Consistency with the Comprehensive Plan

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

Consistency is required.

Once a jurisdiction’s comprehensive plan has been properly adopted, all “development” (see What is the development LDRs can regulate), both public and private, must be consistent with the comprehensive plan. §§163.3161(5) and 163.3194(1)(a), F.S. Similarly, all the jurisdiction’s land development regulations must also be consistent with the plan. §163.3194(1)(b), F.S.

“The statute is framed as a rule, a command to cities and counties that they must comply with their own Comprehensive Plans …. The statute does not say that local governments shall have some discretion as to whether a proposed development should be consistent with the Comprehensive Plan. Consistency with a Comprehensive Plan is therefore not a discretionary matter.” Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 198 (Fla. 4th DCA 2001).

Definition of Consistency

The Florida Statutes provide a definition of what is meant by consistent. Section 163.3194(3)(a) , F.S., says:

A development order or land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.

Breaking the definition down, first, it is the aspects of development that are at issue. Land uses, densities and intensities are specifically called out and, therefore, probably are the aspects of greatest issue, but the catch-all “other aspects” brings in all aspects of development. All aspects of development would mean not only the negative aspects, but also the positive ones. Second, the aspects of concern are only those permitted by the development order (abbreviated as “D.O.” for the rest of this article) or land development regulation (“LDR”). If the D.O. or LDR does not allow a development aspect, that aspect is not part of the review.

For the next part of the definition, “are compatible with” and “furthers,” the plan, §163.3177, F.S. formerly provided a definition of what was meant by these phrases in the context of consistency of local plans to state and regional plans, where “compatible with” meant not in conflict with and “furthers” meant to take action in the direction of the goals.” But those provisions were deleted by the 2011 changes. It is probably reasonable to assume the deletions had more to do with the decreased focus on comparing local comprehensive plans against state requirements than it being a statement that the definitions were no longer correct. Regardless, the recent amendments to the growth management statutes do now provides a definition of “compatibility” (“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”) in the statutes, in §163.3164(9), F.S., which may help in analyzing what consistency means.

Using that definition of compatibility this would mean that the D.O. or LDR is “compatible with” (has achieved compatibility with) the comprehensive plan if it “can coexist” in “a stable fashion” without “unduly negatively impacting” the plan. This is essentially the same as the previous statute definition, of being not in conflict with.

But the definition of consistency also requires that the D.O or LDR must “further” the goals or policies of the comprehensive plan. There is no clear definition of “furthers” in the current growth management statutes, but it is not unreasonable, given its usage, to use the ordinary meaning – furthers means to advance or assist in moving forward. This would mean that the D.O. or LDR must not only not conflict with, but must also help advance, the provisions of the comprehensive plan. This requires an affirmative action – an implementing of the comprehensive plan provisions.

The last part (“and if it meets all other criteria enumerated by the local government”) seems a bit vague, especially in reference to an LDR. The “it” referenced appears to be the D.O. or LDR and, as the sentence is in the conjunctive, the “other criteria enumerated” appear to potentially be criteria separate from the comprehensive plan (reading that part of the sentence as “A [D.O. or LDR] shall be consistent with the comprehensive plan … if it meets all other criteria enumerated by the local government). It isn’t clear if these would be procedural criteria or some other type of criteria.

Putting all these provisions together, a D.O. or LDR is consistent with the comprehensive plan if:

1. The aspects of development allowed by the D.O./LDR are:
   1. Not in conflict with; and
   2. Advance or assist in moving forward the goals, objectives, policies, land uses, densities, and intensities in the comprehensive plan; and
2. The D.O./LDR meets all the other criteria enumerated by the local government.

The part of the comprehensive plan relevant in a consistency evaluation.

