What is compatibility?

UPDATED TO REFLECT THE 2011 LEGISLATIVE AMENDMENTS.

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

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

It is surprisingly difficult to find a clear definition of it; most regulations do not define compatibility. One very relevant one is the newly amended §163.3164(9), F.S. (2011), which brings the former Section 9J-5.003(23), F.A.C. definition into the statute. It defines “compatibility” as “a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” When §§163.3177(6)(a)3. and 163.3202(2)(b), F.S., require that the Comprehensive Plan Land Use Element and the implementing land development regulations, respectively, must include provisions addressing the compatibility of adjacent land uses, this is the “compatibility” that is required.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Definitions from the Florida Statutes Relevant to LDRs

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS

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

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

Definitions

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

Writing Definitions.

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

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

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

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

Sources of Definitions.

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

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