What is the “Subdivision of Land” Regulated by Florida LDRs?

Florida land development regulations (“LDRs”) are required to “regulate the subdivision of land” by §163.3202(2)(a) of the Florida Statutes. What does that mean?

In its simplest explanation, a subdivision of land is the division of a parcel into sub-parcels. So, in its simplest form, the regulations of the subdivision of land addressed in the LDRs would be regulations on any division of parcels. But do the LDRs have to address every parcel division?

It may help to have a little history. The Florida Statutes used to have extensive definitions of and requirements for subdividing and subdivisions, as part of the State zoning and subdivision enabling legislation. That changed in 1972 and further in 1985 when the State adopted the growth management acts, which shifted the focus from regulatory control through zoning codes and subdivision regulations to comprehensive planning and the implementing land development regulations (“LDRs”).

But the LDRs are still required by the Florida Statute to “regulate the subdivision of land.” There is amazingly little in the Florida Statutes to guide what that means, however, with even less State guidance now, with the deletion of the Chapter 9J-5 F.A.C. subdivision provisions in 2011. Consequently, there appears to be only one remaining definition directly addressing the subdivision or subdividing of land in the Florida Statutes,¹ and that is under the platting requirements (§177.031(18), F.S.).

If the only definition of the subdivision of land in the Florida Statutes is under the platting requirements, does that mean that the Florida Statutes consider subdividing to only include actions that fall under the platting requirements under chapter 177 and is that is the only “subdivision of land” the statutes require the LDRs to regulate? Possibly, but it may not be that simple.²

Looking specifically at that statutory definition of subdivision, it says a “subdivision” is “the division of land into three or more lots, parcels, tracts, tiers, blocks, sites, units, or any other division of land; and includes establishment of new streets and alleys, additions, and resubdivisions; and, when appropriate to the context, relates to the process of subdividing or to the lands or area subdivided.” §177.031(18), F.S. That seems simple – a subdivision is the division of land into three or more divisions.

But, what is the division of land into two parcels? If that is not a subdivision, what is it when someone divides land into two parcels, waits a month or a year, and then divides each of those two parcels into two more parcels, making a total of four parcels from the original parcel? Is that a subdivision?

Additionally, the definition says “and includes establishment of new streets and alley, additions, and resubdivisions.” Does that mean a division of land must include at least one of those to be a subdivision? The terms “additions and resubdivisions” seems to suggest that the term subdivision includes additions to subdivisions and re-division of the subdivision. But, since divisions to create streets and alleys would seem to be a type of division of the land, the “establishment of new streets and alleys” wouldn’t seem to need to be addressed separately, unless the wording was meant to require the presence of streets and alleys before the division of land is considered a subdivision under this definition. In other states, that is exactly what it means; the establishment of streets language has been held to mean that subdivision controls don’t apply to divisions of land without streets (e.g. fronting on a public road).³ So, perhaps the division of land has to include streets to be considered a subdivision under the platting definition.

Clearly, the statutory definition of subdivision under the platting requirements leaves some questions about what it means to regulate the subdivision of land. But there are indications elsewhere in the statutes, at least as far as the statutory minimum requirements of LDR subdivision regulation are concerned, that some of these questions are not going to be answered at the State level. Such indications are found in the statutory definitions of a “development order,” a “development permit” and “development.”

Subsection 163.3164(15), F.S., defines a “development order” as “any order granting denying, or granting with conditions an application for a development permit” and subsection (16) defines a “development permit” as including “any 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.” This means, for the subject discussion, that a development order is any decision on an application for a subdivision approval, with the inference that a subdivision approval is a type of official action of the local government that has the effect of authorizing the development of land. This seems to indicate that a subdivision approval authorizes “development.”

Section 380.04, F.S., defines “development,” in part, as “the dividing of land into three or more parcels.”⁴ This would indicate, therefore, that a subdivision approval is the authorization of the division of land into three or more parcels. This also matches part of the platting definition of subdivision.

Putting all this together, it appears that the statutes require that, at a minimum, LDRs regulate the division of land into three or more parcels.⁵ It may require more to plat a subdivision. But how those three parcels are determined to be created, what lands might be excepted from formal subdivision review, when and how the statutory platting requirements apply, and other issues related to those divisions appear to be largely left up to the local governments. See future articles on Platting and The Purpose of Subdivision Regulations for more on subdivision regulation issues.

---

End Notes

¹There are a few definitions that include the word subdivision, but the definitions use the word without actually defining what a subdivision is.

² For example, a 1998 amendment to the chapter 177 definition of “subdivision” changed the definition from the phrase “the platting of land” to current phrase “the division of land.” That change arguably pulled the defined “subdivision” from only those associated with platting to include all divisions of land. But other provisions in the definition and chapter 177 seem to reunite the statutory subdivision with plats.

³Patricia E. Salkin, American Law of Zoning § 31:2 (5^th ed. 2010).

⁴ This part of the definition was completely overlooked (or ignored) in a rather strange recent case that found that a plat did not constitute a development order. Graves v City of Pompano Beach,___ So. 3d ___, 36 Fla. L. Weekly D778, 2011 WL 1376617, (Fla. 4^thDCA 2011). Although the substituted opinion, at 74 So. 3d 595, issued November 23, 2011, after rehearing, reversed and found that a plat does constitute a development order, based on the City’s ordinance and a liberal reading of the statutory definition of a development permit, it still did not recognize the subdivision/platting aspect of the definition of development.

⁵ Whether the local governments can go beyond the statute to regulate divisions of land into less than three parcels through the LDRs goes to the question of whether LDRs are limited to only regulating “development,” which is an issue for another article.

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.