Purposeful Land Development Regulations

Everyone that has been around small children knows their favorite questions – “Whatcha doing?” and “Why?” In the drafting of Florida land development regulations, it’s a good idea to ask these same questions (hopefully in a more adult way) – “What are we trying to prevent or achieve?” and “Why do we want to prevent or achieve that; what purpose will the regulation serve?”

Based on common sense, it would seem obvious that there should be a reason to regulate; that every regulation should serve some purpose. And, based on common law (relevant case law), that is the requirement—regulations must be based on legitimate public purposes, which protect the public health, safety, or welfare and have a substantial relationship to the promotion of that public purpose.¹ But too often, in the rush to get something written to try to address the latest issue or crisis, only the terms of the regulation get debated and decided, not the purposes the regulation is to achieve. Without a clear understanding of what is to be achieved and why it needs to be achieved, it is all but impossible to achieve it. If everyone is advancing their own agenda, their own reasons for the proposals being made, you most likely will get regulations that advance conflicting purposes (or no real purpose). So, before we get started drafting new regulations, we should all ask “What are we trying to do” and “Why?”

Regulating To Prevent Harm

Preventing harm is a traditional purpose for the exercise of the local government’s police powers. A regulation is more likely to be considered an exercise of its police powers if it prevents a public harm.² Accordingly, land development regulations typically have at least a strong core of regulating to prevent harm. The following are examples of some of the harms that LDRs may be intended to prevent (check back for future articles on some or all of these):

• Nuisances
• Economic harm
• Harm to public health
• Visual impacts
• Noise impacts
• Smoke/Pollution
• Vibrations
• Odors
• Light – whether blockage of sunlight or the intrusion of artificial light
• Unsafe situations – whether in structural safety, hazards, or from crime

To be sure that the regulation is actually going to prevent the harm that is of concern, however, it is important to regulate the actual causes of the harm, rather than trying to regulate the resulting harm. Two examples of regulating results rather than cause can be seen in regulating to prevent negative impacts on property values and, to a large degree, in regulating aesthetic impacts.

In preventing harm to (a decrease in) property values, the real question to be answered is what factors would cause the harm to the property values;³ what is it that future purchasers of the neighboring properties⁴ wouldn’t want around.⁵ These factors (such as noise, smells, or intrusive lights) should be what the regulations address, not the end result of lower property values. An attempt to regulate the results rather than the cause is likely to end in vague, inconsistently applied, or ineffective regulations.

Similarly, in regulating to prevent negative aesthetic impacts, the real question is whether it is the appearance of the use or structure itself that is of concern or the impact of that appearance; is the regulation to prevent ugly uses or structures or to prevent the appearance of the use or structure from negatively impacting other areas, uses, or structures. If, for example, a use with significant outdoor storage is to be placed in an area of an established protected scenic vista, the regulation should address the question of whether the proposed type of outdoor storage at the proposed location would impair or prevent the achievement of the purpose of the scenic vista. The question would not be whether the outdoor storage itself is ugly or not, but whether having the proposed outdoor storage would be so visible and obtrusive as to defeat the purpose of having the scenic vista.

Regulating To Advance A Goal

The concept of the use of police power to “protect and promote the public welfare” has continued to expand to encompass a large variety of regulatory purposes, many of which can be grouped under the heading of those intended to advance a goal or goals (the “what are we trying to do” question). A few examples of these goals (many of which future articles will discuss) include:

• Amenity enhancement
• Regulatory efficiency
• Compatibility
• Economic stability or growth
• Job stability or growth
• Coastal protection and management
• Environmental protection
• Quality of life protection
• Efficiency in the provision of services
• Sustainability
• Energy efficiency and green design
• Aesthetic advancement
• Urban infill and redevelopment
• Neighborhood planning
• Regulating based on need

Once the goal that is to be achieved is identified, the question of why that goal is to be advanced—what purpose is to be achieved—becomes the focus. And, as with preventing harm, it is the identification of the relevant factors impacting that purpose that is important, to be sure the regulations actually achieve the goal.

Regulatory goals are often grouped under more general names, such as “smart growth,” form-based or design oriented regulations, “innovative” design and planning, or “planned” developments. It is good to have comprehensive and coordinated goals, but it is important that the grouping or method of the approach doesn’t become identified as the goal itself. By way of example, if the approach of a form-based code is chosen, having a form-based code shouldn’t become the goal itself, but rather the focus should be on having the approach actually advance the desired goals a form-based approach can address, such as walkable communities or encouraging mixed use developments, and aspects of the approach that don’t advance the  jurisdiction’s goals should not be included.⁶

Regulating for Inappropriate Purposes

Another reason to ask “Why?” is because it is also entirely possible to regulate for inappropriate purposes. Our country’s regulatory history, unfortunately, includes doing just that, such as restricting uses and property ownership based on race or economic status. Although they may not be as blatant as in the past, it is not difficult to find examples of regulations that, even if they don’t state it in the regulation, can have the effect of improper discrimination or other inappropriate purposes.

Many of these “inappropriate” purposes are recognized as improper under the U.S. and Florida constitutions. Others are addressed in the legislative statutes and regulations (U.S. Code, Code of Federal Regulations, Florida Statutes, or Florida Administrative Code). Other purposes may be improper because they advance the interests of individuals rather than those of the general public (see the article Limitations on Florida Police Power for more).

The purposes behind a regulation may also be “inappropriate” because they do not advance the local comprehensive plan. It is very easy to join the crowd rushing to implement the latest approach or to stop the problem of the day, but if the approaches or solutions are not compatible with and do not advance the relevant provisions of the local comprehensive plan, they are not consistent with the comprehensive plan (see the article Consistency with the comprehensive plan) and, therefore, cannot be allowed.

