. No changes.
1. Retail, Service and Wholesale
Developments (formerly Shopping
Centers). Essentially unchanged.
m. Hotel and Motel Development. New.
(1) For county with less than
500,000 population, 350 units.
(2) For county with more than


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500,000 population,
(a) 750 units and
(b) site specifically
designated in local
gov't comp. plan and
comp. reg. policy plan.
n. Recreational Vehicle Development.
New 500 or more spaces.
o. Multi-Use Development. New Sum of
percentage of sub-threshold
development is equal to or greater
than 130%.
(1) Example No. 1 In county over
500,000 population
Industrial Park 160 acres

Office 300,000 ft0%
50%
100%
Example 1 is not a DRI.
80% x 130% = 104%.
(2) Example No. 2 In county over
500,000 population
Industrial Park 240 acres
75%
Office 300,000 ft
50
125%
Example 2 is presumed not
to be a DRI.
(3) Example No. 3 In county over
500,000 population
Industrial Park 240 acres
75%
Office 450,000 ft
75%
150%
Example 3 is presumed to
be a DRI
(4) Example No. 4 In county over
500,000 population
Industrial Park 240 acres
75%
Office 450,000 ft
75%
Hotel 150 rooms
20%
170%
Example 4 is a DRI.
120% x 130% = 156%


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C. Binding letters. Section 380.06(4), F.S.
1. Local government or DCA can require developer
of project between 80%-120% of threshold to
obtain binding letter.
2. Adjacent local government may petition DCA
to require binding letter, but has no
standing to require.
3. Binding letter shall expire and become void
unless development has been substantially
commenced within three years of effective
date.
D. Preliminary Development Agreements. Section
380.06(8), F.S.
1. Statutory authorization for prior agency
practice.
2. ADA must be filed within 3 months, unless
good cause shown.
3. Lands must be suitable for development and
must have adequate public facilities.
4. May allow development up to 25% of threshold
unless development is in the best interest
of the state.
5. Must disclose ownership within 5 miles.
6. Agreement shall be recorded.
E. Conceptual Agency Review. Section 380.06(a), F.S.
1. Substitute for coordinated review process;
2. Agency rules required by July 1, 1986;
3. Approval valid for 10 years;
4. If conceptual approval granted, rebuttable
presumption that developer is entitled to
construction/operation permit.
F. Conditions of Development Orders. Section
380.06(15), F.S.
1. Mandatory compliance dates for commencing
and completing development.
2. Restricts local government's ability to
down-zone, reduce unit density or reduce
intensity until established date.
3. Requirements for public facility
contributions or construction may be
provided if:
a. Need must be reasonably attributable
to the development.
b. Contribution is comparable to amount
of funds government is expected to
expend.
c. Funds expressly designated and used
to mitigate impacts reasonably
attributable to development.
4. After July 1, 1986, development order may


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not include exactions unless local
government has enacted a local ordinance
which requires other development to
contribute its proportionate share.
5. After October 1, 1988, local governments
shall not approve a DRI that does not make
adequate provision for the public facilities
needed to accommodate the impacts of the
development.
G. Credits Against Local Impact Fees. Section
380.06(16), F.S.
1. If developer is required to contribute lands
or funds, developer gets credit against
impact fees for same facilities.
2. Provision for repayment of fair share for
excess front-end contributions by developer.
H. Substantial Deviations. Section 380.006(19), F.S.
1. A. detailed listing of changes for all types
of DRIs.
I. Vested Rights. Section 380.06(20), F.S.
1. Anyone claiming vested rights must have
notified DCA by January 1, 1986.
2. If notice filed, rights vest until June 30,
1990.
3. If notice not filed, rights vest until June
30, 1986.
J. Areawide DRI Plan. Section 380.06(25)
1. Local governments are now authorized to
prepare areawide development plans, subject
to satisfying certain requirements.
2. Property owner consent is not required for
areawide DRI prepared by local government.
K. Florida's Quality Development Program. Section
380.061
1. To qualify, developer must donate or
perpetually set aside all of the following:
a. Wetlands and waterbodies under DER
jurisdiction.
b. Active beach or primary and secondary
dunes.
c. Archaeological sites.
d. Endangered or threatened plant and
animal habitat.
2. Cannot produce, or dispose of, hazardous or
toxic substances.
3. Cannot engage in dredge and fill activities
in, and no stormwater discharge into, waters
designated as Class II, aquatic preserves or
OFW.
4. For designation, local government, regional










