Summary of 2012 Florida Legislative Changes Related to Land Development Regulations

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.

End Notes:

1. 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.}
2. “[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.}
3. 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.}
4. 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.}
5. 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.}
6. §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.}
7. §380.06(19)(e)2.k., Florida Statutes. ^{Click here to return to text.}
8. 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.}
9. “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.}
10. Under §586.10(1), F.S. ^{Click here to return to text.}
11. 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.}
12. 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.}
13.  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.}
14. 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.}

What are Florida land development regulations?

I guess if this is a multi-page website talking about them, it makes sense to first figure out what are the land development regulations being discussed. They aren’t any one thing. There are, at least, the “street” concept, several statutory definitions, the ideal model, and the practical reality.

When asked about land controlling regulations, most people think of zoning codes. Many of the references to the regulation of land in the Florida Statutes talk about zoning authority, zoning requirements, even when more general land regulations are included. Without a doubt the zoning aspects, meaning the regulation of where and how uses and structures may be placed on the land, are a very major focus. But in Florida, land development regulations must be more than just a zoning code.

The Florida statutes have six specific, somewhat conflicting, definitions of “land development regulations” that vary based on the intent of the regulation in which it is contained – §§163.3164(23), 163.3213(2)(b), 163.3221(8), 365.172(3)(n), and 380.031, Florida Statutes (F.S.)  All include zoning and subdivision regulations in the definition. All but one include sign regulations. Two of the definitions also include landscaping and tree protection regulations. Looking at the list of other topics that the statutes say must be addressed by land development regulations (see What must be addressed in Land Development Regulations, per the Florida Statutes), there are also other types of regulation not addressed in the definitions that must be included in land development regulations. These other regulations are addressed in the definitions by the catch-all inclusion of “any other regulations controlling the development of land” included in all the definitions.

All, but one, of the statute definitions include building or building construction regulations in the land development regulations. The one exception is found at §365.172(3)(n), F.S., addressing wireless facilities, which separates the construction codes of the statutes chapter 553 from the other land regulations to distinguish the “zoning” review of wireless facilities from the building permit review. It may be that the other definitions’ inclusion of “building construction regulations” are also not intended to include the construction codes found in chapters 553 and 633 of the statutes. This reading would be consistent with the provisions of chapters 553 and 633, which specifically separate the Building Code and the Fire Prevention Code from zoning or land use requirements (“The Florida Building Code does not apply to … zoning requirements [or] land use requirements ….” §553.73(13), F.S. “The Florida Fire Prevention Code does not apply to zoning or land use requirements.” §633.0215(6), F.S.) and with the finding of the court in Galaxy Fireworks, Inc. v. City of Orlando, 842 So. 2d 160, 165 (Fla. 5th DCA 2003), which found that the Fire Prevention Code is not a land development regulation (because it “does not regulate what can be built on land, in the sense of land development, but rather it mandates requirements for the structure of a building, if used for certain purposes, in order to safeguard the public from fire hazards.”). 

The definitions all address regulations controlling the development of land. The line can be somewhat blurred, however, as to what is the regulation of the use or development of land and what is regulation of conduct on the land. The court in City of Sarasota v. 35 S. Lemon, Inc., 722 So. 2d 268, 269 (Fla. 2nd DCA 1998) held that a noise ordinance that regulated conduct, rather than land development, was not a statutorily defined land development regulation, requiring certain adoption procedures. Similarly, the court in T.J.R. Holding Co., Inc. v. Alachua County, 617 So. 2d 798, 800 (Fla. 1^st DCA 1993) held that an ordinance prohibiting adult use conduct in establishments serving alcohol was not a land development regulation, but the regulation of conduct, and the court in M & A Mgmt. Corp. v. City of Melbourne, Fla., 653 So. 2d 1050, 1051 (Fla. 5th DCA 1995) found that an ordinance regulating the conduct of bingo games and bingo halls was not a land development regulation.

Some of the statute provisions say that land development regulations are ordinances (plural) adopted by local governments and others say ordinance (singular). Ideally, all the land development regulations would be adopted at one time, rather than a piece-meal adoption of separate ordinances. This often isn’t practically possible. Whether adopted over time or all at once, to be effective, however, land development regulations should be a unified implementation of the jurisdiction’s comprehensive plan and regulatory objectives, with consistent language and approaches. This is the ideal.

In reality, land development regulations are often separate codes or ordinances adopted and amended over the years, as new issues and problems arise or new laws require adjustments, with each ordinance introducing new, possibly conflicting, definitions, concepts, and standards. This is the reality of land development regulations that are unified only in the fact that they are all found in the same book or chapter of the jurisdiction’s code.

So, the land development regulations addressed in this website are all of these descriptions. The intent is to provide information on what must, can, and should be included in land development regulations, ideas on how they may be viewed by Florida courts, and suggestions on practical approaches to make them functional and effective – working with the reality toward the ideal.

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.