Beyond Stating The Purposes – Confirming The Regulation Does What It Is Supposed To Do

It isn’t enough to just list the purposes of the regulations at the beginning of the Code and never think about them again. It is also important to be sure the purposes are actually being advanced by the regulations. Not only must there be a substantial connection between the stated purposes and the regulations, the regulations must be tailored to actually address the public purpose(s), based on an actual analysis of the situation.⁷ The implementation of purposes is relevant in analyzing the legality of the regulations, but is also is relevant from a practical standpoint, in that if the regulations are not related to and advance the stated purposes, those purposes are not achieved.

Conclusion

In order to have effective, helpful regulations, one of the most important considerations is whether those regulations are purposeful—whether they relate to and actually implement identified and appropriate public purposes. To do so, at the start of the process and all the way through the drafting or amending of the LDRs, it is important to continuously ask “What are we doing,” “Why are we doing it,” and “Is what we are doing actually implementing what we want.”

Endnotes

1. Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla. 1981); Newman v. Carson, 280 So.2d 426, 428 (Fla. 1973); Burritt v. Harris, 172 So.2d 820, 823 (Fla. 1965); City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430 (Fla. 1954) ; City of W. Palm Beach v. State ex rel. Duffey, 30 So.2d 491, 492 (Fla. 1947). See the FloridaLDRs.com article The Rules of the Game – Analyzing Development Standards for more on this point.^{Click here to return to text.}
2. As opposed to it being the exercise of eminent domain when the regulation creates a public benefit. See Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla. 1981). ^{Click here to return to text.}
3. As outlined in 1 American Land Planning Law § 16:3 (Rev. Ed.)  (“An allegation that something will affect property values says nothing whatever on the subject of whether a prohibition of that something would further the appropriate goals of zoning; the question always is, what is the factor in question? … In other words, the fact that something allegedly will have an “adverse” effect on property values does not constitute a separate goal for public action; such an effect on property values is purely derivative, reflecting the presence of something else—and the latter is the primary factor, to be looked into and evaluated. The validity of public action depends in every instance on this primary factor, which must be identified, analyzed, and classified as a valid (or invalid) goal. To put the point rather strongly, then, an allegation that a given action will reduce property values really tells nothing about whether that given action is or is not appropriate”) and  Land Use Planning and Development Regulation Law § 3.14 (2d ed.) (“While none would likely quarrel with the preservation of value as a legitimate factor in zoning, it cannot stand alone. Value is a consequence of action or inaction, and it is the action or inaction that matters”). ^{Click here to return to text.}
4. Because it is usually the neighbors’ property values that are said to be of concern, rather than that of the property owner seeking to use his or her property. ^{Click here to return to text.}
5. This is under the concept that having something undesirable in the neighborhood would decrease the number of potential purchasers, and, therefore, reduce the price that could be achieved in a sale (the property value). ^{Click here to return to text.}
6. If too many of the approach’s aspects are not consistent with the jurisdiction’s goals, then that may not be the right approach to use. ^{Click here to return to text.}
7. See the FloridaLDRs.com article The Rules of the Game – Analyzing Development Standards for more. ^{Click here to return to text.}

Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

An applicant for a rezoning, special exception, or any other type of development order just wants to get their request approved. They are directed to look at the local LDRs and told “meet these requirements and you will be approved.” Okay, it usually isn’t that clear-cut, but that should be the heart of it—the LDR requirements state what must be done to get the approval and the application can only be approved if the LDR requirements are met. But then someone raises questions about whether the application is consistent with some provision of the local comprehensive plan.

Isn’t it enough to meet the requirements of the LDRs? Don’t the LDRs implement the comprehensive plan and wouldn’t that take the comprehensive plan out of the picture? The short answer is no; sections 163.3161 and 163.3194, F.S., say the development order must also be consistent with the comprehensive plan.^[1]

So, does the requirement of consistency with the comprehensive plan mean a local jurisdiction’s comprehensive plan and LDRs are two separate regulations, which a request for development is required to meet separately? Or does the LDRs’ status as the implementor of, at least part of, the comprehensive plan create some presumption that compliance with the LDRs also constitutes compliance with the comprehensive plan?

These questions go beyond confused applicants not knowing what they have to do to get through a zoning process. These questions go to the heart of every development order review – to the roles of the comprehensive plan and the LDRs in the entire development order review and decision process.^[2]

Role of Comprehensive Plan

The planning process, represented by the comprehensive plan, has been found to be a different sovereign power than the zoning process, represented by the LDRs.^[3] The purpose of a comprehensive plan is to set the principles, guidelines, standards, and strategies for future development.^[4] It is a “statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality.”^[5] By the language of the statutes, the comprehensive plan is adopted “to guide”^[6] through “principles, guidelines, standards and strategies … the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area.^[7] The comprehensive plan has been “likened to a constitution for all future development within the governmental boundary.”^[8] If the comprehensive plan is like a constitution, paraphrasing a description of the function of the U.S. Constitution, comprehensive planning “require[s] a fundamental written document that establishes the frame of [the regulation of development and growth], states first principles and core values, and embodies the original consent of the governed; these are the functions of the [adopted comprehensive plan].”^[9] Stated another way, a constitution, and, by analogy, the comprehensive plan, is “the system of fundamental principles according to which a nation, state, corporation, or the like, is governed.”^[10]

Also, like the Florida or U.S. constitutions, the comprehensive plan is “hard law”^[11] because it is legally binding and not a political statement. It controls the local decisions, and even the courts, in decisions on development.^[12] The comprehensive plan is also “supreme law”^[13] in that it controls over the LDRs or other local laws on development.^[14]

