Governmental Exemption from Florida Land Development Regulations

Do governmental entities have to follow local Florida land development regulations? It is commonly assumed that they don’t. But actually, unless they are given a specific exception, they generally do.

Are local governments exempt from their own regulations?

Common law rule.

Historically, whether a local government had to follow its own land development regulations when it used land the local government owned or controlled depended on what the land was to be used for. If the land was to be used for a “governmental function” (activities having to do with the exercise of some element of government power (sovereignty)¹), the local government typically did not have to follow its own regulations.² If, however, the government activity fell into the category of a “proprietary function” (functions which the local government may perform when considered to be for the best interest of the citizens; activities that promote or benefit the comfort, convenience, safety and happiness of citizens³), the local government activity was subject to the local government regulations, unless the regulations provided an exemption.⁴ In other words, governmental functions were exempt from regulation unless the regulations made them subject to the regulations and proprietary functions were subject to the regulations unless the regulations made them exempt.

This seemingly straight forward governmental-proprietary function rule had complicating factors, however. The first was the difficulty in determining which activities were governmental and which were proprietary. Case law classified many functions that benefited the convenience and safety of the citizens, and so would seem to have been proprietary functions, as being governmental functions, such as construction and operation of a sewage disposal system,⁵ construction of a garbage incinerator,⁶ and construction of a public parking garage.⁷

The second complication of the governmental-proprietary function rule was whether the local government’s regulations themselves recognized the exemption or brought the activity under the control of the land development regulations. If a local government’s regulations affirmatively stated they applied to the adopting government’s facility, it appears the common law exemption was waived.⁸ Similarly, if the local government’s regulations explicitly stated they did not apply to particular government uses, they did not apply,⁹ arguably even if the activity was a proprietary one.¹⁰

So the governmental-proprietary function rule was historically the common law rule in Florida—if the government activity is a “governmental function,” the local government did not have to follow its own regulations unless the land development regulations affirmatively said they did, but if the government activity fell into the category of a “proprietary function,” it was subject to the local government regulations unless specifically exempted. This apparently changed in 1974.¹¹

In Parkway Towers Condo. Ass’n v. Metro. Dade County, 295 So.2d 295, (Fla. 1974), with almost no explanation, the Florida Supreme Court change the common law rule for governmental function facilities. The court stated that, going forward, “zoning variations to accommodate county or municipal facility purposes should either have been anticipated in zoning ordinances before construction or operation of such facilities is commenced or, if this has not been done, construction should not be undertaken thereof until after due modification or change therefor is made in existing zoning ordinances.”¹²

This “new” rule is, apparently, the controlling court decision on the issue.¹³ The Parkway Towers case, which addressed a governmental function, changed the historic rule for governmental functions, making it essentially the same as for proprietary functions. Therefore, the current common law rule requires that for a government facility, of any function, to be exempt from the land development regulations, that exemption must be addressed in the land development regulations, before the facility is constructed.

Growth management rules

The common law rule cases were decided, however, before the Florida growth management legislative acts. These statutory requirements also have an impact on the question.

The State Community Planning Act statutory requirements state that all development, both public and private, must be consistent with the comprehensive plan.¹⁴ Further, the statutes state that, “[a]fter a comprehensive plan … has been adopted…, all development undertaken by … governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted.”¹⁵ As the land development regulations are required to be consistent with the Comprehensive Plan,¹⁶ the governmental development must also be consistent with, not outside of or in exception to, the land development regulations. This would mean that, if the Comprehensive Plan says certain types of development activities must be handled in certain ways, without differentiating between private and public development, the land development regulations cannot exempt the government activity from being regulated in that way.

This applies unless the activity does not constitute “development” under the statutory definition of the term.¹⁷ The following common government activities are considered to not be “development” and are not, therefore, required to be controlled by the comprehensive plan:¹⁸

• “Work by a highway or road agency … for the maintenance or improvement of a road …, if the work is carried out on land within the boundaries of the right-of-way.”
• Work by any [entity] 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.”
• The creation or termination of rights of access, riparian rights, easements, … or other rights in land.

Several cases confirm this.¹⁹ Therefore, such non-“development” activities do not have to be addressed by or follow the requirements of the comprehensive plan.

Summary

Combining the common law rule with the requirements of the Community Planning Act, whether local government’s activities are controlled by their own regulations can be summarized as follows:

• All of a local government’s construction and activities must be in compliance and consistent with its comprehensive plan, unless there is a specific exemption for the activity in the comprehensive plan or the activity does not constitute “development.”
• All of a local government’s construction and activities must follow and be in compliance with its land development regulations, unless there is a specific exemption for the activity in the land development regulations.

Exemption from other government’s regulations

What happens when one government wants to build a government facility within the boundaries of another jurisdiction; can the local regulations be ignored? Does it make a difference if the building government is “superior” in the governmental hierarchy to the host jurisdiction?

Local government over local government

For one local government’s activities in another local government’s boundaries, the rule is simple. The use of land by one local government (Government A) within the boundaries of another local government (Government B) is governed by Government B’s land development regulations unless specifically exempted in Government B’s regulations.²⁰ The governmental-proprietary function test, when it had any application, was not applicable in this situation.²¹ The courts have held that requiring Government A to go through Government B’s regulatory process allows the review and balancing of the competing governmental interests²² and allows the greatest flexibility and fairness in resolving the issue.²³

Local government over State agency

There is an argument that, since all local governments are entities under the State of Florida, a State agency is superior to a local government and is, therefore, not bound by the lower government’s regulations. This argument was pretty much refuted, however, in the case of City of Temple Terrace v. Hillsborough Ass’n for Retarded Citizens, Inc.²⁴ In that case, a State of Florida facility was to be established in the City of Temple Terrace that was inconsistent with the City’s zoning requirements. The court reviewed the different potential tests by which to decide the issue, including the superior jurisdiction test, and rejected all others in favor of a form of the balancing of interest test.²⁵ The court said that if the State legislature specifically states that local government zoning requirements do or do not apply to other government units, that pronouncement would control, but that in the absence of such a statement, there is no presumption one way or another. In upholding the district court decision, the Florida Supreme Court²⁶ stated “[e]xcept where a specific legislative directive requires a non-[con]forming use in the particular area, local administrative proceedings will provide the forum in which the competing interests of governmental bodies are weighed,” noting that the courts are available to review the balance and that the State of Florida always possesses the power to specifically exempt itself from local land development regulations.

So, State agencies must follow the regulations of the host local government except in three situations: 1) the host government’s regulations exempt the State agency; 2) through a review by the host local government, an exception or variance to the local regulations is approved; or 3) the State law specifically exempts the State activity from local regulations. These exceptions for State agencies also, apparently, apply to private entities performing the State activity in the State’s place.²⁷

Local government over federal government

Even federal government activities are not automatically exempt from local land development regulations; mere ownership or control of the land or facility by the federal government does not create an exception. “The Federal Government does not assert exclusive jurisdiction over the public lands … and the State [and local government] is free to enforce its … laws on those lands” unless those laws conflict with federal law.²⁸

The federal government does have the power to expressly exempt federal activities from local regulation.²⁹ Further, the federal government activity can be allowed, regardless of local regulatory prohibitions or restrictions, if it falls under a federal regulatory authority that is exclusively within the federal authority (i.e. the local regulation is “preempted” by the federal regulation).³⁰ The state or local law can be preempted in two ways: 1) the legislation created by Congress expressly states or evidences an intent to exclusively regulate an issue; or 2) the state or local law conflicts with the federal law, such that it is impossible to comply with both the state or local law and the federal law or the local law stands as an obstacle to accomplishing the full purposes and objectives of Congress.³¹

Summary

Local governments must follow the regulations of the local government in which the proposed government activity is to be located unless the host government’s regulations exempt such activities from regulation or, through the host government’s review, it is determined that an exception is warranted. Similarly, State agencies must also follow the regulations of the host local government unless the host government’s regulation or review provides an exception, but have the added exemption opportunity where the State legislature exempts such State activity from local regulations. Federal government activities must also comply with local government land development regulations unless specifically exempted at the local level, expressly exempted by federal law, or the federal regulatory authority preempts the local regulation.

Conclusion

Although many people assume there is a blanket exemption from local government regulations for government facilities, this is not the case. Generally, the default is that the local regulations must be met; all levels of government have to follow the land development regulations of the local government in which they are building a facility or undertaking an activity unless there is some action (by the local government or the higher authority) that affirmatively removes that requirement.

