Alexis Crespo

What You Need To Know -2011 Florida Legislative Changes
July 2011
By Alexis Crespo, AICP, LEED AP BC+D
Whether you’re a fan of the new governor or not, after this legislative session you have to admit that he follows through on his word. While on the campaign trail last year, Scott was certainly not shy about his dislike for the Department of Community Affairs (DCA) and the manner in which the state was enforcing the Growth Management Act. The result: approval of the most significant changes to the state’s growth management process seen in over two decades. The following are some of the “highlights” of HB 7207 and SB 2156 that will directly impact Florida’s development industry.

Creation of DEO
Following fervent promises to streamline government and eliminate inefficiencies, Governor Scott created the Department of Economic Opportunity (DEO) to house all economically-driven departments, including the Division of Community Planning, Division of Housing and Community Development from DCA, the Office of Tourism, Trade and Economic Development from the Governor’s Office, and Agency for Workforce Innovation. In his official press release, Scott announced the new department will provide a more unified approach and rapid response to job creation by consolidating the state’s economic development functions, enabling his office to more quickly react to businesses interested in relocating or expanding within the state. Additionally, DEO will serve as the designated land planning agency for the administration of Florida’s growth management programs effective October 1, 2011

Comprehensive Plan Amendments
Another significant change resulting from this session is the streamlining of the comprehensive plan amendment (CPA) process. It is hard to believe that just months ago the development industry was battling Amendment 4, which threatened to lengthen the already cumbersome comprehensive plan amendment process. Today, the state’s role in the review and approval of these amendments has been significantly limited in order to transfer the control of development approvals back to local governments and expedite the process.

Specifically, the Expedited State Review Process, originally a pilot program introduced in 2007, will now apply to all CPAs (even DRIs). The exceptions to this new rule include those projects proposed as (1) a Sector Plan; (2) Rural Land Stewardship Area; (3) within an “Area of Critical State Concern”; (4) local comprehensive plan update based on an Evaluation and Appraisal Report; or (5) comprehensive plans resulting from the creation of a new municipality.

Under the expedited review process, state agencies have 30 days upon receipt of the transmitted amendment to provide comments related to “important state resources and facilities that will be adversely impacted”. These comments will be packaged in a letter versus the detailed Objections, Recommendations and Comments (ORC) report. Therefore, the state review period is cut in half and will no longer address local issues, such as the “need” for the amendment, impacts to county roadways, compatibility, etc.

Additionally, local governments are no longer limited to transmitting amendments to the state twice per year. If implemented at the local level, jurisdictions can freely send amendments to the state for immediate review, rather than package amendments together in annual cycle(s). This change will provide local governments will the ability to expedite amendments for projects that have a quantifiable public benefit, thereby improving their ability to create jobs and grow their local economy.

In terms of small-scale amendments (those amendments under 10-acres in size), the cumulative total that a given jurisdiction can process each year was increased from 80 acres to 120 acre, while the 10-acre limit per amendment is doubled to 20 acres in rural areas of critical economic concern. Additionally, small-scale amendments will no longer be subject to state review and will go straight to adoption hearings before the Local Planning Agency and Board of County Commissioners or City Council
With Billy Buzzett, a former Vice President of St. Joe Company, sitting in as the Secretary of DCA, it is no surprise the manner in which the state addresses large scale projects was thoroughly overhauled. The often difficult task of satisfying the finding of “need” for a project has been addressed in detail via HB 7207 and allows for much more flexibility. Specifically, local comprehensive plans must at minimum accommodate the BEBR mid-range population projection for the planning period (which is no longer specified by the state). This is a significant change from the previous standard of capping allowed development versus accommodating it.

Additionally, the “needs” requirements can be met by promoting economic growth, as defined by the local governments. This “needs” change, coupled with an expanded definition of urban sprawl, will certainly reduce, if not eliminate, once formidable roadblocks for large projects.

Also, the Sector Plan process is now the tool of choice for the development of landholdings that exceed 15,000 acres. Previously, only a few select projects were accepted under the “pilot” Sector Planning Program, which required state approval.

Today, local governments can establish sector plans without state approval and have much more control over the process. Sector Plans can only be applied to properties 15,000 acres or more and are subject to the “Coordinated State Review” process, which will focus only on those issues related to “important state resources and facilities”. While the applicant will receive the expanded ORC Report and Notice of Intent (NOI) from the state, the intent is to drastically streamline the approval process for large projects.

