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

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

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

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

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

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

Role of Comprehensive Plan

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

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

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

Role of the Land Development Regulations

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

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

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

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

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

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

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

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

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

Consistency in the real world

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So What

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

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

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Endnotes

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