The Florida Legislature made several changes to the Florida Statutes in 2012 that are relevant to land development regulations. The following is a summary of several of those changes, grouped by the bills in which the changes were made.
House Bill 503 (Chapter 2012-205 from HB 503, Laws of Florida)
Language was added to §125.022 (which addresses counties) and §166.033 (which addresses municipalities)1 that, for development permits2 filed after July 1, 2012, prohibits counties and municipalities from requiring the applicant to obtain any state or federal permit3 unless the state or federal permit has already been denied.
This bill also includes, in language almost identical to prior years, a process to extend most local government development orders and building permits, as well as DEP and water management permits. This legislation addresses those permits that are to expire between January 1, 2012 and January 1, 2014 and extends them for 2 additional years. These extensions can be in addition to previous extensions, but the extended time cannot exceed a total of four years. To receive the extension, the permit holder must notify the permitting authority in writing by December 31, 2012.4 The local governments and state agencies cannot require the payment of a fee for the use of the extensions.5
This bill was signed by the governor May 4, 2012 and will be effective July 1, 2012.
House Bill 979 (Chapter 2012-75, Laws of Florida)
A provision was added to the DRI pre-application procedures6 that says that agencies participating in pre-application reviews may only make comments that are consistent with the applicable statutes rules or adopted local government ordinances. A new provision was added to the list of changes that do not constitute a substantial deviation to an existing DRI; “changes that do not increase the number of external peak hour trips and do not reduce open space and conserved areas within the project except as otherwise permitted by sub-subparagraph j.”7 A new type of development was added to the list of project types that are exempt from the DRI process; development, outside of areas of critical state concern, the Wekiva Study Area, and the Everglades Protection Area, that is not in a section 380.06(29), F.S., exempt dense urban land area, but is approved as a comprehensive plan amendment adopted through the state coordinated plan amendment review process (§163.3184(4), F.S.) and is subject to a section 288.106(5), F.S., tax refund agreement (with some additional restrictions on the agreement), are now exempt.8
Section 4 of the bill addresses changes that, based on the citation in the companion Senate bill, appear to intend to add a section 163.3165, addressing agricultural enclaves. Unfortunately, the adopted bill does not include any citation, so the language is adopted without identifying where it goes. The provisions allow the owner of a qualified agricultural enclave9 to apply for a plan amendment, which will be presumed to not constitute urban sprawl if the proposed land uses and intensities are consistent with the existing or allowable uses that surround the parcel. If the parcel is surrounded by only one land use designation, that land use designation must be presumed by the county to be appropriate for the parcel. To overcome these presumptions the county must find, by clear and convincing evidence, that approving the designation would be detrimental to the health, safety, and welfare of its residents. To qualify under this section as an agricultural enclave, the property owner must file a written application to the county by January 1, 2013.
This bill was signed by the governor on April 6, 2012. It is effective July 1, 2012.
House Bill 1197 (Chapter 2012-83, Laws of Florida)
This bill is only tangentially related to land development regulations, except for two provisions—the bill preempts local government regulation of honeybee colonies,10 and exempts “farm signs” from the Florida Building Code and any county or municipal code (except floodplain management).11 The honey bee provision12 will impact increasingly common attempts to regulate when and where bees can be kept in more urban environments; it is now no longer a local issue. The farm sign provisions13 define “farm sign” and requires the signs to meet certain of the same requirements as outdoor advertising signs under §479.11, F.S. This bill was signed by the governor on April 6, 2012. It is effective July 1, 2012.
