STATE OF FLORIDA -
DEPARTMENT OF COMMUNITY AFFAIRS
2740 CENTERVIEW DRIVE TALLA H ASSEE, FLORIDA 32399-2100
LAWTON CHILES LINDA LOOMIS SHELLEY
TO: Linda Shelle
FROM: Alex Magee
SUBJECT: Substantial Deviation Workgroup
DATE: December 6, 1993
At your request, a workgroup was set up to review the
existing substantial deviation determination process. This
effort was made in response to a recommendation of the third
Environmental Lands Study Commission (ELMS III) which said, in
short, that the process should be refined and simplified. This
memo summarizes the results of the workgroup.
REVISED AMENDMENT PROCESS
The workgroup met between May and October 1993. As a result
of these (sometime spirited) discussions, the attached revised
process was created. It focuses on impacts, rather than
magnitude, to define the level of required additional review.
The types of changes that can be reviewed by a local government,
and which will not require additional DRI review have been
expanded. Additionally, for the majority of proposed changes,
mitigation resulting from said changes can be proposed, discussed
and required without triggering full-blown DRI review.
The following paragraphs summarize the major changes
proposed by the workgroup and the rationale for said changes.
EMERGENCY MANAGEMENT HOUSING AND COMMUNITY DEVELOPMENT RESOURCE PLANNING AND MANAGEMENT
December 6, 1993
1. CHANGE THE FOCUS OF THE PROCESS FROM
SUBSTANTIAL DEVIATION DETERMINATIONS TO
DEVELOPMENT ORDER AMENDMENTS.
The existing process focuses on determining
whether a proposed change is a substantial
deviation. The real focus should be on
identifying a process for amending
development orders, regardless of whether the
amendments relate to substantial or non-
substantial changes. The revised process
clearly identifies that this is the way to
modify development orders, not just those
related to substantial deviations. There are
still three categories of amendments:
Category I (do not create new regional
impacts); Category II ( creates new regional
impacts but mitigation allowed); Category III
(require additional DRI review).
2. THE PROCESS SHOULD BE MORE SENSITIVE TO THE NEED
FOR A DEVELOPER TO MAKE AMENDMENTS TO A PROJECT
DUE TO CHANGES IN MARKET CONDITIONS.
The existing process identifies certain changes which
can be approved by a local government without requiring
a public hearing to determine if the changes are a
substantial deviation. However, the types of changes
which fall into this category are limited. Many
applicants submit changes which they believe fall into
this category, but actually are changes which are not
specified and therefore are presumed to be a
The revised process expands the types of changes which
do not require a public hearing. In addition, it
includes a provision which allows DCA to look at
unspecified changes and, if we determine that it is a
change with little or no impacts, allow it to proceed
without a public hearing.
In addition, the vast majority of changes will fall
into the new Category II. Mitigation for any changed
impacts from these types of changes is allowed to be
proposed, discussed and included in the development
order amendment, without triggering additional DRI
December 6, 1993
3. THE PROCESS SHOULD BE CLARIFIED AND SIMPLIFIED.
The existing process is confusing to many people. The
revised process includes a complete revision of the
existing language and reformatting of this section of
the statute. Timeframes for action have been revised
to include a time certain by which a local government
must act upon a development order amendment. The
Department is no longer required to attend a public
hearing in person in order to preserve its right to
4. THE RIGHTS OF SUBSEQUENT PURCHASERS WITHIN A DRI
TO REQUEST DEVELOPMENT ORDER AMENDMENTS SHOULD BE
Foreclosures and subsequent purchases often result in
multiple owners within a DRI who do not have a clear
idea of what rights they have actually purchased; this
is more of a problem for old DRIs since sellers have
begun to deal with this issue in the newer contracts
for sale. The existing process does not provide any
clear guidance as to what are the rights of these
In an attempt to provide some guidance, a specific
statement has been added which clarifies that any owner
can ask for a change which affects their property but
they have to mitigate the resultant impacts. In the
absence of specific development order conditions
outlining various rights, the rights will be
distributed among owners on an equitable basis.
Furthermore, it is clarified that Developer B will not
be stopped for something Developer A does if it has
nothing to do with Developer B's activities.
CONCEPTUAL CHANGES WHICH REACHED CONSENSUS
In addition to considering the above revised process, the
workgroup spent a considerable amount of time discussing several
related issues and concerns. Although specific language to
resolve these concerns was not drafted, the workgroup reached
general consensus on solutions to these issues.
December 6, 1993
1. THE CURRENT "NOTICE OF PROPOSED CHANGE"
FORM NEEDS TO BE REVISED.
The workgroup's revised process does put more
emphasis on impact analysis, particularly for
the Category I changes. Therefore, in order
to allow the review process to run smoothly,
it is imperative that the form be modified to
provide as much structure to this impact
analysis as possible. Otherwise, the process
may be dragged out over debates regarding the
appropriateness of the analysis methodology.
2. LOCAL GOVERNMENTS SHOULD BE GIVEN THE ABILITY TO
INITIATE REQUESTS TO ABANDON A DRI.
