THERE'S MORE TO CONSISTENCY UNDER THE
GROWTH MANAGEMENT ACT THAN MEETS THE EYE
*R. Adam Carnegie, AICP
Mark S. Bentley, Esquire
With the recent proliferation of materials written on the Growth
Management Act ("GMA" or the "Act"), most of the emphasis thus far has been
focused on the "Concurrency" issue. The implementation of the "Consistency"
requirement has not been adequately addressed in literature analyzing this
legislation. The consistency requirement takes effect immediately upon the
adoption of a comprehensive plan. On the other hand, the GMA provides for a
delayed implementation of concurrency. This schedule requires planners to
rapidly develop workable approaches to the implementation of the consistency
requirement. Hopefully, by writing this article, we can urge planners to
tackle issues hidden in this requirement before the adoption of their
jurisdiction's revised comprehensive plan.
Although consistency was required under the GMA's predecessor, the Local
Government Comprehensive Planning Act of 1975 ("LGCPA"), it saw only marginal
implementation by local governments. In certain cases, blanket exceptions to
required consistency were written into plans. Often, plans granted exceptions
to existing development orders (e.g., zonings) that were inconsistent with
plans adopted under the LGCPA. Consequently, consistency was rarely achieved
under the LGCPA. The GMA's consistency requirement is different from the 1975
Act's requirement in that the new statutory language now ensures its
*R. Adam Carnegie, AICP, previously held a position with the Hillsborough
County Planning Commission. He is currently a Senior Associate with FLD&E,
Inc., a multi-disciplinary consulting firm headquartered in Tampa. He
recently served as Project Planner on the Manatee County Comprehensive Plan.
Mark Bentley, formerly a City Planner for the City of Oldsmar and a
Planner with Hillsborough County, now practices land use and environmental law
with Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. in Tampa.
To begin with, the statutory language on consistency is now clearer. The
GMA now prescribes that consistency is achieved only where:
the land uses, densities or intensities, and other aspects of
development permitted by [a development order or regulation] are
compatible with and further the [comprehensive plan].
S. 163.3194(3)(a), F.S. (1987).
In addition, the GMA now limits the period of time for which an "inconsistent"
land development regulation (which may include, for example, an existing
zoning district on a parcel) can remain in effect. The law now requires that
local governments adopt schedules for changing inconsistent regulations so as
to conform to the provisions set forth in the new comprehensive plan.
S. 163.3194(1)(b), F.S. (1987). Any such schedules must result in adoption of
consistent regulations within one year of submittal of a new comprehensive
plan to the Department of Community Affairs ("DCA") for review. This deadline
may be extended by DCA's proposed amendments to the GMA if adopted during the
next legislative session.
Despite local governments' authority to establish a schedule for amending
any inconsistent regulations, they cannot issue any development order under
the "defective" regulation following plan adoption. The GMA specifically
requires that while inconsistent regulations may remain in effect for this
"interim period," they cannot serve as the basis for issuing any development
order that is inconsistent with the new comprehensive plan.
To ensure that the transition to the GMA did not divest certain approved
development orders of their vested rights, the GMA established exceptions to
required consistency and concurrency. This vested rights provision states
Nothing in this act shall limit or modify the right of any person to
complete any development that has been authorized as a development
of regional impact pursuant to chapter 380 or who has been issued a
final local development order and development has commenced and is
continuing in good faith.
S. 163.3167(8), F.S. (1987).
Even though this provision may guarantee a previously authorized Development
of Regional Impact ("DRI") the right to proceed with certain inconsistent
development, and may allow continued construction of a non-DRI on the basis of
a previously issued inconsistent development order, even these "vested"
approvals cannot qualify as being consistent under the GMA. Thus, local
governments must recognize such approvals as being nonconforming when applying
their new land development regulations as required by S. 163.3202, F.S.
In light of the strict framework precluding any exceptions to
consistency, we suggest that planners pursue the following strategy during
development of their jurisdiction's new comprehensive plans:
1. Establish an administrative mechanism within comprehensive plans to
be used during the "interim period" between plan adoption and the enactment of
development regulations, to ensure that issuance of development orders under
the existing (and likely inconsistent) regulations meet the consistency
requirement. The utility of such a mechanism is best illustrated by way of
example. Consider the request for issuance of a building permit on a parcel
that is zoned for a wide range of heavy and light commercial uses, but is
located within a category on the new Future Land Use Map that limitsI
commercial uses to light (neighborhood) commercial uses. A local government
could ensure that issuance of this building permit not violate the consistency
requirement by requiring a rezoning of the parcel to a light commercial
district consistent with the Future Land Use Map. A less cumbersome approach
would be to issue an administrative "Certificate of Use and Density/Intensity
Compliance" along with the building permit which specifically limits the range
of uses to only those light commercial uses consistent with the Future Land
Use Map. The proposed Manatee County Comprehensive Plan, recently submitted
to the Department of Community Affairs ("DCA") provides for such an approach.
A mechanism of this kind will have even more utility in the event that DCA's
recently proposed changes to S. 163.3202(1), F.S. (1987) of the GMA, providing
for the extension of this "interim period," are adopted during the forthcoming
The "Certificate of Use and Density/Intensity Compliance" may be
complemented by establishing a "Certificate of Level of Service Compliance."
The former would be used to ensure consistency, and the latter is a mechanism
for use in the concurrency management system of the new comprehensive plan.
