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.}

Summary of some of the major changes to the Florida growth management statutes

The following is a summary of some of the major changes made by the 2011 Florida legislature to the state’s growth management laws. Most are from by HB 7207, which is now Chapter 2011-139, Laws of Florida.

• Name. The name of the part II, chapter 163 act is changed from the “Local Government Comprehensive Planning and Land Development Regulation Act” to the “Community Planning Act.” §163.3161(1), F.S. This reflects the shift from State oversight to local government control of the planning and growth management process. The State’s new role is to focus on “protecting the functions of important state resources and facilities.” §163.3161(3), F.S.

• Purpose. The Act’s purpose moves from “control future development” to “manage future development consistent with the proper role of local government.” §163.3161(2), F.S. A new purpose statement focuses on recognizing and protecting “the traditional economic base of the state, agriculture, tourism, and military presence” while also encouraging “economic diversification, workforce development, and community planning.” §163.3161(11), F.S. See also this Article for more on the purpose statements of the act.

• Comprehensive Plans and Plan Amendments.
1. Contents of Comprehensive Plans. The requirements for what a comprehensive plan must contain are substantially rewritten, but are not as completely different as they would appear to be. Much of what appears to be new language is language moved, with some modifications, from other sections or subsections or is from the rules of chapter 9J-5, Florida Administrative Code (which has been repealed). See the “Requirements for Florida comprehensive plans“ article for more details.
2. Plan Amendment Process. See the article “Process for review and adoption of plan amendments.”
   1. Twice a year limit. The limit restricting plan amendments to no more than twice a year is deleted. Previous §163.3187(1)(a), F.S.
   2. Expedited state review process. An expedited state review process, based on the previous §163.32465(2) pilot program, is added. This expedited process applies to all plan amendments except small scale amendment (which may be processed under this process or under the provisions of §163.3187) and plan amendments in an area of critical state concern, that propose a rural land stewardship area or a sector plan, that update the comprehensive plan based on a §163.3191 evaluation and appraisal, or that are for a new plan for a newly incorporated municipality. These other exceptions must follow the “State coordinated review process.” §163.3184(2) and (3), F.S. See the article “Process for review and adoption of plan amendments“ for more.
   3. Administrative challenges. The language of former §163.3184(9) and (10) is replaced by §163.3184(5), which is new language. The definition of an “affected person” did not change. See the article “Process for review and adoption of plan amendments“ for more.
   4. Compliance Agreements. The language of §163.3184(6)(a), F.S., is new, but borrows heavily from the previous §163.3184(16), F.S., it replaces.
   5. Small scale plan amendments. The provisions of §163.3187, F.S., are changed from directing how all plan amendments are process to just addressing the process for small scale plan amendments. See the article “Process for review and adoption of plan amendments“ for more.
3. Timing of Implementation. The local government’s comprehensive plan does not have to be amended to implement the new statutory requirements until the next evaluation and appraisal period, unless otherwise specifically required, but all new plan amendments must comply with the new requirements. §163.3161(12), F.S.
4. Evaluation and appraisal review. The “R” in the “EAR” process now stands for “Review” rather than “Report;” the new EARs process shifts the evaluation and appraisal process from a formal mandated audit report on the comprehensive plan, scrutinized by the state land planning agency, to a less formal review by the local government of whether changes are needed to meet state laws and to reflect the local assessment of needed changes. See the article “Evaluation and appraisal review“ for more.

• Concurrency. See the article “Concurrency“ for more details.
1. Premise of concurrency. The premise of concurrency is shifted away from an emphasis on public facilities being available concurrent with development to their being provided so as to achieve and maintain the adopted level of service standards.
2. Transportation facilities, schools, and parks and recreation. Concurrency for transportation facilities, schools, and parks and recreation is now optional; these facilities are removed as public facilities and services subject to the statutory concurrency requirements on a statewide basis. §163.3180(1), F.S. They may, however, be optionally included in a local government’s concurrency requirements, by the local government’s actions. §163.3180(1), F.S. To rescind any existing concurrency provisions on these now optional concurrency facilities requires a comprehensive plan amendment, but the amendment is not subject to state review. §163.3180(1)(a), F.S.

• Repeal of rules 9J-5 and 9J-11.023, Florida Administrative Code. The rules of chapter 9J-5 and §9J-11.023, Florida Administrative Code, are repealed and are to be removed from the Florida Administrative Code. §72, 2011-39 Laws of Florida (HB 7207). Some of the rules of chapter 9J-5 have been integrated into the new statute language.

• Planning Innovations. A new section, §163.3168, F.S., was added to address the concept of innovative planning techniques, which local governments are encouraged to apply. The techniques include addressing future new development areas through visioning, sector planning and rural land stewardship areas and, in urban areas, using urban service area designations, urban growth boundaries, and mixed-use, high density development concepts. §163.3168(2), F.S. See the article “Planning Innovations“ for more details.