But can this statement of fundamental principles also function as a regulation? The constitution has been found to not be “designed to provide detailed instructions for the method of its implementation.”^[15]  Similarly, the new statute amendments state “[i]t is not the intent [of the statutes] to require the inclusion of implementing regulations in the comprehensive plan ….”^[16] Comprehensive plans do provide detailed provisions as well as more general guidelines. But is that enough for the comprehensive plan to stand alone? Or should the comprehensive plan provisions be viewed as instructions for the next step of detail, the LDRs? This is the position of the new statutory provisions, which say, after the above quoted language, that it is the intent that the comprehensive plan identify the strategy mechanisms (including land development regulations) for implementing the comprehensive plan, lay out principles describing how the strategies will be carried out, and establish meaningful and predictible standards and guidelines for implementing the more detailed LDRs.^[17]

Role of the Land Development Regulations

If the comprehensive plan is the constitution, the LDRs would be the statutes. The evaluation of the consistency of the LDRs with the comprehensive plan would be analogous to evaluating whether a statute is constitutional. The LDRs (at least the zoning regulations part) have been described as “the means by which the comprehensive plan is implemented, and involves the exercise of discretionary powers within limits imposed by the plan”^[18] and that LDRs are “enacted to provide specific legislative standards that must be applied to the general provisions of the Plan and enforced to regulate the various land use categories in the Plan.”^[19]

There is little question that the Florida Statutes expect and require that the LDRs be an integral part of implementing the comprehensive plan.

• Section 163.3201, F.S., says it two ways – the comprehensive plan shall be implemented, in part, by the adoption and enforcement of local development regulations and the adoption and enforcement of local development regulations shall be based on, be related to, and be a means of implementation of the comprehensive plan.
• Section 163.3167(1)(c), F.S., says local governments have the power and the responsibility to implement the comprehensive plan by the adoption of appropriate LDRs.
• Sections 163.3202(1) and (2), F.S., say that, not only must LDRs that are consistent with and implement the comprehensive plan be adopted within one year of the amendment of the comprehensive plan provisions, the provisions of the LDRs must be specific and detailed as are “necessary or desirable” to implement the comprehensive plan.
• Section 163.3164, F.S., defines a “land development regulation commission” as the locally designated group to develop LDRs “which implement the adopted comprehensive plan.”
• Section 163.3177(1), F.S. (2011), says the comprehensive plan shall contain programs , activities and land development regulations to ensure the comprehensive plan is implemented.

At least one provision of the statutes, §380.502, F.S., recognizes, however, that many of the goals and objectives of the comprehensive plan will not be met through regulations and other actions may be necessary, indicating a view that the LDRs are not expected to fully implement the comprehensive plan. Similarly, the statutes at §163.3177, F.S. (2011) provide that the comprehensive plan will include “programs and activities,” in addition to the land development regulations, to implement the comprehensive plan, indicating not all of the comprehensive plan provisions may require implementing regulations.^[20]

Do the LDRs replace the comprehensive plan provisions in a consistency evaluation?

So, a major role, if not the major role, for LDRs is to implement the comprehensive plan. But is implementing the same thing as consistency? Do the implementing LDRs have a controlling role in an evaluation of the consistency of an application? At least one court case found that the provisions of the comprehensive plan, itself, not the provisions of ordinances “purportedly adopted to implement the plan,” control in a §163.3215 consistency challenge.^[21] This view may change, however, under the new comprehensive plan statutes, where the land development regulations are specifically expected to hve a siginificant role in implementing the comprehensive plan.^[22]

If the LDRs’ implementation of the comprehensive plan does not also mean consistency with the comprehensive plan provisions, what is the point of the LDRs? Why not, from a consistency standpoint, just require development to meet the comprehensive plan?^[23] But the statutes do require LDRs, do state that their purpose is to implement the comprehensive plan, and do require that they be consistent with the comprehensive plan. This strongly suggests that LDRs have a meaningful role to play in the consistency review of development applications.

When there are provisions of the comprehensive plan that address a topic (especially if they state the LDRs are to be written to implement the topic provisions), if there are LDR provisions that also address that same topic, that implement those comprehensive plan provisions, and that are “consistent” with those comprehensive plan provisions, how can there not be at least a presumption that those LDR provisions stand in the place of the comprehensive plan provisions? To say that, during the review of an application for a development order, the LDR provisions can be given no consistency weight and the comprehensive plan provisions must be reanalysed and re-applied on a case-by-case ad hoc basis^[24] is to say that the LDRs cannot implement the comprehensive plan to the point of consistency, which clearly defeats the intent and the requirements of the statutes.

Accordingly, at least in a perfect, clear scenario of LDR provisions fully implementing and being precisely consistent with the comprehensive plan, it would be reasonable to say that consistency with those LDR provisions is the same as consistency with the comprehensive plan provisions. And that those LDR provisions stand in place of the corresponding comprehensive plan provisions, eliminating the need to review those comprehensive plan provisions separately.

Consistency in the real world

It is recognized, however, that things are seldom that precise. There can be, and are, situations where the LDRs cannot stand in place of the comprehensive plan provisions and a consistency analysis must still consider the comprehensive plan separately. Setting aside from consideration the parts of the comprehensive plan that are not related to development orders or would not be appropriately implemented by the LDRs (such as capital improvement budgeting provisions), there would seem to be two scenarios (one with subsets) where a development application that is consistent with the LDR provisions would not also automatically be “consistent” with the comprehensive plan. Those are: 1) when the LDRs aren’t consistent with the relevant provisions of the comprehensive plan; or 2) when the LDRs, as written, are consistent, but don’t fully implement the relevant provisions of the comprehensive plan (with subset scenarios).

Scenario One – The LDRs are not consistent with the Comprehensive Plan

The first scenario would violate section 163.3194(1)(b), F.S.^[25] That certainly doesn’t mean it doesn’t happen, however. In the real world, LDRs and comprehensive plan provisions get amended, take different paths, follow the direction of different political administrations, etc., and become inconsistent. The appropriate thing to do is to regularly audit the provisions and make changes to keep them consistent. But, for various reasons, it doesn’t always happen. There may not be significant immediate penalties to the jurisdiction for these inconsistencies, but there can be significant impacts on those trying to get through the application review process.

