Summary of some of the major changes to the Florida growth management statutes

The following is a summary of some of the major changes made by the 2011 Florida legislature to the state’s growth management laws. Most are from by HB 7207, which is now Chapter 2011-139, Laws of Florida.

• Name. The name of the part II, chapter 163 act is changed from the “Local Government Comprehensive Planning and Land Development Regulation Act” to the “Community Planning Act.” §163.3161(1), F.S. This reflects the shift from State oversight to local government control of the planning and growth management process. The State’s new role is to focus on “protecting the functions of important state resources and facilities.” §163.3161(3), F.S.

• Purpose. The Act’s purpose moves from “control future development” to “manage future development consistent with the proper role of local government.” §163.3161(2), F.S. A new purpose statement focuses on recognizing and protecting “the traditional economic base of the state, agriculture, tourism, and military presence” while also encouraging “economic diversification, workforce development, and community planning.” §163.3161(11), F.S. See also this Article for more on the purpose statements of the act.

• Comprehensive Plans and Plan Amendments.
1. Contents of Comprehensive Plans. The requirements for what a comprehensive plan must contain are substantially rewritten, but are not as completely different as they would appear to be. Much of what appears to be new language is language moved, with some modifications, from other sections or subsections or is from the rules of chapter 9J-5, Florida Administrative Code (which has been repealed). See the “Requirements for Florida comprehensive plans“ article for more details.
2. Plan Amendment Process. See the article “Process for review and adoption of plan amendments.”
   1. Twice a year limit. The limit restricting plan amendments to no more than twice a year is deleted. Previous §163.3187(1)(a), F.S.
   2. Expedited state review process. An expedited state review process, based on the previous §163.32465(2) pilot program, is added. This expedited process applies to all plan amendments except small scale amendment (which may be processed under this process or under the provisions of §163.3187) and plan amendments in an area of critical state concern, that propose a rural land stewardship area or a sector plan, that update the comprehensive plan based on a §163.3191 evaluation and appraisal, or that are for a new plan for a newly incorporated municipality. These other exceptions must follow the “State coordinated review process.” §163.3184(2) and (3), F.S. See the article “Process for review and adoption of plan amendments“ for more.
   3. Administrative challenges. The language of former §163.3184(9) and (10) is replaced by §163.3184(5), which is new language. The definition of an “affected person” did not change. See the article “Process for review and adoption of plan amendments“ for more.
   4. Compliance Agreements. The language of §163.3184(6)(a), F.S., is new, but borrows heavily from the previous §163.3184(16), F.S., it replaces.
   5. Small scale plan amendments. The provisions of §163.3187, F.S., are changed from directing how all plan amendments are process to just addressing the process for small scale plan amendments. See the article “Process for review and adoption of plan amendments“ for more.
3. Timing of Implementation. The local government’s comprehensive plan does not have to be amended to implement the new statutory requirements until the next evaluation and appraisal period, unless otherwise specifically required, but all new plan amendments must comply with the new requirements. §163.3161(12), F.S.
4. Evaluation and appraisal review. The “R” in the “EAR” process now stands for “Review” rather than “Report;” the new EARs process shifts the evaluation and appraisal process from a formal mandated audit report on the comprehensive plan, scrutinized by the state land planning agency, to a less formal review by the local government of whether changes are needed to meet state laws and to reflect the local assessment of needed changes. See the article “Evaluation and appraisal review“ for more.

• Concurrency. See the article “Concurrency“ for more details.
1. Premise of concurrency. The premise of concurrency is shifted away from an emphasis on public facilities being available concurrent with development to their being provided so as to achieve and maintain the adopted level of service standards.
2. Transportation facilities, schools, and parks and recreation. Concurrency for transportation facilities, schools, and parks and recreation is now optional; these facilities are removed as public facilities and services subject to the statutory concurrency requirements on a statewide basis. §163.3180(1), F.S. They may, however, be optionally included in a local government’s concurrency requirements, by the local government’s actions. §163.3180(1), F.S. To rescind any existing concurrency provisions on these now optional concurrency facilities requires a comprehensive plan amendment, but the amendment is not subject to state review. §163.3180(1)(a), F.S.

• Repeal of rules 9J-5 and 9J-11.023, Florida Administrative Code. The rules of chapter 9J-5 and §9J-11.023, Florida Administrative Code, are repealed and are to be removed from the Florida Administrative Code. §72, 2011-39 Laws of Florida (HB 7207). Some of the rules of chapter 9J-5 have been integrated into the new statute language.

• Planning Innovations. A new section, §163.3168, F.S., was added to address the concept of innovative planning techniques, which local governments are encouraged to apply. The techniques include addressing future new development areas through visioning, sector planning and rural land stewardship areas and, in urban areas, using urban service area designations, urban growth boundaries, and mixed-use, high density development concepts. §163.3168(2), F.S. See the article “Planning Innovations“ for more details.

• Sector Plans. The demonstration project “optional sector plan” process of §163.3245, F.S., is now a full scale option to DRI reviews for large acreage (at least 15,000 acres) projects, which can be initiated at the local level, rather than through an agreement with the state land planning agency. See the article “Sector Plans“ for more details.

• Rural land stewardship areas. Section 163.3248, F.S., is a new section created, in large part, from provisions in previous §163.3177(d).  See the article “Rural land stewardship areas“ for more details.

• Developments of Regional Impact (DRIs).
  1. DRI thresholds. The DRI “statewide guidelines and standards” thresholds changed for several uses. §380.0651(3), F.S.
  2. Substantial deviation thresholds. The thresholds for when a change to a previously approved DRI will constitute a substantial deviation were changed or deleted for several uses. §380.06(19)(b), F.S.
  3. Date extensions. At the developer’s option, all commencement, phase, buildout, and expiration dates for valid DRIs are extended for four years, regardless of any previous extensions. Associated mitigation requirements may also be extended in many situations. The developer must notify the local government in writing by December 31, 2011 to receive the extension. §380.06(19)(c)2., F.S.
  4. Exemptions from the DRI process.
     1. Two new exemptions were added: new, additions to, or expansions of solid mineral mines, if certain requirements are met, and any development in an energy economic zone designated by §377.809, F.S. §380.06(24)(t) and (w), F.S.
     2. Notwithstanding any agreements that say otherwise, any project no longer subject to DRI review under the revised thresholds is not required to undergo such a review. §380.06(24)(u), F.S.
     3. Significant changes were made to the exemption for dense urban land areas section. §380.06(29), F.S.

• Referendums prohibited. All initiatives or referendums on a development order or comprehensive plan amendment, not just those affecting five or fewer parcels, are prohibited. §163.3167(8), F.S.

• Public school interlocal agreements. No new language was added to §163.31777, F.S.; the process was significantly simplified. See the article “Public school interlocal agreements” for more details.

• Local government joint agreements. Section 163.3171(4), F.S., was amended to take the state land planning agency out of the joint agreement process (it cannot enter into joint agreements and is prohibited from interpreting, invalidating or declaring the joint agreements inoperative) and to expand the scope of joint agreements and what they can include.

• Permit extensions. 
1. Any permit or authorization that was extended under section 14 of chapter 2009-96, Laws of Florida (as reauthorized by section 47 of chapter 2010-147, Laws of Florida) is extended and renewed for an additional two year period, for a total of four years, if the holder of the permit notifies the authorizing agency in writing by December 31, 2011. §§ 73(1) and (3), 2011-39 Laws of Florida (HB 7207).
2. A separate permit extension was provided, “in recognition of 2011 real estate market conditions,” extending “any building permit, and any permit issued by the Department of Environmental Protection or by a water management district pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from January 1, 2012, through January 1, 2014,” and also “any local government-issued development order or building permit” (including certificates of levels of service), for a period of 2 years after its previously scheduled date of expiration. § 79(1), 2011-39 Laws of Florida (HB 7207). This extension is in addition to any existing permit extension, but cannot exceed four years total. (§ 79(1), 2011-39 Laws of Florida (HB 7207). To get this extension, the holder of such a permit or other authorization must notify the authorizing agency in writing by December 31, 2011. (§ 79(3), 2011-39 Laws of Florida (HB 7207)
3. There are many provisos and limitations on these extensions. See the article “Other, non-statute, provisions of HB 7207“ for more details.

Concurrency

This is a summary review of §§163.3180 and 163.3182, as amended in 2011 (by Section 15 and 16 of Florida HB 7207). The review addresses the requirements for the concurrency of public facilities.

In this review, the language of the statute may be summarized, paraphrased, re-ordered, and/or reformatted, so refer to the full language of the bills or the official Florida Statutes for the actual statutory provisions. See here, Concurrency provisions, for an unofficial version of the language from the bills integrated into the previous statute provisions.

Section 163.3180, F.S.

1. The premise of concurrency is shifted away from an emphasis on public facilities being available concurrent with development to their being provided so as to achieve and maintain the adopted level of service standards.
2. Parks and recreation, schools, and transportation facilities are no longer required to meet concurrency requirements by the State statutes; they are removed as public facilities and services subject to the statutory concurrency requirements on a statewide basis. (§163.3180(1), F.S.)
   1. The parks and recreation facilities standards of previous §163.3180(2)(b) on the timing of the facilities or contributions are deleted.
3. Parks and recreation, schools, and transportation facilities, and other non-mandatory public facilities, may, however, be included in a local government’s concurrency requirements, by the local government’s actions. (§163.3180(1), F.S.) If the local governments apply concurrency to these other facilities and services, the amended statute provides requirements that must be met. Specifically:

Requirements for Florida comprehensive plans

This is a summary review of §163.3177, as amended in 2011 (by Section 12 of Florida HB 7207, with one minor amendment by Section 3 of HB 639), with a few relevant provisions from other sections. The review addresses the requirements for local comprehensive plan.

In this review, the language of the statute may be summarized, paraphrased, re-ordered, and/or reformatted, so refer to the full language of the bills or official statutes for the actual statutory provisions. See here, Requirements for Florida comprehensive plans – section 3177 of chapter 163, for an unofficial version of the language from the bills integrated into the previous statute provisions.

1. This section is extensively rewritten. Much of the new language comes from the repealed provisions of Rule 9J-5, F.A.C.
2. As with other sections, requirements of detailed monitoring by the state land planning agency are largely deleted. The provisions concerning the state land planning agency rules to implement the statute provisions and the legislative findings relative to these rules, in previous §163.3177(9) and (1), F.S., are deleted.
3. Local comprehensive plan are still required to include at least two planning periods, one covering at least the first 5-year period occurring after the plan’s adoption and one covering at least a 10-year period. Language has been added to allow additional planning periods for specific components, elements, land use amendments, or projects as part of the planning process. (§163.3177(5)(a), F.S.)
4. Principles, guidelines, standards, and strategies. The comprehensive plan provides the principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area that reflects community commitments to implement the plan and its elements. (§163.3177(1), F.S.)
   1. These principles and strategies will guide future decisions in a consistent manner and must contain programs and activities to ensure comprehensive plans are implemented. (§163.3177(1), F.S.)
   2. The format of these principles and guidelines is at the discretion of the local government, but typically is expressed in goals, objectives, policies, and strategies. (§163.3177(1)(c), F.S.)
   3. The sections of the comprehensive plan containing the principles and strategies must describe how the local government’s programs, activities, and land development regulations will be initiated, modified, or continued to implement the comprehensive plan in a consistent manner. (§163.3177(1), F.S.)
5. The comprehensive plan must identify procedures for monitoring, evaluating, and appraising implementation of the plan. (§163.3177(1)(d), F.S.)
6. The comprehensive plan and its elements must contain guidelines or policies for the implementation of the plan and its elements. (§163.3177(5)(b), F.S.)
   1. It is not the intent of the statutes, however, to require the inclusion of implementing regulations in the comprehensive plan, but, rather, to require identification of those programs, activities, and land development regulations that will be part of the strategy for implementing the comprehensive plan and the principles that describe how the programs, activities, and land development regulations will be carried out. (§163.3177(1), F.S.)
   2. Accordingly, the plan must establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations. (§163.3177(1), F.S.)
7. The previous requirements of §163.3177(2) and elsewhere in previous §163.3177, F.S., regarding comprehensive plan financial feasibility, are deleted.
   

