What is the “development” land development regulations can regulate?

As discussed in Authority to Regulate Land, the State of Florida authorizes (and requires) local governments to create and administer land development regulations. The article What are Florida land development regulations? discusses what is meant by a “land development regulation.” But, underlying all the discussion about land development regulations is the question of what they are to regulate.

The two growth management acts authorize local governments to plan for and guide their “development and growth,” through comprehensive plans and the implementing land development regulations. Both acts refer to the same definition of “development” (apparently “growth” doesn’t need defining).

The definition, found at §380.04, Florida Statutes, defines “development” as “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.” §380.04(1), F.S. The definition states further that the following activities or uses are to be considered, under the growth management acts, to involve the defined “development:” §380.04(2), F.S.

• A reconstruction, alteration of the size, or material change in the external appearance of a structure on land.
• A change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units in a structure or on land.
• Alteration of a shore or bank of a seacoast, river, stream, lake, pond, or canal, including any “coastal construction” as defined in s. 161.021.
• Commencement of drilling, except to obtain soil samples, mining, or excavation on a parcel of land.
• Demolition of a structure.
• Clearing of land as an adjunct of construction.
• Deposit of refuse, solid or liquid waste, or fill on a parcel of land.

The definition states that the following operations or uses shall not, under the growth management acts, be taken to involve “development:” §380.04(3), F.S.

• Work by a highway or road agency or railroad company for the maintenance or improvement of a road or railroad track, if the work is carried out on land within the boundaries of the right-of-way.
• Work by any utility and other persons engaged in the distribution or transmission of gas, electricity, or water, for the purpose of inspecting, repairing, renewing, or constructing on established rights-of-way any sewers, mains, pipes, cables, utility tunnels, power lines, towers, poles, tracks, or the like. This provision conveys no property interest and does not eliminate any applicable notice requirements to affected land owners. [See a future article under Electrical Facilities for more on this exemption]
• Work for the maintenance, renewal, improvement, or alteration of any structure, if the work affects only the interior or the color of the structure or the decoration of the exterior of the structure. [See a future article under Design Criteria for a discussion of the impact of this provision on design regulations.]
• The use of any structure or land devoted to dwelling uses for any purpose customarily incidental to enjoyment of the dwelling.
• The use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products; raising livestock; or for other agricultural purposes. [See a future article under Agricultural Issues for more on this exemption.]
• A change in use of land or structure from a use within a class specified in an ordinance or rule to another use in the same class.
• A change in the ownership or form of ownership of any parcel or structure. [See a future article under Regulating Consistently for more on this exemption.]
• The creation or termination of rights of access, riparian rights, easements, covenants concerning development of land, or other rights in land.

“Development,” when addressed in an ordinance, rule, or development permit, “includes all other development customarily associated with it unless otherwise specified. When appropriate to the context, ‘development’ refers to the act of developing or to the result of development.” §380.04(4), F.S.

So, these uses and activities are what land development regulations are authorized to regulate by the growth management acts.

This definition raises interesting questions about the uses and activities not included in the definition of development, especially those specifically excluded. If they are not “development” that can be regulated through the growth management acts’ comprehensive plans and land development regulations, what, if any authorization, can be found for local government regulation of these activities and uses?  If the local government can regulate the use or activity through its other authorized police powers, can the regulation be included in the LDRs or would it have to be a separate regulation? Can there be regulation of land separate from the LDRs? Let me know your thoughts on these questions and I will have a future post addressing them.

Authority to Regulate Land – Giving Power and Responsibility

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

Unlike many other states, the State of Florida not only gives local governments (cities and counties) the authority to regulate land use and development, it requires it. Section 163.3167(1), Florida Statutes, states: “The several incorporated municipalities and counties shall have power and responsibility:

• To plan for their future development and growth.
• To adopt and amend comprehensive plans, or elements or portions thereof, to guide their future development and growth.
• To implement adopted or amended comprehensive plans by the adoption of appropriate land development regulations or elements thereof.
• To establish, support, and maintain administrative instruments and procedures to carry out the provisions and purposes of this act.”