Once it is determined what is meant by “consistent,” the issue becomes what parts of the comprehensive plan a D.O. or LDR must be measured against for consistency. The easy, but perhaps too simple, answer is all parts. The growth management act say development is expected to conform with the comprehensive plan, elements, or portions thereof. §§ 163.3161(5) and 163.3194(1)(a) and (b), F.S. An often cited case said that the review is to determine conformity with “each element and the objectives of the land use plan ….” Machado v. Musgrove, 519 So.2d 629, 632 (Fla. 3d DCA 1987). Although certainly highly relevant, courts have also said that all of the elements, not just the future land use element, that should be considered. Sw. Ranches Homeowners Ass’n, Inc. v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987).

But the reality is that not every part of the comprehensive plan is necessarily relevant to the particular aspects of development allowed by each D.O./LDR. If, for example, the D.O. is for a use that has no wetland impacts (positive or negative), the comprehensive plan policies related to wetlands would not be relevant. There may be whole sections of the comprehensive plan that may have no relevance to a specific D.O or LDR (e.g. the Capital Improvement Element is not relevant to a D.O. for a use that has no impact on public facilities).

A recent case reflects this position, saying the section 163.3194(4)(a), F.S., admonition that courts should consider the “reasonableness of the comprehensive plan” means that irrelevant provisions in the comprehensive plan should not be considered and that the relevant provision should be reviewed as a whole, to produce “the most reasonable and holistic interpretation, based on both the text and the synthesis of the document ….” Arbor Properties, Inc. v. Lake Jackson Prot. Alliance, Inc., 51 So. 3d 502 (Fla. 1st DCA 2010), reh’g denied (Jan. 26, 2011). Similarly, another recent case, Katherine’s Bay, LLC v. Fagan 52 So. 3d 19 (Fla. 1st DCA, 2010), stated that, in a review of consistency with the comprehensive plan, not only should the rule of construction that all provisions on related subjects be read in pari materia and harmonized so that each is given effect be applied, but the rules of construction that specific provisions control over general ones and that one provision should not be read in such a way that it renders another provision meaningless also apply.

Another recent case, however, seems to suggest that, in at least some circumstances, the controlling factor is whether the requested D.O. is consistent with the land uses allowed in the applicable land use category, without regard to other potential violations of the goals, policies, or objectives of the comprehensive plan. Rehman v. Lake County, 56 So. 3d 852(Fla. 5th DCA 2011).

Level of Review – Strict Scrutiny

The expectation of consistency with the comprehensive plan is very high. When courts examine the issue, they do not defer to the local government in the government’s decision of what is or isn’t consistent, as is done in some other reviews of local government determinations, Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla, 4th DCA 2001); the standard of court review is “strict scrutiny.” Machado v. Musgrove, 519 So.2d 629, 633 (Fla. 3d DCA 1987). So what does that mean?

First, although the name is the same, strict scrutiny in the comprehensive plan consistency context is not the same as the type of strict scrutiny review in some constitutional cases. Bd. of County Com’rs of Brevard County v. Snyder, 627 So.2d 469, 475 (Fla. 1993). The court in Machado, defined strict scrutiny based on the meaning of the two words, saying “[s]trict implies rigid exactness or precision. A thing scrutinized has been subjected to minute investigation. Strict scrutiny is thus the process whereby a court makes a detailed examination of a statute, rule or order of a tribunal for exact compliance with, or adherence to, a standard or norm. It is the antithesis of a deferential review.” Machado, 519 So.2d at 632 (internal citations omitted). This means that, since the courts will hold them to that standard, every decision on a development order and every change to a land development regulation must exactly comply with the applicable provisions of the comprehensive plan.

Consistency of Land Development Regulations with Comprehensive Plan

Putting the components of consistency together, to achieve consistency with the comprehensive plan, a LDR provision, new or existing, must regulate the subject aspects of development in a way that not only does not conflict with the relevant provisions of the comprehensive plan, but also implements the applicable provisions of the plan, and must do so with exactness and precision. Given the way many LDRs, not to mention comprehensive plans, are written, this is a pretty tall order.