Endnotes

1. Daly v. Stokell, 63 So.2d 644, 645 (Fla. 1953). ^{Click here to return to text.}
2. A1A Mobile Home Park, Inc. v. Brevard County, 246 So.2d 126, 129 (Fla. 4th DCA 1971) (“[I]n the performance of [governmental functions,] a governmental body need not comply with its own zoning ordinances”). ^{Click here to return to text.}
3. Black’s Law Dictionary 1219 (6th ed. 1990), cited in Sebring Airport Auth. v. McIntyre, 642 So.2d 1072, 1074 (Fla. 1994); and Daly v. Stokell, 63 So.2d 644, 645 (Fla. 1953). ^{Click here to return to text.}
4. City of Treasure Island v. Decker, 174 So.2d 756, 759 (Fla. 2d DCA 1965) (“[T]he governmental body itself if operating in a proprietary capacity is governed by the zoning regulations of the area in the absence of specific legislative pronouncement to the contrary”). ^{Click here to return to text.}
5. A1A Mobile Home Park, Inc. v. Brevard County, 246 So.2d 126, 129 (Fla. 4th DCA 1971) (“[T]he construction and operation of a sewage disposal system is governmental, as distinguished from a proprietary, function”). ^{Click here to return to text.}
6. But perhaps it was so classified only because this construction was declared a governmental function by a Special Act of the State legislature. See Nichols Eng’g & Research Corp. v. State ex rel. Knight, 59 So.2d 874, 875 (Fla. 1952). ^{Click here to return to text.}
7. Jefferson Nat. Bank of Miami Beach v. City of Miami Beach, 267 So.2d 100, 101-02 (Fla. 3d DCA 1972). ^{Click here to return to text.}
8. Metro. Dade County v. Parkway Towers Condo. Ass’n, 281 So.2d 68, 69 (Fla. 3d DCA 1973), but this was replaced by the Florida Supreme Court’s review of the case. See infra. ^{Click here to return to text.}
9. Jefferson Nat. Bank of Miami Beach v. City of Miami Beach, 267 So.2d 100, 101-02 (Fla. 3d DCA 1972) (“A zoning authority has the right, upon the adoption of a comprehensive zoning ordinance, to exempt itself from the regulations applicable to private interests”). ^{Click here to return to text.}
10. This is under the argument that if the local governments have the authority to regulate the uses, they also have the authority to exempt them from regulation. ^{Click here to return to text.}
11. The Third District Court of Appeals in Metro. Dade County v. Parkway Towers Condo. Ass’n, 281 So.2d 68 (Fla. 3d DCA 1973) considered an appeal of a temporary injunction preventing Dade County from building a county jail until the County zoned the property to a district that allowed the jail. After finding that the construction of the proposed county jail facility was a governmental function, the court found that the County had a common law right to place the jail on any site and, without an affirmative showing of an intent to waive the right, a general provision in the Code, did not waive this right. The court found that, unlike a specific Code restriction on where police stations could be located, the County’s regulations did not address jails at all and, since the regulations did not affirmatively show an intent to regulate jails, the County was free to exercise the government function of building a jail, without regard to the provisions of the land development regulations. The court then reversed the injunction, allowing the construction of the jail to go forward. The case was appealed to the Florida Supreme Court (Parkway Towers Condo. Ass’n v. Metro. Dade County, 295 So.2d 295, (Fla. 1974)). The court agreed to consider the district court’s decision to repeal the injunction (issued a writ of certiorari), but later decided that action was “improvident” and discharged the writ. In deciding to not hear the matter, the court stated that, since the County had held two public hearings on the issue of going forward with the jail (the court perhaps reasoning that these public hearings were the equivalent to public hearings on amending the zoning code to address the jail), and the jail construction was proceeding, nothing would be gained to pause the construction so that the County could amend the regulations to allow the jail. Then, without further explanation, the court changed the common law rule. ^{Click here to return to text.}
12. Parkway Towers, 295 So.2d at 295-96. ^{Click here to return to text.}
13. There is only one case that cites the Florida Supreme Court Parkway Towers case, relative to this issue, and that is a federal case, Everett v. City of Tallahassee, 840 F. Supp. 1528, 1539 (N.D. Florida 1992).  In that case, the court found the Florida Supreme Court’s decision in Parkway Towers controlled, even though a later case confirmed by the Florida Supreme Court seemed to say the governmental-proprietary function test still applied in the review of a local government’s ability to ignore its own regulations. The Everett court found that, because the issue in the Temple Terrace case (discussed infra) was whether one local government had to follow another government’s regulations, rather than an issue of a government following its own regulations and the statements about a government’s own regulations was dicta, the Parkway Towers Florida Supreme Court decision controlled. ^{Click here to return to text.}
14. §163.3161(5), F.S. ^{Click here to return to text.}
15. §163.3194(1)(a), F.S. ^{Click here to return to text.}
16. §163.3194(1)(b), F.S. ^{Click here to return to text.}
17. Under the §380.04(3), F.S., definition. See also the article What is the “development” land development regulations can regulate. ^{Click here to return to text.}
18. Whether they may be addressed by a comprehensive plan is another question, for another article. ^{Click here to return to text.}
19. See Rinker Materials Corp. v. Town of Lake Park, 494 So.2d 1123 (Fla.1986); Board of County Commissioners of Monroe County v. Department of Community Affairs, 560 So.2d 240 (Fla. 3d DCA 1990; 1000 Friends of Florida, Inc. v. St. Johns County, 765 So.2d 216, 217-18 (Fla. 5th DCA 2000). ^{Click here to return to text.}
20. See City of Treasure Island v. Decker, 174 So.2d 756, 759 (Fla. 2d DCA 1965), which explained that this “permits each governmental unit to perform its functions without serious interference from the other.” ^{Click here to return to text.}
21. Orange v. City of Apopka, 299 So.2d 652, 654-56 (Fla. 4th DCA 1974) (“[T]he purpose of zoning is orderly development and the preservation of property values. Each governmental unit is charged with the responsibility of preparing a comprehensive plan which will provide optimum development in an orderly fashion. It strikes us as anomalous to allow one governmental unit charged with a specific responsibility, such as supplying housing, airports, or sewerage facilities, to enter another governmental unit and unilaterally decide to locate one of its governmental facilities anywhere it may choose”). ^{Click here to return to text.}
22. Palm Beach County v. Town of Palm Beach, 310 So.2d 384, 385 (Fla. 4th DCA 1975) (“We affirm the general proposition of law espoused in Orange County v. City of Apopka …; in resolving conflicts between different governmental units the balancing-of-competing interests test is to be applied”); Pal-Mar Water Mgmt. Dist. v. Martin County, 377 So.2d 752, 754-55 (Fla. 4th DCA 1979). ^{Click here to return to text.}
23. Vill. of N. Palm Beach v. Sch. Bd. of Palm Beach County, 349 So.2d 683, 683-84 (Fla. 4th DCA 1977). ^{Click here to return to text.}
24. 322 So.2d 571, 573-79 (Fla. 2d DCA 1975) aff’d, 332 So.2d 610 (Fla. 1976). ^{Click here to return to text.}
25. Specifically, the court found that the “superior sovereign test,” which says that the higher government in a governmental hierarchy should not be bound by the requirements of a lower government, was not applicable because of the Florida Constitutional and statutory powers of local governments; that the governmental-proprietary function test only applied to situations where a government seeks to violate its own zoning ordinance (which, as discussed earlier in this article, was no longer true at this point; the test did not even apply in that situation); and that the “power of eminent domain” test, which says that where a political unit has condemnation authority, it is automatically immune from local zoning regulations when it is performing its public function, does not apply because the power to condemn has nothing to do with the power to use property. The court ultimately adopted the “balancing of interests” test as the fairest method by which to decide such cases, as it allows a case by case determination that takes into consideration all of the relevant factors. The court held that “[w]hen the state legislature is silent on the subject, the governmental unit[, State agency or otherwise,] seeking to use land contrary to applicable zoning regulations should have the burden of proving that the public interests favoring the proposed use outweigh those mitigating against a use not sanctioned by the zoning regulations of the host government. There may be cases in which a state agency may be so convinced of the overriding public need for a particular land use that it may choose to go forward without resort to local authorities. Yet, under normal circumstances one would expect the agency to first approach the appropriate governing body with a view toward seeking a change in the applicable zoning or otherwise obtaining the proper approvals necessary to permit the proposed use.” ^{Click here to return to text.}
26. In Hillsborough Ass’n for Retarded Citizens, Inc. v. City of Temple Terrace, 332 So.2d 610, 613 (Fla. 1976). ^{Click here to return to text.}
27. City of Temple Terrace v. Hillsborough Ass’n for Retarded Citizens, Inc., 322 So.2d 571, 573 (Fla. 2d DCA 1975) aff’d, 332 So.2d 610 (Fla. 1976) (“Traditionally, where a state agency is immune from municipal zoning, those parties contracting to do the services which would otherwise be performed by the state have also been held to be immune”). ^{Click here to return to text.}
28. Kleppe v. New Mexico, 426 U. S. 529, 543 (1976). ^{Click here to return to text.}
29. Hillsborough County v. Automated Medical Laboratories, Inc., 471 US 707, 712-13 (1985). ^{Click here to return to text.}
30. California Coastal Comm’n v. Granite Rock Co., 480 US 572, 580-81 (1987) quoting Kleppe v. New Mexico, 426 U. S. 529, 539 (1976) (“Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause”). ^{Click here to return to text.}
31. Id.; Hillsborough County v. Automated Medical Laboratories, Inc., 471 US 707, 712-13 (1985). ^{Click here to return to text.}

The Rules of the Game – Analyzing Development Standards

SUMMARY:

Development standards are the parts of the LDRs that say what must be done and how it must be done; they are the measures against which development activities are reviewed to determine if they are being done “right.”

The development standards need to:

• Implement and tie directly to the local government’s comprehensive plan, from concept to detail, to reflect the community’s adopted development perspective and goals;
• Have, in each standard, a substantial relationship to the promotion of a legitimate public purpose that protects the public health, safety, or welfare and be tailored to actually address the public purpose;
• Be effective; actually doing what they are intended to do without unintended consequences;
• Inform everyone of the rules to be followed, so they know their rights, opportunities, and obligations;
• Be specific and clear enough that a person of common intelligence can tell what conduct is restricted by the standard and does not have to guess at what the standard means;
• Be specific and clear enough to direct the land use decisions so that the decision-makers do not have arbitrary discretion in making the decisions and clear enough to avoid arbitrary enforcement;
• Be efficient by not being unnecessarily complex, including more than needs to be addressed, or being unreasonably difficult or costly to use, administer, or enforce;
• Be equal and impartial in their operation; applicable in all like cases with fairly consistent, equitable results, treating like things alike;
• Be reasonable and not impose unnecessary or excessive restrictions;
• Not be so restrictive that they are confiscatory, precluding any reasonable use of a property;
• Be internally consistent, so that the LDRs groupings of uses or activities make sense relative to the regulation’s purpose, with justifiable distinctions, and the restrictions placed on certain uses or activities are not arbitrarily different from those put on similar or similarly impacting uses/activities;
• Be consistent with applicable federal and state laws, but not attempt to implement or regulate beyond recognizing those laws, unless so directed by those laws;
• Restrict administrative or quasi-judicial actions to the adopted regulations and not allow the unlawful delegation of the legislative authority or arbitrary discretion in whether to follow the standards; and
• Provide direction to the courts of what should have been the local governments review factors, so meaningful judicial review is available.

FULL ARTICLE

Several of the articles on this website discussing quasi-judicial hearings (We Could Play This Game Much Better If We Knew The Rules, Purpose of a Florida Quasi-judicial Land Use Hearing, Conducting Florida Quasi-Judicial Land Use Hearings That Work) say that the key to quasi-judicial hearings is that they apply the adopted regulations. But can those regulations say anything, in any manner, as long as they are adopted? As you probably suspected, the answer is no; there are limitations, both legal and practical.

These limits affect both the procedural and the substantive provisions of the LDRs. Putting aside the procedural provisions for other articles, this article addresses the substantive regulations, the development standards.

The development standards are the parts of the LDRs that say what must be done and how it must be done. They are the measures against which development activities are reviewed to determine if they are being done “right.” Without them, there are no regulations. Without properly written ones, there can be regulatory chaos or regulation only for the sake of regulation.

What are “properly written” development standards?

Standards that implement the local comprehensive plan.