The repeal of mandatory concurrency requirements for transportation facilities, parks and schools is perhaps the most controversial change to growth management resulting from this session. While local governments can elect to maintain concurrency requirements in these areas, the state will require that they prove their adopted Level of Service standard can be “reasonably met.
Another important note under this heading is that local governments that choose to retain transportation concurrency requirements must provide a “pay-and-go” proportionate share mitigation program to allow applicants to more accurately mitigate project impacts. Additionally, developers will not be responsible for funding transportation backlogs or deficiencies that existed prior to their filing of the application.

Permit Extensions
This portion of HB 7207 is straightforward in nature and builds upon the achievements of SB 360 and SB 1752 from years past. Additional 2-year extensions will apply to all permit extensions received under SB 360, if ineligible for extension under SB 1752. Also, 2-year extensions are provided for any building permit, WMD permit, or DEP permit (pertaining to surface water management) that is scheduled to expire between January 1, 2012 and January 1, 2014. It is important to note that these new extensions are not automatic and the local government and/or agency must be notified prior to 2012.

And Local Referenda…
Lastly, I want to briefly mention the prohibition on local referenda for the approval of comprehensive plan amendments or development orders, also packed into HB 7207. The previous law only prohibited referenda for plan amendments that affected 5 or fewer parcels of land. This change will go a long way to prevent future repeats of the St. Pete Beach and Hometown Democracy debacles

Concluding Thoughts
While this session ushered in a relaxed permitting environment at the state level and more local control, there is considerable concern on how environmental protection by Scott and the prevention of sprawling land use patterns will be holistically addressed with limited state control and oversight. While the commitment to a more business friendly Florida is refreshing after several tough years, only time will tell if our local governments are ready, willing and/or able to take on the increased responsibility handed down .

With public sector staffing levels at historical lows, it is certainly not the best time to add to our local governments’ workload!

Editorials aside, the ultimate take away from this year’s legislative session is home rule. Local governments now have significant control over the development process and their implementation of HB 7207 becomes the key question. Which jurisdiction’s will maintain transportation concurrency and keep the twice-per-year amendment cycle? Which jurisdictions will embrace the open for business theme handed down from the state? It is important that all those in the development industry monitor implementation activities in their local jurisdiction(s) to understand how these substantial changes will be executed by their elected officials.



2011 Legislative Session – Let’s Get to Work

April 2011
By Alexis Crespo, AICP, LEED AP BC+D

The 2011 Legislative Session is proving to be an exciting one for the development industry.  With a budget gap of $3.5M and major modifications proposed to current growth management regulations, all eyes will be on Tallahassee until mid-May to see if our new Governor can effectuate sweeping changes and re-invigorate Florida’s economy per his catchy campaign slogan. A key topic of interest is the proposal for a “super agency” that combines the powers of several state agencies and provides for increased oversight by the Governor.  The details of this proposal were rolled out by the Senate Budget Subcommittee on Transportation, Tourism and Economic Development Appropriations on March 11th, just days into the session. The language calls for the creation of “Jobs Florida”, a new agency that takes over the responsibilities of DCA, Office of Tourism, Trade and Economic Development and the Agency for Workforce Innovation. This agency would be headed by a commissioner reporting directly to Governor Scott. The proposal is intended to streamline state functions and reduce costs, but is also a subject of controversy due to the amount of authority the new Governor would be granted if approved.  Other proposed bills of interest include HB 239 and HB 174 proposed by House Representative Trudi Williams and Senator Mike Bennett, respectively.  HB 239 was filed in response to FDEP’s controversial Final Numeric Nutrient Criteria Rule and prohibits the implementation of the rule by FDEP, water management districts and local governments.  Supporters of this bill affirm that the federal standards are not only unrealistic, but will have a negative impact on the agriculture industry, which the state economy relies heavily on. Representative Williams, who serves as the chairman of the House Select Committee on Water Policy, has indicated that the committee will continue to analyze FDEP’s criteria, but the focus moving forward will be on creating new legislation that looks at the big picture of Florida's water quality. At the time of print, HB 239 had cleared the Agriculture & Natural Resources Subcommittee and was is under review by the Federal Affairs Subcommittee.

Senator Bennett’s proposed SB 174 and SB 176 will reinstate the growth management and affordable housing components of SB 360, which was invalidated by the courts in 2010. The bills includes language for permit extensions, authorization for Dense Urban Land Areas (DULAs) and Transportation Concurrency Exception Areas (TECAs), certain DRI exemptions, and tax exemptions for organizations that provide affordable housing. At the time of print, both SB 174 and 176 have cleared the Community Affairs, Governmental Oversight and Accountability and Budget Committees, and is on the fast-track for the Governor’s signature.