LDRs that are not consistent with the relevant portion of the comprehensive plan puts applicants for development approvals in a very difficult position.^[26] Short of putting the application on hold and attempting to convince the local governing body to amend the LDRs or comprehensive plan or filing a legal action to have the jurisdiction ordered to change one or the other, the only option would be to try to meet both the comprehensive plan and the LDR provisions. Sometimes that is just not possible. It may be possible that the LDRs and the comprehensive plan provisions intersect in some way, like a Venn diagram, allowing the proposed use in some type of configuration. But if the provisions are completely inconsistent, relative to the subject application, the options for the applicant would seem to be limited to pushing for an amendment or moving forward with the application and hope no one challenges it (the “file and pray” option).

For the local government, the options under scenario one are also limited. The cleanest would be to amend either the comprehensive plan or the LDRs to resolve the inconsistency. But what happens to pending applications? Should there be a moratorium on that problem situation (which creates its own problems)? Once the inconsistency is known, the file and pray option becomes less available to the local government, which can lead to the “wink and nod” option (I won’t tell anyone there is a problem if you don’t). Obviously, both the file and pray option and the wink and nod option are inconsistent with the law and are fraught with significant risks.

If the inconsistency of scenario one is to be challenged, a question is raised about which process to use. The statutes provide for a specific process for challenges of the consistency of the LDRs with the comprehensive plan, §163.3213, F.S., but the timeframe is limited  to within 12 months after the adoption of the disputed regulation and appears to be for facial challenges of the LDR consistency, rather than as applied to a specific application. This would mean that outside of the limited timeframe or when the challenge is to the application of the LDR to a specific application, the applicable process would be under §163.3215, F.S. But this process, as viewed by the courts, has tended to ignore the LDRs and look only at the consistency of the specific application with the comprehensive plan.^[27] So, even attempting to resolve the LDR/comprehensive plan consistency through legal action is fraught with problems.

Scenario Two – The LDRs are consistent, but don’t fully implement the comprehensive plan

The second scenario—the LDRs don’t fully implement all the relevant provisions of the comprehensive plan—is probably the most likely to occur. This scenario can be divided into three subsets: a) the specifics of the subject situation are outside expectations or the scope of the regulation so that, although the LDRs are technically met, the situation is not consistent with the comprehensive plan provisions; b) the application or review of the application triggers a “fundamental” right or principle in the comprehensive plan that makes the application or decision on the application, even though technically consistent with the LDRs and comprehensive plan, in violation of the fundamental principle; or c) the LDRs leave whole provisions of the comprehensive plan unimplemented or addressed through vague requirements, such as the application “must be consistent with the comprehensive plan.”

The first subset—the specifics of the subject situation are outside expectations or the scope of the regulation, creating technical compliance but not actual compliance—is likely to happen where the implementing LDRs are written to address the normal or typical situation. A fairly common and straight forward example would be a situation where the minimum lot size requirement is not an exact fraction of the required density, such as lot sizes of 7,000 square feet in an area where the density requirement is a maximum of six units per acre. In most situations, a development of lots would require roads, open space, drainage areas, etc. that would take up enough land that 7,000 square foot lots would not exceed six units per acre. But in a situation of land that has sufficient frontage on a public road, that doesn’t trigger requirements for separate drainage or open space areas, and does not otherwise require any part of the land to be used for anything other than the lots, the maximum density can be exceeded. If the LDRs have a provision that provides for this situation (in other words, implements the comprehensive plan density requirement fully), there is no issue. But if not, the separate comprehensive plan provisions, and the requirement for consistency with them, would control to prevent the density from being exceeded.^[28]

The second subset—the application triggers the application of a separate “fundamental” right or principle in the comprehensive plan—is likely to be somewhat rare. Using the constitution analogy, one aspect of this can be thought of as a constitutionality issue (and may actually trigger constitutional issues). One example of this would be when the comprehensive plan echoes the requirements of sections 163.3194(4)(a),^[29] and 163.3161(10), F.S.(2011)^[30] that local government regulations shall not create a taking of property without compensation. The application may meet the LDR provisions and the LDR provisions may fully implement the comprehensive plan provisions they purport to implement, yet the action on the application may work so as to create a taking of the property. If the LDRS do not address this potential, fully, the comprehensive plan provisions become the focus. This situation goes beyond just a question of consistency, but is an example of how the LDRs may not stand fully in the place of the comprehensive plan.

A somewhat more likely, and more difficult, issue in this subset is when the LDRs implement the specific policies and more general objectives of the comprehensive plan, but may not address every possible aspect of the stated goals. This goes to the question of what is the comprehensive plan the consistency must be measured against—is the goal narrowed by the objectives and policies such that no other aspect of the goal is relevant? This is touched on in the article Consistency with the comprehensive plan and will be explored in greater detail in a future article.

The third subset—when the LDRs leave whole provisions of the comprehensive plan unimplemented or addressed through vague requirements—is, unfortunately, the most likely to occur. When this happens, the default response would seem to be to just let the comprehensive plan control and have an ad hoc review of the comprehensive plan for each application.

The difficulty of this approach is that it does require an ad hoc, case-by-case determination of the comprehensive plan provisions’ intent and what is required to advance the provision. These issues of unclear intent and uncertainty about what the comprehensive plan requires create the same potential problems as the application of vague LDR provisions—arbitrary and capricious decisions, unlawful delegation of legislative powers, and the invalidity of the provision due to its vagueness.