• Data and analysis. All mandatory and optional elements of the comprehensive plan and plan amendments must be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the comprehensive plan or plan amendment. (§163.3177(1)(f), F.S.)
  1. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. (§163.3177(1)(f), F.S.)
  2. Data must be taken from professionally accepted sources. (§163.3177(1)(f)2., F.S.)
     1. The application of a methodology utilized in data collection or whether a particular methodology is professionally accepted may be evaluated. However, the evaluation may not include whether one accepted methodology is better than another. (§163.3177(1)(f)2., F.S.)
     2. Original data collection by local governments is not required. However, local governments may use original data so long as methodologies are professionally accepted. (§163.3177(1)(f)2., F.S.)
  3. The comprehensive plan must be based upon permanent and seasonal population estimates and projections, which must either be those provided by the University of Florida’s Bureau of Economic and Business Research or generated by the local government based upon a professionally acceptable methodology. (§163.3177(1)(f)3, F.S.)
     
  4. The plan must be based on at least the minimum amount of land required to accommodate the medium projections of the University of Florida’s Bureau of Economic and Business Research for at least a 10-year planning period unless otherwise limited under s. 380.05, including related rules of the Administration Commission. (§163.3177(1)(f)3, F.S.)
  5. Documents adopted by reference, but not incorporated verbatim into the plan, may be included as part of the adopted plan. The adoption by reference must identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted. (§163.3177(1)(b), F.S.)
  6. Surveys, studies, and data utilized in the preparation of the comprehensive plan may not be deemed a part of the comprehensive plan unless adopted as a part of it. (§163.3177(1)(f)1., F.S.)
  7. Support data or summaries are not subject to the compliance review process, but the comprehensive plan must be clearly based on appropriate data. Support data or summaries may be used to aid in the determination of compliance and consistency. (§163.3177(1)(f)1., F.S.)
  8. Copies of studies, surveys, data, and supporting documents for proposed plans and plan amendments must be made available for public inspection, and copies of such plans must be made available to the public upon payment of reasonable charges for reproduction. (§163.3177(1)(f)1., F.S.)
• Coordination of the local comprehensive plan with the comprehensive plans of adjacent municipalities, the county, adjacent counties, or the region; with the appropriate water management district’s regional water supply plans approved pursuant to s. 373.709; and with adopted rules pertaining to designated areas of critical state concern must be a major objective of the local comprehensive planning process. (§163.3177(4)(a), F.S.)
  1. To that end, in the preparation of a comprehensive plan or element, and as adopted, the governing body must include a specific policy statement indicating the relationship of the proposed development of the area to the comprehensive plans of adjacent municipalities, the county, adjacent counties, or the region, as the case may require and as such adopted plans or plans in preparation may exist. (§163.3177(4)(a), F.S.)
  2. When all or a portion of the land in a local government jurisdiction is or becomes part of a designated area of critical state concern, the local government must clearly identify those portions of the local comprehensive plan that will be applicable to the critical area and must indicate the relationship of the proposed development of the area to the rules for the area of critical state concern. (§163.3177(4)(b), F.S.)
• When a federal, state, or regional agency has implemented a regulatory program, a local government is not required to duplicate or exceed that regulatory program in its local comprehensive plan. (§163.3177(1)(e), F.S.)
  1. Substantially the same language, but addressing a “permitting program” rather than a “regulatory program, is found in §163.3184(4)(d)1., F.S., under the review of plan amendments.
• Elements, generally.
  1. The comprehensive plan must contain the listed required elements and may include optional elements. (§163.3177(1)(a), F.S.)
     1. The section references “optional elements” in several places, but the optional elements of previous §163.3177(7), F.S., are deleted. It is unclear, but appears that local governments are free to adopt those or other elements at the local government’s discretion, as long as they are consistent with the statutes.
  2. Coordination of the several elements of the local comprehensive plan must be a major objective of the planning process and the elements must be consistent with each other. (§163.3177(2), F.S.)
     1. Where data is relevant to several elements, consistent data must be used, including population estimates and projections, unless alternative data can be justified for a plan amendment through new supporting data and analysis. (§163.3177(2), F.S.)
     2. Each map depicting future conditions must reflect the principles, guidelines, and standards within all elements and each such map must be contained within the comprehensive plan. (§163.3177(2), F.S.)
• Capital Improvement Element.
  1. The comprehensive plan must contain a capital improvements element designed to consider the need for and the location of public facilities in order to encourage the efficient use of such facilities and set forth: (§163.3177(3)(a), F.S.)
     1. A component that outlines principles for construction, extension, or increase in capacity of public facilities, as well as a component that outlines principles for correcting existing public facility deficiencies, which are necessary to implement the comprehensive plan. The components must cover at least a 5-year period. (§163.3177(3)(a)1., F.S.)
     2. Estimated public facility costs, including a delineation of when facilities will be needed, the general location of the facilities, and projected revenue sources to fund the facilities. (§163.3177(3)(a)2., F.S.)
     3. Standards to ensure the availability of public facilities and the adequacy of those facilities to meet established acceptable levels of service. (§163.3177(3)(a)3., F.S.)
     4. At least in jurisdictions that include transportation concurrency requirements in the comprehensive plan, identification of facilities necessary to meet adopted levels of service during a 5-year period. (§163.3180(5)(d), F.S.)
     5. At least in jurisdictions that include transportation concurrency requirements in the comprehensive plan, a schedule of facilities that are necessary to meet the adopted level of service. (§163.3180(5)(b), F.S.)
     6. A schedule of capital improvements. (§163.3177(3)(a)4., F.S.)
        1. Capital improvements include any publicly funded projects of federal, state, or local government, and may include privately funded projects for which the local government has no fiscal responsibility. (§163.3177(3)(a)4., F.S.)
        2. Projects necessary to ensure that any adopted level-of-service standards are achieved and maintained for the 5-year period must be identified as either funded or unfunded and given a level of priority for funding. (§163.3177(3)(a)4., F.S.)
        3. The schedule must include transportation improvements included in the applicable metropolitan planning organization’s transportation improvement program adopted pursuant to s. 339.175(8) to the extent that such improvements are relied upon to ensure concurrency and financial feasibility. (§163.3177(3)(a)5., F.S.)
        4. The schedule must be coordinated with the applicable metropolitan planning organization’s long-range transportation plan adopted pursuant to s. 339.175(7). (§163.3177(3)(a)5., F.S.)
  2. The capital improvements element must be reviewed by the local government on an annual basis. (§163.3177(3)(b), F.S.)
  3. Modifications to update the 5-year capital improvement schedule may be accomplished by ordinance and is not (and may not be) deemed to be amendments to the local comprehensive plan. (§163.3177(3)(a), F.S.)
  4. Deletions
     1. The previous provision of §163.3177(3)(b)5., F.S., requiring the identification of alternative funding sources for proposed referendum approved funding, is deleted.
     2. The previous requirement of §163.3177(3)(b)1., F.S., that all public facilities must be consistent with the capital improvements element, is deleted.
     3. The provisions of previous §163.3177(3)(c), F.S., concerning the risk of sanctions by the Administration Commission for not meeting obligations identified in the capital improvement element, are deleted.
     4. The provisions relating to requirements of financial feasibility are deleted.
• Future Land Use Element. The comprehensive plan must include a future land use plan element.
  1. The Future Land Use Element must designate
     1. Proposed future general distribution, location, and extent of the uses of land for:
        1. residential uses,
        2. commercial uses,
        3. industry,
        4. agriculture,
        5. recreation,
        6. conservation,
        7. education,
        8. public facilities, and
        9. other categories of the public and private uses of land. (§163.3177(6)(a), F.S.)
     2. The approximate acreage and the general range of density or intensity of use must be provided for the gross land area included in each existing land use category. (§163.3177(6)(a), F.S.)
     3. Each future land use category must be defined in terms of uses included and must include standards to be followed in the control and distribution of population densities and building and structure intensities. (§163.3177(6)(a)1., F.S.)
     4. The proposed distribution, location, and extent of the various categories of land use must be shown on a land use map or map series which must be supplemented by goals, policies, and measurable objectives. (§163.3177(6)(a)1., F.S.)
  2. The future land use plan element must include criteria to be used to: (§163.3177(6)(a)3., F.S.)
     1. Provide for the compatibility of adjacent land uses.
     2. Achieve the compatibility of lands adjacent or closely proximate to military installations, considering factors identified in s. 163.3175(5).
     3. Achieve the compatibility of lands adjacent to an airport as defined in s. 330.35 and consistent with s. 333.02.
     4. Encourage preservation of recreational and commercial working waterfronts for water dependent uses in coastal communities.
     5. Encourage the location of schools proximate to urban residential areas to the extent possible.
     6. Coordinate future land uses with the topography and soil conditions, and the availability of facilities and services.
     7. Ensure the protection of natural and historic resources.
     8. Provide guidelines for the implementation of mixed use development, including the types of uses allowed, the percentage distribution among the mix of uses, or other standards, and the density and intensity of each use.
  3. The element must establish the long-term end toward which land use programs and activities are ultimately directed. (§163.3177(6)(a), F.S.)
  4. The amount of land designated for future planned uses must provide a balance of uses that foster vibrant, viable communities and economic development opportunities and address outdated development patterns, such as antiquated subdivisions. (§163.3177(6)(a)4., F.S.)
     1. The amount of land designated for future land uses should allow the operation of real estate markets to provide adequate choices for permanent and seasonal residents and business and may not be limited solely by the projected population. (§163.3177(6)(a)4., F.S.)
     2. The element must accommodate at least the minimum amount of land required to accommodate the medium projections of the University of Florida’s Bureau of Economic and Business Research for at least a 10-year planning period unless otherwise limited under s. 380.05, including related rules of the Administration Commission. (§163.3177(6)(a)4., F.S.)
     3. The future land use element must clearly identify the land use categories in which public schools are an allowable use. (§163.3177(6)(a)7., F.S.)
        1. When delineating the land use categories in which public schools are an allowable use, a local government must include in the categories sufficient land proximate to residential development to meet the projected needs for schools in coordination with public school boards and may establish differing criteria for schools of different type or size. (§163.3177(6)(a)7., F.S.)
        2. Each local government must include lands contiguous to existing school sites, to the maximum extent possible, within the land use categories in which public schools are an allowable use. (§163.3177(6)(a)7., F.S.)
  5. The future land use element and any amendment to the future land use element must discourage the proliferation of urban sprawl. (§163.3177(6)(a)9., F.S.)
     1. The proposed comprehensive plan or plan amendment, evaluated in the context of features and characteristics unique to the locality against these primary indicators, does not discourage the proliferation of urban sprawl if the plan or plan amendment: (§163.3177(6)(a)9.a., F.S.)
        1. Promotes, allows, or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses.
        2. Promotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are available and suitable for development.
        3. Promotes, allows, or designates urban development in radial, strip, isolated, or ribbon patterns generally emanating from existing urban developments.
        4. Fails to adequately protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems.
        5. Fails to adequately protect adjacent agricultural areas and activities, including silviculture, active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils.
        6. Fails to maximize use of existing public facilities and services.
        7. Fails to maximize use of future public facilities and services.
        8. Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government.
        9. Fails to provide a clear separation between rural and urban uses.
        10. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities.
        11. Fails to encourage a functional mix of uses.
        12. Results in poor accessibility among linked or related land uses.
        13. Results in the loss of significant amounts of functional open space.
     2. The future land use element or plan amendment must be determined to discourage the proliferation of urban sprawl if it incorporates a development pattern or urban form that achieves four or more of the following: (§163.3177(6)(a)9.b., F.S.)
        1. Directs or locates economic growth and associated land development to geographic areas of the community in a manner that does not have an adverse impact on and protects natural resources and ecosystems.
        2. Promotes the efficient and cost-effective provision or extension of public infrastructure and services.
        3. Promotes walkable and connected communities and provides for compact development and a mix of uses at densities and intensities that will support a range of housing choices and a multimodal transportation system, including pedestrian, bicycle, and transit, if available.
        4. Promotes conservation of water and energy.
        5. Preserves agricultural areas and activities, including silviculture, and dormant, unique, and prime farmlands and soils.
        6. Preserves open space and natural lands and provides for public open space and recreation needs.
        7. Creates a balance of land uses based upon demands of residential population for the nonresidential needs of an area.
        8. Provides uses, densities, and intensities of use and urban form that would remediate an existing or planned development pattern in the vicinity that constitutes sprawl or if it provides for an innovative development pattern such as transit-oriented developments or new towns as defined in s. 163.3164.
  6. The future land use plan and plan amendments must be based upon surveys, studies, and data regarding the area, as applicable, including: (§163.3177(6)(a)2., F.S.)
     1. The amount of land required to accommodate anticipated growth.
     2. The projected population of the area.
     3. The character of undeveloped land.
     4. The availability of water supplies, public facilities, and services.
     5. The need for redevelopment, including the renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community.
     6. The compatibility of uses on lands adjacent to or closely proximate to military installations.
     7. Lands adjacent to an airport as defined in s. 330.35 and consistent with s. 333.02.
     8. The discouragement of urban sprawl.
     9. The need for job creation, capital investment, and economic development that will strengthen and diversify the community’s economy.
     10. The need to modify land uses and development patterns within antiquated subdivisions.
  7. The future land use plan of a county may designate areas for possible future municipal incorporation. (§163.3177(6)(a)5., F.S.)
  8. The future land use element must include a future land use map or map series. (§163.3177(6)(a)10., F.S.)
     1. The proposed distribution, extent, and location of the following uses must be shown on the future land use map or map series: (§163.3177(6)(a)10.a., F.S.)
        1. Residential.
        2. Commercial.
        3. Industrial.
        4. Agricultural.
        5. Recreational.
        6. Conservation.
        7. Educational.
        8. Public.
     2. The following areas must also be shown on the future land use map or map series, if applicable: (§163.3177(6)(a)10.b., F.S.)
        1. Historic district boundaries and designated historically significant properties meriting protection, generally identified and depicted. (§163.3177(6)(a)6. and 10.b., F.S.)