The details of this power and responsibility are laid out in two key parts of the statutes –

• The Community Planning Act (§§163.2511 – 163.3248, Florida Statutes) (a link will be provided when the 2011 amendments are integrated into the statutues in the near future); and
• The Florida Environmental Land and Water Management Act of 1972 (§§380.012, 380.021, 380.031, 380.04, 380.05, 380.06 (DRIs), 380.07, and 380.08, Florida Statutes) (a link will be provided when the 2011 amendments are integrated into the statutues in the near future)

and supported by the Florida State Comprehensive Planning Act of 1972 (§§ 186.001-186.031 and 186.801-186.901, Florida Statutes), which addresses state comprehensive planning.

 The authority to regulate the divisions of land is addressed in Platting – §177.011, Florida Statutes.

Powers of Local Governments to Regulate Land

Local governments (cities and counties), as entities of the state,  have the powers granted to them by the State Constitution and by the State Legislature, as reflected in the Florida Statutes.

Local Governments’ Powers Under the State Constitution

 The State Constitution, in Article VIII, addresses the powers of local governments. As to counties, it states, in section 1(f) and (g):

• “NON-CHARTER GOVERNMENT. Counties not operating under county charters shall have such power of self-government as is provided by general or special law. The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law, but an ordinance in conflict with a municipal ordinance shall not be effective within the municipality to the extent of such conflict.”
• “CHARTER GOVERNMENT. Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances.”

As to municipalities, Article VIII, section 2, of the state Constitution states:

• POWERS. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law.”

Powers granted to certain local governments under earlier versions of the State Constitution stay in effect, under subsection 6(e). Specifically:

• Powers granted to the City of Jacksonville. Article VIII, subsection 6(e), Note 1, Florida Constitution. 
• Powers granted to the City of Key West. Article VIII, subsection 6(e), Note 2, Florida Constitution.
• Powers granted to Dade County. Article VIII, subsection 6(e), Note 3, Florida Constitution.
• Powers granted to Hillsborough County. Article VIII, subsection 6(e), Note 4, Florida Constitution. 

The powers of local governments to regulate, including the power to regulate land uses and development, are also addressed in the Florida Statutes.

Counties’ Powers Under Florida Statutes

Chapter 125, Florida Statutes, addresses counties. Section 125.01(1), Florida Statutes, lists the powers specifically granted to counties. Those most related to land use and development regulations provide that, to “the extent not inconsistent with general or special law,” counties have the power to:

• “Prepare and enforce comprehensive plans for the development of the county.” (Section 125.01(1)(g), Florida Statutes)
• “Establish, coordinate, and enforce zoning and such business regulations as are necessary for the protection of the public.” (Section 125.01(1)(h), Florida Statutes)
  • Case addressing statute provision: Townley v. Marion County, 343 So. 2d 1312 (Fla. 1st DCA 1977).
• “Adopt, by reference or in full, and enforce housing and related technical codes and regulations.” (Section 125.01(1)(i), Florida Statutes)
• “Establish and enforce regulations for the sale of alcoholic beverages in the unincorporated areas of the county pursuant to general law.” (Section 125.01(1)(o), Florida Statutes)
• “Enforce the Florida Building Code, as provided in s. 553.80, and adopt and enforce local technical amendments to the Florida Building Code, pursuant to s. 553.73(4)(b) and (c).” (Section 125.01(1)(cc), Florida Statutes)
• “Provide fire protection, including the enforcement of the Florida Fire Prevention Code, as provided in ss. 633.022 and 633.025, and adopt and enforce local technical amendments to the Florida Fire Prevention Code as provided in those sections and pursuant to s. 633.0215.” (Section 125.01(1)(d), Florida Statutes)
• “Establish and administer programs of housing, slum clearance, community redevelopment, conservation, flood and beach erosion control, air pollution control, and navigation and drainage and cooperate with governmental agencies and private enterprises in the development and operation of such programs.” (Section 125.01(1)(j), Florida Statutes)
• “Provide and regulate waste and sewage collection and disposal, water and alternative water supplies, including, but not limited to, reclaimed water and water from aquifer storage and recovery and desalination systems, and conservation programs.” (Section 125.01(1)(k)1., Florida Statutes)
• “Provide and operate air, water, rail, and bus terminals; port facilities; and public transportation systems.” (Section 125.01(1)(l), Florida Statutes)
• “Provide and regulate arterial, toll, and other roads, bridges, tunnels, and related facilities; eliminate grade crossings; regulate the placement of signs, lights, and other structures within the right-of-way limits of the county road system; provide and regulate parking facilities; and develop and enforce plans for the control of traffic and parking.” (Section 125.01(1)(m), Florida Statutes)
• “Perform any other acts not inconsistent with law, which acts are in the common interest of the people of the county, and exercise all powers and privileges not specifically prohibited by law.” (Section 125.01(1)(w), Florida Statutes)