When the decision-makers on an application have to make a case-by-case determination of whether the application is consistent with the provisions of the comprehensive plan, it is very difficult to prevent inconsistent treatment of similar situations. This inconsistent treatment can easily present constitutional problems of violations of equal protection and due process rights. Beyond the legal problems, however, it also means that the comprehensive plan is not being implemented consistently^[31] and decisions are being made based on which way the political winds are blowing. Certainly there are those that don’t object to decisions being controlled by political winds (or whims), but that is not how decisions are supposed to be made in the quasi-judicial arena.

And the quasi-judicial arena is the reason for the second problem with ad hoc decisions. The making of new regulations is only within the power of the local government’s governing body – it is a “legislative” process.^[32] When regulations are so general or vague they cannot be objectively applied, requiring a subjective determination of what is required, when, or by whom, such a determination is essentially making new regulations. Doing so on a case-by-case basis in a review of a specific application, is, therefore, making new regulations on a case-by-case basis. Since the decisions made on development applications are administrative^[33] or quasi-judicial decisions, the makers of those decisions have no power to make new regulations (they are not acting as the legislative body in those decisions, even if they are also the governing body). Therefore, if the legislative body did not make the determination of what the comprehensive plan provision means in the adopted regulations, there is no one at the local level that can make that decision; meaning there is no way to make development order consistency decisions.

The third problem is somewhat similar to the first two. The Florida courts have long held that regulation requirements must be specific^[34] and clear enough to be consistently applied.^[35] When the regulations are not sufficiently clear, they can be considered void.^[36] This would mean that a general comprehensive plan provision, when applied as a separate regulation to a specific development application, could potentially be considered void, and, therefore, not applicable to the decision.

So can a general provision of the comprehensive plan—a collection of “fundamental principles,” as described above—meet the requirements of a regulation; are all comprehensive plan provisions specific and clear enough to be applied consistently, without being considered void, or their application being a legislative action? Perhaps some can, but how do we tell which they are?

When LDRs fail to fully implement the comprehensive plan provisions, especially when they include little more than a general statement that the comprehensive plan must be met, the political winds are allowed to blow freely, but the risks of challenges also significantly rise. And, perhaps most importantly, the planning and guidance of growth and development (hopefully the reason that there are comprehensive plans and land development regulations in the first place) suffers.

So What

This is a long answer to the original question of the role of the LDRs in a development order consistency review. It can be summarized by saying that, although a jurisdiction’s LDRs and comprehensive plan are two separate regulations, both of which must be met, it is possible and desirable to have LDRs that are consistent with the comprehensive plan and implement the comprehensive plan fully enough as to stand in the place of the comprehensive plan in a vast majority of development order application reviews. Accordingly, LDRs can have a very important role to play in development order consistency reviews. But if the LDRs are not sufficiently complete, those comprehensive plan provisions not fully implemented by the LDRs must be separately applied. When that happens, significant constitutional and authority problems can occur.

Bottom line, to keep consistency decisions out of the control of administrative law judges and the courts, local governments must adopt and consistently apply LDRs that are consistent with and fully implement the comprehensive plan provisions that come into play.

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Endnotes

1. §163.3161(6), F.S. (2011) (“It is the intent of this act that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with this act.”) and 163.3194(1)(a), F.S. (“After a comprehensive plan, or element or portion thereof, has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted.”)
2. And certainly is very relevant in a §163.3215, F.S., challenge of the consistency of a development order with a comprehensive plan.
3. Lee County v. Sunbelt Equities, II, Ltd. P’ship, 619 So. 2d 996,
    1004 (Fla. 2d DCA 1993) and Machado v. Musgrove, 519 So. 2d 629, 631 (Fla. 3d DCA 1987).
4. §163.3177(1), F.S. (2011); Sunbelt  Equities, 619 So. 2d at 1004; §163.3194(4)(b), F.S.
5. Machado, 519 So. 2d at 631-32 (citing § 163.3167(1), F.S. and Southwest  Ranches Homeowners Ass’n v. Broward County, 502 So. 2d 931 (Fla. 4th DCA 1987)).
6. § 163.3167(1)(b), F.S.
7. § 163.3177(1), F.S. (2011)
8. Machado, 519 So. 2d at 632, Citrus County v. Halls River Dev.,
   Inc., 8 So. 3d 413, 420-21 (Fla. 5th DCA 2009), Nassau County v. Willis, 41 So. 3d 270, 284 (Fla. 1st DCA 2010).
9. William A. Kaplin, American Constitutional Law: An Overview, Analysis, and Integration, p. 9, Carolina Academic Press 2004.
10. http://dictionary.reference.com/browse/constitution
11. Kaplin, p.31.
12. See endnote 1.
13. Kaplin p. 31
14. §163.3194(1)(b), F.S
15. Johns v. May, 402 So. 2d 1166, 1169 (Fla. 1981).
16. §163.3177(1), F.S. (2011).
17. Id.
18. Machado, 519 So. 2d at 632.
19. Keene v. Zoning Bd. of Adjustment, 22 So. 3d 665, 668-69 (Fla. 5th DCA 2009), reh’g denied (Dec. 7, 2009) (also stating that “In order to resolve [the consistency] issue, we must apply the provisions of the [Comprehensive] Plan and the … Development Code … which implements the Plan.
20. §163.3177(1), F.S. (2011).
21. Buck Lake Alliance, Inc. v. Bd. of County Com’rs of Leon County, 765 So. 2d 124, 127 (Fla. 1st DCA 2000).
22. §163.3177(1), F.S. (2011).
23. There are jurisdictions that essentially do that, by including a general statement or “criteria” that all applications “must meet the comprehensive plan.”
24. See the discussion supra about the problems with ad hoc application of the comprehensive plan.
25. Which requires that “[a]ll land development regulations enacted or amended shall be consistent with the adopted comprehensive plan, or element or portion thereof ….”
26. As discussed in Consistency with the comprehensive plan, all development orders must be consistent with—compatible with and further the relevant provisions of—the comprehensive plan. They must also meet the applicable requirements of the LDRs. If the application does not meet the applicable requirements, it must be denied. Except for rezonings, if the application does meet the standards, it must be approved. For non-rezoning applications, the applicable regulations are the only issues that are to be considered in the review; everything else is irrelevant.
27. See Consistency with the Comprehensive Plan and Buck Lake Alliance, Inc. v. Bd. of County Com’rs of Leon County, 765 So. 2d 124, 127 (Fla. 1st DCA 2000).
28. This can easily create significant authority problems, as discussed in endnote 29, below.
29. “[P]rivate property shall not be taken without due process of law and the payment of just compensation.”
30. “Full and just compensation or other appropriate relief must be provided to any property owner for a governmental action that is determined to be an invalid exercise of the police power which constitutes a taking, as provided by law.”
31. Which is an issue under §163.3177(1), F.S. (2011), which says the comprehensive plan is to “guide future decisions in a consistent manner.”
32. Askew v. Cross Key Waterways, 372 So. 2d 913, 918–19 (Fla. 1978). (stating “When [a regulation] is so lacking in guidelines that neither the agency nor the courts can determine whether the agency is carrying out the intent of the [regulation] in its conduct, then, in fact, the agency becomes the lawgiver rather than the administrator of the law.”) and Conner v. Joe Hatton, Inc., 216 So. 2d 209, 211 (Fla. 1968) (stating “When the statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say What the law shall be.”)
33. The task of a case-by-case determination of whether an application meets all of the applicable requirements of the comprehensive plan in an administrative decision situation, such as the LDR review of a permitted use permit request, is all but impossible. An administrative or ministerial official has no authority to make a subjective determination. Thus, any subjective decisions necessary must have already been made, and the official is just applying them. If the LDR provisions the official must apply do not fully implement the comprehensive plan, the official has no authority to go outside of the LDRs to look for what else must be applied or authority to make a determination on how outside provisions, such as the comprehensive plan, would apply to the application.
34. N. Bay Village  v. Blackwell, 88 So. 2d 524, 526 (Fla. 1956); Drexel v. City of Miami Beach, 64 So. 2d 317, 319 (Fla. 1953); and Phillips Petroleum Co. v. Anderson, 74 So. 2d 544, 547 (Fla. 1954).
35. Drexel, 64 So. 2d at 319; Phillips Petroleum, 74 So.2d at 547.
36. See, for example, Hartnett v. Austin, 93 So. 2d 86, 88 (Fla. 1956) (stating “An ordinance which is so vague that its precise meaning cannot be ascertained is invalid, even though it may otherwise be constitutional. The reason for the rule is the necessity for notice to those affected by the operation and effect of the ordinance”).

