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.
Florida Land Development Regulations 