TOP DOWN OR BOTTOMS UP?
Richard S. Brightman
Hopping Boyd Green & Sams
A. WHY HAS GROWTH BECOME AN ISSUE
a. Florida is growing at the rate of between
200,000 and 400,000 per year with the average
being 327,000. In 1984, Florida was the 6th
largest state. It is now passing
Pennsylvania, the 4th largest state behind
only California, New York and Texas.
2. Population Predictions
April 1985 11.2 million
April 1988 12.3 million
April 2000 15.4 million
a. 95% of the growth is from in-migration.
Visualize the entire State of Georgia moving
to the State of Florida by the year 2000.
3. What It Means To Have 895 More People In Florida
a. Water, Sewer & Garbage Impacts Each day
those 895 new Floridians will:
o need 130,501 more gallons of water for
o produce 111,065 more gallons of waste
water requiring treatment
o create 4.165 more pounds of solid waste
b. Public Safety Impacts Each day those 895 new
Floridians will create a need for:
o 1 more jail bed at the local level
o 2 more prison beds at the state level
0 2 additional police officers
c. Transportation Impacts Each day those 895
new Floridians will require:
o 2 miles of new highway
d. Education Impacts Each day those 895 new
Floridians will include enough school-age
children to require:
0 2 new classrooms
o 2 new teachers
e. Social Service Impacts Each day those 895
new Floridians generate:
o 16 new children in subsidized day care
0 4 more abused or emotionally disturbed
children requiring help
o 12 more developmentally disabled children
o 15 more mentally ill people requiring
o 93 more people needing publicly supported
alcohol and drug abuse treatment
o 22 more people applying for Aid to
Families with Dependent Children
o 45 more people eligible for Medicaid
f. Energy Impacts -
g. Park Impacts -
h. Road and Bridge Impacts -
4. Where Will the Growth in Florida Occur
a. 54% of the growth will occur in seven
counties: Duval, Orange, Hillsborough,
Pinellas, Dade, Broward and Palm Beach (see
B. LEGISLATIVE/GOVERNMENTAL RESPONSE TO GROWTH
1. Options Available
a. Adopt antigrowth mode -
b. Do nothing -
c. Regulate growth -
d. Plan for growth -
e. Pay for the costs of growth -
1985 legislative solution: Since growth is inevitable,
let's regulate and plan for it. Legislature postponed
funding of growth until the 1987 session, during which it
passed the now repealed sales tax on services. Legislature
appointed a state Comprehensive Planning Committee to study
impacts and alternatives for infrastructure funding.
C. FLORIDA'S 1985 GROWTH MANAGEMENT LEGISLATION (A Summary
1. The State Plan
Florida has embarked upon a "top-down" planning
process designed to manage future growth. At the very top
of the planning process pyramid is the State Comprehensive
Plan. The next step down from the top are Comprehensive
Regional Policy Plans. At the base of the pyramid are the
Local Government Comprehensive Plans and the implementing
The State Comprehensive Plan addresses 25 sub-
stantive areas. Each subject matter area has a goal which
is an expression of the legislature's aspirations for the
state during the next 10-15 years. Each "goal" is followed
by a number of "policies" aimed at assisting in achieving
the goals. The Plan, which was adopted as Chapter 85-57,
specifically does not create regulatory authority or
authorize the adoption of agency rules, criteria, or
standards not otherwise authorized by law. The Act required
each state agency to adopt functional plans within 1 year of
May 31, 1985, and by November 1 or each odd year there-
The subject matter areas covered in the State
Comprehensive Plan are:
Education Natural Systems
Families Historic Resources
The Elderly Hazardous Materials
Housing The Economy
Public Safety Property Rights
Land Use Employment
Air Quality Public Facilities
Energy Plan Implementation
Mining Water Resources
Coastal and Marine
2. Comprehensive Regional Policy Plans
The required content of a comprehensive regional
policy plan is provided in s. 186.507.
The procedure for adoption and review of these
plans, however, is provided in s. 186.508. This procedure
was substantially abbreviated by the 1986 legislation, as
Each regional planning council (RPC) must submit
its proposed regional policy plan to the Executive Office of
the Govenor by 7/1/89. The 1986 amendment allows the review
of such plans to be done by the Governor's office or its
designee. More significantly perhaps while, rules adopting
the plan must still be reviewed by the Legislature, now the
plans will become effective even if the Legislature takes no
action. The 1986 amendments deleted the provisions of
remaining sections of s. 186.058, detailing procedures for
consistency review and adoption of plans for RPCs failing to
3. Local Government Comprehensive Planning
The 1986 legislation also .substantially modified the
Local Government Comprehensive Planning Act of 1975. The
act addresses lack of quality and consistency in local plans
as well as local governments' failure to implement their
plans. The act adds mandatory procedures and increases
state-level control of the local comprehensive planning
process. Significant changes created by the act are as
a. All local governments must prepare a compre-
hensive plan or amend their existing plan to
comply with requirements of the act by a
specified date for coastal counties and
municipalities, the plan due date is 7/1/88 -
7/1/90. for all others, the due date is 7/1/89
b. The local government must send all proposed
and adopted plans or amendments to the
Department of Community Affairs (DCA) for
review of "compliance" with the act.
c. Proposed plans or amendments not "in
compliance" are returned to the local
government with recommendations by DCA.