House Bill 7081 (Chapter 2012-99, Laws of Florida)
This bill is what has been called the growth management glitch bill. It does make several corrections and clarifications. Probably the most anticipated is the language that has been added to §163.3167(8), F.S., to allow the initiative or referendum processes prohibited by the 2011 language of that subsection to continue in certain jurisdictions if that local government’s charter, in effect as of June 1, 2011, allowed for them.14
There were also some changes to §163.3175, F.S., (addressing the compatibility of development with military installations), clarifying that the commanding officer’s comments are advisory, and are to be supported by data and analyses, and that those comments are to be in the context of the strategic mission of the base, public safety, and the economic vitality associated with the base’s operations. There were changes to §163.3177, F.S., clarifying the sources and limitations on comprehensive plan data and calculations. The public schools interlocal agreement language of §163.31777 was amended and exemption language added. Local governments may more easily do away with any of the “optional” concurrency provisions through changes to §163.3180(1)(a), F.S., which would allow the plan amendment to rescind the concurrency provision to be through the expedited state review process with no requirement that the plan amendment be transmitted to reviewing agencies for comment unless requested. Several changes were also made to §163.31777(6)(a) and §1013.33, F.S., addressing school concurrency and interlocal agreements.
This bill was signed by the governor on April 6, 2012. It is effective immediately upon becoming law.
- The full language reads: “For any development permit application filed with the [county or municipality] after July 1, 2012, a [county or municipality] may not require as a condition of processing or issuing a development permit that an applicant obtain a permit or approval from any state or federal agency unless the agency has issued a final agency action that denies the federal or state permit before the [county or municipality] action on the local development permit. Issuance of a development permit by a [county or municipality] does not in any way create any rights on the part of the applicant to obtain a permit from a state or federal agency and does not create any liability on the part of the [county or municipality] for issuance of the permit if the applicant fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that result in a violation of state or federal law. A [county or municipality] may attach such a disclaimer to the issuance of a development permit and may include a permit condition that all other applicable state or federal permits be obtained before commencement of the development. This section does not prohibit a [county or municipality] from providing information to an applicant regarding what other state or federal permits may apply.” Click here to return to text.
- “[A]ny building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.” §163.3164, Florida Statutes. Click here to return to text.
- There is a potential issue in the allowed actions under the language, however. The first part states that a local government “may not require as a condition of processing or issuing a development permit that an applicant obtain a [federal or state] permit or approval.” But a later part says a local government “may include a permit condition that all other applicable state or federal permits be obtained before commencement of the development.” So, while a local government cannot require an applicant to get a state or federal permit before the local government will process the local application or issue the local development permit, they can put a condition on the permit that requires federal or state permits or approvals before the development (presumably including the amount of development that only triggered the local permits) can commence. This would put whether the development occurs, relative to state and federal approvals, still within local government’s control. It is unclear whether this condition would be enforceable by the local government, however, since the local government has no authority to take action to enforce federal or state laws. It may be little more than a general reminder to get all applicable approvals. Click here to return to text.
- Full language of Section 24:
(1) 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, is extended and renewed for a period of 2 years after its previously scheduled date of expiration. This extension includes any local government-issued development order or building permit including certificates of levels of service. This section does not prohibit conversion from the construction phase to the operation phase upon completion of construction. This extension is in addition to any existing permit extension. Extensions granted pursuant to this section; section 14 of chapter 2009-96, Laws of Florida, as reauthorized by section 47 of chapter 2010-147, Laws of Florida; section 46 of chapter 2010-147, Laws of Florida; or section 74 or section 79 of chapter 2011-139, Laws of Florida, shall not exceed 4 years in total. Further, specific development order extensions granted pursuant to s. 380.06(19)(c)2., Florida Statutes, cannot be further extended by this section.
(2) The commencement and completion dates for any required mitigation associated with a phased construction project are extended so that mitigation takes place in the same timeframe relative to the phase as originally permitted.
(3) The holder of a valid permit or other authorization that is eligible for the 2-year extension must notify the authorizing agency in writing by December 31, 2012, identifying the specific authorization for which the holder intends to use the extension and the anticipated timeframe for acting on the authorization.
(4) The extension provided for in subsection (1) does not apply to:
(a) A permit or other authorization under any programmatic or regional general permit issued by the Army Corps of Engineers.
(b) A permit or other authorization held by an owner or operator determined to be in significant noncompliance with the conditions of the permit or authorization as established through the issuance of a warning letter or notice of violation, the initiation of formal enforcement, or other equivalent action by the authorizing agency.
(c) A permit or other authorization, if granted an extension that would delay or prevent compliance with a court order.