        2. Transportation concurrency management area boundaries or transportation concurrency exception area boundaries. (§163.3177(6)(a)10.b., F.S.)
        3. Multimodal transportation district boundaries. (§163.3177(6)(a)10.b., F.S.)
        4. Mixed use categories. (§163.3177(6)(a)10.b., F.S.)
     3. The following natural resources or conditions must be shown on the future land use map or map series, if applicable: (§163.3177(6)(a)10.c., F.S.)
        1. Existing and planned public potable waterwells, cones of influence, and wellhead protection areas.
        2. Beaches and shores, including estuarine systems.
        3. Rivers, bays, lakes, floodplains, and harbors.
        4. Wetlands.
        5. Minerals and soils.
        6. Coastal high hazard areas.
  9. Future land use map amendments must be based upon the following analyses: (§163.3177(6)(a)8., F.S.)
     1. An analysis of the availability of facilities and services.
     2. An analysis of the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, topography, natural resources, and historic resources on site.
     3. An analysis of the minimum amount of land needed as determined by the local government. (§163.3177(6)(a)8., F.S.)
  10. Local governments required to update or amend their comprehensive plan to include criteria and address compatibility of lands adjacent or closely proximate to existing military installations, or lands adjacent to an airport as defined in s. 330.35 and consistent with s. 333.02, in their future land use plan element must transmit the update or amendment to the state land planning agency by June 30, 2012. (§163.3177(6)(a)11., F.S.)
• Transportation Element. The comprehensive plan must include a transportation element that addresses mobility issues in relationship to the size and character of the local government. (§163.3177(6)(b), F.S.)
  1. The purpose of the transportation element is to plan for a multimodal transportation system that places emphasis on public transportation systems, where feasible. (§163.3177(6)(b), F.S.)
  2. The element must provide for a safe, convenient multimodal transportation system, coordinated with the future land use map or map series and designed to support all elements of the comprehensive plan. (§163.3177(6)(b), F.S.)
  3. The element must be coordinated with the plans and programs of any applicable metropolitan planning organization, transportation authority, Florida Transportation Plan, and Department of Transportation’s adopted work program. (§163.3177(6)(b), F.S.)
  4. The element must include a map or map series showing the general location of the existing and proposed transportation system features and be coordinated with the future land use map or map series. (§163.3177(6)(b)1., F.S.)
  5. The element must reflect the data, analysis, and associated principles and strategies relating to: (§163.3177(6)(b)1., F.S.)
     1. The existing transportation system levels of service and system needs and the availability of transportation facilities and services.
     2. The growth trends and travel patterns and interactions between land use and transportation.
     3. Existing and projected intermodal deficiencies and needs.
     4. The projected transportation system levels of service and system needs based upon the future land use map and the projected integrated transportation system.
     5. How the local government will correct existing facility deficiencies, meet the identified needs of the projected transportation system, and advance the purpose of this paragraph and the other elements of the comprehensive plan.
  6. Transportation corridors, as defined in s. 334.03, may be designated in the transportation element pursuant to s. 337.273. (§163.3177(6)(b)1., F.S.)
     1. If the transportation corridors are designated, the local government may adopt a transportation corridor management ordinance. (§163.3177(6)(b)1., F.S.)
  7. Requirements based on relationship to metropolitan planning area.
     1. Local governments that are not located within the metropolitan planning area of an M.P.O. and have a population of 50,000 or less are only required to address transportation circulation. (§163.3177(6)(b), F.S.)
     2. Per the general paragraph, §163.3177(6)(b), F.S., local governments that are not located within the metropolitan planning area of an M.P.O. and have a population of more than 50,000 must address traffic circulation, mass transit, and ports, and aviation and related facilities consistent with this subsection, BUT subparagraph §163.3177(6)(b)3. says that it is municipalities, not all local governments, having populations greater than 50,000 and counties having populations greater than 75,000 that, in addition to traffic circulation, must address mass-transit and plans for port, aviation, and related facilities, as well as plans for the circulation of recreational traffic.
     3. A local government that has all or part of its jurisdiction within the metropolitan planning area of a metropolitan planning organization (M.P.O.), pursuant to §339.175, must prepare and adopt a transportation element addressing the full range of transportation issues, as indicated in §163.3177(6)(b)(2). (§163.3177(6)(b), F.S.)
  8. Traffic circulation. Each local government’s transportation element must address traffic circulation including the types, locations, and extent of existing and proposed major thoroughfares and transportation routes, including bicycle and pedestrian ways. (§163.3177(6)(b)1., F.S.)
  9. Mass transit. The transportation element must include mass-transit provisions addressing:
     1. Proposed methods for the moving of people, rights-of-way, terminals, and related facilities, and
     2. The provision of efficient public transit services based upon existing and proposed major trip generators and attractors, safe and convenient public transit terminals, land uses, and accommodation of the special needs of the transportation disadvantaged. (§163.3177(6)(b)3., F.S.)
  10. Port, aviation, and related facilities. Local governments so required by its size or location (see above) must address in the transportation element port, aviation, and related facilities plans, coordinated with the general circulation and transportation element. (§163.3177(6)(b)3., F.S.)
  11. Recreational traffic. Local governments so required by its size or location (see above) must address in the transportation element plans for the circulation of recreational traffic, including bicycle facilities, exercise trails, riding facilities, and such other matters as may be related to the improvement and safety of movement of all types of recreational traffic. (§163.3177(6)(b)3., F.S.)
  12. Local governments within a metropolitan planning area designated as an M.P.O. pursuant to s. 339.175 must address traffic circulation and: (§163.3177(6)(b)2., F.S.)
      1. All alternative modes of travel, such as public transportation, pedestrian, and bicycle travel.
      2. Aviation, rail, seaport facilities, access to those facilities, and intermodal terminals.
      3. The capability to evacuate the coastal population before an impending natural disaster.
      4. Airports, projected airport and aviation development, and land use compatibility around airports, which includes areas defined in §§ 333.01 and 333.02.
      5. An identification of land use densities, building intensities, and transportation management programs to promote public transportation systems in designated public transportation corridors so as to encourage population densities sufficient to support such systems.
  13. Integration of an airport master plan into the comprehensive plan. (§163.3177(6)(b)4., F.S. – largely from previous §163.3177(6)(k), F.S.)
      1. At the option of the local government, an airport master plan (and any subsequent amendments) prepared by a licensed publicly owned and operated airport under §333.06, may be incorporated into the comprehensive plan of the local government where the airport (or projected airport development) is located, by the adoption of a comprehensive plan amendment. (§163.3177(6)(b)4., F.S.)
      2. The plan amendment that integrates the airport master plan must address:
         1. Land use compatibility, consistent with chapter 333 regarding airport zoning;
         2. The provision of regional transportation facilities for the efficient use and operation of the transportation system and airport;
         3. Consistency with the local government transportation circulation element and applicable M.P.O. long-range transportation plans; and
         4. The execution of any necessary interlocal agreements for the purposes of the provision of public facilities and services to maintain the adopted level-of-service standards for facilities subject to concurrency. (§163.3177(6)(b)4., F.S.)
      3. The integrating plan amendment may address airport-related or aviation-related development. (§163.3177(6)(b)4., F.S.)
      4. Development or expansion of an airport consistent with the adopted airport master plan that has been incorporated into the local comprehensive plan in compliance with this part, and airport-related or aviation-related development that has been addressed in the comprehensive plan amendment that incorporates the airport master plan, do not constitute a development of regional impact.
      5. Notwithstanding any other general law, an airport that has received a development-of-regional-impact development order pursuant to §380.06, but which is no longer required to undergo development-of-regional-impact review pursuant to this subsection, may rescind its development-of-regional-impact order upon written notification to the applicable local government. Upon receipt by the local government, the development-of- regional-impact development order must be deemed rescinded. (§163.3177(6)(b)4., F.S.)
• General Facilities Element. The comprehensive plan must include a general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element. (§163.3177(6)(c), F.S.)
  1. The element must be correlated to principles and guidelines for future land use, indicating ways to provide for future potable water, drainage, sanitary sewer, solid waste, and aquifer recharge protection requirements for the area. (§163.3177(6)(c), F.S.)
  2. The element may be a detailed engineering plan, including a topographic map depicting areas of prime groundwater recharge. (§163.3177(6)(c), F.S.)
  3. The element must address in the data and analyses those facilities that provide service within the local government’s jurisdiction. (§163.3177(6)(c)1., F.S.)
     1. Local governments that provide facilities to serve areas within other local government jurisdictions must also address those facilities in the data and analyses, using data from the comprehensive plan for those areas for the purpose of projecting facility needs. (§163.3177(6)(c)1., F.S.)
     2. For shared facilities, each local government must indicate the proportional capacity of the systems allocated to serve its jurisdiction. (§163.3177(6)(c)1., F.S.)
  4. The element must describe the problems and needs, and the general facilities that will be required for solution of the problems and needs, including correcting existing facility deficiencies. (§163.3177(6)(c)2., F.S.)
  5. The element must address coordinating the extension of, or increase in the capacity of, facilities to meet future needs while maximizing the use of existing facilities and discouraging urban sprawl; conservation of potable water resources; and protecting the functions of natural groundwater recharge areas and natural drainage features. (§163.3177(6)(c)2., F.S.)
  6. The element must incorporate, within 18 months after the governing board approves an updated regional water supply plan, the alternative water supply project or projects selected by the local government from those identified in the regional water supply plan pursuant to s. 373.709(2)(a) or proposed by the local government under s. 373.709(8)(b). (§163.3177(6)(c)3., F.S.)
     1. If a local government is located within two water management districts, the local government must adopt its comprehensive plan amendment within 18 months after the later updated regional water supply plan. (§163.3177(6)(c)3., F.S.)
     2. The element must:
        1. Identify such alternative water supply projects and traditional water supply projects and conservation and reuse necessary to meet the water needs identified in s. 373.709(2)(a) within the local government’s jurisdiction; and (§163.3177(6)(c)3., F.S.)
        2. Include a work plan, covering at least a 10-year planning period, for building public, private, and regional water supply facilities, including development of alternative water supplies, which are identified in the element as necessary to serve existing and new development. (§163.3177(6)(c)3., F.S.)
        3. The work plan must be updated, at a minimum, every 5 years within 18 months after the governing board of a water management district approves an updated regional water supply plan. (§163.3177(6)(c)3., F.S.)
     3. Local governments, public and private utilities, regional water supply authorities, special districts, and water management districts are encouraged to cooperatively plan for the development of multijurisdictional water supply facilities that are sufficient to meet projected demands for established planning periods, including the development of alternative water sources to supplement traditional sources of groundwater and surface water supplies. (§163.3177(6)(c)3., F.S.)
• Conservation Element. The comprehensive plan must include a conservation element.
  1. The element must provide for the conservation, use, and protection of area natural resources, including factors affecting energy conservation. (§163.3177(6)(d), F.S.)
     1. The list of the natural resources to be addressed include air, water, water recharge areas, wetlands, water wells, estuarine marshes, soils, beaches, shores, flood plains, rivers, bays, lakes, harbors, forests, fisheries and wildlife, marine habitat, minerals, and other natural and environmental resources. (§163.3177(6)(d), F.S.)
  2. The following natural resources, where present within the local government’s boundaries, must be identified and analyzed and existing recreational or conservation uses, known pollution problems, including hazardous wastes, and the potential for conservation, recreation, use, or protection must also be identified: (§163.3177(6)(d)1., F.S.)
     1. Rivers, bays, lakes, wetlands including estuarine marshes, groundwaters, and springs, including information on quality of the resource available.
     2. Floodplains.
     3. Known sources of commercially valuable minerals.
     4. Areas known to have experienced soil erosion problems.
     5. Areas that are the location of recreationally and commercially important fish or shellfish, wildlife, marine habitats, and vegetative communities (including forests), indicating known dominant species present and species listed by federal, state, or local government agencies as endangered, threatened, or species of special concern.
  3. The element must contain principles, guidelines, and standards for conservation that provide long-term goals and which: (§163.3177(6)(d)2., F.S.)
     1. Protects air quality.
     2. Conserves, appropriately uses, and protects the quality and quantity of current and projected water sources and waters that flow into estuarine waters or oceanic waters.
     3. Protects from activities and land uses known to affect adversely the quality and quantity of identified water sources, including natural groundwater recharge areas, wellhead protection areas, and surface waters used as a source of public water supply.
     4. Provides for the emergency conservation of water sources in accordance with the plans of the regional water management district.
     5. Conserves, appropriately uses, and protects minerals, soils, and native vegetative communities, including forests, from destruction by development activities.
     6. Conserves, appropriately uses, and protects fisheries, wildlife, wildlife habitat, and marine habitat.
     7. Restricts activities known to adversely affect the survival of endangered and threatened wildlife.
     8. Protects existing natural reservations identified in the recreation and open space element.
     9. Maintains cooperation with adjacent local governments to conserve, appropriately use, or protect unique vegetative communities located within more than one local jurisdiction.
     10. Designates environmentally sensitive lands for protection based on locally determined criteria which further the goals and objectives of the conservation element.
     11. Manages hazardous waste to protect natural resources.
     12. Protects and conserves wetlands and the natural functions of wetlands.
     13. Directs future land uses that are incompatible with the protection and conservation of wetlands and wetland functions away from wetlands. (§163.3177(6)(d)2., F.S.)
         1. The type, intensity or density, extent, distribution, and location of allowable land uses and the types, values, functions, sizes, conditions, and locations of wetlands are land use factors that must be considered when directing incompatible land uses away from wetlands.
         2. Land uses must be distributed in a manner that minimizes the effect and impact on wetlands.
         3. The protection and conservation of wetlands by the direction of incompatible land uses away from wetlands must occur in combination with other principles, guidelines, standards, and strategies in the comprehensive plan.
         4. Where incompatible land uses are allowed to occur, mitigation must be considered as one means to compensate for loss of wetlands functions.
  4. The element must analyze current and projected needs and sources, for at least a 10-year period, based on the demands for industrial, agricultural, and potable water use and the quality and quantity of water available to meet these demands. (§163.3177(6)(d)3., F.S.)