Subsections 125.01(3)(a) and (b), Florida Statutes, state that the powers listed are to not be considered exclusive or restrictive, are to be considered to incorporate all implied powers necessary to carry out the listed powers, and the powers provisions are to be liberally interpreted to effectively carry out the statute purposes and to allow the broad exercise of the home rule powers authorized by the State Constitution.

Additional relevant powers granted to counties include the power to:

• “[A]dopt and maintain in effect any law, ordinance, rule, or other measure that is adopted for the purpose of increasing the supply of affordable housing using land use mechanisms such as inclusionary housing ordinances.” (§125.01055, Florida Statutes)
• “[A]pprove or disapprove the location, establishment, construction, and operation of privately owned airports within the county.” (§125.012(20), Florida Statutes)
• “[E]nforce the Florida Building Code and the Florida Fire Prevention Code … and, at its discretion, to adopt local technical amendments to the Florida Building Code … and … the Florida Fire Prevention Code … to provide for the safe construction, erection, alteration, repair, securing, and demolition of any building within its territory outside the corporate limits of any municipality.” (§125.56(1), Florida Statutes)

Counties are specifically prohibited from:

• Adopting ordinances relating to the possession or sale of ammunition. (§125.0107, Florida Statutes)
• Requiring the operation of a residence in an area zoned for residential use as a “family day care home” to secure a special exemption, use permit, or waiver. (Section 125.0109, Florida Statutes)

Consistent with the application of police powers (see “Florida Police Powers“) and the limitations on the exercise of those police powers (see “Limitations on Florida Police Powers“), all of the rules and regulations adopted by counties must be “just and reasonable and consistent with public interest ….” §125.018, Florida Statutes.

 Municipalities’ Powers Under the Florida Statutes

The powers of municipalities are a little simpler to state. Municipalities have the powers necessary “to enable them to conduct municipal government, perform municipal functions, and render municipal services” and may exercise any power that may be exercised by the State of Florida or by a Florida county, except when expressly prohibited by law. §166.021(1) and (2), Florida Statutes. The legislative body of each municipality has the power to enact legislation on any subject matter upon which the State of Florida Legislature can act, except those subjects expressly prohibited by the constitution, expressly preempted to the state or county government by the constitution or by general law, or preempted to a county pursuant to a county charter. §166.021(3), Florida Statutes. The statutory provisions are to be interpreted and applied so as to give municipalities the broad exercise of home rule powers granted by the constitution. §166.021(4), Florida Statutes.

Like Counties, municipalities are also authorized to “adopt and maintain in effect any law, ordinance, rule, or other measure that is adopted for the purpose of increasing the supply of affordable housing using land use mechanisms such as inclusionary housing ordinances.” §166.04151, Florida Statutes. Like counties, municipalities are specifically prohibited from:

• Adopting ordinances relating to the possession or sale of ammunition. (§166.044, Florida Statutes)
• Requiring the operation of a residence in an area zoned for residential use as a “family day care home” to secure a special exemption, use permit, or waiver. (Section 166.0445, Florida Statutes)

Summary

In summary:

• Counties have all the powers of self-government not inconsistent with federal or state constitutional limits or general or special laws that are in the common interest of the people of the county.
• Municipalities have all the powers necessary to carry out municipal functions as well as the same powers as the State of Florida or a county, except as expressly prohibited by the constitution or expressly preempted to the state or the county.

So counties and municipalities have very broad powers, including broad powers to regulate land. As discussed in other articles, however, having the power doesn’t mean that it should always be exercised; there is something to the idea  of “don’t do it just because you can.”