Consistency of Development Orders with Comprehensive Plan

Putting the components of consistency together, for a D.O., to achieve consistency with the comprehensive plan, an approved D.O. must allow the specific aspects of development in a way that not only does not conflict with the relevant provisions of the comprehensive plan, but also implements the applicable provisions of the plan, with exactness and precision; and must meet all of the applicable criteria of the LDRs or other applicable regulations. For an approval through a quasi-judicial hearing process, at least, there must be competent substantial evidence in the record demonstrating such consistency compliance. See the article What is competent substantial evidence in Florida land use hearings for more on compentent substantial evidence.

Because §163.3215 consistency challenges may be brought to challenge a denial, as well as an approval, of the D.O., if the applicant provides evidence that the D.O. will be consistent with the comprehensive plan, to deny it, the local government must counter that evidence or, in the case of a rezoning application, show that the existing zoning is also consistent with the comprehensive plan. County Com’rs of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993).

A §163.3215 consistency challenge to a D.O. can arise in three instances: “1) where it materially alters the use of a property; 2) where it materially alters the density of [the] property; or 3) where the intensity of the use of the property is materially altered.” Lake Rosa v Board of County Com’rs, 911 So. 2d 206 (Fla. 5th DCA 2005) referencing §163.3215(1), F.S. The limitation to these three instances raises the question of whether such a challenge can be brought when the challenge is to the characteristics of the use, other than density or intensity, rather than the allowance of the use (i.e. can suit be brought when a use is a permitted use, of permitted intensity or density, but has characteristics, such as aesthetic impacts or the potential to increase traffic congestion, that may be inconsistent with provisions in the comprehensive plan). Although not specifically addressed in the opinion, this might be the situation in Rehman v. Lake County, 56 So. 3d 852 (Fla. 5th DCA 2011), discussed above, and the reason the court found the D.O. consistent with the comprehensive plan.

In bringing a §163.3215 consistency challenge, it is the comprehensive plan that is in place at the time of the decision on the D.O. that governs. Lake Rosa v. Board of County Com’rs, 911 So.2d 206, 209 (Fla. 5th DCA 2005). The action that governs when the filing time frame begins to run for a §163.3215 challenge is when the clerk for the governing body files the development order in the official records. 5220 Biscayne Blvd., LLC v. Stebbins, 937 So.2d 1189 (Fla. 3rd DCA 2006).

In the judicial review of the consistency question, the statutes say a reviewing court “may consider, among other things, the reasonableness of the comprehensive plan, [relative to the issue raised for the court’s consideration,] or the appropriateness and completeness of the comprehensive plan … in relation to the governmental action or development regulation under consideration,” §163.3194(4)(a), F.S., but that the act is to be “construed broadly to accomplish its stated purposes and objectives.” §163.3194(4)(b), F.S. This has been found to be “a recognition of the court’s inherent power to take into account fundamental fairness questions as may arise from a strict application of the plan ….” Machado v. Musgrove, 519 So.2d 629, 635 (Fla. 3d DCA 1987).

What must be addressed in land development regulations, per the Florida Statutes

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

Florida land development regulations (LDRs) are supposed to be more than just a zoning code or even several ordinances on a variety of land related issues put together into one book (see What are Florida land development regulations). What is included in each jurisdiction’s LDRs will vary, but the statutes state the minimum regulations that must be addressed.

The Florida Statutes, in section 163.3202, lay out what must be addressed in the LDRs. The statutes require that the following regulations, and “all other such regulations,” be combined and compiled into a single land development code for the jurisdiction. §163.3202(3), Florida Statutes (F.S.) At a minimum LDRs must “contain specific and detailed provisions necessary or desirable to implement the adopted comprehensive plan.” §163.3202(1), F.S.