Adopted revised plans still not "in com-
pliance" are referred by DCA to the Division
of Administrative Hearings (DOAH) for a
hearing and then to the Administration
Commission (Governor and Cabinet) for final
d. If the Administration Commission finds the
plan or amendment not "in compliance" it may
impose certain sanctions, which include loss
of funding and grants, against the local
e. Plans must include methods for having public
facilities in place to meet demands of com-
f. The Regional Planning Councils will adopt
plans for local governments failing to do so.
o New requirements have been added to the
o --A land use map as part of the future
land use element.
o --A capital improvements element.
0 --A coastal management element, which
provides for protection of natural
resources and mitigation of effects of
Local governments must evaluate, appraise and amend
their plans every five years.
A plan may be amended no more than twice a year.
[Except in the case of an emergency, or pursuant to an
evaluation and appraisal report or a proposed DRI).
Land Development Regulations
All land development regulations adopted by a local
government must be consistent with its plan. A local
government must adopt or amend, and enforce such regulations
within one year of submission of its plan. Minimum require-
ments for such local land development regulations are
provided in 163.3202. If DCA determines that the local
government has failed to adopt regulations as required it
may seek a circuit court order to force adoption of such
Standing to Challenge
Increased standing to review various phases of the
planning process has been provided:
An "affected person" may request an adminis-
trative hearing to challenge a finding that a plan
is "in compliance" with this act; or may intervene
in the mandatory hearing following a finding of
A "substantially affected person" may request
an administrative hearing to determine whether land
development regulations implement and are consis-
tent with the plan.
An "aggrieved or adversely affected party" may
seek an action in court to prevent a local govern-
ment from taking action on certain "development
orders" which are inconsistent with the local
plan. Renard II.
Sanctions, including attorney fees and costs, may
be imposed upon parties to the various administrative and
judicial actions allowed under this act for filing
pleadings, motions, or other papers for an improper purpose.
4. Developments of Regional Impact
The 1986 legislation changed the DRI process as
a. There is no chance in the standing or appeal
provisions for DRIs. 380.07.
b. Adoption of "banded" numerical thresholds for
S Developments under 80% of a numerical
threshold are not DRIs;
o Developments between 80%-100% of a
threshold are presumed not to be a DRI;
o Developments between 100%-120% of a
threshold are presumed to be a DRI;
o Developments at or above 120% of
threshold are DRIs. 380.06(2)
c. Subject to legislative approval, numerical
thresholds may be increased or decreased up or
down 50% by the Governor and Cabinet.
d. Binding letter requests may be made by the DCA
and the local government with jurisdiction.
Adjacent local governments may petition the
DCA for a binding letter for a project.
Binding letters are valid for only three (3)
years from their date of issuance. 380.06(4).
e. In an effort to overcome criticism of the DRI
review process, numerous developer incentives
have been added. These include:
o Simultaneous local comprehensive plan
o Authorization of pre-development order
construction pursuant to DCA pre-
development agreements. 380.06(8).
o Optional conceptual agency review
o Down zoning limitations. 380.06(15)(c)3.
o Dunedin test (City of Dunedin v.
Contractors and Builders Association of
Pinellas County, 329 So.2d 314 (Fla.
1976); vacated 330 So.2d 744; appeal
after remand 358 So.2d 846; cert. denied
444 U.S. 876, 100 S.Ct. 140, 62 L.Ed.2d
91) applied to development order condi-
tions requiring contribution of land or
money for public facilities.
o Credit for DRI exactions against local
impact fees. 380.06(16).
o Clarification of substantial deviation
provisions. 380.06(19). See
380.06(19) (g) 4.
0 Improvements to the area-wide DRI
o Potential "withering away" of DRI process
through the local government certifica-
tion program. 380.065.
f. Encouragement for local governments to adopt
impact fees for non-DRI developments. Failure
to enact such an ordinance appears to prohibit
a local government from seeking equivalent
contributions from DRIs. 380.06(15) (e)1. 65
of 99 cities had done so as of 12/86.
g. A significant rewrite of the substantial
deviation criteria and procedures. The new
criteria addresses all types of development,
not just residential. 380.06(19).
h. A limitation on vested rights now granted to
subdivisions platted between August 1, 1967,
and July 1, 1973. Unless reliance was
established or. a claim of vested rights is
established by a filing with the DCA by
January 1, 1986, these rights expired on June
30, 1986. 380.06(20)(a).
i. Doubling of substantial deviation criteria for
proposed changes within a downtown development
authority. 380.06(22) (c).
j. Expansion and clarification of area-wide
development of regional impact process.
k. Creation of an exemption from the DRI review
process for developments which can meet the
stringent criteria of the "Florida Quality
Development Program". 380.061.
1. Local governments will "eventually" be able to
"opt" out of the DRI review process by
securing certification of their local plans
and review programs pursuant to 380.065.
m. New standards for port facilities (including
marina dry storage), hotels or motels,
recreational vehicle developments and multi-
use developments. Modified numerical
thresholds for airports, attractions and
recreation facilities, industrial facilities,
office development and retail, service and
wholesale facilities (shopping centers).
Special rules for aggregation of small
developments under common ownership, and
residential developments within two miles of a
county line. 380.0651.
n. The DCA is granted authority to bring Chapter
120 administrative proceedings to enforce
Chapter 380. 380.11(2)(a) and (d).