A major role, if not the major role, of the LDRs is to implement the comprehensive plan, In addition to this being mandated by state law,¹ as addressed in the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan, how well the LDRs development standards implement the comprehensive plan is a major part of whether the development orders approved under the LDRs are considered “consistent” with the comprehensive plan.

The development standards should also be the method of implementing the local government’s development perspective and goals. If the development standards do not reflect the city’s or county’s goals, they cannot implement those goals and are, in actuality, either reflecting some other goals or, by not reflecting any clear goals, creating confusion and unintended consequences.

Therefore, the development standards of the LDRs must be tied to the local comprehensive plan, from concept to detail. If a jurisdiction wants LDRs that reflect a particular approach, such as a form-based code, or include a particular concept, such as transfer of development rights, that approach or concept must be addressed, or at least be allowed, in the comprehensive plan; an approach or concept foreign to the comprehensive plan cannot be consistent with the plan and certainly does not implement the plan.

The development standards must also implement the details of the comprehensive plan. The greater the detail in the comprehensive plan, the more the LDRs development standards must reflect the plan language, even to the point of putting the plan language in the development standards directly.

Standards that relate to legitimate public purposes.

Development standards are limited by the power of the local government to make such regulations (as addressed in the articles Limitations on Florida Police Powers, Authority to Regulate Land, and Powers of Local Governments to Regulate Land). These development standards, as an exercise of these police powers, must have a substantial relationship to the promotion of a legitimate public purpose that protects the public health, safety, or welfare.² Further, the regulation must be tailored to actually address the public purpose(s), ³ based on an actual analysis of the situation.⁴

Effective standards.

There is really little reason to have regulations if they are not effective; why have regulations if they don’t do what they are supposed to do. To effectively serve a public purpose, that purpose needs to be clearly identified (much more than just “to protect the public health, safety, and welfare”) and the regulations must remain true to that purpose from concept to detail. Standards for special exceptions or conditional uses should clearly delineate what is needed to make the use compatible with the permitted uses in the district or to mitigate the factors that make the use a special exception/conditional use, rather than a permitted use, in the first place. Standards that state they are for the purpose of encouraging a use or activity should not have so many restrictions that the use is actually discouraged. Similarly, if a use or activity is discouraged in a location or manner, the encouraged alternatives should be realistically possible, without so many restrictions that it is about as difficult to have the encouraged use/activity approved as it is the discouraged use/activity. Each standard should be reviewed for effectiveness against these tests: “What goal or purpose is this standard to implement? Does it implement that? Specifically, what is this standard to do? Does it do that? Does it do more than that or have unintended consequences? Is there a more effective way to do that, with less undesirable consequences?

Standards that inform.

The development standards are the “rules of the game.” As discussed in the article We Could Play This Game Much Better If We Knew The Rules, these “rules” should inform everyone (applicants, opponents, purchasers of property, users of property, and application or enforcement action decision-makers) of the rules to be followed. By these rules everyone knows their rights, opportunities, and obligations under the LDRs; what they have the right to do, must do, ought to do, and may do.

The development standards can also inform the user or potential user of the jurisdiction’s intent on certain subjects and overall approach to development. When the standards implement the comprehensive plan⁵ and are internally consistent, they can inform potential users of whether the community encourages urban development, rural conservation, rapid development review, slow growth, or any other community goal. Poorly written standards can also “inform” (whether it is true or not) the potential user that the jurisdiction doesn’t have a clear vision of what they want, isn’t interested in efficient effective regulations, or may be a regulatory nightmare that it isn’t worth the effort to wade into.

Standards that are certain and not inappropriately vague.

The LDR standards cannot be so uncertain as to be unconstitutionally vague under the Due Process provisions of the State and Federal Constitutions.⁶ To be constitutionally valid, regulations, such as the standards in LDRs,⁷ must be specific and clear enough that a person of common intelligence can tell what conduct is restricted by the standard and does not have to guess at what the standard means;⁸ the standard must give adequate warning or fair notice of what is required.

As stated by the Florida Supreme Court, “though easily enunciated, the vagueness test is often difficult to apply. … What constitutes unconstitutional vagueness is itself vague.”⁹ Imprecise language, by itself, does not make a standard fatally vague.¹⁰ A standard is not necessarily unconstitutionally vague just because it is subject to different interpretations.¹¹To be sufficiently clear, the standard does not have to be intricately detailed;¹² the amount of detail needed depends on the subject and the difficulty in providing highly detailed standards.¹³

One way to measure whether a standard is too vague is to evaluate the standard in its context of use. If the potentially ambiguous provisions of the standard gains sufficient meaning or clarity through a reading of the LDRs as a whole, the local comprehensive plan (which the LDRs are supposed to be implementing), state or federal law, common law, common trade usage, or some other relevant source (especially one referenced in the standards), it may not be considered unconstitutionally vague.¹⁴

Meeting constitutionality requirements is not the only reason a standard should not be vague, however. The standards are the rules that are to be followed. From a practical standpoint, if they are so unclear, so vague, that anyone that needs to use them can’t readily figure them out or has to resort to digging through multiple sources to figure out what they mean and what needs to be done, then they have failed as meaningful regulations. If it is not possible to tell from the standards what to do (or not do), the standards cannot implement the jurisdiction’s goals and intent in a consistent, efficient, and effective manner.

Standards that protect against arbitrary decisions and enforcement.

One major reason development standards should not be vague is because standards that people can’t figure out result in arbitrary decisions on when and how the standards apply. Arbitrary development standards¹⁵ are not lawful¹⁶ and do not aid in a fair, efficient and effective implementation of the comprehensive plan and the jurisdiction’s land development goals. The standards are vulnerable to claims of arbitrariness, not just when they have actually resulted in arbitrariness, but even when there is an opportunity for arbitrariness.¹⁷

The standards must be specific and clear enough to actually direct the land use decisions; standards cannot allow the decision-makers arbitrary discretion in making the decisions.¹⁸ The standards must also be clear enough to avoid arbitrary enforcement.¹⁹

Efficient standards.

Standards that are unnecessarily complex cannot be readily followed, meaning they are likely to result in longer review processes, be applied inconsistently, or be ignored, none of which is very efficient. Standards that include much more than needs to be addressed are similarly likely to be inefficient. Every development standard should be crafted with an eye to how it will be administered and enforced. If it cannot reasonably be administered or enforced or the cost, in terms of staff time and tax dollars spent, for doing so is too high, the standard’s inefficiency likely does more harm to the regulatory purpose it was to serve than good. Similarly, if the standards require too much of the user, beyond what is really necessary, there is every incentive for the user to try to get the standard waived or varied, or the user just ignores the requirement and hopes they aren’t called on it; this is also inefficient.

Standards that are equitable and nondiscriminatory.

The development standards must be equal and impartial in their operation,²⁰ applying in all like cases with fairly consistent, equitable results. This does not mean that every person and every use must be treated the same, but that similar situations must be treated similarly.²¹ Consequently, the standards cannot group or separate uses in a way that creates unequal or discriminatory treatment between similarly situated uses.²² The test for determining the validity of a grouping or classification in the regulations is to assess “whether that classification rests upon some ground of difference having a fair and substantial relation to the object of the [regulation], so that all person similarly circumstanced shall be treated alike.”²³

Reasonable and non-confiscatory standards

The development standards must be reasonable;²⁴ and cannot impose unnecessary or excessive restrictions on a legitimate use of property.²⁵ Additionally, the standards cannot be so restrictive that they are confiscatory (creating a regulatory taking of the land), precluding any reasonable use of property.²⁶

Standards that are internally consistent.

Development standards need to all work together in a consistent manner. They need to be internally consistent, so that the LDRs groupings of uses or activities make sense relative to the regulation’s purpose and the restrictions placed on certain uses or activities are not arbitrarily different from those put on similar uses/activities or those with similar impacts on the community. There must be justifiable distinctions between the groupings or the way the uses or activities are treated.²⁷

Further, the standards have to treat like things alike. The development standards cannot apply to only certain uses while permitting other similar uses to go unregulated or with lesser regulation²⁸ and cannot unreasonably encroach on one’s right to conduct a legitimate business, even with the intent of promoting the public interests.²⁹

Similarly, the regulations cannot be arbitrarily applied to uses or activities. There must be some analysis done to justify how the regulations will work in the particular jurisdiction and to demonstrate that they will advance the public purpose they purport to be related to;³⁰ the standards need to have a reasonable or practical basis.³¹ This means that borrowing regulations from other jurisdictions without examining their fit in the target jurisdiction or pulling numbers out of the air because they sound good will not suffice.

Beyond not just conflicting with each other, the standards also need to all advance common goals or purposes.³² Standards that don’t have a grounding in the jurisdiction’s larger goals or which are at odds with the approach taken with other standards in the LDR often result in arbitrary requirements. It should be remembered that the standards adopted in the LDRs work with each other to define the jurisdiction’s intent on how the community is to be developed; a standard isn’t just about regulating that one use or activity, they cumulatively define the community’s regulatory theme.

Standards that are consistent with federal and state laws.

The development standards need to be consistent with applicable federal and state laws. But the standards should not, in most cases, attempt to implement these laws.

If the subject of the federal or state law is solely in the federal or state authority, the local development standards should recognize those laws and that authority, with no standards that conflict with the laws or the authority, but should not attempt to implement these laws (e.g. include requirements of proof of compliance, or penalties for non-compliance, with these laws). When the subject is exclusively in the federal or state authority, local governments have no authority to make laws on that subject (they are “preempted”) or to administer those laws, and any attempt to do so would not be valid.³³

If the subject is also concurrently within the local government’s authority, care must be taken to keep local laws, and their implementation/enforcement, from creating conflicts with the state or federal law. Often, even though the local government may also has authority to regulate in a subject area, when the issue is not a major local issue or the review factors are so complex or expensive as to exceed the local government’s ability to enforce local standards, it may be more appropriate to just defer to the state or federal regulations in the local development standards.

There are some federal and state laws, however, that address local government actions³⁴ and need to be directly integrated in the local development standards. These are federal and state laws that should (and usually must) be implemented by the local development standards.

Standards that restrict administrative and quasi-judicial actions to the proper role.

The standards are the rules to be followed. Only the legislative body can make these standards or rules. Accordingly, governmental decisions made or actions taken by persons or bodies, other than the legislative body acting in its legislative capacity, must only be to apply, administer, or enforce the adopted regulations.