planning council and DCA must approve.
5. If approved for program, project exempt from
DRI review and DCA issues development order.
6. If project is not approved for program,
developer may appeal to Quality Development
Review Board. Affirmative vote of at least
five members of board, including affirmative
vote of local government representative.
7. Quality Development Review Board consists
of:
a. Secretary, DCA
b. Secretary, DER
c. Executive Director, FGFWFC
d. Executive Director, DNR
e. Executive Director, appropriate wmd
f. Executive Director, appropriate rpc
g. C.E.O., appropriate local government
h. If significant historical or
archaeological site, then Director,
Div. of Archives, History and Records
Mgt, Dept. of State
L. Certification of Local Government Review of
Development Section 380.065, F.S.
1. Following adoption of state comprehensive
plan and regional comprehensive policy,
local government can petition the
Administration Commission for certification
to review DRIs.

IV. DCA RULE DEVELOPMENT ACTIVITIES.
A. DCA currently has completed or is in the process of
preparing rules on the following subjects:
1. Developer agreements
2. Areawide DRIs
3. Binding letters
4. Procedural rules (Chap. 9J-2. F.A.C.)
5. DRI Transportation Policy
6. Substantial Deviation
7. Appeals to Fla. Quality Developments
8. DRI Guidelines and Standards
9. Aggregation
10. Threshold Variations
11. Certification to Local Government
12. State Land Developent Plan
13. L.G.C.P. Minimum Criteria

V. ISSUES TO WATCH
A. Role of DCA as reviewer as opposed to commenter.
How far will DCA go?
B. DCA now enjoys statutory enforcement powers


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C. DRI Transportation Rule
D. Public Facilities Element
E. Impact Fees and Exactions
F. How much paper and how many people will be
required?


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PLAN OR AMENDMENT ADOPTION PROCESS

(1)
Local government proposes plan/amendment


1


(3)
To agencies, RPC
for review and


5 days
c-----


(2)
Plan/amendment received by DCA
at least 90 days prior to adoption


--------*-
C(I~ days

If "in compliance"


issues Notice of Intent


(5)
Local gov't adopts plan/
amendment


(6)1 (7)
No appeal "Affected person"
appeals on "compli-
ance". Petition
filed with DCA

(8) 1
Petition referred to
DOAH. Hearing in
affected jurisdiction.


If not "in compliance"

(16)
DCA sends recommendation
to local government

(17)
Local gov't holds public
hearing and adopts/
rejects recommendations

(18) 1
Revised plan/amendment
sent to DCA for review
I


1 (19)
If "in compliance"
DCA issues Notice
of Intent

I


(20)
If not "in compliance"


DCA must send to DOAH.
DOAH conducts hearing
in affected jurisdiction.


(9) 1 <
Hearing Officer renders
recommended order

(10) 1
Final order by DCA


"In Compliance"


Not "in compliance"


(11)
Appeal to District
Ct. of Appeal under
Chap. 120, F.S.


(12)
Appeal to
Administration


Not


(13) 4,
1. Recommends remedial
actions
2. May apply sanctions


(14) 1
Local Goverment acts


(15) 4-
Appeal to District
Ct. of Appeal under
Chap. 120, F.S.


comment


(4)
DCA


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FLORIDA'S PLANNING PROCESS


STATE COMPREHENSIVE PLAN
(Adopted by Legislature Chap. 85-57)


STATE AGENCY
FUNCTIONAL PLANS
SS 186.021,186.022, F.S.
1. State Water Plan Jan. 1986
2. State Land Dev.Plan Jan. 1986
3. All other plans July 1986


MINIMUM CRITERIA COMPREHENSIVE REGIONAL
FOR REVIEW OF LGCP POLICY PLANS
S 163.3177(9), F.S. S 186.508, F.S.
1. DCA Adopts Rule-2/15/86 1. RPC Jan. 1987
(not subject to rule challenge)
2. Legislative Reviews-April 1986



I
LOCAL GOVERNMENT
COMPREHENSIVE PANS
Section 163.3187(2), F.S.
163.3167
1. Current Plans Submitted-
December, 1985
2. Plans Revised -
a. Counties Dec. 1987
b. Cities w/ooastal
element Dec. 1988
c. Other cities Dec. 1989




LOCAL LAND
DEVELOPMENT REGULATIONS
Section 163.3202, F.S.
1. DCA Adopts Rule for
Review of Local Land
Dev. Regs. Feb. 19, 1987
2. Legislative Reviews-April 1987
3. Local Government must
adopt within one year after
submission of plan




DEVELOPMENT ORDER
Section 163.3194, F.S.


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