Consistency with the Comprehensive Plan

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

Consistency is required.

Once a jurisdiction’s comprehensive plan has been properly adopted, all “development” (see What is the development LDRs can regulate), both public and private, must be consistent with the comprehensive plan. §§163.3161(5) and 163.3194(1)(a), F.S. Similarly, all the jurisdiction’s land development regulations must also be consistent with the plan. §163.3194(1)(b), F.S.

“The statute is framed as a rule, a command to cities and counties that they must comply with their own Comprehensive Plans …. The statute does not say that local governments shall have some discretion as to whether a proposed development should be consistent with the Comprehensive Plan. Consistency with a Comprehensive Plan is therefore not a discretionary matter.” Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 198 (Fla. 4th DCA 2001).

Definition of Consistency

The Florida Statutes provide a definition of what is meant by consistent. Section 163.3194(3)(a) , F.S., says:

A development order or land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.

Breaking the definition down, first, it is the aspects of development that are at issue. Land uses, densities and intensities are specifically called out and, therefore, probably are the aspects of greatest issue, but the catch-all “other aspects” brings in all aspects of development. All aspects of development would mean not only the negative aspects, but also the positive ones. Second, the aspects of concern are only those permitted by the development order (abbreviated as “D.O.” for the rest of this article) or land development regulation (“LDR”). If the D.O. or LDR does not allow a development aspect, that aspect is not part of the review.

For the next part of the definition, “are compatible with” and “furthers,” the plan, §163.3177, F.S. formerly provided a definition of what was meant by these phrases in the context of consistency of local plans to state and regional plans, where “compatible with” meant not in conflict with and “furthers” meant to take action in the direction of the goals.” But those provisions were deleted by the 2011 changes. It is probably reasonable to assume the deletions had more to do with the decreased focus on comparing local comprehensive plans against state requirements than it being a statement that the definitions were no longer correct. Regardless, the recent amendments to the growth management statutes do now provides a definition of “compatibility” (“a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition”) in the statutes, in §163.3164(9), F.S., which may help in analyzing what consistency means.

Using that definition of compatibility this would mean that the D.O. or LDR is “compatible with” (has achieved compatibility with) the comprehensive plan if it “can coexist” in “a stable fashion” without “unduly negatively impacting” the plan. This is essentially the same as the previous statute definition, of being not in conflict with.

But the definition of consistency also requires that the D.O or LDR must “further” the goals or policies of the comprehensive plan. There is no clear definition of “furthers” in the current growth management statutes, but it is not unreasonable, given its usage, to use the ordinary meaning – furthers means to advance or assist in moving forward. This would mean that the D.O. or LDR must not only not conflict with, but must also help advance, the provisions of the comprehensive plan. This requires an affirmative action – an implementing of the comprehensive plan provisions.

The last part (“and if it meets all other criteria enumerated by the local government”) seems a bit vague, especially in reference to an LDR. The “it” referenced appears to be the D.O. or LDR and, as the sentence is in the conjunctive, the “other criteria enumerated” appear to potentially be criteria separate from the comprehensive plan (reading that part of the sentence as “A [D.O. or LDR] shall be consistent with the comprehensive plan … if it meets all other criteria enumerated by the local government). It isn’t clear if these would be procedural criteria or some other type of criteria.