If the standards in those regulations are essentially non-existent, too vague, or provides so little guidance that making decisions requires the use of factors or analysis other than those adopted for that purpose,³⁵ the decision-maker becomes the rules-maker (by deciding what not-adopted rules must be met) rather than the administrator or applier of the law. This is beyond the scope of power (authority) of the administrator or quasi-judicial decision-maker.³⁶ Therefore, the standards cannot authorize or allow consideration of any factors outside of the adopted standards.³⁷

Further, the standards applied to development and land use activities must be adopted by the legislative body,³⁸ in almost all situations within the LDRs,³⁹ rather than being part of an administratively created development procedures manual, by interpretation, or by customary usage (so as to prevent unlawful delegation of the legislative authority).⁴⁰ And, again, the legislative body cannot allow the standards it adopts in the LDRs to be so vague or inadequate, either purposefully or by default, that they would allow someone other than the legislative body to say what the rules are (an unlawful delegation of the legislative authority).

Additionally, the standards cannot allow arbitrary discretion in whether the standards must be followed or can be ignored.⁴¹ The standards have to actually create the rules that are to be followed and ensure that they, and only they, are followed.

Standards that provide direction to reviewing courts.

The standards should be able to provide direction to reviewing courts of what should have been the local governments review factors, so meaningful judicial review is available. If they are written and followed properly, there should be clear requirements that the decision-makers should have followed, so the reviewing court can accurately examine the situation, without wandering through the whole record and improperly re-weighing the particulars.

Implications of Improper Standards

Besides the very important problems of comprehensive plans not being implemented and LDRs not effectively or efficiently achieving their purposes, there are other implications of not having appropriate standards.

If an application meets the standards, it must be approved.

As has been addressed in several other articles,⁴² if an application for a development order, except for a rezoning, meets the adopted standards, the application must be approved. If the standards don’t regulate what the jurisdiction actually intends and relies on the “discretion” of the application reviewer/decision-maker to get the intended result, they may well fail.⁴³ Therefore, the implication of having standards that don’t do what they are supposed to do is that there may be undesired development or greater numbers of lawsuits.

If the standards are found to be invalid, the regulations are void.

Some may think that having vague or otherwise inadequate standards gives the decision-makers more discretion. In reality, it puts the regulations at risk for being declared invalid or void (as if they did not exist).⁴⁴ This can result in whole portions of the LDRs being declared void, as happened to Miami-Dade County’s “Unusual Uses” provisions after the Third District Court of Appeals’ first ruling in Miami-Dade County v. Omnipoint Holdings, Inc.,⁴⁵ which was later quashed by the Florida Supreme Court,⁴⁶ but resulted in a lot of headaches in the interim.

When the standards that are found to be invalid are for special exception type uses (uses that would not be allowed in a district unless they meet a heightened review level), the uses themselves become prohibited and become unavailable as potential uses in those districts.⁴⁷ Ironically, this actually gives a disincentive to those applicants that might be inclined to challenge a denial on the grounds that the standards are inadequate, in that, rather than winning the challenge and being able to move forward with the use, the applicant can win the challenge and have no option to request the use; helping to perpetuate the inadequate regulations.

The decision-maker does not have the authority to ignore the standards.

Just as the decision-maker does not have the authority to go outside the adopted standards to consider other factors, the decision-maker also does not have the authority to ignore what is adopted, even if it is not relevant or is inconsistent with other, controlling, laws.⁴⁸ This means that, unless the regulations provide for exceptions or circumstances when the standards can be determined to be inapplicable or irrelevant, all of the standards in a group or section would have to be applied, whether they should be or not. It also means that standards that do not follow or are not consistent with federal or state law, or even the local comprehensive plan, must be followed and applied. Since these laws and the comprehensive plan are supposed to be superior to local regulations, it is clear that keeping outdated or inconsistent standards in the LDRs can create significant legal problems.

Conclusion

The purposes for having the standards define the limits that are placed on the drafting and administration of the standards. To follow the relevant constitutional limits, they must be within the proper scope of power of the jurisdiction and the actual decision-maker. To implement the local goals, they must provide meaningful regulations that, when applied and enforced, actually implement the intent and requirements of the local charter and comprehensive plan. To be efficient, effective, and fair, they must allow and require actions and decisions that are consistent, non-arbitrary, and equitable. To inform, they must be sufficiently clear and consistent as to actually advise every one of the rules they are to follow.

The standards are the heart of the LDRs. They say what must be done; everything else is just administration or process. As indicated in this article, there are many legal requirements for how the standards should be drafted. In reality, however, the courts are fairly lenient on how tightly these legal requirements bind the local governments. So what incentive is there for local governments to potentially tie their hands with specific standards? The biggest one, and the only one they should need, is to be able to actually implement the goals they have developed for the community, through clear, efficient and effective standards that address what is intended to be addressed, fairly and predictably. This should be enough to justify making the effort.

Endnotes:

1. See the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan for the list of the Florida Statues addressing LDRs’ implementation of the comprehensive plan. ^{Back to text.}
2. Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla. 1981) (“If the regulation does not promote the health, safety, welfare, or morals of the public, it is not a valid exercise of the police power”); Newman v. Carson, 280 So.2d 426, 428 (Fla. 1973) (“Legislative action exercised under the state’s police power is valid if such exercise is confined to those acts which may reasonably be construed as expedient at least for the protection of public safety, public welfare, public morals or public health.”); Burritt v. Harris, 172 So.2d 820, 823 (Fla. 1965) (“The owner will not be required to sacrifice his rights [to make legitimate use of his lands] absent a substantial need for restrictions in the interest of public health, morals, safety or welfare. If the zoning restriction exceeds the bounds of necessity for the public welfare, … they must be stricken as an unconstitutional invasion of property rights”); City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430 (Fla. 1954) (“It is well settled that a zoning ordinance to be valid must bear a substantial relation to the public health, safety, morals or general welfare”) ; City of W. Palm Beach v. State ex rel. Duffey, 30 So.2d 491, 492 (Fla. 1947) (“When regulations are to be imposed in order to promote health, welfare, safety and morals it is necessary that … the ordinance must have some relation to a lawful purpose-to promote health, welfare, safety and morals”). ^{Back to text.}
3.  101 C.J.S. Zoning s16, as cited in Davis v. Sails, 318 So.2d 214, 218 (Fla. 1st DCA 1975) (“The required relationship of the zoning ordinance or regulation must be real and not feigned. The law will not tolerate an invasion of the right of property under the guise of a police regulation in the professed interest of the public health or safety when it is manifest that such was not the object of the regulation. Hence, a restrictive ordinance which bears no material relation to the public health, safety, morals, or general welfare cannot, under the guise of a zoning regulation, either confiscate property or inflict a substantial injury on the owner thereof”). ^{Back to text.}
4.  7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“[A] zoning ordinance enacted simply as a piece of guesswork, with no attempt to study the city’s problems and no effort to accomplish some general plan adapted to the city’s needs in the way of health, safety, prosperity, welfare, and the like, and attended by no surety of the existing situation to which it applies, is generally unsustainable as a reasonable or valid police regulation”), citing State ex rel. Henry v. City of Miami, 117 Fla. 594, 158 So. 82 (1934) and Innkeepers Motor Lodge, Inc. v. City of New Smyrna Beach, 460 So. 2d 379 (Fla. 5^th DCA 1984). ^{Back to text.}
5. Assuming the comprehensive plan is well written. ^{Back to text.}
6. The Federal and State Constitutions (Amendment XIV of the U.S. Constitution and Article I, Section 9, of the Florida Constitution) provide that people cannot be deprived of life, liberty, or property without due process of law. Generally speaking, the greater the potential impact on the interest, the greater the amount of due process protections required. This means that criminal laws, those laws that involve highly protected interests, and those involving major economic impact (especially when there are lesser public interests protected by those laws) are typically construed to require greater amounts of due process protections. LDRs probably fall fairly far down the protection scale, except in the cases of freedom of speech rights or other “fundamental” rights. That being said, however, due process rights still control the LDRs, albeit at a lesser level than in some other situations. ^{Back to text.}
7. There is at least one case, however, that said this test does not apply to regulations such as the LDRs unless someone who violates the regulations is subject to penalty (a “fine, penalty, or confinement inflicted upon a person by the authority of the law”). Florida E. Coast Indus. Inc. v. State, Dept. of Cmty. Affairs, 677 So.2d 357, 362 (Fla. 1st DCA 1996). ^{Back to text.}
8. D’Alemberte v. Anderson, 349 So.2d 164, 166 (Fla. 1977); Webb v. Department of Professional Regulation, Bd. of Professional Engineers, 595 So.2d 1103 (Fla. 5^th DCA 1992); Bertens v. Stewart, 453 So.2d 92, 93-94 (Fla. 2d DCA 1984), City of St. Petersburg v. Pinellas County Police Benev. Ass’n, 414 So.2d 293, 294-95 (Fla. 2d DCA 1982). ^{Back to text.}
9. D’Alemberte v. Anderson, 349 So.2d 164, 166 (Fla. 1977). ^{Back to text.}
10. Cashatt v. State, 873 So.2d 430, 435 (Fla. 1st DCA 2004). ^{Back to text.}
11. Dep’t of Ins. v. Se. Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla. 1983). ^{Back to text.}
12. Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007); Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 639 (Fla. 1st DCA 1999) (“Impossible standards are not required.”); Life Concepts, Inc. v. Harden,562 So.2d 726, 728 (Fla. 5th DCA 1990) (“While it is true that the ordinance did not contain specific quantitative guidelines …, that level of specificity is neither required nor workable.”). ^{Back to text.}
13. Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007) (“The specificity of the guidelines will depend on the complexity of the subject and the “degree of difficulty involved in articulating finite standards”) quoting Askew v. Cross Key Waterways, 372 So.2d 913, 918 (Fla.1978). ^{Back to text.}
14. D’Alemberte v. Anderson, 349 So.2d 164, 166-69 (Fla. 1977). ^{Back to text.}
15. As one guide, according to § 120.57(1)(e)2.d., F.S., which regulates state agency rules, “[a] rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational ….” ^{Back to text.}
16. N. Bay Village v. Blackwell, 88 So.2d 524, 526 (Fla.1956) (“An ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particular structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment”); ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 149 (Fla. 1st DCA 1979) (“Any standards, criteria or requirements which are subject to whimsical or capricious application or unbridled discretion will not meet the test of constitutionality.”); Friends of Great Southern., Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007). ^{Back to text.}
17. ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 150 (Fla. 1st DCA 1979) (“Nor is it necessary that the record reveal that the governing body or its members have in fact acted capriciously or arbitrarily. It is the opportunity, not the fact itself, which will render an ordinance vulnerable”); City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100, 1104 (Fla. 3^rd DCA 1983). ^{Back to text.}
18. Drexel v. City of Miami Beach, 64 So. 2d 317, 319 (Fla. 1953) (“The generally accepted rule is to the effect that an ordinance which vests in municipal authorities arbitrary discretion to grant or revoke a license to carry on an ordinarily lawful business, without prescribing definite rules and conditions for the guidance of the authorities in the execution of their discretionary power, is invalid”), quoting Permenter v. Younan, 31 So.2d 387, 389 (Fla 1947); City of W. Palm Beach v. State ex rel. Duffey, 30 So.2d 491, 492 (Fla. 1947); Alachua County v. Eagle’s Nest Farms, Inc., 473 So.2d 257, 260 (Fla. 1st DCA 1985) (Without sufficient standards, “councilmen can act upon whim, caprice or in response to pressures which do not permit of ascertainment or correction”), quoting Effie, Inc. v. City of Ocala, 438 So.2d 506, 509 (Fla. 5th DCA 1983); City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100 (Fla. 3^rd DCA 1983). ^{Back to text.}
19. State v. Mark Marks, P.A., 698 So.2d 533, 539 (Fla. 1997). ^{Back to text.}
20. City of Wilton Manors v. Starling, 121 So.2d 172, 174 (Fla. 2d DCA 1960); Patch Enterprises v. McCall, 447 F.Supp 1075 (M.D. Florida 1978) (“[T]he specific exercise of police power … must be impartial and nondiscriminatory in its proscription”); City of Homestead v. Schild, 227 So. 2d 540, 543 (Fla. 3d DCA 1969) (“[T]he law of Florida is committed to the doctrine of the requirement that zoning ordinances and their exceptions must be predicated upon legislative standards which can be applied to all cases, rather than to the theory of granting an administrative board or even a legislative body the power to arbitrarily decide each case entirely within the discretion of the members of the administrative board of legislative body …”). ^{Back to text.}
21. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
22. Eskind v. City of Vero Beach, 159 So.2d 209, 211 (Fla.1963) (stating “Customarily, community attractiveness is accomplished by general zoning plans and related regulations which do not segregate selected businesses or activities for … discriminatory treatment. A regulation … must not impose discriminatory restrictions on the activities of a carefully selected business while permitting others similarly conditioned to engage in the prohibited activity”); Patch Enterprises v. McCall, 447 F.Supp 1075 (M.D. Florida 1978) (“Persons engaged in similar business activities must be treated without favoring any particular ones”). ^{Back to text.}
23. State v. Lee, 356 So. 2d 276, 279 (Fla. 1978). ^{Back to text.}
24. Dade County v. Nat’l Bulk Carriers, Inc., 450 So.2d 213, 216 (Fla. 1984); City of Wilton Manors v. Starling, 121 So.2d 172, 174 (Fla. 2d DCA 1960) (“In order to be upheld the ordinance must … be reasonable …); 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“Although police powers of municipalities are sufficiently broad so as to control the use of property under a general zoning plan, the application of the plan must not be unreasonable …”) citing, in addition to National Bulk Carriers, Oka v. Cole, 145 So. 2d 233 (Fla. 1962) and Dade County v. Moore, 266 So. 2d 389 (Fla. 3d DCA 1972). ^{Back to text.}
25. Burritt v. Harris, 172 So.2d 820, 823 (Fla. 1965) (“The constitutional right of the owner of property to make legitimate use of his lands may not be curtailed by unreasonable restrictions under the guise of police power”); 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“The right of owners to devote their land to any legitimate use is properly within the terms of the United States Constitution and the legislature may not, under the guise of the police power, impose unnecessary or unreasonable restrictions on that use”), citing Prescott v. Charlotte County, 263 So. 2d 623 (Fla. 2d DCA 1972); William Murray Builders, Inc. v. City of Jacksonville, 254 So. 2d 364 (Fla. 1^st DCA 1971); and 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“An excessive restriction on the use of private property that does not contribute substantially to the public health, morals, safety, and welfare is arbitrary and unreasonable and thus, unconstitutional”) citing City of Boca Raton v. Boca Villas Corp., 371 So. 2d 154 (Fla. 4^th DCA 1979). ^{Back to text.}
26. City of Hollywood v. Hollywood, Inc., 432 So.2d 1332, 1336 (Fla. 4th DCA 1983). ^{Back to text.}
27. City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430-31 (Fla. 1954). ^{Back to text.}
28. Cleburne v. Cleburne Living Center, Inc., 473 US 432, 448 (1985) (One use cannot be regulated more restrictively than other uses with similar aspects unless the first use “would threaten legitimate interests of the [local government] in a way that other permitted uses … would not. … [M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating [one use] differently from [other similar uses]. … [The local government] may not avoid the strictures of [the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic. ‘Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.’ [citation omitted]”). ^{Back to text.}
29. Eskind v. City of Vero Beach, 159 So.2d 209, 212 (Fla.1963), (“When there is no reasonably identifiable rational relationship between the demands of the public welfare and the restraint upon private business, the latter will not be permitted to stand”); State v. Reeve, 139 So. 817, 820 (Fla. 1932), (“An individual has the right to pursue any trade, calling, or occupation, without restriction, which is not injurious to the public. The exercise of the police power for the regulation of any trade, occupation, or calling can be justified only on the ground of necessity for the health, safety, welfare, or comfort of society). ^{Back to text.}
30. Innkeepers Motor Lodge, Inc. v. City of New Smyrna Beach, 460 So.2d 379, 380 (Fla. 5th DCA 1984). ^{Back to text.}
31. Florida League of Cities, Inc. v. Dep’t of Envtl. Regulation, 603 So.2d 1363, 1368 (Fla. 1st DCA 1992). ^{Back to text.}
32. E.g., special exception uses in a district should have standards that mitigate the special exception issues or concerns to make the “possible” special exception use compatible with the permitted uses in the district, so all the uses allowed in the district work together for the same goal. ^{Back to text.}
33. State v. Harden, 938 So.2d 480, 485-86 (Fla. 2006) as to federal preemption. Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309, 314 (Fla. 2008) as to state preemption. ^{Back to text.}
34. E.g., Section 47 U.S.C. 332(c)(7) (of the Telecommunications Act of 1996, addressing local zoning review of wireless telecommunications facilities) and the Community Planning Act in Part II, Chapter 163 of the Florida Statutes. ^{Back to text.}
35.  E.g., standards that state “The structure must be appropriately located on the lot” without delineating what factors make it “appropriate” or “inappropriate;” decisions that are based on whether or not neighbors object to the request, making the neighbors’ variable opinions the controlling rule. ^{Back to text.}
36. N. Bay Vill. v. Blackwell, 88 So. 2d 524, 526 (Fla. 1956) (“The rule is well stated in Yokley on Zoning Law and Practice, Vol. 1, Section 62, as follows: ‘The general rule is that a zoning ordinance must prescribe definite standards and that neither the city council, the board of appeals created by ordinance or statute, nor the building inspector are properly vested with discretionary rights in granting building permits or variances in exception to the zoning ordinance unless there has been established a definite standard to guide them in the exercise of such powers’”). ^{Back to text.}
37. Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 638 (Fla. 1st DCA 1999) (“While a local government may deny a development order based on a determination that a proposed development would be inconsistent with the stated goals of the locality’s comprehensive plan, [citation omitted], a local government may not deny a development order based on criteria which are not specifically enumerated in its land use regulations”), citing Drexel v. City of Miami Beach, 64 So.2d 317 (Fla.1953); Effie, Inc. v. City of Ocala, 438 So.2d 506 (Fla. 5th DCA 1983); ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146 (Fla. 1^st DCA 1979); Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 375, 377 (Fla. 3d DCA 2003) (“[Q]uasi-judicial boards cannot make decisions based on anything but the local criteria enacted to govern their actions”). ^{Back to text.}
38. Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 638 (Fla. 1st DCA 1999); City of St. Petersburg v. Schweitzer, 297 So.2d 74, 76 (Fla. 2d DCA 1974). ^{Back to text.}
39. One exception to the standards being required to be adopted in the LDRs is when the standard is found in the local comprehensive plan. As is addressed in the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan, there are many problems with relying on standards within the comprehensive plan that are not also addressed in the LDRs (not the least of which is the fact that such an approach is arguably inconsistent with the intent of the 2011 version of section 163.3177(1), F.S., which indicates that the implementing standards are to be found in the LDRs, not the comprehensive plan itself), but, regardless, the comprehensive plan, as an ordinance adopted by the local legislative body, meets the “adopted in an ordinance” requirement. ^{Back to text.}
40. Askew v. Cross Key Waterways, 372 So. 2d 913, 924–25 (Fla. 1978) (The doctrine of nondelegation of legislative power “represents a recognition of the express limitation contained in the second sentence of Article II, Section 3 of our [State] Constitution. … Under this doctrine fundamental and primary policy decisions shall be made by members of the legislature who are elected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program.”); Sarasota County v. Barg, 302 So.2d 737, 742 (Fla. 1974) (“The determination of what conduct falls within the proscription of these ambiguous provisions is left to the unbridled discretion of those responsible for applying and enforcing the Act. This amounts to an unrestricted delegation of legislative authority, in violation of the Florida Constitution, Article II, Section 3, F.S.A.”); Smith v. Portante, 212 So. 2d 298, 299 (Fla. 1968) (“No matter how laudable a piece of legislation may be in the minds of its sponsors, objective guidelines and standards should appear expressly in the act or be within the realm of reasonable inference from the language of the act where a delegation of power is involved . . . .”); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla. 1968). (“When a 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 …”). ^{Back to text.}
41. City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100, 1105 (Fla. 3d DCA 1983) (“[A]n ordinance which permits a legislative agency to totally disregard listed criteria and to base a decision upon unlisted or no criteria” is not constitutional), as cited in Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 831 (Fla. 4th DCA 2007). ^{Back to text.}
42. See We Could Play This Game Much Better If We Knew The Rules; Limited or “anything goes?” – Testimony evidence in a Florida quasi-judicial land use hearing. ^{Back to text.}
43. They would likely legally fail, but, whether challenged or not, would likely fail to achieve the jurisdiction’s adopted goals, because that isn’t what the regulations require. ^{Back to text.}
44. Drexel v. City of Miami Beach, 64 So. 2d 317, 319 (Fla. 1953); North Bay Village v. Blackwell, 88 So.2d 524 (Fla.1956). ^{Back to text.}
45. 811 So.2d 767 (Fla. 3^rd DCA 2002). ^{Back to text.}
46. 863 So.2d 195 (Fla. 2003). ^{Back to text.}
47. City of St. Petersburg v. Schweitzer, 297 So.2d 74, 76-78 (Fla. 2d DCA 1974). ^{Back to text.}
48. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 375, 377 (Fla. 3d DCA 2003). ^{Back to text.}

What is the “Subdivision of Land” Regulated by Florida LDRs?