• See Board of County Com’rs of Brevard County v. Snyder, 627 So.2d 469, 473 (Fla., 1993) (“The local plan must be implemented through the adoption of land development regulations that are consistent with the plan.”)
• See also Johnson v. Gulf County, 26 So. 3d 33 (Fla. 1st DCA, 2009), where the court ruled that Gulf County must regulate development near wetlands in a manner consistent with its Comprehensive Plan. (“The County is required to implement its comprehensive plan ‘through the adoption of land development regulations that are consistent with the plan.’ [citing Snyder]. The County cites no authority for the proposition that it can enact a land use regulation which is inconsistent with its comprehensive plan. … Gulf County’s comprehensive plan required it to take jurisdiction and regulate any development within 50 feet of wetlands under its land development regulations.” Johnson v. Gulf County, 26 So. 3d 33, 42 (Fla. 1st DCA, 2009.)

They also must:

Regulate the use of land and water. §163.3202(2)(b), F.S. This is the more traditional “zoning code” type of regulations. These regulations are indicated as being for those land uses categories included in the local Comprehensive Plan Future Land Use Element. §163.3202(2)(b), F.S. This is another tie to the requirement that the LDRs must implement the comprehensive plan, in this case the Future Land Use Element. See Implementing the Comprehensive Plan through LDRs.

The LDRs also must ensure the compatibility of adjacent land uses. §163.3202(2)(b), F.S. Compatibility is a term frequently used in LDRs and reviews of applications, but is seldom defined or applied consistently. See the article What is compatibility for more on compatibility. Additionally, the LDRs must provide for open space. §163.3202(2)(b), F.S.

Regulate the subdivision of land. §163.3202(2)(a), F.S. Chapter 177, Part I, of the Florida Statutes addresses the requirements for platting and subdivision regulations, but there is amazingly little guidance in the statutes as to what regulating the subdivision of land means, especially since the repeal of the rules of 9J-5, F.A..C. For more on this issue, see What is the “Subdivision of Land” Regulated in LDRs? and other future articles on Subdivision Regulations.

Provide for protection of potable water wellfields. §163.3202(2)(c), F.S. Regulating for the protection of potable (drinking) water wellfields, and the potable water supply, is a less expected part of the LDRs, although keeping drinking water available and protected from contamination has long been the subject of public health regulations. See future article Regulating wellfields. 

Regulate areas subject to seasonal and periodic flooding and provide for drainage and stormwater management, §163.3202(2)(d), F.S. 

Ensure the protection of environmentally sensitive land. §163.3202(2)(e), F.S. The statutes indicate those environmentally sensitive lands to be protected are those designated in the comprehensive plan.

Regulate signage. §163.3202(2)(f), F.S. See a future article on sign regulations.

Address concurrency. The LDRs must require that public facilities and services meet or exceed the standards established in the local Comprehensive Plan’s Capital Improvements Element and either are available when needed for development (concurrent with development impacts) or that development orders and permits are conditioned on the availability of the public facilities and services necessary to serve the proposed development. §163.3202(2)(g), F.S. This is commonly known as “concurrency.” Interestingly, this provision, which was not amended in 2011, is slightly at odds with the 2011 concurrency requirements (Concurrency). See the future article Implementing Concurrency for details on the concurrency requirements and how this discrepancy might be resolved.

Ensure safe and convenient on-site traffic flow, §163.3202(2)(h), F.S. The specified issue to take into consideration is needed vehicle parking. §163.3202(2)(h), F.S. 

Maintain the existing density of residential properties or recreational vehicle parks if the properties are intended for residential use and are located in the unincorporated areas that have sufficient infrastructure, as determined by a local governing authority, and are not located within a coastal high-hazard area. §163.3202(2)(i), F.S.

The statutes also encourage the use of innovative regulations, including provisions such as transfer of development rights, incentive and inclusionary zoning, planned-unit development, impact fees, and performance zoning. Although the previous provision of chapter 9J-5, F.A.C. that implemented the land development regulation provisions of the statute has been repealed, unlike some other sections, the statute does still authorize the state land planning agency to adopt rules for this section. §163.3202(3), F.S. If the agency does so, they will be noted here.

 

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.