The current statute only gives authority to the
developer to propose an abandonment of a DRI. Since a
development order runs with the land, this can create
problems when an order has expired, developers cannot
be found, or multiple owners cannot agree with each
other. In these instances, a local government can be
left in limbo with respect to actions regarding the
DRI. Therefore, a local government should be given the
ability to initiate the abandonment of a DRI,
particularly where no development is occurring.
3. REVISE CHAPTER 380.06 TO CONFORM TO THE NEW
The revised process no longer uses the term
"substantial deviation". References to this term in
other parts of the statute should be revised to reflect
the change to "Categories". Additionally, all
references to "regional planning agency" or "regional
planning council" should also be made consistent.
There are also other processes which rely in some
manner on the existing substantial deviation process;
for example, it is used in the binding letter process
to determine if proposed changes to vested plans are
substantial (this is by policy, not by statutory
provision). Changes with respect to these types of
cross reference or use will also have to be considered.
December 6, 1993
4. GIVEN THE SCOPE OF PROPERTY TRANSFERS WITHIN DRIS
(THROUGH FORECLOSURES OR OTHERWISE) THE STATUTE
SHOULD PROVIDE GUIDANCE AS TO THE ALLOCATION OF
DRI RIGHTS. PARTICULARLY WHEN SUBSEQUENT OWNERS DO
NOT COOPERATE WITH EACH OTHER.
DU P(2iCS Many DRIs are developed by subsequent
purchasers. Most original owners now protect
their interest by identifying with
*kulkIL /CIAUuAiJ particularly the amount of development and
type being sold. Additionally it is often
Clear in the newer contracts or deeds that no changes
to DRI can be proposed without the original owner's
MAll DLUW;Z to approval. However, the older DRIs were not sold or
p(iC developed in this manner.
\ Currently, all changes to a DRI are
considered cumulatively. Particularly with
changes to buildout or phasing, an applicant
is required to consider impacts of other
owners' development within the DRI. Where
owners do not cooperate, this can cause
problems. For example, an owner of ten acres
within a DRI would be required to be
responsible for providing an analysis of an
entire DRI's impacts in order to obtain
changes on his ten acre parcel.
The workgroup felt strongly that some process
for "dividing" owner actions within a DRI
should be provided. While in some cases,
abandonment of the DRI may be the logical
step, that requires agreement of all owners.
If one owner wishes to request a change in
anticipation of actual development, he should
be able to proceed independently of any
requirement to get other owners' cooperation
or bear an inordinate cost burden for
analyses of impacts of other development.
The Department currently handles these issues
on a case-by-case basis. In one or two
instances the Department has worked with
developers to restructure a development order
to separate rights and obligations between
owners; however, in these cases, all parties
were cooperating with each other. The
workgroup considered various options
including allowing developers to request a
December 6, 1993
declaratory statement from the Department or utilizing
mediation/arbitration procedures. No final conclusion
There were a few issues which the workgroup discussed and
consensus on a general solution was not reached. Despite this,
it is important to highlight these items for further
1. GUIDANCE SHOULD BE GIVEN REGARDING
CHANGES TO DRIs WHERE THE DEVELOPMENT
ORDER HAS EXPIRED OR THE DRI IS
The current statute does not address the
review and approval of changes to completed
DRIs or DRIs with expired development orders.
The Department is just now beginning to see
DRIs which fall into one of these categories
and does not have a lot of practical
experience with this issue. The workgroup
spent some time discussing the issue. One
suggestion was that if a DRI was basically
completed, then the DRI status should end and
future changes be looked at independently, as
long as the changes did not affect areas set
aside for mitigation or preservation.
Another suggestion was that a notice of
change be required. Currently, the
Department is handling these on a case-by-
case basis. No consensus was reached on this
2. CLARIFICATION SHOULD BE PROVIDED REGARDING THE
ENTITIES WHO HAVE THE RIGHT TO PARTICIPATE IN THE
With the proliferation of multiple owners within DRIs,
the specific roles and rights of these individuals is
becoming less clear. The statute clearly gives rights
to an owner or developer to ask for changes to a
development order; however, the relationship between
multiple owners or developers is not readily discerned.
For example, where there are multiple owners, does
everyone have the right to propose an amendment to the
DRI? If one entity proposes an amendment, do all other
owners or developers have to join in and agree to the
December 6, 1993
amendment? If all owners or developers do not have to
agree to each proposed change, who has the right to
appeal the resultant decision?
The workgroup discussed these issues but could not
reach a conclusion within the timeframes of their work
effort. However, it is important that further
consideration be given to clarifying these questions.
CLARIFICATION SHOULD BE PROVIDED REGARDING THE
TERMS"BUILDOUT". "TERMINATION DATE". AND
C The use of the above terms is not consistent. Some
0 >people use buildout and termination to mean the same
thing; others do not. Clarification of what these
terms mean and when they are used should be provided.
The workgroup had some limited discussion of this issue
but really did not get into it in depth.