Florida land development regulations (“LDRs”) are required to “regulate the subdivision of land” by §163.3202(2)(a) of the Florida Statutes. What does that mean?

In its simplest explanation, a subdivision of land is the division of a parcel into sub-parcels. So, in its simplest form, the regulations of the subdivision of land addressed in the LDRs would be regulations on any division of parcels. But do the LDRs have to address every parcel division?

It may help to have a little history. The Florida Statutes used to have extensive definitions of and requirements for subdividing and subdivisions, as part of the State zoning and subdivision enabling legislation. That changed in 1972 and further in 1985 when the State adopted the growth management acts, which shifted the focus from regulatory control through zoning codes and subdivision regulations to comprehensive planning and the implementing land development regulations (“LDRs”).

But the LDRs are still required by the Florida Statute to “regulate the subdivision of land.” There is amazingly little in the Florida Statutes to guide what that means, however, with even less State guidance now, with the deletion of the Chapter 9J-5 F.A.C. subdivision provisions in 2011. Consequently, there appears to be only one remaining definition directly addressing the subdivision or subdividing of land in the Florida Statutes,¹ and that is under the platting requirements (§177.031(18), F.S.).

If the only definition of the subdivision of land in the Florida Statutes is under the platting requirements, does that mean that the Florida Statutes consider subdividing to only include actions that fall under the platting requirements under chapter 177 and is that is the only “subdivision of land” the statutes require the LDRs to regulate? Possibly, but it may not be that simple.²

Looking specifically at that statutory definition of subdivision, it says a “subdivision” is “the division of land into three or more lots, parcels, tracts, tiers, blocks, sites, units, or any other division of land; and includes establishment of new streets and alleys, additions, and resubdivisions; and, when appropriate to the context, relates to the process of subdividing or to the lands or area subdivided.” §177.031(18), F.S. That seems simple – a subdivision is the division of land into three or more divisions.

But, what is the division of land into two parcels? If that is not a subdivision, what is it when someone divides land into two parcels, waits a month or a year, and then divides each of those two parcels into two more parcels, making a total of four parcels from the original parcel? Is that a subdivision?

Additionally, the definition says “and includes establishment of new streets and alley, additions, and resubdivisions.” Does that mean a division of land must include at least one of those to be a subdivision? The terms “additions and resubdivisions” seems to suggest that the term subdivision includes additions to subdivisions and re-division of the subdivision. But, since divisions to create streets and alleys would seem to be a type of division of the land, the “establishment of new streets and alleys” wouldn’t seem to need to be addressed separately, unless the wording was meant to require the presence of streets and alleys before the division of land is considered a subdivision under this definition. In other states, that is exactly what it means; the establishment of streets language has been held to mean that subdivision controls don’t apply to divisions of land without streets (e.g. fronting on a public road).³ So, perhaps the division of land has to include streets to be considered a subdivision under the platting definition.

Clearly, the statutory definition of subdivision under the platting requirements leaves some questions about what it means to regulate the subdivision of land. But there are indications elsewhere in the statutes, at least as far as the statutory minimum requirements of LDR subdivision regulation are concerned, that some of these questions are not going to be answered at the State level. Such indications are found in the statutory definitions of a “development order,” a “development permit” and “development.”

Subsection 163.3164(15), F.S., defines a “development order” as “any order granting denying, or granting with conditions an application for a development permit” and subsection (16) defines a “development permit” as including “any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.” This means, for the subject discussion, that a development order is any decision on an application for a subdivision approval, with the inference that a subdivision approval is a type of official action of the local government that has the effect of authorizing the development of land. This seems to indicate that a subdivision approval authorizes “development.”

Section 380.04, F.S., defines “development,” in part, as “the dividing of land into three or more parcels.”⁴ This would indicate, therefore, that a subdivision approval is the authorization of the division of land into three or more parcels. This also matches part of the platting definition of subdivision.

Putting all this together, it appears that the statutes require that, at a minimum, LDRs regulate the division of land into three or more parcels.⁵ It may require more to plat a subdivision. But how those three parcels are determined to be created, what lands might be excepted from formal subdivision review, when and how the statutory platting requirements apply, and other issues related to those divisions appear to be largely left up to the local governments. See future articles on Platting and The Purpose of Subdivision Regulations for more on subdivision regulation issues.

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End Notes

¹There are a few definitions that include the word subdivision, but the definitions use the word without actually defining what a subdivision is.

² For example, a 1998 amendment to the chapter 177 definition of “subdivision” changed the definition from the phrase “the platting of land” to current phrase “the division of land.” That change arguably pulled the defined “subdivision” from only those associated with platting to include all divisions of land. But other provisions in the definition and chapter 177 seem to reunite the statutory subdivision with plats.

³Patricia E. Salkin, American Law of Zoning § 31:2 (5^th ed. 2010).

⁴ This part of the definition was completely overlooked (or ignored) in a rather strange recent case that found that a plat did not constitute a development order. Graves v City of Pompano Beach,___ So. 3d ___, 36 Fla. L. Weekly D778, 2011 WL 1376617, (Fla. 4^thDCA 2011). Although the substituted opinion, at 74 So. 3d 595, issued November 23, 2011, after rehearing, reversed and found that a plat does constitute a development order, based on the City’s ordinance and a liberal reading of the statutory definition of a development permit, it still did not recognize the subdivision/platting aspect of the definition of development.

⁵ Whether the local governments can go beyond the statute to regulate divisions of land into less than three parcels through the LDRs goes to the question of whether LDRs are limited to only regulating “development,” which is an issue for another article.

We Could Play This Game Much Better If We Knew The Rules

– One Reason Why Land Use Quasi-Judicial Hearings Do Not Currently Work

 Reprinted with permission, The Florida Bar, The Environmental and Land Use Law Section Reporter, Vol. XXXII, No. 4, June 2011.

Remember when you and your friends used to make up games on the playground? You could get this great idea and just start playing. It was lots of fun for about five minutes. Then the arguments would start – you can’t do that, that’s not the way you play, that’s not fair. Games really don’t work very well when they don’t have rules. In many ways, it is the same for local government quasi-judicial land use hearings. We declare that we are holding a quasi-judicial hearing, swear in witnesses, and talk about the need for competent substantial evidence, but, in most cases, the hearings do not work very effectively for anyone. It is the intent of this article to suggest this is because it is unclear by what rules we are to be “playing.”

Since Board of County Commissioners of Brevard County v. Snyder[1] declared that, in Florida, small scale rezoning actions join conditional use permits,[2] variances,[3] and other development orders[4] as quasi-judicial reviews, there have been issues about how to conduct quasi-judicial hearings (due process rights, cross-examining witnesses, findings of fact, etc.). But, as important as those issues are, it is suggested that the fundamental reason why quasi-judicial hearings are not much better than legislative type reviews in producing objective, fact supported decisions that implement the adopted regulations is because there are almost never sufficient rules (standards, requirements, criteria) against which the “evidence” that is presented can be weighed.

As laid out in Irvine v. Duval County Planning Commission,[5] in a quasi-judicial hearing, the applicant has the burden of demonstrating that the applicable standards have been met. Then the responsibility shifts to those seeking to deny the application to prove that the standards have not been met and that the request is adverse to the public interest.[6] Further, there must be competent substantial evidence in the record in front of the decision-maker to support the decision made.[7]  Putting these together, there must be competent substantial evidence put in the record by the applicant that the applicable standards have been met and competent substantial evidence put in the record by those seeking the denial of the application that the applicable standards have not been met. The decision on the application must be made based on this evidence[8] and only this evidence.[9] But, in this dance of burden-shifting, objective, evidence-based decisions will consistently be produced only if the participants understand the applicable standards that have to be met.

When was the last time you saw all the standards that must be demonstrated clearly listed in a land development code? At most, it is usually a statement that the request has to be consistent with the Comprehensive Plan, be compatible, advance public purposes, or some similar, usually undefined phrases, which are often so vague as to not appear to be standards or criteria at all. The Florida courts have long held that, not only must there be specific criteria against which an application is to be reviewed,[10] the criteria must also be clear enough to be consistently applied.[11]

There are, however, also several cases that have upheld what most would consider to be very general, if not vague, standards. There are good—if not legally sound, certainly politically sound—reasons why many jurisdictions might want the standards in their land development regulations kept vague. It does provide maximum flexibility in the decision-making, and certainly helps the local government attorneys defending their clients’ decisions in court. But is that the correct goal for a quasi-judicial review? It may be politically expedient and easier to have greater flexibility and may seem advantageous to create an environment with an increased likelihood of winning in court, but would it not be a more appropriate goal to have decisions that fully and consistently implement the local government’s adopted Comprehensive Plan and land development regulations?

Operating under the assumption that the goal is to have decisions that implement the adopted regulations, there should be clear standards that govern each application. These are the rules of the game; they are what must be followed. The creation of these standards must be done in the actual drafting and adoption process of the land development regulations, rather than during the review of individual applications on an ad-hoc, case-by-case basis. This is because not only do case-by-case decisions on the applicable rules make for arbitrary decisions,[12] but also because such decisions are policy decisions—a legislative function, which cannot legally be made in a quasi-judicial review, where the role is to implement the already established requirements.[13]

Having clear standards is, however, only the first part of the equation. They must also be applied; the rules have to be followed. It is very rare to see an application or an applicant’s presentation at the hearing in which the applicant specifically addresses the criteria that do exist in the land development code. This is likely true at the hearings because experienced applicants’ representatives have learned that the decision-makers do not necessarily want to hear an analysis of whether the application meets all of the criteria or not; many boards feel that is the planning staff’s job and the application would not be before them with a recommendation of approval from staff if it did not meet the criteria.[14] But that is the problem; for most applications, whether the application meets the criteria is the only issue for consideration in the review.[15] If the application does not meet the standards, it must be denied.[16] Except rezonings, if the application does meet the standards, it must be approved.[17]  It is only if this standards-proving threshold has been passed, and only for  rezonings, that there is any additional consideration.[18] So, to get  beyond that critical threshold, the standards are the only rules of the game; everything else is irrelevant.[19]

Because this threshold of standards compliance proof is so critical, an applicant must be required to specifically address them and to demonstrate by competent substantial evidence that the application meets them. Staff should not find an application complete for processing unless there is a specific statement of how the applicable standards are met by the application. This statement of compliance should be the applicant’s major statement of the application; this is what is to be considered. At the hearing, this statement and the analysis of compliance with the standards should be the entire focus of the hearing.