     1. The analysis must consider the existing levels of water conservation, use, and protection and applicable policies of the regional water management district. (§163.3177(6)(d)3., F.S.)
     2. The analysis must also consider the appropriate regional water supply plan approved pursuant to s. 373.709, or, in the absence of an approved regional water supply plan, the district water management plan approved pursuant to s. 373.036(2). (§163.3177(6)(d)3., F.S.)
     3. This information must be submitted to the appropriate agencies. (§163.3177(6)(d)3., F.S.)
• Recreation and Open Space Element. The comprehensive plan must include a recreation and open space element indicating a comprehensive system of public and private sites for recreation, including, but not limited to, natural reservations, parks and playgrounds, parkways, beaches and public access to beaches, open spaces, waterways, and other recreational facilities. (§163.3177(6)(e), F.S.)
• Housing Element. The comprehensive plan must include a housing element. (§163.3177(6)(f), F.S.)
  1. The housing element must contain principles, guidelines, standards, and strategies to be followed in: (§163.3177(6)(f)1., F.S.)
     1. The provision of housing for all current and anticipated future residents of the jurisdiction.
     2. The elimination of substandard dwelling conditions.
     3. The structural and aesthetic improvement of existing housing.
     4. The provision of adequate sites for future housing, including affordable workforce housing as defined in s. 380.0651(3)(h), housing for low-income, very low-income, and moderate-income families, mobile homes, and group home facilities and foster care facilities, with supporting infrastructure and public facilities.
     5. Provision for relocation housing and identification of historically significant and other housing for purposes of conservation, rehabilitation, or replacement.
     6. The formulation of housing implementation programs.
     7. The creation or preservation of affordable housing to minimize the need for additional local services and avoid the concentration of affordable housing units only in specific areas of the jurisdiction.
     8. The previous references requiring consideration of energy efficiency and the use of renewable energy resources are deleted.
     9. The requirement of a separate affordable workforce housing plan in certain counties of previous §163.3177(6)(f)1.j., F.S., is deleted.
  2. The element may include provisions that specifically address affordable housing for persons 60 years of age or older. Real property that is conveyed to a local government for affordable housing under this sub-subparagraph must be disposed of by the local government pursuant to s. 125.379 or s. 166.0451. (§163.3177(6)(f)1.d., F.S.) [added by 2011-HB639]
  3. The guidelines, standards, and strategies must reflect, as needed: (§163.3177(6)(f)3., F.S.)
     1. the creation and preservation of affordable housing for all current and anticipated future residents of the jurisdiction,
     2. elimination of substandard housing conditions,
     3. adequate sites, and
     4. distribution of housing for a range of incomes and types, including mobile and manufactured homes.
  4. The element must provide for specific programs and actions to partner with private and nonprofit sectors to address housing needs in the jurisdiction, streamline the permitting process, and minimize costs and delays for affordable housing, establish standards to address the quality of housing, stabilization of neighborhoods, and identification and improvement of historically significant housing. (§163.3177(6)(f)3., F.S.)
  5. Data and analysis.
     1. The principles, guidelines, standards, and strategies of the housing element must be based on the data and analysis prepared on housing needs, including an inventory taken from the latest decennial United States Census or more recent estimates. (§163.3177(6)(f)2., F.S.)
     2. The data and analysis/inventory must include the number and distribution of dwelling units by type, tenure, age, rent, value, monthly cost of owner-occupied units, and rent or cost to income ratio, and must show the number of dwelling units that are substandard. (§163.3177(6)(f)2., F.S.)
     3. The inventory must also include the methodology used to estimate the condition of housing, a projection of the anticipated number of households by size, income range, and age of residents derived from the population projections, and the minimum housing need of the current and anticipated future residents of the jurisdiction. (§163.3177(6)(f)2., F.S.)
  6. State and federal housing plans prepared on behalf of the local government must be consistent with the goals, objectives, and policies of the housing element. (§163.3177(6)(f)4., F.S.)
  7. Local governments are encouraged to use job training, job creation, and economic solutions to address a portion of their affordable housing concerns. (§163.3177(6)(f)4., F.S.)
  8. The provisions of previous §163.3177(6)(f)2., addressing state conducted affordable housing needs assessments, are deleted.
• Coastal Management Element. The comprehensive plan in those local governments identified in §380.24 (which did not change) must include a coastal management element. (§163.3177(6)(g), F.S.)
  1. The element must be appropriately related to its conservation element and recreation and open space element. (§163.3177(6)(g), F.S.)
  2. The coastal management element must set forth the principles, guidelines, standards, and strategies that will guide the local government’s decisions and program implementation with respect to the following objectives: (§163.3177(6)(g), F.S.)
     1. Maintain, restore, and enhance the overall quality of the coastal zone environment, including, but not limited to, its amenities and aesthetic values.
     2. Preserve the continued existence of viable populations of all species of wildlife and marine life.
     3. Protect the orderly and balanced utilization and preservation, consistent with sound conservation principles, of all living and nonliving coastal zone resources.
     4. Avoid irreversible and irretrievable loss of coastal zone resources.
     5. Use ecological planning principles and assumptions in the determination of the suitability permitted development.
     6. Limit public expenditures that subsidize development in coastal high-hazard areas.
     7. Protect human life against the effects of natural disasters.
     8. Direct the orderly development, maintenance, and use of ports identified in s. 403.021(9) to facilitate deepwater commercial navigation and other related activities.
     9. Preserve historic and archaeological resources, which include the sensitive adaptive use of these resources.
  3. At the option of the local government, the coastal management element may include an adaptation action area designation for those low-lying coastal zones that are experiencing coastal flooding due to extreme high tides and storm surge and are vulnerable to the impacts of rising sea level. (§163.3177(6)(g)10., F.S.)
     1. Local governments that adopt an adaptation action area may consider policies within the coastal management element to improve resilience to coastal flooding resulting from high-tide events, storm surge, flash floods, stormwater runoff, and related impacts of sea level rise. (§163.3177(6)(g)10., F.S.)
     2. Criteria for the adaptation action area may include, but need not be limited to, areas for which the land elevations are below, at, or near mean higher high water, which have a hydrologic connection to coastal waters, or which are designated as evacuation zones for storm surge. (§163.3177(6)(g)10., F.S.)
  4. The element must meet the requirements of §163.3178(2), (§163.3177(6)(g), F.S.), which says the element must:
     1. Be based on studies, surveys, and data; (§163.3178(2), F.S.)
     2. Be consistent with coastal resource plans prepared and adopted pursuant to general or special law; and (§163.3178(2), F.S.)
     3. Contain: (§163.3178(2), F.S.)
        1. A land use and inventory map of existing coastal uses, wildlife habitat, wetland and other vegetative communities, undeveloped areas, areas subject to coastal flooding, public access routes to beach and shore resources, historic preservation areas, and other areas of special concern to local government.
        2. An analysis of the environmental, socioeconomic, and fiscal impact of development and redevelopment proposed in the future land use plan, with required infrastructure to support this development or redevelopment, on the natural and historical resources of the coast and the plans and principles to be used to control development and redevelopment to eliminate or mitigate the adverse impacts on coastal wetlands; living marine resources; barrier islands, including beach and dune systems; unique wildlife habitat; historical and archaeological sites; and other fragile coastal resources.
        3. An analysis of the effects of existing drainage systems and the impact of point source and nonpoint source pollution on estuarine water quality and the plans and principles, including existing state and regional regulatory programs, which must be used to maintain or upgrade water quality while maintaining sufficient quantities of water flow.
        4. A component which outlines principles for hazard mitigation and protection of human life against the effects of natural disaster, including population evacuation, which take into consideration the capability to safely evacuate the density of coastal population proposed in the future land use plan element in the event of an impending natural disaster. The Division of Emergency Management must manage the update of the regional hurricane evacuation studies, ensure such studies are done in a consistent manner, and ensure that the methodology used for modeling storm surge is that used by the National Hurricane Center.
        5. A component which outlines principles for protecting existing beach and dune systems from human-induced erosion and for restoring altered beach and dune systems.
        6. A redevelopment component which outlines the principles which must be used to eliminate inappropriate and unsafe development in the coastal areas when opportunities arise.
        7. A shoreline use component that identifies public access to beach and shoreline areas and addresses the need for water-dependent and water-related facilities, including marinas, along shoreline areas. Such component must include the strategies that will be used to preserve recreational and commercial working waterfronts as defined in s. 342.07.
        8. Designation of coastal high-hazard areas and the criteria for mitigation for a comprehensive plan amendment in a coastal high-hazard area as defined in subsection 163.3178(9), F.S. The coastal high-hazard area is the area below the elevation of the category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model. Application of mitigation and the application of development and redevelopment policies, pursuant to s. 380.27(2), and any rules adopted thereunder, must be at the discretion of local government.
        9. A component which outlines principles for providing that financial assurances are made that required public facilities will be in place to meet the demand imposed by the completed development or redevelopment. Such public facilities will be scheduled for phased completion to coincide with demands generated by the development or redevelopment.
        10. An identification of regulatory and management techniques that the local government plans to adopt or has adopted in order to mitigate the threat to human life and to control proposed development and redevelopment in order to protect the coastal environment and give consideration to cumulative impacts.
        11. A component which includes the comprehensive master plan prepared by each deepwater port listed in s. 311.09(1), which addresses existing port facilities and any proposed expansions, and which adequately addresses the applicable requirements of paragraphs (a)-(k) for areas within the port and proposed expansion areas. Such component must be submitted to the appropriate local government at least 6 months prior to the due date of the local plan and must be integrated with, and must meet all criteria specified in, the coastal management element. “The appropriate local government” means the municipality having the responsibility for the area in which the deepwater port lies, except that where no municipality has responsibility, where a municipality and a county each have responsibility, or where two or more municipalities each have responsibility for the area in which the deepwater port lies, “the appropriate local government” means the county which has responsibility for the area in which the deepwater port lies. Failure by a deepwater port which is not part of a local government to submit its component to the appropriate local government must not result in a local government being subject to sanctions pursuant to ss. 163.3167 and 163.3184. However, a deepwater port which is not part of a local government must be subject to sanctions pursuant to s. 163.3184.
  5. The element must meet the requirements of §163.3178(3). (§163.3177(6)(g), F.S.)
  6. The provisions of previous §163.3177(6)(g)2., F.S., addressing recreational surface water use policies, are deleted.
• Intergovernmental Coordination Element. The comprehensive plan must include a intergovernmental coordination element. (§163.3177(6)(h)1., F.S.)
  1. The element must show relationships and state principles and guidelines to be used in coordinating the adopted comprehensive plan: (§163.3177(6)(h)1., F.S.)
     1. with the plans of: (§163.3177(6)(h)1. and 2., F.S.)
        1. school boards,
        2. regional water supply authorities, and
        3. other units of local government providing services, but not having regulatory authority over the use of land,
     2. with the comprehensive plans of:
        1. adjacent municipalities,
        2. the county,
        3. adjacent counties, or
        4. the region,
     3. with the state comprehensive plan and
     4. with the applicable regional water supply plan,
     5. as the case may require and as such adopted plans or plans in preparation may exist.
  2. The element must:
     1. Demonstrate consideration of the particular effects of the adopted local plan on the development of adjacent municipalities, the county, adjacent counties, or the region, or upon the state comprehensive plan, as the case may require. (§163.3177(6)(h)1., F.S.)
     2. Ensure that the local government addresses, through coordination mechanisms, the impacts of development proposed in the local comprehensive plan upon development in adjacent municipalities, the county, adjacent counties, the region, and the state. (§163.3177(6)(h)3.a., F.S.)
        1. The area of concern for municipalities must include adjacent municipalities, the county, and counties adjacent to the municipality. (§163.3177(6)(h)(3)a., F.S.)
        2. The area of concern for counties must include all municipalities within the county, adjacent counties, and adjacent municipalities. (§163.3177(6)(h)3.a., F.S.)
     3. Provide procedures for identifying and implementing joint planning areas, especially for the purpose of annexation, municipal incorporation, and joint infrastructure service areas. (§163.3177(6)(h)1.a., F.S.)
     4. Provide for a dispute resolution process, as established pursuant to s. 186.509, for bringing intergovernmental disputes to closure in a timely manner. (§163.3177(6)(h)1.b., F.S.)
     5. Provide for interlocal agreements as established pursuant to s. 333.03(1)(b). (§163.3177(6)(h)1.c., F.S.)
     6. Describe joint processes for collaborative planning and decision-making on population projections and public school siting, the location and extension of public facilities subject to concurrency, and siting facilities with countywide significance, including locally unwanted land uses whose nature and identity are established in an agreement. (§163.3177(6)(h)2., F.S.)
     7. Ensure coordination in establishing level of service standards for public facilities with any state, regional, or local entity having operational and maintenance responsibility for such facilities. (§163.3177(6)(h)3.b., F.S.)
  3. Within 1 year after adopting their intergovernmental coordination elements, each county, all the municipalities within that county, the district school board, and any unit of local government service providers in that county must establish, by interlocal agreement or other formal agreement executed by all affected entities, the joint processes described in the statute consistent with their adopted intergovernmental coordination elements. (§163.3177(6)(h)3., F.S.)
  4. Deletions
     1. The requirement that the intergovernmental coordination element recognize campus master plans and airport master plans of previous §163.3177(6)(h)1.b., F.S., is deleted.
     2. The provisions of former §163.3177(6)(h)5.-7, concerning a report to the Department of Community Affairs on service deficiencies, are deleted.
• The provisions addressing public school facilities elements in former §163.3177(12), F.S., are deleted.
• The provisions defining consistency, as it relates to consistency of local comprehensive plans with the state comprehensive plan and appropriate regional policy plan, in former §163.3177(10)(a), F.S., are deleted. This deletion, coupled with the deletion of chapter 9J-5, F.A.C., eliminates the explicit definitions of the “compatible with” and “furthers” terms that are used in the “consistency” provision of §163.3194(3)(a), F.S., which was not deleted. See the updated Consistency with the comprehensive plan for more on the definition of consistency.
• The provisions in former §163.3177(10), F.S., addressing the rules of chapter 9J-5, are deleted.
• The community vision provisions of former §163.3177(13), F.S., are deleted.
• The urban service boundary provisions of former §163.3177(14), F.S., are deleted.