Putting all these provisions together, a D.O. or LDR is consistent with the comprehensive plan if:

1. The aspects of development allowed by the D.O./LDR are:
   1. Not in conflict with; and
   2. Advance or assist in moving forward the goals, objectives, policies, land uses, densities, and intensities in the comprehensive plan; and
2. The D.O./LDR meets all the other criteria enumerated by the local government.

The part of the comprehensive plan relevant in a consistency evaluation.

Once it is determined what is meant by “consistent,” the issue becomes what parts of the comprehensive plan a D.O. or LDR must be measured against for consistency. The easy, but perhaps too simple, answer is all parts. The growth management act say development is expected to conform with the comprehensive plan, elements, or portions thereof. §§ 163.3161(5) and 163.3194(1)(a) and (b), F.S. An often cited case said that the review is to determine conformity with “each element and the objectives of the land use plan ….” Machado v. Musgrove, 519 So.2d 629, 632 (Fla. 3d DCA 1987). Although certainly highly relevant, courts have also said that all of the elements, not just the future land use element, that should be considered. Sw. Ranches Homeowners Ass’n, Inc. v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987).

But the reality is that not every part of the comprehensive plan is necessarily relevant to the particular aspects of development allowed by each D.O./LDR. If, for example, the D.O. is for a use that has no wetland impacts (positive or negative), the comprehensive plan policies related to wetlands would not be relevant. There may be whole sections of the comprehensive plan that may have no relevance to a specific D.O or LDR (e.g. the Capital Improvement Element is not relevant to a D.O. for a use that has no impact on public facilities).

A recent case reflects this position, saying the section 163.3194(4)(a), F.S., admonition that courts should consider the “reasonableness of the comprehensive plan” means that irrelevant provisions in the comprehensive plan should not be considered and that the relevant provision should be reviewed as a whole, to produce “the most reasonable and holistic interpretation, based on both the text and the synthesis of the document ….” Arbor Properties, Inc. v. Lake Jackson Prot. Alliance, Inc., 51 So. 3d 502 (Fla. 1st DCA 2010), reh’g denied (Jan. 26, 2011). Similarly, another recent case, Katherine’s Bay, LLC v. Fagan 52 So. 3d 19 (Fla. 1st DCA, 2010), stated that, in a review of consistency with the comprehensive plan, not only should the rule of construction that all provisions on related subjects be read in pari materia and harmonized so that each is given effect be applied, but the rules of construction that specific provisions control over general ones and that one provision should not be read in such a way that it renders another provision meaningless also apply.

Another recent case, however, seems to suggest that, in at least some circumstances, the controlling factor is whether the requested D.O. is consistent with the land uses allowed in the applicable land use category, without regard to other potential violations of the goals, policies, or objectives of the comprehensive plan. Rehman v. Lake County, 56 So. 3d 852(Fla. 5th DCA 2011).

Level of Review – Strict Scrutiny

The expectation of consistency with the comprehensive plan is very high. When courts examine the issue, they do not defer to the local government in the government’s decision of what is or isn’t consistent, as is done in some other reviews of local government determinations, Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla, 4th DCA 2001); the standard of court review is “strict scrutiny.” Machado v. Musgrove, 519 So.2d 629, 633 (Fla. 3d DCA 1987). So what does that mean?

First, although the name is the same, strict scrutiny in the comprehensive plan consistency context is not the same as the type of strict scrutiny review in some constitutional cases. Bd. of County Com’rs of Brevard County v. Snyder, 627 So.2d 469, 475 (Fla. 1993). The court in Machado, defined strict scrutiny based on the meaning of the two words, saying “[s]trict implies rigid exactness or precision. A thing scrutinized has been subjected to minute investigation. Strict scrutiny is thus the process whereby a court makes a detailed examination of a statute, rule or order of a tribunal for exact compliance with, or adherence to, a standard or norm. It is the antithesis of a deferential review.” Machado, 519 So.2d at 632 (internal citations omitted). This means that, since the courts will hold them to that standard, every decision on a development order and every change to a land development regulation must exactly comply with the applicable provisions of the comprehensive plan.

Consistency of Land Development Regulations with Comprehensive Plan

Putting the components of consistency together, to achieve consistency with the comprehensive plan, a LDR provision, new or existing, must regulate the subject aspects of development in a way that not only does not conflict with the relevant provisions of the comprehensive plan, but also implements the applicable provisions of the plan, and must do so with exactness and precision. Given the way many LDRs, not to mention comprehensive plans, are written, this is a pretty tall order.

Consistency of Development Orders with Comprehensive Plan

Putting the components of consistency together, for a D.O., to achieve consistency with the comprehensive plan, an approved D.O. must allow the specific aspects of development in a way that not only does not conflict with the relevant provisions of the comprehensive plan, but also implements the applicable provisions of the plan, with exactness and precision; and must meet all of the applicable criteria of the LDRs or other applicable regulations. For an approval through a quasi-judicial hearing process, at least, there must be competent substantial evidence in the record demonstrating such consistency compliance. See the article What is competent substantial evidence in Florida land use hearings for more on compentent substantial evidence.

Because §163.3215 consistency challenges may be brought to challenge a denial, as well as an approval, of the D.O., if the applicant provides evidence that the D.O. will be consistent with the comprehensive plan, to deny it, the local government must counter that evidence or, in the case of a rezoning application, show that the existing zoning is also consistent with the comprehensive plan. County Com’rs of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993).