Having standards, which are actually applied, also helps any opponents of an application to have a legitimate role in “playing the game.” Having clear standards that have to be achieved and a specific statement from the applicant on how they are met not only answers many questions and may satisfy many neighbors’ concerns, but it also clearly defines the universe of questions and issues that are relevant at the hearing. Without any standards, or any confidence that the discussion will be limited to the standards, opponents have no choice but to shotgun their approach; they must object to everything that may be a concern. This leads to hearings with busloads of opponents, wearing same color shirts, waving signs and handfuls of materials they downloaded from the internet, but it usually does not produce much relevant competent substantial evidence that the decision-makers can use. If the neighbors are told in their notices what the applicable requirements are and that their discussion must be limited to those issues, they know what they need to do—what their rules are—as well. Whether they want to support or oppose the application, they have what they need to contribute to the process in a meaningful way.

Perhaps most importantly, having clear standards that are required to be addressed, and are the only things that are addressed, makes a tremendous difference for the decision-maker(s). The final decision-makers are often elected officials. All decision-makers, but especially elected officials, should appreciate being able to fall back on clear standards as the justification for their decision; it is much easier to say “I’m sorry, I wanted to vote your way, but we are bound by the adopted standards in our decision.” Without clear applied standards, the decision-makers are back to deciding based on whether they personally like the proposal or whether it is politically expedient for them to make a certain decision.

Having clear standards that are followed also makes for more consistent court decisions. Having clear applied standards allows the courts to reasonably assess the local government’s decision, without improperly re-weighing the evidence, to determine whether there was sufficient competent substantial evidence in the record to support the decision made.[20] If there are clear standards and the “evidence” in the record does not relate to those clear standards, it is not competent substantial evidence because it is not relevant.[21]

Having clear rules for everyone also helps keep the hearings more manageable. If anyone starts to go too far afield in their comments, they can easily be brought back on track by limiting the discussion to the standards. If they want to object to the standards, they can be directed to a separate process to seek the amendment of the standards.

Having clear applied standards may also help resolve or, at least lessen, many of the other issues of quasi-judicial hearings. Presentations of evidence would be more focused and shorter when they do not have to address everything in the universe, which protects due process rights by freeing time to allow everyone to have a meaningful say. Whether or not the decision-maker provides written findings of fact, if the standards are properly presented and considered, the record should contain the applicable standards and the competent substantial evidence to support both sides’ arguments, as needed to support the decision. The issue of cross-examination would be unresolved, but at least the topics of examination and cross-examination would be more focused.

For almost twenty years, Florida cities and counties have been holding quasi-judicial hearings and trying to make them work. Most have tried to play a quasi-judicial game using rules suited to legislative procedures and expectations and, like the games we made up on the playground, it just does not work. It is suggested that before quasi-judicial hearings can work properly and our comprehensive plans and land development regulations can be properly implemented, we must reset the rules—adopt clear standards to guide
the reviews and use them.

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End Notes

[1] 627 So. 2d 469, 474 (Fla. 1993).
[2] City of Melbourne v. Hess Realty Corp., 575 So.2d 774, 775 (Fla. 5th DCA 1991)(confirming that a conditional use permit is a quasi-judicial function).
[3] Walgreen Co. v. Polk County, 524 So.2d 1119, 1120 (Fla. 2d DCA 1988)(confirming that reviews of variances, even variances for alcoholic beverage sales, are quasi-judicial).
[4] Park of Commerce Assoc. v. City of Delray Beach, 636 So.2d 12, 15 (Fla. 1994) (holding “decisions of local governments on building permits, site plans, and other development orders … are quasi-judicial in nature”).
[5] 495 So. 2d 167 (Fla. 1986).
[6] For rezonings, the shifted burden on the denying body is to demonstrate that
maintaining the existing zoning classification accomplishes a legitimate public
 purpose and that the refusal to rezone the property is not arbitrary,
discriminatory, or unreasonable. Snyder, 627 So. 2d at 476 (Fla. 1993).
[7] Irvine v. Duval County Planning Commission, 495 So. 2d 167 (Fla. 1986) and Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 842 (Fla. 2001).
[8] De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
[9] See City of Naples v. Central Plaza of Naples, Inc., 303 So. 2d 423, 425 (Fla. 2d DCA 1974) (stating “as pertinent as [concerns presented at the hearing] may seem to be, the City Council did not have a right to consider them in making its determination. [citation omitted] The only criteria upon which the Council could legally base its decision were those set forth in the ordinance”).
[10] 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).
[11] Drexel, 64 So. 2d at 319; Phillips Petroleum, 74 So.2d at 547.
[12] Drexel, 64 So. 2d at 319; City of Homestead v. Schild, 227 So. 2d 540, 543 (Fla. 3d DCA 1969).
[13] Snyder, 627 So. 2d at 474 (finding that “[g]enerally speaking, legislative action results in the formulation of a general rule of policy, whereas [quasi-]judicial action results in the application of a general rule of policy”).
[14] Whether an application that can be definitively shown to meet all of the applicable criteria should even have to go through a quasi-judicial hearing, rather than just an administrative staff review, is a whole different issue that should also be explored.
[15] Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 375, 377 (Fla. 3d DCA 2003) (finding that “quasi-judicial boards cannot make decisions based on anything but the local criteria enacted to govern their actions”).
[16] G.B.V., 787 So. 2d at 842.
[17] Alachua County v. Eagle’s Nest Farms, Inc., 473 So.2d 257, 259 (Fla. 1st DCA 1985); Effie, Inc. v. City of Ocala, 438 So.2d 506, 509 (Fla. 5th DCA
1983); ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 149 (Fla. 1st DCA 1979).
[18] Before a rezoning application can be denied, there must also be evidence in the record that keeping the existing zoning category accomplishes a legitimate public purpose and is also consistent with the comprehensive plan. Snyder, 627 So. 2d at 476.
[19] See Windward Marina, L.L.C. v. City of Destin, 743 So. 2d 635, 638 (Fla. 1st DCA 1999) (finding that “a local government may not deny a development order based on criteria which are not specifically enumerated in its land use regulations”).
[20] This is the relevant role of the court in a certiorari review. City of
Deerfield Beach v. Vaillant, 419 So. 2d 624, 627 (Fla.1982); G.B.V., 787 So.2d at 843.
[21] De Groot, 95 So. 2d at 916 (finding that “[s]ubstantial evidence [is] such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. [citations omitted] In employing the adjective ‘competent’ to modify the word ‘substantial,’ we are … of the view … that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the ‘substantial’ evidence should also be ‘competent’”).

What is compatibility?

UPDATED TO REFLECT THE 2011 LEGISLATIVE AMENDMENTS.

As often as the term is used in the land use arena, you would think that “compatibility” would be a precisely defined concept. In reality, it is more often in the nebulous “I know it when I see it” category. If the term is going to be used to direct how development should occur and land uses should be located, however, it is important to have a bit better handle on the concept than that.

As discussed in other articles, if a concept is used as part of a regulation, it needs to be sufficiently clear that a person to which it applies reasonably knows what the regulation requires and the decision maker applying the regulation does not act in an arbitrary manner. So, in the context of a land use regulation, what does compatibility mean – what does it require?

It is surprisingly difficult to find a clear definition of it; most regulations do not define compatibility. One very relevant one is the newly amended §163.3164(9), F.S. (2011), which brings the former Section 9J-5.003(23), F.A.C. definition into the statute. It defines “compatibility” as “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.” When §§163.3177(6)(a)3. and 163.3202(2)(b), F.S., require that the Comprehensive Plan Land Use Element and the implementing land development regulations, respectively, must include provisions addressing the compatibility of adjacent land uses, this is the “compatibility” that is required.

If every land development regulation included or referenced this definition, life would be a bit easier. There would be much less question about what is meant by “compatibility” in the code. But most LDRs don’t do that. What happens when LDRs require compatibility, but it isn’t defined?

One recent case, Katherine’s Bay, LLC v. Fagan, said that, when “compatibility” is not defined in the Comprehensive Plan (or, presumably, the LDRs), it is appropriate to use the State rules (now statute) definition. This certainly makes sense, but there may be other factors that shade what compatibility means in a particular jurisdiction. Two key factors are how the term is used in the Comprehensive Plan and how it is used in the LDRs.

Since all Comprehensive Plans are required to address the compatibility of adjacent uses (by §163.3177(6)(a)3, F.S.), there should be policies in the Plan that speak to what is or is not compatible for that jurisdiction. These should provide a context for the use of the term – whether compatible uses are those that have similar external impacts, whether the compatibility concern is how uses relate to each other aesthetically, whether a use has to be essentially the same as the adjacent use to be compatible (might have some problems with that one), etc.

Similarly, the LDRs, which are supposed to implement the Comprehensive Plan, most likely can put the term “compatibility” in some context. It is often much more difficult to ferret out the intent in the LDRs, however, because they frequently say little more than “the use must be compatible.” It may be possible, however, to determine what is considered compatible by reviewing the uses allowed in the different zoning districts, based upon the presumption that uses grouped together are compatible. Are they grouped by function, by similarity of impact, by density or intensity? What dissimilar uses are allowed, especially what is allowed across all zoning districts; what is it about these uses that justifies their being allowed with dissimilar uses? Or are they seemingly randomly grouped (which would suggest there is no clear compatibility standard)? What uses are listed as special exceptions (conditional uses, special uses) and what is listed as ways to make the uses “approvable” (i.e. what are the listed incompatibility mitigation measures)? Or, since what is or isn’t compatible in the Comprehensive Plan should dictate what is or isn’t compatible in the LDRs, reading the two together may provide a context of what is meant by compatibility for that jurisdiction.

But it should not be necessary to go digging for an understanding of such a fundamental term. As stated at the beginning of the article, to be able to know the rules and to apply them consistently, it is critically important that such an important concept as compatibility be clearly defined, and consistently used, in the Comprehensive Plan and the LDRs.