Process for review and adoption of plan amendments (§§163.3184 and 163.3187, F.S.)

This is a summary review of §§163.3184 and 163.3187, F.S., as amended in 2011 (by Sections 17 and 18 of Florida HB 7207). It addresses the process of amending the local comprehensive plan.

In this review, the language of the statute may be summarized, paraphrased, re-ordered, and/or reformatted, so refer to the full language of the bill or the official Florida Statutes for the actual statutory provisions.

1. Section 163.3184 is changed to direct how all plan amendments, except small-scale amendments, are processed. Section 163.3187 is changed from directing how all plan amendments are processed to just addressing the process for small-scale amendments.
2. A significant change is the deletion of the restriction limiting amendments of the comprehensive plan to no more than twice a year, from previous §163.3187(1)(a), F.S.
3. The definition of “in compliance” is amended to remove the reference to the state comprehensive plan and chapter 9J-5, Florida Administrative Code. (§163.3184(1)(b), F.S.)
4. A definition list of “reviewing agencies” is added. (§163.3184(1)(c), F.S.)
5. Expedited State Review Process. An expedited state review process, based on the previous §163.32465(2) pilot program, is added.
   1. All plan amendments, on a state-wide basis, must follow this expedited process except: in an area of critical state concern, that propose a rural land stewardship area or a sector plan, that update the comprehensive plan based on a § 163.3191 evaluation and appraisal, or that are for a new plan for a newly incorporated municipality. The exceptions must follow the “State coordinated review process” of §163.3184(4). (§163.3184(2) and (3)(a), F.S.)
   2. Qualifying small-scale development amendments may use the expedited process or the small scale process of §163.3187. (§163.3184(2)(b), F.S.)
   3. Reviewers’ commenting process (all new language, although some is borrowed).
      1. Within 10 days of the initial public hearing, the local government must transmit the proposed amendments, and appropriate supporting data and analyses, to the applicable “reviewing agencies” and any other local government or governmental agency that has filed a written request (“reviewers” for this discussion). (§163.3184(3)(b)1., F.S.)
      2. The reviewers must transmit their comments so they are received by the local government not later than 30 days from the date the reviewer received the plan amendment and must also send a copy of their comments to the state land planning agency. (§163.3184(3)(b)2., F.S.)
      3. The reviewers are limited in the allowable scope of their comments.
         1. State agencies may only comment on important state resources and facilities that would be adversely impacted by the amendment and must state their comments with specificity, identifying measures the local government may take to eliminate, reduce, or mitigate the adverse impacts. Such state agency comments, if not resolved, may result in a challenge by the state land planning agency to the plan amendment. (§163.3184(3)(b)2., F.S.)
      4. The Department of Environmental Protection must limit its comments to the subjects of air and water pollution; wetlands and other surface waters of the state; federal and state-owned lands and interests in lands; solid waste; water and wastewater treatment; and the Everglades ecosystem restoration. (§163.3184(3)(b)4.a., F.S.)
      5. The Department of State must limit its comments to the subjects of historic and archeological resources. (§163.3184(3)(b)4.b., F.S.)
      6. The Department of Transportation must limit its comments to issues within the agency’s jurisdiction related to transportation resources and facilities of state importance. (§163.3184(3)(b)4.c., F.S.)
      7. The Fish and Wildlife Conservation Commission must limit its comments to subjects relating to fish and wildlife habitat and listed species and their habitat. (§163.3184(3)(b)4.d., F.S.)
      8. The Department of Agriculture and Consumer Services must limit its comments to the subjects of agriculture, forestry, and aquaculture issues. (§163.3184(3)(b)4.e., F.S.)
      9. The Department of Education must limit its comments to the subject of public school facilities. (§163.3184(3)(b)4.f., F.S.)
      10. The appropriate water management district must limit its comments to flood protection and floodplain management, wetlands and other surface waters, and regional water supply. (§163.3184(3)(b)4.g., F.S.)
      11. The state land planning agency must limit its comments to important state resources and facilities outside the jurisdiction of other commenting state agencies and may include comments on countervailing planning policies and objectives served by the plan amendment that should be balanced against potential adverse impacts to important state resources and facilities.(§163.3184(3)(b)4.h., F.S.)
      12. The regional planning council comments are limited to adverse effects on regional resources or facilities identified in the strategic regional policy plan and extra-jurisdictional impacts that would be inconsistent with the comprehensive plan of any affected local government within the region. A regional planning council may not comment on a proposed plan amendment prepared by the council unless the plan amendment has been changed by the local government after it was prepared by the regional planning council. (§163.3184(3)(b)3.a., F.S.)
          
