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.
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 (5th 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. 4thDCA 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.