What happens when the definition of compatibility in the Comprehensive Plan or LDRs, whether directly defined or determined by the context of the provisions, is inconsistent with the State definition?  The definitions in the LDRs do not have to be exactly the same as those found in the statutes, but they cannot be inconsistent or conflict with the state definitions, when used in the same context. See also Definitions and Definitions from Florida Statutes and FAC Relevant to LDRs. This means that, whatever definition of compatibility is used by a jurisdiction, it needs to be consistent with how the term is used in the statutes, with “compatibility” being an assessment of the relationship of uses to each other – how they impact each other.

There are several interesting aspects of the State definition and usage of the term “compatibility.” The apparent goal of the State definition is that the uses not unduly negatively impact each other. This is a “no harm, no foul” type of goal; more in the line of not creating a nuisance than that compatible uses must create a positive relationship. So, at the State level, compatibility means not a negative relationship – not unduly harming.

Interestingly, the statutes require that comprehensive plans and LDRs address “adjacent” land uses, suggesting a narrower area of concern in a compatibility analysis; limited to abutting uses, rather than a larger neighborhood or area. The State definition also addresses the time aspect of a compatibility analysis. The definition says that the review is of the whether the uses exist in a stable fashion “over time.” This suggests that a use is not necessarily incompatible because it creates a fuss when first proposed or built, but whether, as time passes, the use will create negative impacts or be a destabilizing influence.

These aspects of the State definition and use of compatibility raises the question of whether a local definition of compatibility must have only a “no harm” goal, only address adjacent uses, or only look at the relationship of uses over time. Given local government’s extensive police powers and their ability to set higher (but not lower) standards than the State laws, it probably would be in the local government’s power to address these aspects differently and still not be in conflict with the State definition. But, to be different, the intent to do so has to be clear. In the absence of a definition for compatibility in the local comprehensive plan or LDRs, it is likely that the default definition, and intent that goes with it, will be the State definition.

Once there is a definition, or understanding, of what is meant by compatibility in a local comprehensive plan or LDRs, so what? How can it be determined if a proposed use will be “compatible” under that standard? As with all applications of the LDRs, there needs to be competent substantial evidence that the requested use does or does not meet the listed elements of the definition. See the article What is Competent Substantial Evidence in Florida Land Use Hearings for more on competent substantial evidence. And the definition has to be applied consistently, not on a varying basis (depending on arbitrary factors such as how many people are in opposition).

Compatibility is an important, even required, aspect of land development regulation. As such, it is critical that significant thought be put into what it means in a particular jurisdiction and how it is applied.

What must be addressed in land development regulations, per the Florida Statutes

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

Florida land development regulations (LDRs) are supposed to be more than just a zoning code or even several ordinances on a variety of land related issues put together into one book (see What are Florida land development regulations). What is included in each jurisdiction’s LDRs will vary, but the statutes state the minimum regulations that must be addressed.

The Florida Statutes, in section 163.3202, lay out what must be addressed in the LDRs. The statutes require that the following regulations, and “all other such regulations,” be combined and compiled into a single land development code for the jurisdiction. §163.3202(3), Florida Statutes (F.S.) At a minimum LDRs must “contain specific and detailed provisions necessary or desirable to implement the adopted comprehensive plan.” §163.3202(1), F.S.

• See Board of County Com’rs of Brevard County v. Snyder, 627 So.2d 469, 473 (Fla., 1993) (“The local plan must be implemented through the adoption of land development regulations that are consistent with the plan.”)
• See also Johnson v. Gulf County, 26 So. 3d 33 (Fla. 1st DCA, 2009), where the court ruled that Gulf County must regulate development near wetlands in a manner consistent with its Comprehensive Plan. (“The County is required to implement its comprehensive plan ‘through the adoption of land development regulations that are consistent with the plan.’ [citing Snyder]. The County cites no authority for the proposition that it can enact a land use regulation which is inconsistent with its comprehensive plan. … Gulf County’s comprehensive plan required it to take jurisdiction and regulate any development within 50 feet of wetlands under its land development regulations.” Johnson v. Gulf County, 26 So. 3d 33, 42 (Fla. 1st DCA, 2009.)

They also must:

Regulate the use of land and water. §163.3202(2)(b), F.S. This is the more traditional “zoning code” type of regulations. These regulations are indicated as being for those land uses categories included in the local Comprehensive Plan Future Land Use Element. §163.3202(2)(b), F.S. This is another tie to the requirement that the LDRs must implement the comprehensive plan, in this case the Future Land Use Element. See Implementing the Comprehensive Plan through LDRs.

The LDRs also must ensure the compatibility of adjacent land uses. §163.3202(2)(b), F.S. Compatibility is a term frequently used in LDRs and reviews of applications, but is seldom defined or applied consistently. See the article What is compatibility for more on compatibility. Additionally, the LDRs must provide for open space. §163.3202(2)(b), F.S.

Regulate the subdivision of land. §163.3202(2)(a), F.S. Chapter 177, Part I, of the Florida Statutes addresses the requirements for platting and subdivision regulations, but there is amazingly little guidance in the statutes as to what regulating the subdivision of land means, especially since the repeal of the rules of 9J-5, F.A..C. For more on this issue, see What is the “Subdivision of Land” Regulated in LDRs? and other future articles on Subdivision Regulations.

Provide for protection of potable water wellfields. §163.3202(2)(c), F.S. Regulating for the protection of potable (drinking) water wellfields, and the potable water supply, is a less expected part of the LDRs, although keeping drinking water available and protected from contamination has long been the subject of public health regulations. See future article Regulating wellfields. 

Regulate areas subject to seasonal and periodic flooding and provide for drainage and stormwater management, §163.3202(2)(d), F.S. 

Ensure the protection of environmentally sensitive land. §163.3202(2)(e), F.S. The statutes indicate those environmentally sensitive lands to be protected are those designated in the comprehensive plan.

Regulate signage. §163.3202(2)(f), F.S. See a future article on sign regulations.

Address concurrency. The LDRs must require that public facilities and services meet or exceed the standards established in the local Comprehensive Plan’s Capital Improvements Element and either are available when needed for development (concurrent with development impacts) or that development orders and permits are conditioned on the availability of the public facilities and services necessary to serve the proposed development. §163.3202(2)(g), F.S. This is commonly known as “concurrency.” Interestingly, this provision, which was not amended in 2011, is slightly at odds with the 2011 concurrency requirements (Concurrency). See the future article Implementing Concurrency for details on the concurrency requirements and how this discrepancy might be resolved.

Ensure safe and convenient on-site traffic flow, §163.3202(2)(h), F.S. The specified issue to take into consideration is needed vehicle parking. §163.3202(2)(h), F.S. 

Maintain the existing density of residential properties or recreational vehicle parks if the properties are intended for residential use and are located in the unincorporated areas that have sufficient infrastructure, as determined by a local governing authority, and are not located within a coastal high-hazard area. §163.3202(2)(i), F.S.

The statutes also encourage the use of innovative regulations, including provisions such as transfer of development rights, incentive and inclusionary zoning, planned-unit development, impact fees, and performance zoning. Although the previous provision of chapter 9J-5, F.A.C. that implemented the land development regulation provisions of the statute has been repealed, unlike some other sections, the statute does still authorize the state land planning agency to adopt rules for this section. §163.3202(3), F.S. If the agency does so, they will be noted here.

 

Definitions from the Florida Statutes Relevant to LDRs

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS

The Florida Statutes provide a ready source of definitions for use in LDRs. See the article Definitions for more on other sources and on writing LDR definitions. The definitions in the LDRs do not have to be exactly the same as those found in the statutes, but it is less confusing if they are at least similar. In the case of definitions for processes involving state review, it is probably wise to make the definitions the same as the applicable process in the statutes.

This PDF document (Relevant Florida Statutes Definitions) lists several of the definitions used in the statutes. Some of the terms have several different definitions. With these terms, and with all the definitions, the source of the definition should be reviewed to understand context of the definition and what meaning it is trying to convey.

Definitions

Every jurisdiction’s LDRs are going to use words that are unique to the context of the LDRs or use terms differently than everyday use. To make the meaning clear to everyone, these words and terms need to be defined.

Writing Definitions.

If they are only going to be used once or only in one section, the words or terms can be defined in the sentence, paragraph or section where they are used. But be careful if you use a term one way in one section and the same term differently in another section that you distinguish the two with phrases such as “as used in this section” or “for purposes of section X.” If, however, the word or term is used in several sections or throughout the LDRs, it should be defined in a separate glossary or definition section, clearly identified so people know where to look.

If the term is used in different forms in the LDRs (e.g. buffer, buffering, setback/buffer), but all the forms have the same meaning, reference the different forms in the definition. Distinguish between terms that can have one meaning in one form, but a different meaning in another (e.g. the noun “building” versus the verb “building”); the first should be defined, but the second may not need definition or can be included in another definition (e.g. putting the definition of the verb building under the definition of “development). Once they are defined, the word or term needs to be used in a way consistent with that definition throughout the document.

The definition or glossary section should only include definitions – it should only explain what the word or term means. It should not include regulations, applying the word or term. If a term is used so infrequently in the document that the only place to put the regulation related to that term is with the definition, the regulation should be moved to an appropriate section and the term defined there (or the regulation should be made part of a related regulation and a different, already defined, term used).

Here are a couple of websites that may be helpful in writing definitions: http://en.wiktionary.org/wiki/Help:Writing_definitions and http://owl.english.purdue.edu/owl/resource/622/01/.

Sources of Definitions.

The best source for the definitions needed for LDRs is the comprehensive plan that the LDRs implements (presuming the comprehensive plan definitions are up to date). Another source is the Florida Statutes. See the article Definitions from the Florida Statutes Relevant to LDRs. An additional source is the existing LDRs, so that terms continue to be used in a way everyone is used to. But care should be taken to be sure such definitions are still being used in the same way and meet current laws.

Only after these sources have been reviewed carefully should outside sources be used. A helpful outside source may be industry definitions for the subject term, when the regulated industry has terms of such common usage that they have become an industry standard. This helps to eliminate confusion in the application of the LDR regulations by that industry. But care should be taken to be sure the industry definition fits the goals and approach of the LDRs. Another common outside source is other jurisdictions’ LDRs, planning guides, or glossaries. Although these seem like ready sources, already vetted by others, the definitions they provide may not be consistent with your LDRs approach, concepts, or usage. See the future article on Borrowing from other codes for issues associated with these sources.