2. Establish one or more points in the development review and approval
continuum at which a development order issued prior to plan adoption should be
considered "final," and beyond which subsequent development orders (e.g.,
building permits) may still be issued even though a project does not meet the
consistency requirement. Preferably, any such "final development order"
should be one that is typically issued after substantial investment or
commitments by the developer or local government. The timing and requirements
of this "final development order" may vary depending on the approval process
being followed, and may include time limits within which subsequent approvals
must be obtained, or the project lose its exception to the consistency
requirement. Furthermore, this "final development order" may be defined by
local government as one normally issued in advance of the development orders)
used by that local government to allow commencement of construction or
At first glance, establishment of a locally-defined "final development
order" which does not actually authorize commencement of development can be
seen as violating the GMA's narrow statutory vested rights standards
previously mentioned. Furthermore, the approach seems particularly
inappropriate given DCA's strict interpretation of the vesting provision. To
date, DCA has insisted (in the case of non-DRIs) that development must have
actually commenced in order to "escape" required consistency. DCA has also
indicated that local governments may employ an administrative procedure for
determining vested rights claims. However, DCA insists that this procedure
for circumventing the GMA's consistency requirement must determine vested
rights using the GMA's vesting standards, and cannot rely on the common law
vesting criteria established under Florida case law. These well established
common law vesting criteria do not necessarily require actual commencement of
development, but include good faith reliance upon an act or omission of local
government, a substantial change in position, and resulting inequity upon
destruction of the acquired rights.
The approach we have recommended (defining a "final development order")
is likely to fail the GMA's stringent vesting test, and is more consistent
with common law vesting criteria. Nevertheless, we feel justified in
recommending this approach. We anticipate that local governments may be
compelled to adopt this approach, and in so doing, prompt DCA to make
recommendations to the Legislature to revisit the vesting provisions of the
GMA. Our recommendation is made for the following reasons.
First, in the case of a multi-phase project, there are circumstances
where a development order authorizing commencement of development has been
issued, and where development has actually commenced, on only one of several
phases. At the time of plan adoption, it would not be unreasonable to
consider vesting of subsequent phases for which only preliminary development
orders have been obtained, particularly if infrastructure in the first phase
is being constructed to accommodate the impacts of the entire project. Under
such circumstances, a local government would be acting reasonably and
responsibly in defining the combination of the development order granting
multi-phase approval, and the final development order on the first phase, as a
"final development order" vesting the entire project and exempting it from the
consistency requirement. This example underscores the importance of providing
mechanisms in local government comprehensive plans that realistically and
equitably resolve the issue of inconsistent projects that are in the
"pipeline" at the time when the consistency requirement is implemented.
Second, without adopting an approach that establishes a locally-defined
"final development order," local government is likely to find itself faced
with an unforeseen dilemma, resulting from the narrow scope of the GMA's
vesting provision. Consider the case of a previously approved project,
inconsistent with the new comprehensive plan, but determined to be vested
under Florida's common law rule by either a court, or by a locally established
administrative vesting procedure based on the common law criteria. Local
government may nevertheless be precluded from issuing a development order
essential to project completion because the GMA's consistency standard has not
been met. This can easily occur under the broad standing provisions of the
GMA, which allow an "aggrieved or adversely affected party" to take action
forcing local government to abide by the more stringent vesting criteria of
the GMA. Clearly, legislation should not be structured in a manner which
creates this conflict between a judicial mandate and the general law.
Third, in light of recent case law, an extremely cautious approach to
implementing the consistency requirement is suggested. In a recent
controversial zoning case which many legal experts consider an aberration,
downzoning of property was construed to be a compensable taking. In reaching
its conclusion, the court specifically discounted the importance of
expenditures by the property owner made in reliance upon a prior zoning
approval. This case, A. A. Profiles, Inc. v. City of Fort Lauderdale, 850
F.2d 1483, rehearing denied, 861 F.2d 727 (11th Cir. 1988), decided in the
Federal Court with jurisdiction over Florida's federal district courts, cannot
be completely ignored. This court construed a zoning approval to be a
property interest and found the City's imposition of a more restrictive zoning
district an unconstitutional taking. The request by the City for a rehearing
of the Court's decision has recently been denied.
To limit exposure to similar challenges, it is important that local
governments demonstrate a cautious approach to defining the points at which a
property interest is acquired, and designate development orders issued at or
beyond that point as having immunity from the consistency requirement. Again,
local identification of a "final development order" lends itself well to
ensuring that only those development orders defined as "final" establish a
recognizable property interest. In this way, the comprehensive plan becomes
Having advocated an approach that is marginal in terms in implementing
consistency under the GMA, we still believe that the foundation of the Act,
required public facility adequacy and availability (concurrency), will remain
intact. Any exemptions to required consistency allowed by local government
should still be required to meet concurrency's mandate. This is entirely
possible under the recommended scenario and is easily provided for through
joint use of separate Certificates of Use and Density/Intensity Compliance and
Level of Service Compliance. Issuance of the former may occur without any
assurances that a developer has the right to proceed. The right to develop
can only be secured upon issuance of both certificates.
To meet the immediate challenge of implementing the consistency
requirement, planners' agenda must therefore include a cautious approach to
implementing the consistency requirement in new comprehensive plans and,
possibly, legislative reform. These two elements will help ensure that the
GMA earns an early reputation as a highly effective and workable growth