(5) Permits extended under this section shall continue to be governed by the rules in effect at the time the permit was issued, except if it is demonstrated that the rules in effect at the time the permit was issued would create an immediate threat to public safety or health. This provision applies to any modification of the plans, terms, and conditions of the permit which lessens the environmental impact, except that any such modification does not extend the time limit beyond 2 additional years.
(6) This section does not impair the authority of a county or municipality to require the owner of a property that has notified the county or municipality of the owner’s intent to receive the extension of time granted pursuant to this section to maintain and secure the property in a safe and sanitary condition in compliance with applicable laws and ordinances. Click here to return to text.
- Per section 23 of the bill: “The holder of a valid permit or other authorization is not required to make a payment to the authorizing agency for use of an extension granted under section 73 or section 79 of chapter 2011-139, Laws of Florida, or section 24 of this act. This section applies retroactively and is effective as of June 2, 2011.” Click here to return to text.
- §380.06(7)(a), Florida Statutes. Language added: “The reviewing agencies may make only recommendations or comments regarding a proposed development which are consistent with the statutes, rules, or adopted local government ordinances that are applicable to developments in the jurisdiction where the proposed development is located.” Click here to return to text.
- §380.06(19)(e)2.k., Florida Statutes. Click here to return to text.
- 380.06(24)(x), F.S. Full language:
(x) Any proposed development that is located in a local government jurisdiction that does not qualify for an exemption based on the population and density criteria in s. 264 380.06(29)(a), that is approved as a comprehensive plan amendment adopted pursuant to s. 163.3184(4), and that is the subject of an agreement pursuant to s. 288.106(5) is exempt from this section. This exemption shall only be effective upon a written agreement executed by the applicant, the local government, and the state land planning agency. The state land planning agency shall only be a party to the agreement upon a determination that the development is the subject of an agreement pursuant to s. 288.106(5) and that the local government has the capacity to adequately assess the impacts of the proposed development. The local government shall only be a party to the agreement upon approval by the governing body of the local government and upon providing at least 21 days’ notice to adjacent local governments that includes, at a minimum, information regarding the location, density and intensity of use, and timing of the proposed development. This exemption does not apply to areas within the boundary of any area of critical state concern designated pursuant to s. 380.05, within the boundary of the Wekiva Study Area as described in s. 369.316, or within 2 miles of the boundary of the Everglades Protection Area as defined in s. 373.4592(2). Click here to return to text.
- “In order to qualify as an agricultural enclave under this section, the parcel of land must be a parcel that:
(a) Is owned by a single person or entity;
(b) Has been in continuous use for bona fide agricultural purposes, as defined by s. 193.461, Florida Statutes, for at least 5 years before the date of any comprehensive plan amendment application;
(c) Is surrounded on at least 95 percent of its perimeter by property that the local government has designated as land that may be developed for industrial, commercial, or residential purposes; and
(d) Does not exceed 640 acres but is not smaller than 500 acres.” Click here to return to text.
- Under §586.10(1), F.S. Click here to return to text.
- Under §640.50, F.S. The existing language of this statute section currently exempts farm buildings and farm fences from the Florida Building Code and any county or municipal code or fee, except floodplain management regulations. Click here to return to text.
- New language in §586.10(1): “The authority to regulate, inspect, and permit managed honeybee colonies and to adopt rules on the placement and location of registered inspected managed honeybee colonies is preempted to the state through the department and supersedes any related ordinance adopted by a county, municipality, or political subdivision thereof.” Click here to return to text.
- New language in §604.50 (1): “A farm sign located on a public road may not be erected, used, operated, or maintained in a manner that violates any of the standards provided in s. 479.11(4), (5)(a), and (6) – (8). New language in §604.50 (2)(b): “Farm sign” means a sign erected, used, or maintained on a farm by the owner or lessee of the farm which relates solely to farm produce, merchandise, or services sold, produced, manufactured, or furnished on the farm.” Click here to return to text.
- New language in §163.3167(8): “However, any local government charter provision that was in effect as of June 1, 2011, for an initiative or referendum process in regard to development orders or in regard to local comprehensive plan amendments or map amendments may be retained and implemented.” Click here to return to text.