• Sector Plans. The demonstration project “optional sector plan” process of §163.3245, F.S., is now a full scale option to DRI reviews for large acreage (at least 15,000 acres) projects, which can be initiated at the local level, rather than through an agreement with the state land planning agency. See the article “Sector Plans“ for more details.

• Rural land stewardship areas. Section 163.3248, F.S., is a new section created, in large part, from provisions in previous §163.3177(d).  See the article “Rural land stewardship areas“ for more details.

• Developments of Regional Impact (DRIs).
  1. DRI thresholds. The DRI “statewide guidelines and standards” thresholds changed for several uses. §380.0651(3), F.S.
  2. Substantial deviation thresholds. The thresholds for when a change to a previously approved DRI will constitute a substantial deviation were changed or deleted for several uses. §380.06(19)(b), F.S.
  3. Date extensions. At the developer’s option, all commencement, phase, buildout, and expiration dates for valid DRIs are extended for four years, regardless of any previous extensions. Associated mitigation requirements may also be extended in many situations. The developer must notify the local government in writing by December 31, 2011 to receive the extension. §380.06(19)(c)2., F.S.
  4. Exemptions from the DRI process.
     1. Two new exemptions were added: new, additions to, or expansions of solid mineral mines, if certain requirements are met, and any development in an energy economic zone designated by §377.809, F.S. §380.06(24)(t) and (w), F.S.
     2. Notwithstanding any agreements that say otherwise, any project no longer subject to DRI review under the revised thresholds is not required to undergo such a review. §380.06(24)(u), F.S.
     3. Significant changes were made to the exemption for dense urban land areas section. §380.06(29), F.S.

• Referendums prohibited. All initiatives or referendums on a development order or comprehensive plan amendment, not just those affecting five or fewer parcels, are prohibited. §163.3167(8), F.S.

• Public school interlocal agreements. No new language was added to §163.31777, F.S.; the process was significantly simplified. See the article “Public school interlocal agreements” for more details.

• Local government joint agreements. Section 163.3171(4), F.S., was amended to take the state land planning agency out of the joint agreement process (it cannot enter into joint agreements and is prohibited from interpreting, invalidating or declaring the joint agreements inoperative) and to expand the scope of joint agreements and what they can include.

• Permit extensions. 
1. Any permit or authorization that was extended under section 14 of chapter 2009-96, Laws of Florida (as reauthorized by section 47 of chapter 2010-147, Laws of Florida) is extended and renewed for an additional two year period, for a total of four years, if the holder of the permit notifies the authorizing agency in writing by December 31, 2011. §§ 73(1) and (3), 2011-39 Laws of Florida (HB 7207).
2. A separate permit extension was provided, “in recognition of 2011 real estate market conditions,” extending “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,” and also “any local government-issued development order or building permit” (including certificates of levels of service), for a period of 2 years after its previously scheduled date of expiration. § 79(1), 2011-39 Laws of Florida (HB 7207). This extension is in addition to any existing permit extension, but cannot exceed four years total. (§ 79(1), 2011-39 Laws of Florida (HB 7207). To get this extension, the holder of such a permit or other authorization must notify the authorizing agency in writing by December 31, 2011. (§ 79(3), 2011-39 Laws of Florida (HB 7207)
3. There are many provisos and limitations on these extensions. See the article “Other, non-statute, provisions of HB 7207“ for more details.

Other, non-statute, changes made by HB 7207

In addition to the many direct changes it makes to the Florida Statutes, HB 7207 makes several other significant changes. These changes include:

• Repeal of rules 9J-5 and 9J-11.023, Florida Administrative Code
• Permit extensions
• Addressing pending administrative or judicial proceedings under statute changes
• Existing voter referendum comprehensive plan amendments
• DoT report on calculation of proportionate share contribution
• House bill 7207 effective date

1. Rules 9J-5 and 9J-11.023, Florida Administrative Code, are repealed and are to be removed from the Florida Administrative Code. (§ 72, HB 7207)
2. Permit extensions. See here – Permit Extensions– for the bill language.
   1. Any permit or other authorization that was extended under section 14 of chapter 2009-96, Laws of Florida (as reauthorized by section 47 of chapter 2010-147, Laws of Florida) is extended and renewed for an additional period of 2 years after its previously scheduled expiration date. (§ 73(1), HB 7207)
      1. This extension is in addition to the 2-year permit extension provided under section 14 of chapter 2009-96, Laws of Florida. (§ 73(1), HB 7207)
      2. Permits that were extended by a total of 4 years pursuant to section 14 of chapter 2009-96, Laws of Florida and by section 46 of chapter 2010-147, Laws of Florida, cannot be further extended under this provision. (§ 73(1), HB 7207)
      3. The holder of a valid permit or other authorization that is eligible for the 2-year extension shall notify the authorizing agency in writing by December 31, 2011, identifying the specific authorization for which the holder intends to use the extension and the anticipated timeframe for acting on the authorization. (§ 73(3), HB 7207)