      13. County comments must be in the context of the relationship and effect of the proposed plan amendments on the county plan. (§163.3184(3)(b)3.b., F.S.)
      14. Municipal comments must be in the context of the relationship and effect of the proposed plan amendments on the municipal plan. (§163.3184(3)(b)3.c., F.S.)
      15. Military installation comments must follow §163.3175. (§163.3184(3)(b)3.d., F.S.)
6. The second public hearing, which is the hearing on whether or not to adopt the plan amendment, is held in the same manner as the non-expedited review second public hearing. (§163.3184(3)(c)1., F.S.)
7. If the local government fails to hold the second public hearing on the plan amendments, except those processed pursuant to §380.06, within 180 days after the receipt of the reviewers’ comments, the amendments must be deemed withdrawn, unless extended by agreement (the statute does not say between whom) with notice to the state land planning agency and any “affected person” who provided comments on the amendment. (§163.3184(3)(c)1., F.S.)
8. An adopted plan amendment, along with the supporting data and analysis, must be transmitted within 10 days after the second public hearing to the state land planning agency and any timely commenting reviewers. (§163.3184(3)(c)2., F.S.)
   1. The transmitted amendment package must be “complete.” To be complete, an amendment must contain:
      1. a full, executed copy of the adoption ordinance;
      2. in the case of a text amendment, a full copy of the amended language in legislative format with new words inserted in the text underlined, and words deleted stricken with hyphens;
      3. in the case of a future land use map amendment, a copy of the future land use map clearly depicting the parcel, its existing future land use designation, and its adopted designation; and
      4. a copy of any data and analyses the local government deems appropriate. (§163.3184(3)(c)3., F.S.)
9. The state land planning agency must notify the local government of any deficiencies within five working days after the receipt of a complete amendment package. (§163.3184(3)(c)3., F.S.)
10. An amendment adopted under this process that is not challenged, in a timely manner, becomes effective 31 days after the state land planning agency notifies the local government that the plan amendment package is complete. (§163.3184(3)(c)4., F.S.)
11. If timely challenged, an amendment does not become effective until the state land planning agency or the Administration Commission enters a final order determining the adopted amendment to be in compliance. (§163.3184(3)(c)4., F.S.)
    

• State Coordinated Review Process.
  1. All comprehensive plans or plan amendments that aren’t reviewed under the expedited or small-scale review process are reviewed through this process. (§163.3184(4)(a), F.S.)
  2. The state land planning agency is responsible for plan review, coordination, and the preparation and transmission of comments to the local government for this type of review. (§163.3184(4)(a), F.S.)
  3. Local government transmittal. Immediately following the first public hearing on a comprehensive plan or plan amendment under this process, the local government must transmit the plan amendment, clearly identified as being under this type of review, to the “reviewing agencies” and any other unit of local government or government agency in the state that has so requested by written request. (§163.3184(4)(b), F.S.)
     1. The previous language of §163.3184(3)(b), F.S., about what materials should be sent to what agency, is deleted.
     2. The previous language of §163.3184(3)(d), F.S., about what constitutes an amendment cycle, is deleted.
  4. Reviewers’ comments. The reviewing agencies comments and any other commenter (except the state land planning agency) are to be made in the same manner and with the same restrictions as for the expedited state review process except any comments must be sent by the agencies to the state land planning agency within 30 days after the state land planning agency received the complete proposed plan or plan amendment from the local government. (§163.3184(4)(c), F.S.)
     1. The previous language of §163.3184(5), F.S., about the review by the regional planning council, any county, or any municipality, is deleted, as that was indicated (in substantially similar language) in the expedited review process and applied by reference.
  5. Written comments submitted by the public are to be sent directly to the local government. (§163.3184(4)(c), F.S.)
  6. The state land planning agency review.
     1. If the state land planning agency elects to review a plan or plan amendment submitted through this process, the agency must issue a report giving its objections, recommendations, and comments (“ORC report”) within 60 days after the receipt of the plan or plan amendment. (§163.3184(4)(d)1., F.S.)
     2. Notwithstanding the limitations on comments by the state land planning agency indicated in the expedited process, the state land planning agency may make objections, recommendations, and comments in its report regarding whether the plan or plan amendment is in compliance and/or will adversely impact important state resources and facilities. (§163.3184(4)(d)1., F.S.)
        1. Although the enrolled version of the adopting bill indicates sub-subparagraph (3)(b)4.g., it is assumed the reference was supposed to be to (3)(b)4.h. instead, since that is the one that speaks to the state land planning agency comment limitations.
     3. The state land planning agency, in conducting its review of local plans or plan amendments, may make objections, recommendations, and comments regarding densities and intensities consistent with the provisions of the statute. (§163.3184(4)(d)1., F.S.)
     4. Any objection that says the plan or plan amendment will adversely impact an important state resource or facility must specify how the important state resource or facility will be impacted and identify measures the local government may take to eliminate, reduce, or mitigate the adverse impacts. (§163.3184(4)(d)1., F.S.)
     5. In preparing its comments, the state land planning agency must only base its considerations on written, and not oral, comments. (§163.3184(4)(d)1., F.S.)
     6. The state land planning agency review must identify all written communications with the agency regarding the proposed plan amendment. The written identification must include a list of all documents received or generated by the agency, which list must be of sufficient specificity to enable the documents to be identified and copies requested, if desired, and the name of the person to be contacted to request copies of any identified document. (§163.3184(4)(d)2., F.S.)
     7. The previous language of §163.3184(6)(a), F.S., about the review by the state land planning agency at the request of a regional planning council, affected person, or local government, is deleted
     8. The previous language of §163.3184(6)(b), F.S., about the state land planning agency being able to review any proposed plan amendment if notice is provided to the local government, is deleted
  7. When a federal, state, or regional agency has implemented a permitting program, a local government is not required to duplicate or exceed that permitting program in its comprehensive plan or to implement such a permitting program in its land development regulations. (§163.3184(4)(d)1., F.S.)
     1. The presence of substantially the same language in §163.3177(1)(e), F.S., which addresses the requirements of comprehensive plans, indicates this provision has wider application than just the state land planning agency review of plan amendments.
  8. Local government review of comments. The local government must review the report submitted to it by the state land planning agency, if any, and any written comments submitted to it by any other person, agency, or government. (§163.3184(4)(e)1., F.S.)
  9. Adoption of the comprehensive plan or plan amendment. Upon receipt of the report from the state land planning agency, the local government must hold the decision public hearing, to adopt or not adopt the plan or plan amendment, pursuant to the provisions of subsection 163.3184(11). Except plan amendments processed pursuant to the DRI process, if the hearing is not held within 180 days after receipt of the state land planning agency’s report, the amendments will be deemed withdrawn, unless extended by agreement (between the applicant and the local government?) with notice to the state land planning agency and any “affected person” that provided comments. (§163.3184(4)(e)1., F.S.)
  10. Transmittal.
      1. All comprehensive plan amendments adopted by the governing body, along with the supporting data and analysis, must be transmitted within 10 days after the second public hearing to the state land planning agency and any other agency or local government that provided timely comments. (§163.3184(4)(e)2., F.S.)
      2. The state land planning agency must notify the local government of any completeness deficiencies within 5 working days after receipt of a plan or plan amendment package. What constitutes a “complete” package is the same as required for the expedited review process. (§163.3184(4)(e)3., F.S.)
  11. After the state land planning agency makes a completeness determination, the agency has 45 days to determine if the plan or plan amendment is in compliance with the Community Planning Act. (§163.3184(4)(e)4., F.S.)
      1. Unless the plan or plan amendment is substantially changed from the one commented on, the state land planning agency’s compliance determination is limited to objections raised in the “ORC” report. (§163.3184(4)(e)4., F.S.)
      2. Within the 45 day determination period, a senior administrator or the secretary of the state land planning agency must issue a notice of intent to find that the plan or plan amendment is or is not in compliance. (§163.3184(4)(e)4., F.S.)
      3. A copy of the notice of intent must be posted on the state land planning agency’s Internet website. This publication of the notice of intent on the state land planning agency’s Internet site is prima facie evidence of compliance with the publication requirements. (§163.3184(4)(e)4., F.S.)
  12. Effective date.
      1. A plan or plan amendment adopted under the state coordinated review process goes into effect pursuant to the state land planning agency’s notice of intent. (§163.3184(4)(e)5., F.S.)
      2. If timely challenged, an amendment does not become effective until the state land planning agency or the Administration Commission enters a final order determining the adopted amendment to be in compliance. (§163.3184(4)(e)5., F.S.)