Also of note is a proposed committee bill (PCM) providing for sweeping growth management reform, as proposed by the House Community and Military Affairs Subcommittee. The legislation, often referred to as the “growth management overhaul bill”, proposes to:

·         Repeal Section 9J-5 of the Florida Administrative Code (which governs the Comprehensive Plan review and compliance process for local governments);

·         Reduce state agencies’ review authority for Comprehensive Plan Amendments;

·         Remove of financial feasibility requirements;

·         Remove state mandated concurrency requirements for transportation, schools, and parks, but includes guidance for local governments that choose to maintain concurrency; and

·         Requirement that local governments to base long-range population projections on BEBR medium, at a minimum. Representative Ritch Workman, chair of the House Community & Military Affairs Subcommittee, is hopeful the bill will help speed the rate of economic recovery across Florida, stating “Florida’s outdated growth management laws are not designed for the 21st century and they too often stifle economic growth due to layers of unnecessary regulation.”

The spring legislative session holds many uncertainties and opportunities for development interests, local governments and DCA alike. It is clear that certain legislators are primed to revamp longstanding growth management laws to encourage economic recovery and create an “open for business” atmosphere across the state. Stay tuned to Florida Land Development News for the latest news regarding growth management reform and the changes affecting you and your projects
What if Amendment 4 is Passed?
November 2010
By Alexis V. Crespo

Amendment 4, commonly referred to as “Hometown Democracy,” (HD) is by no means a new topic of discussion for development and construction-industry professionals across the State of Florida.  Florida Hometown Democracy, the chief proponents of the “vote on everythingamendment to the Growth Management Act, failed to collect enough signatures to reach the ballot in 2004, 2006 and 2008, but in June 2009, the Secretary of State certified that they achieved enough signatures to appear on the 2010 ballot as “Amendment 4”.  This controversial issue will be facing the voting public in just five months time.

Amendment 4 will require any change to local Comprehensive Plans to undergo final approval through voter referendum.  The emergence of HD is largely due to some Floridians’ frustration with the perceived corruption of elected officials. Proponents of the amendment feel that county and city commissions “rubberstampland use changes, rather than serve the public interest. In a recent debate in Collier County, Lesley Blackner, one of the land use attorneys that founded the movement, stated, “Some jurisdictions hand out (comprehensive) plan amendments like it is Halloween candy.Perhaps one of the greatest strengths of the HD movement is the clever selection of their name - the term alone sparks images of Lady Liberty and the preservation of small town America.

Most professionals in the development industry have a much different opinion of the current comprehensive plan amendment process, and are well aware of the considerable amount of time and money involved in preparing and processing these amendments. Consultants and developers alike are also aware of the lengthy review conducted by local, regional, and state agencies to ensure the proposed amendment is appropriate and will not negatively impact public health, safety, and welfare. A key concern posed by the opponents of this sweeping amendment is that the majority of the general public may not be able to process the considerable amount of data involved in these amendments.

Unfortunately, understanding growth management law and the politics behind each land planning decision is  not as  simple as checking a box for “yes” or “no”.  Also HD provides the perfect platform for “no growthers” to potentially shut down development in their jurisdictions. St. Pete Beach‘s former mayor, Ward Friszolowski,  is outspoken on how their local version of “Hometown Democracy was disastrous for the town and has virtually halted their ability to generate economic development.  Mr. Friszolowski has stated, “Elections were chaotic, uncertain, expensive and infrequent.  Unable to update its comprehensive plan, the town soon fell out of compliance with state mandates.”

The Florida Chapter of the American Planning Association also opposes Amendment 4 due to their concerns that the amendment will pit neighborhoods, municipalities, and even counties against each other over controversial plan amendments. This scenario could result from a jurisdiction attempting to attract new industry over a neighboring county through political campaigning, or neighborhoods disputing over which will be adjacent to a new landfill, both of which could require amendments to the local comprehensive plan.  The potential for aggressive public relations and media campaigns to sway the electorate is a question left unanswered by HD proponents and threatens relationships both locally and statewide.

While HD is certainly a looming concern for the development industry, the negative impacts of this amendment can be mitigated through thorough due diligence at the outset of new projects.  Prior to the purchase of any property, it is integral to determine the underlying Future Land Use Designation and if that designation will accommodate the desired development program to avoid putting a project’s success in the hands of the voting public. It is also important to determine whether the project will require any other changes to the Comprehensive Plan, such as amendments to the adopted Capital Improvements Element for roadway or utility expansions.

As we move forward towards the November elections education is essential.  As consultants, developers or construction professionals we need to educate ourselves regarding existing entitlements and implications of new developments to the existing Comprehensive Plan. Equally important is taking an active role in the education of our relatives, neighbors, and friends about the impacts of HD, both short- and long-term.

 -Alexis Crespo, AICP, LEED AP is a Principal Planner at Waldrop Engineering, P.A. a full-service civil engineering firm with offices in Bonita Springs and Tampa.