A §163.3215 consistency challenge to a D.O. can arise in three instances: “1) where it materially alters the use of a property; 2) where it materially alters the density of [the] property; or 3) where the intensity of the use of the property is materially altered.” Lake Rosa v Board of County Com’rs, 911 So. 2d 206 (Fla. 5th DCA 2005) referencing §163.3215(1), F.S. The limitation to these three instances raises the question of whether such a challenge can be brought when the challenge is to the characteristics of the use, other than density or intensity, rather than the allowance of the use (i.e. can suit be brought when a use is a permitted use, of permitted intensity or density, but has characteristics, such as aesthetic impacts or the potential to increase traffic congestion, that may be inconsistent with provisions in the comprehensive plan). Although not specifically addressed in the opinion, this might be the situation in Rehman v. Lake County, 56 So. 3d 852 (Fla. 5th DCA 2011), discussed above, and the reason the court found the D.O. consistent with the comprehensive plan.

In bringing a §163.3215 consistency challenge, it is the comprehensive plan that is in place at the time of the decision on the D.O. that governs. Lake Rosa v. Board of County Com’rs, 911 So.2d 206, 209 (Fla. 5th DCA 2005). The action that governs when the filing time frame begins to run for a §163.3215 challenge is when the clerk for the governing body files the development order in the official records. 5220 Biscayne Blvd., LLC v. Stebbins, 937 So.2d 1189 (Fla. 3rd DCA 2006).

In the judicial review of the consistency question, the statutes say a reviewing court “may consider, among other things, the reasonableness of the comprehensive plan, [relative to the issue raised for the court’s consideration,] or the appropriateness and completeness of the comprehensive plan … in relation to the governmental action or development regulation under consideration,” §163.3194(4)(a), F.S., but that the act is to be “construed broadly to accomplish its stated purposes and objectives.” §163.3194(4)(b), F.S. This has been found to be “a recognition of the court’s inherent power to take into account fundamental fairness questions as may arise from a strict application of the plan ….” Machado v. Musgrove, 519 So.2d 629, 635 (Fla. 3d DCA 1987).

State Statutory Intents and Purposes of Comprehensive Planning and Land Development Regulations

UPDATED TO ADDRESS THE 2011 CHANGES TO THE FLORIDA STATUTES.

In the drafting of land development regulations, it is very common to have an intent and purpose section, either in the code language itself or at least in the beginning of the adopting ordinance. Often it is just boilerplate language that lists broad general statements and, after adoption, it is never looked at again. But the intent and purpose statements, if done right, can be very important in setting the goals to be achieved, as well as setting the tone of the regulations. They can also reveal the overall approach of the LDRs – whether they lean toward growth or toward greater preservation of natural resources, whether historic preservation is an important aspect of that jurisdiction, whether it is a rural community or a more urban oriented one, etc.

The Florida Statutes, which require and regulate comprehensive planning and land development regulations (see “Authority to Regulate Land“), also list certain intents or purposes that are supposed to be implemented by the statute provisions (whether they succeed or not is another question). These statements are helpful in two regards – they can be a good source for language to be used in the intent and purpose statement in the LDRs and they also can reveal the viewpoint (or, if you prefer, bias) of the drafter of the statutes.

This latter purpose is important because, even if the actual provisions of the statute do not go as far as what is indicated by the intent statement, when the statute says “it is the intent of the legislature that XYZ happen” then there is a clear orientation or bias toward XYZ. This intent can be used to justify an approach in the LDRs, can be used in an attack on LDRs that you feel don’t go far enough toward the statute bias, or can provide an awareness of the approach the State agencies may take in reviewing Comprehensive Plan Amendments.

Click here ( Intents and purposes of growth management related Florida Statutes) for a summary list of some of the statutory intents and purposes relevant to comprehensive planning and land development regulations.

Implementing the Comprehensive Plan Through Land Development Regulations

From the specific use or user standpoint, the purpose of land development regulations (“LDRs”) is to regulate specific land activities. But from the other end, the broader policy oriented perspective, the purpose of Florida LDRs is to carry out the jurisdiction’s comprehensive plan. Basically, if the comprehensive plan is the “what we want to do,” the jurisdiction’s LDRs are “how we are going to do it.”

The statutes state the LDRs are to be based on, related to, and a means of implementation for comprehensive plan. §163.3201, Florida Statutes. So, in addition to whatever other reason a local government wants LDRs, the foremost reason is to carry out the adopted comprehensive plan. New language in section 163.3177(1), F.S. (2011) provides that the comprehensive plan itself is not to include the implementing regulations, but, rather, to provide meaningful and predictable standards and guidelines indicating how the land development regulations, along with other programs and activities, are to implement the plan. 

Consistency. The LDRs also must be consistent with the adopted comprehensive plan. §163.3194(1)(b), Florida Statutes. If the existing LDRs aren’t consistent with the adopted comprehensive plan (either the original plan or any amendments), the LDRs must be amended, to make them consistent. If that can’t be done immediately, the local government must adopt a schedule for bringing the LDRs into conformity and, during the interim, the provisions of the comprehensive plan control. §163.3194(1)(b), Florida Statutes.

The statute definition of consistency, section 163.3194(3)(a), Florida Statutes, is not particularly helpful in pinning down what is needed to be consistent. It states:

A … land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such … regulation [are] compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.

See Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan for more on the definition of consistency.

Challenging consistency. If someone wants to challenge whether the LDRs are consistent with the adopted comprehensive plan, the statutes, at §163.3213, Florida Statutes, state that the administrative procedure outlined in the statute is the only way a challenge can be brought. This means a challenge cannot be brought straight to court; this procedure must be followed first.

The rules previously adopted to implement this section, published in former §9J-5.023, Florida Administrative Code, outlined the criteria the agency would use in such an administrative challenge to decide the consistency of LDRs with the adopted comprehensive plan. With the repeal of chapter 9J-5 by the 2011 legislature (Chapter 2011-139, Section 72, Laws of Florida), these are no longer the controlling rules.