• Administrative challenges to comprehensive plans and plan amendments. (all new language)
  1. This process replaces the provisions of §163.3184(9) and (10)
  2. Any “affected person” (the definition of which did not change) may file a petition with the Division of Administrative Hearing, pursuant to ss. 120.569 and 120.57, with a copy served on the affected local government, within 30 days after the local government adopts the plan or amendment, to request a formal hearing to challenge whether the plan or plan amendments are “in compliance,” as defined in the section. (§163.3184(5)(a), F.S.)
     1. The state land planning agency may not intervene in this proceeding. (§163.3184(5)(a), F.S.)
     2. Due to the timing deadlines, an affected person wishing to file may not know the state land planning agency’s decision on whether the amendment is in compliance before the filing deadline.
  3. The state land planning agency may file a petition with the Division of Administrative Hearings, pursuant to ss. 120.569 and 120.57, with a copy served on the affected local government, to request a formal hearing to challenge whether the plan or plan amendments are “in compliance,” as defined in the section. (§163.3184(5)(b), F.S.)
     1. The agency’s petition must clearly state the reasons for the challenge.
     2. Under the expedited state review process, the petition must be filed with the division within 30 days after the state land planning agency notifies the local government the plan amendment package is “complete.” (§163.3184(5)(b), F.S.)
     3. Under the state coordinated review process, the petition filing deadline is 45 days after the state land planning agency notifies the local government that the plan amendment package is “complete.” (§163.3184(5)(b), F.S.)
     4. The agency’s challenge to a plan amendment adopted under the expedited state review process is limited to the comments provided by the reviewing agencies, upon a determination by the state land planning agency that an important state resource or facility will be adversely impacted by the adopted plan amendment. (§163.3184(5)(b)1., F.S.)
        1. The petition must state with specificity how the plan amendment will adversely impact the important state resource or facility. (§163.3184(5)(b)1., F.S.)
        2. The agency may challenge a plan amendment that has substantially changed from the version on which the agencies commented but only upon a determination by the state land planning agency that an important state resource or facility will be adversely impacted. (§163.3184(5)(b)1., F.S.)
  4. If the state land planning agency issues a notice of intent to find the comprehensive plan or plan amendment not in compliance with this act, the notice of intent must be forwarded to the Division of Administrative Hearings, which will conduct a proceeding under ss. 120.569 and 120.57 in the county of and convenient to the affected local jurisdiction. (§163.3184(5)(b)2., F.S.)
     1. The parties to the proceeding will be the state land planning agency, the affected local government, and any affected person who intervenes. (§163.3184(5)(b)2., F.S.)
     2. No new issue may be alleged as a reason to find a plan or plan amendment not in compliance in an administrative pleading filed more than 21 days after publication of notice unless the party seeking that issue establishes good cause for not alleging the issue within that time period. Good cause does not include excusable neglect. (§163.3184(5)(b)2., F.S.)
  5. The hearing on whether the plan or plan amendment is in compliance will be held by an administrative law judge in the affected local jurisdiction. (§163.3184(5)(c), F.S.)
     1. In challenges filed by an affected person, the comprehensive plan or plan amendment must be determined to be in compliance if the local government’s determination of compliance is fairly debatable. (§163.3184(5)(c)1., F.S.)
     2. In challenges filed by the state land planning agency, the local government’s determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct and the local government’s determination will be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance. (§163.3184(5)(c)2.a., F.S.)
     3. In challenges filed by the state land planning agency, the local government’s determination that elements of its plan are related to and consistent with each other will be sustained if the determination is fairly debatable. (§163.3184(5)(c)2.b., F.S.)
     4. In challenges filed by the state land planning agency that require a determination by the agency that an important state resource or facility will be adversely impacted by the adopted plan or plan amendment, the local government may contest the agency’s determination of an important state resource or facility. The state land planning agency must prove its determination by clear and convincing evidence. (§163.3184(5)(c)3., F.S.)
  6. Administrative law judge recommendation and final agency action.
     1. If the administrative law judge recommends that the amendment be found not in compliance, the judge must submit the recommended order to the Administration Commission for final agency action. The Administration Commission must enter a final order within 45 days after its receipt of the recommended order. (§163.3184(5)(d), F.S.)
     2. If the administrative law judge recommends that the amendment be found in compliance, the judge must submit the recommended order to the state land planning agency. (§163.3184(5)(d), F.S.)
        1. If the state land planning agency determines that the plan amendment should be found not in compliance, the agency must refer, within 30 days after receipt of the recommended order, the recommended order and its determination to the Administration Commission for final agency action. (§163.3184(5)(d)1., F.S.)
        2. If the state land planning agency determines that the plan amendment should be found in compliance, the agency must enter its final order not later than 30 days after receipt of the recommended order. (§163.3184(5)(d)2., F.S.)
• Compliance Agreements
  1. The provisions are new language that replace, and borrow heavily from, the previous §163.3184(16), F.S., which is deleted.
  2. At any time after the filing of a challenge, the state land planning agency and the local government may voluntarily enter into a compliance agreement to resolve one or more of the issues raised in the proceedings. Affected persons who have initiated a formal proceeding or have intervened in a formal proceeding may also enter into a compliance agreement with the local government. (§163.3184(6)(a), F.S.)
  3. All parties granted intervenor status must be provided reasonable notice (the statute doesn’t say by whom) of the commencement of a compliance agreement negotiation process and a reasonable opportunity to participate in such negotiation process. (§163.3184(6)(a), F.S.)
  4. Negotiation meetings with local governments or intervenors are open to the public. (§163.3184(6)(a), F.S.)
  5. The compliance agreement must list each portion of the plan or plan amendment that has been challenged and specify remedial actions the local government has agreed to complete within a specified time to resolve the challenge, including adoption of all necessary plan amendments. (§163.3184(6)(a), F.S.)
  6. The compliance agreement may also establish monitoring requirements and incentives to ensure that the conditions of the compliance agreement are met. (§163.3184(6)(a), F.S.)
  7. Before its execution of a compliance agreement, the local government must approve the compliance agreement at a public hearing advertised at least 10 days before the public hearing in a newspaper of general circulation in the area, in accordance with the advertisement requirements of chapter 125 or chapter 166, as applicable. (§163.3184(6)(c), F.S.)
  8. The local government must hold a single public hearing for adopting remedial amendments. (§163.3184(6)(d), F.S.)
  9. The state land planning agency must provide each party granted intervenor status a copy of the compliance agreement within 10 days after the agreement is executed. (§163.3184(6)(a), F.S.)
  10. Upon the filing of a compliance agreement, executed by the parties to the challenge and the local government, with the Division of Administrative Hearings, any administrative proceeding under ss. 120.569 and 120.57 on the plan or plan amendment covered by the compliance agreement must be stayed. (§163.3184(6)(b), F.S.)
  11. For challenges to amendments adopted under the expedited review process, if the local government adopts a comprehensive plan amendment pursuant to a compliance agreement, an affected person or the state land planning agency may file a revised challenge with the Division of Administrative Hearings within 15 days after the adoption of the remedial amendment. (§163.3184(6)(e), F.S.)
  12. For challenges to amendments adopted under the state coordinated process, the state land planning agency, upon receipt of a plan or plan amendment adopted pursuant to a compliance agreement, will issue a cumulative notice of intent addressing both the remedial amendment and the plan or plan amendment that was the subject of the agreement. (§163.3184(6)(f), F.S.)
      1. If the local government adopts a comprehensive plan or plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment in compliance is issued, the state land planning agency will forward the notice of intent to the Division of Administrative Hearings and the administrative law judge will realign the parties in the pending proceeding. The proceeding will then be governed by the “affected person” provisions contained in paragraph (5)(a) and subparagraph (5)(c)1. (§163.3184(6)(f)1., F.S.)
      2. Parties to the original proceeding at the time of realignment may continue as parties without being required to file additional pleadings to initiate a proceeding, but may timely amend their pleadings to raise any challenge to the amendment that is the subject of the cumulative notice of intent, and must otherwise conform to the rules of procedure of the Division of Administrative Hearings. (§163.3184(6)(f)1., F.S.)
      3. Any affected person not a party to the realigned proceeding may challenge the plan amendment that is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (5). The agency will forward the petition filed by the affected person not a party to the realigned proceeding to the Division of Administrative Hearings for consolidation with the realigned proceeding. (§163.3184(6)(f)1., F.S.)
      4. If the cumulative notice of intent is not challenged, the state land planning agency must request that the Division of Administrative Hearings relinquish jurisdiction to the state land planning agency for issuance of a final order. (§163.3184(6)(f)1., F.S.)
      5. If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent is issued that finds the plan amendment not in compliance, the state land planning agency must forward the notice of intent to the Division of Administrative Hearings, which will consolidate the proceeding with the pending proceeding and immediately set a date for a hearing in the pending proceeding under ss. 120.569 and 120.57. (§163.3184(6)(f)2., F.S.)
      6. Affected persons who are not a party to the underlying proceeding under ss. 120.569 and 120.57 may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to paragraph (5)(a). (§163.3184(6)(f)1., F.S.)
  13. The compliance agreement provisions do not prohibit a local government from amending portions of its comprehensive plan other than those that are the subject of a challenge. However, such amendments to the plan may not be inconsistent with the compliance agreement. (§163.3184(6)(g), F.S.)
  14. The compliance agreement provisions do not require settlement by any party against its will or preclude the use of other informal dispute resolution methods in the course of or in addition to the method described in this subsection. (§163.3184(6)(h), F.S.)
• Mediation and expeditious resolution.
  1. At any time after the administrative challenge has been forwarded to the Division of Administrative Hearings, the local government proposing the amendment may demand formal mediation, informal mediation, or expeditious resolution of the amendment proceedings. An affected person who is a party to the proceeding may demand informal mediation or expeditious resolution of the amendment proceedings. The demands are made by serving written notice on the state land planning agency, if the agency is a party to the proceeding, all other parties to the proceeding, and the administrative law judge. (§163.3184(7)(a), F.S.)
  2. Upon receipt of a notice of such a demand, the administrative law judge must set the matter for final hearing no more than 30 days after receipt of the notice. Once a final hearing has been set, no continuance in the hearing, and no additional time for post-hearing submittals, may be granted without the written agreement of the parties absent a finding by the administrative law judge of extraordinary circumstances. Extraordinary circumstances do not include matters relating to workload or need for additional time for preparation, negotiation, or mediation. (§163.3184(7)(b), F.S.)
     1. This provision seems to only apply to the demand for expeditious resolution (especially in light of the tight time frame and the last word of the last sentence), not the demands for formal or informal mediation, even though it purports to apply to all.
  3. Absent a showing of extraordinary circumstances, in an administrative challenge case, the administrative law judge must issue a recommended order within 30 days after filing of the transcript, unless the parties agree in writing to a longer time. (§163.3184(7)(c), F.S.)
  4. Absent a showing of extraordinary circumstances, in an administrative challenge case, the Administration Commission must issue a final order within 45 days after the issuance of the recommended order, unless the parties agree in writing to a longer time. (§163.3184(7)(d), F.S.)
• Administration Commission
  1. The provisions of former subsection (11), now subsection (8), are substantially unchanged, with mainly changes to reflect the new cross references.
  2. One substantive change is to clarify that the sanctions the commission may specify are those to which the local government will be subject if it elects to make the plan amendment effective notwithstanding the determination of noncompliance. (§163.3184(8)(b), F.S.)
• The Good Faith Filing and Exclusive Proceedings provisions of former subsections (12) and (13), respectively, now subsections (9) and (10), respectively, are unchanged.
• Public Hearings
  1. The provisions of former subsection (15), now subsection (11), are substantially unchanged, with mainly changes to reflect the new cross references and cross references to the notice being published pursuant to the relevant provisions of chapter 125 for counties or chapter 166 for municipalities.
  2. One change is to move the language from previous §163.3187(5), F.S. that says nothing in the provisions is intended to prohibit or limit the authority of local governments to require an amendment applicant to pay some or all of the cost of the public notice. (§163.3184(11)(c), F.S.)
• Process for adoption of small-scale comprehensive plan amendments. (§163.3187)
  1. An allowed small-scale amendment is a future land use map amendment for a site-specific small scale development activity of 10 acres or fewer acres, where the annual cumulative acres of small scale amendments by that local government is not in excess of 120 acres and the amendment property is not located within an area of critical state concern (with limited exceptions). (§163.3187(1), F.S.)
     1. A text change that relates directly to the small scale land use map amendment may be adopted simultaneously. (§163.3187(1)(c), F.S.)
     2. The provisions of previous §163.3187(c)1.a.(I) – (III), F.S., which varied the maximum acreage by specific types of areas or factors in the jurisdiction, are deleted.
     3. The provisions of previous §163.3187(c)1.f., F.S., addressing limitations on small scale amendments involving residential land uses, are deleted.
  2. The provisions of previous §163.3187(c)2.a., F.S., addressing public notice requirements, are deleted.
  3. The provisions requiring only one public hearing for the adoption of a small scale amendment remain, with minor modifications. (§163.3187(2), F.S.)
  4. The provisions allowing a doubling of the 10-acre limit for small scale amendment in a rural area of critical economic concern, in certain circumstances, remain, with minor modifications. (§163.3187(3), F.S.)
  5. Any affected person may file a petition to challenge the compliance of a small scale amendment under essentially the same provisions as the previous wording except the local government’s compliance determination, although no longer presumed to be correct, only needs to be shown to be fairly debatable and the state land planning agency may not intervene in a small scale amendment challenge. (§163.3187(5)(a), F.S.)
  6. The provisions of §163.3187(5)(b), F.S., addressing the actions by the administrative law judge and the final agency action on challenges of small scale amendments, are essentially unchanged.
  7. The effective date provisions are essentially unchanged. (§163.3187(5)(c), F.S.)
  8. A new provision was added which say, in all challenges of small scale amendments, in making a determination of compliance, consideration must be given to the plan amendment as a whole and whether the plan amendment furthers the intent of the statute. (§163.3187(5)(d), F.S.)
• Concurrent zoning. The provisions of former §163.3184(3)(e), F.S., allowing the concurrent enactment of necessary zoning changes with plan amendment adoption, are moved, with minor amendments, to subsection 163.3184(12).
• Effectiveness of plan amendments in Areas of Critical State Concern. The provisions of former §163.3184(14), F.S., stating an plan amendment applicable to a designated area of critical state concern will not be effective until a final order is issued finding the plan “in compliance,” are moved, with minor amendments, to subsection (13).
• Subsection 163.3187(4) preserves the requirement that comprehensive plans may only be amended in such a way as to preserve the internal consistency of the plan. Because this provision is now under the small amendments section, rather than the general plan amendment section it was previously, it is not clear if the admonition only applies to small scale amendments or to all plan amendments.
• The provisions of former §163.3184(15)(c) and (d), F.S., addressing sign-in forms at the transmittal and adoption hearings, are deleted.
• The provisions of former §163.3184(15)(e), F.S., requiring plan amendments that change the actual list of allowable uses to be noticed in the same manner as an amendment to a land development regulations ordinance that does the same, are deleted.
• The provisions of former §163.3184(17), (18), and (19), F.S., addressing community vision and urban boundary plan amendments, urban infill and redevelopment plan amendments, and housing incentive strategy plan amendments, respectively, are deleted.
• The provisions of former §163.3187(4), F.S., requiring transmittal of copies of all plan amendments to the state land planning agency for the purpose of keeping the state files up to date, are deleted.
• The provisions of former §163.3187(6), F.S., addressing plan amendments relative to evaluation and appraisal reports, are deleted.
• The provisions of previous §163.3187(1)(d)-(q), F.S., addressing various exceptions to the limit on the frequency of adoption, are deleted.

Evaluation and appraisal review (§163.3191, F.S.)

This is a review of §163.3191, F.S., as amended in 2011 (by section 20 of Florida HB 7207, chapter 2011-139, Laws of Florida (2011)). In this review, the language of the statute may be summarized, paraphrased, re-ordered, and/or reformatted, so refer to the full language of the bill or the official Florida Statutes for the actual statutory provisions. See here – Evaluation and appraisal review – for an unofficial version of the language from the bills integrated into the previous statute provisions.

• This section was completely rewritten, with almost all of the previous provisions deleted. The new provisions shift the evaluation and appraisal process from a formal mandated audit report scrutinized by the state land planning agency to a less formal review of whether changes are needed to meet state law and to reflect the local assessment of needed changes.
• At least once every 7 years, each local government must evaluate its comprehensive plan to determine if plan amendments are necessary to reflect changes in state requirements and notify the state land planning agency of its determination. (§163.3191(1), F.S.)
• If the determination is that plan amendments are necessary, the local government must prepare and transmit the needed plan amendments for review, pursuant to §163.3184, within one year. (§163.3191(2), F.S.)
• If a local government fails to submit its evaluation letter or update its plan within the timeframes, it may not amend its comprehensive plan until it complies with these requirements. (§163.3191(4), F.S.)
• Local governments are encouraged to comprehensively evaluate and, as necessary, update comprehensive plans to reflect changes in local conditions. (§163.3191(3), F.S.)
• The statute prohibits the state land planning agency from adopting rules to implement this section, other than procedural rules or a schedule indicating when local governments must comply with the requirements of the section. (§163.3191(5), F.S.)
• All local governments are governed by these revised provisions, notwithstanding a local government’s previous failure to timely adopt its evaluation and appraisal report or evaluation and appraisal report-based amendments by the due dates previously established by the state land planning agency. (§ 75, HB 7207)

2011 Revisions to Florida’s Planning/Development Regulation Acts

NOTE: See the Summary of 2012 Florida Legislative Changes Related to Land Development Regulations article for information on 2012 legislative changes.

Governor Scott signed House Bill 7207 on June 2, 2011, which is the bill that makes the largest number of changes to Florida’s growth management statutes (and administrative rules). This bill, with several others, makes the broadest and most significant changes to Florida’s growth management/planning/land development statutes seen in over twenty-five years.

Click this link – HB 7207 enrolled– for a PDF copy of House Bill 7207 and here – Chapter 2011-139 Laws of Florida – for the official Laws of Florida version. Be warned – they are long and may take a while to load.

Other bills also make changes to chapters 163 and 380, F.S., the two major planning/development regulation chapters. These other bills are:

• HB 0639 (This is a PDF of the law – Laws of Florida 2011-189 (HB 639).) 
• HB 0879 (This is a PDF of the law – Laws of Florida 2011-223 (HB 879).)
• SB 0944 (This is a PDF of the law – 2011-4.)
• SB 1204 (This is a PDF of the law 2011-34.)
• SB 2156 (This is a PDF of the law – Chapter 2011-142 Laws of Florida) This is the government reorganization bill that shifts around different state agency functions (including growth management).

The bills also include other provisions that have nothing to do with chapters 163 or 380, so you may need to do some wading to find what you are looking for.

I have written an overall summary review of some of the major changes to the growth management laws and individual reviews of the sections of Part II of chapter 163 with major changes. Click the links below for the review articles:

• Overall summary of some of the major changes to the Florida growth management statutes
• Public schools interlocal agreements
• Planning innovations
• Requirements for Florida comprehensive plans
• Concurrency
• Process for review and adoption of plan amendments
• Evaluation and appraisal review article
• Sector plans article
• Rural Land Stewardship Area article
• Other, nonstatute, changes made by HB 7207

This is a list of the sections of Part II of chapter 163, F.S., with the status of the sections under the legislative changes and related review articles available.

• 163.2511 – Unchanged
• 163.2514 – Unchanged
• 163.2517 – Minor changes
• 163.2520 – Unchanged
• 163.2523 – Unchanged
• 163.3161 – Short title; intent and purpose. See article on Intent and Purposes
• 163.3162 – Minor changes
• 163.3164 Definitions. See article Definitions from Florida Statutes Relevant to LDRs
• 163.3167 Scope of act. See article on Intent and Purposes
• 163.3168     Planning Innovations. See the Planning Innovations article
• 163.3171 – Minor changes
• 163.3174 – Minor changes
• 163.3175 – Minor changes
• 163.3177 Required and optional elements of comprehensive plan; studies and surveys. See the Requirements for Florida comprehensive plans article
• 163.31771 – Minor changes
• 163.31777 Public schools interlocal agreement. See article
• 163.3178 – Minor changes
• 163.3179 – Unchanged
• 163.3180 Concurrency. See the Concurrency article
• 163.31801 – Part reenacted, without changes
• 163.31802 – Part reenacted, without changes
• 163.3181 – Unchanged
• 163.3182 Transportation concurrency backlogs. See the Concurrency article
• 163.3184 Process for adoption of comprehensive plan or plan amendment. – See the Process for review and adoption of plan amendments article
• 163.3187 Amendment of adopted comprehensive plan – See the Process for review and adoption of plan amendments article
• 163.3189 – Deleted
• 163.3191 Evaluation and appraisal of comprehensive plan – See the Evaluation and appraisal review article
• 163.3194 – Unchanged
• 163.3197 – Unchanged
• 163.3201 – Unchanged
• 163.3202 – Part reenacted, without changes
• 163.3204 – Unchanged
• 163.3208 – Unchanged
• 163.3209 – Unchanged
• 163.3211 – Unchanged
• 163.3213 – Unchanged
• 163.3215 – Unchanged
• 163.3217 – Minor changes
• 163.3220 – Minor changes
• 163.3221 – Minor changes
• 163.3223 – Unchanged
• 163.3225 – Unchanged
• 163.3227 – Unchanged.
• 163.3229 – Minor changes
• 163.3231 – Unchanged
• 163.3233 – Unchanged
• 163.3235 – Minor changes
• 163.3237 – Unchanged
• 163.3239 – Minor changes
• 163.3241 – Unchanged
• 163.3243 – Minor changes
• 163.3245  Sector plans – See the Sector plans article
• 163.3246 – Minor changes
• 163.32465 – Deleted
• 163.3247 – Minor changes
• 163.3248     Rural land stewardship areas – See the Rural Land Stewardship Area article

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

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

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

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

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

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

Role of Comprehensive Plan

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

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

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

Role of the Land Development Regulations

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

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

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

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

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

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

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

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

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

Consistency in the real world

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So What

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

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

---

Endnotes

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

Consistency with the Comprehensive Plan

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

Consistency is required.

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

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

Definition of Consistency

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Level of Review – Strict Scrutiny

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

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

Consistency of Land Development Regulations with Comprehensive Plan

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

Consistency of Development Orders with Comprehensive Plan

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

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

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

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

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

Timing of Adoption of Land Development Regulations

UPDATED TO ADDRESS THE 2011 LEGISLATIVE AMENDMENTS.

Timing is everything. For land development regulation adoptions, as well as many other things.

All too often, comprehensive plans get amended and nothing is done to amend the land development regulations that are needed to implement the changes. Lack of staff time and competing priorities are always issues, but, according to the statutes and at least one case, are not sufficient excuses.

It isn’t enough to adopt an amendment to a comprehensive plan and then just implement the amendment by directly regulating development on a case by case basis (under the requirement that all development orders must be consistent with the comprehensive plan (§163.3194(1)(a), F.S.)), while also maintaining conflicting land development regulations. Section 163.3194(1)(b), Florida Statutes, say that any existing land development regulations that are not consistent with the adopted comprehensive plan or plan amendment must be amended so as to make them consistent. So it must be done, but this is where the timing comes in.

The next part of §163.3194(1)(b), Florida Statutes, says that, if there is an inconsistent existing land development regulation still in effect, the local government must “adopt a schedule for bringing the land development regulation into conformity ….” But how long can that “schedule” extend? One year, according to another statutory section, §163.3202(1), F.S., (“Within 1 year after submission of its revised comprehensive plan for review pursuant to s. 163.3167(2), each county and each municipality shall adopt or amend and enforce land development regulations that are consistent with and implement their adopted comprehensive plan.”).

The one year time frame is confirmed by the case of Alexander v. Town of Jupiter, 640 So.2d 79 (Fla. 4^th DCA 1994). In that case, the court said that, given the statutory one year time frame, which the court called a “standard of reasonableness of delay in resolving zoning/plan inconsistencies,” Alexander at 83, the several years the Town of Jupiter took to resolve an inconsistency between its comprehensive plan and its land development regulations was arguably beyond normal delay.

What happens if the land development regulations are not amended within one year. In many cases, probably nothing. But there is the risk that the Department of Economic Opportunity (formerly the Department of Community Affairs) will act under its authority, under §163.3202(4), F.S., to find that the local government has failed to adopt the required regulations and file an action in circuit court to require the adoption. There is also the risk that some affected party will bring a suit against the jurisdiction for issuing a development order, such as one that is consistent with the existing land development regulations, but not the comprehensive plan, or for not issuing a development order, such as the temporary takings case brought in Alexander.

Perhaps the most important repercussion of not promptly amending the land development regulations is that the comprehensive plan amendment doesn’t get implemented in a timely way. If all the time and effort is put into amending the comprehensive plan and it is adopted, it is only reasonable to believe there must be something important to the community that should be properly, and promptly, implemented.

So timing is everything. Not just to prevent the bad stuff, but also to implement the good.

Make them the star – why land development regulations are (the most) important.

Florida is a state that, despite some fears about the 2011 amendments to the planning/growth management provisions in the Florida Statutes, has a strong emphasis on planning and land regulation; one of the strongest in the nation. But how to translate that strong emphasis into a functioning reality is the real issue.

I believe that, in the translation of that planning emphasis, each local government’s land development regulations are the most important part of the land planning and regulating effort. Comprehensive planning gets all the attention from the planners and the individual applications get the attention from everyone else, but it’s the land development regulations that should be the star.

What good is comprehensive planning if there aren’t regulations to implement it? How can individual applications be decided fairly and consistently if there aren’t good regulations to guide the decisions? The land development regulations (aka: the zoning code, the land development code) are where the rubber meets the road, where the real world happens. If they don’t work well, the objectives of the planning and the intentions of the regulating don’t get implemented. Good planning decisions are dependent on good planning regulations.

But, more often than not, the land development regulations are relegated to the background. The writing of them is often viewed as not as important as other tasks and is left up to people who don’t have the information or support they need for the job. Because codes often have regulations that are internally inconsistent, confusing, or don’t fit the jurisdiction’s situation, the exact wording is interpreted or glossed over to make it work, or ignored all together.

For those that need to use the regulations – whose property is being controlled by the regulations – poorly drafted, confusing, or improperly grounded land development regulations leave them without any idea what the rules are and what they are supposed to do, or not do. These property owners’ representatives sometimes have only a moderately greater knowledge of the details of the code or believe that the details of the regulations are not where they need to focus their attention, often resorting to political solutions instead.

Citizens that wish to address individual applications are often intimidated by the sheer size of the code or confusing terms and, rather than the code being a resource they can use to make their points, it is ignored in favor of tried and true methods such as packing the room with opponents or presenting multi-page petitions. The decision-makers often aren’t much better off and, without clear procedures and standards, fall back on gauging the amount of opposition, acting on their personal feelings about the matter, or making the most politically expedient decisions.

The purpose of this web site is to try to help change the perceptions and the function of Florida’s land development regulations. I hope that, through the information and resources provided here, with thoughts, comments, and questions from you, we can start to turn around how land development regulations are perceived and how they work – to make them the star they deserve to be.

Authority to Regulate Land – Giving Power and Responsibility

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

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

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

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

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

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

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

Implementing the Comprehensive Plan Through Land Development Regulations

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

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

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

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

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

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

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

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