Michael Ciccarone

September 16, 2009

By Michael Ciccarone,  Fowler, White and Boggs, P.A.

 Predictions, both the expected and the surprising, captured attention at the symposium, which was held on August 28, 2009 in Fort Myers to discuss  those “New Urbanism” development types which are predicted to emerge in response to future transportation needs and global economic trends.  Sparks ignited when Department of Community Affairs (DCA) Secretary Thomas G. Pelham and former DCA Secretary Linda Loomis Shelley crossed verbal swords on a issue which, until then, very few people in the audience of 250 even suspected  was lurking in the forest maze of Florida land planning law.  The audience who had come to learn what experts expected to result from Florida’s recent adoption into law of Senate Bill 360, heard little disagreement on that topic, but few expected the surprise debate on an issue which could impact comprehensive planning as early as in 2010 in ways that may be just as significant as the experts predict will result from SB 360. 

The day-long event was organized and delivered as a free public service by the Fort Myers office of the state-wide law firm of Fowler White Boggs in cooperation with Florida Gulf Coast University, the City of Fort Myers, Lee County, and Reconnecting Lee County, a citizen’s group which advocates “new urbanism” development.  The audience included elected officials, government administrators, public and private sector planners, lawyers and engineers, builders, developers, environmentalists, educators, realtors and other interested persons from a six-county area.

The morning schedule was designed as a forum for a discussion of recent changes in Florida’s growth management laws, most notably SB 360.  The afternoon session focused on the possible application of “new urbanism” concepts which reduce reliance upon private automobile use by promoting designs which accommodate and encourage walking, bicycling, bus, bus rapid transit, light rail and other alternative forms of  transportation.

Senate Bill 360 was controversial from the time it was introduced early in the 2009 legislative session and remains controversial to this day.  A coalition of local governments, Lee County being among them, have taken the unusual step of filing suit to challenge the legality of the legislation, which these local governments allege is too unclear to be enforced.  A major issue for these plaintiffs is that part of the bill which changes Florida law regarding traffic “concurrency” requirements for new developments. 

Concurrency is a concept that was introduced in Florida by legislation adopted in 1985 and implemented in the years immediately following.  When it was adopted it was widely hailed by growth management advocates as a necessary and praiseworthy component of Florida’s top-down approach to local government planning.  These growth management advocates had persuaded the Legislature that local governments were either unwilling or unable to manage new growth.  The results, these advocates asserted, was suburban sprawl and an increasing deficiency in the level of public infrastructure which was needed to accommodate both existing and new development. 

Concurrency, and especially road concurrency, was a measure not well received by many local governments who feared that the requirement would hamper local growth and run afoul of local political priorities.  Ironically, in the years since its adoption, concurrency has come to be embraced by these same local governments, who were alarmed by provisions in SB 360 that would eliminate road concurrency requirements in specified areas that are deemed to be sufficiently dense to be considered Dense Urban Land Areas (“DULA’s”), as defined in the bill.  Critics of SB 360 argue that the definition of a DULA is so lenient that many areas will meet the definition even though most planning professionals would conclude that the densities in these areas are simply too low to justify the “dense urban” designation.  The question of whether an area is improperly labeled a DULA under current, common land use planning theory and practice is not an academic one.  Senate Bill 360, its critics say, eliminates road concurrency requirements in DULA’S.  Proponents of SB 360 agree.  What then, you may ask, is there to fight about?

Controversy over  SB 360 swirls around the question of what the Legislature intended when it passed the bill and whether the Department of Community Affairs is correctly interpreting the Legislature’s intent.  In explaining the almost 25-year history of the growth management laws which preceded the adoption of SB 360, Secretary Shelley agreed with those critics who argue that concurrency has produced the unintended consequence of encouraging suburban sprawl by making it difficult, if not impossible, to allow new development in urban areas, where road levels of service often are inadequate.  These critics argue that developers have found it much easier to build new communities in areas which previously had been rural.  Roads in these areas generally operate at the highest levels of service and are the easiest and least expensive to improve or build if increased traffic carrying capacity is necessary.  The end result has been the extension of suburban development at the expense of maintaining and improving existing urban areas.  Dr. James C. Nicholas, an economist and Emeritus Professor of Law at the University of Florida, made a compelling case during the morning part of the symposium that this development pattern is simply not economically sustainable in light of world-wide demand for oil and other energy sources.

Secretary Shelley, who was formerly  Chief of Staff to the late Governor Lawton Chiles before taking command of DCA, is currently a Fowler White Shareholder, as was Secretary Pelham before taking up his current position for a second time as the Department’s Secretary.  It was Mr. Pelham who was originally charged with implementing concurrency requirements when he had been the DCA Secretary during the administration of Republican Governor Bob Martinez, who was succeeded by Democrat Chiles.  Between them, Pelham and Shelley dominate the Department’s leadership history from the date when concurrency was adopted.  No persons are better able to assess its impact.

Not surprisingly, Secretary Pelham agreed that road concurrency requirements had produced the unintended consequence of promoting urban sprawl.  Both Secretaries agreed that SB 360 is intended to discourage such sprawl by eliminating road concurrency compliance in urban areas, where new development should be re-directed.  The controversy over Senate Bill 360 centers on the question of whether the Legislature intended to and did in fact repeal concurrency requirements in DULA’S or whether SB 360 merely enables local governments to do so, if they choose, by amending their comprehensive plans accordingly.  Had local governments attempted to adopt such amendments prior to the passage of SB 360, those amendments would have been challenged and successfully struck down by DCA.

Whatever may have been the Legislature’s subjective intent in passing Senate Bill 360, Secretary Pelham convincing demonstrated why the application of the standard rules of statutory construction used by courts clearly lead one to conclude that local traffic concurrency requirements were not automatically repealed by SB 360.  Local governments have been given the option to do so.  It is the author’s opinion that most attorneys would agree with Secretary Pelham.  However, in the Secretary’s view, the debate over the self-enforcing or other nature of Senate Bill 360 is a misplaced and wasted effort.

Both Secretaries agree that SB 360 does not provide a free avenue of escape from traffic impact mitigation.  Secretary Pelham correctly reminded everyone that Senate Bill 360 also mandates the adoption of a new mobility fee, the methodology for which is still being developed by Dr. Nicholas, who foresaw a December delivery date for the methodology.   Beyond these points, however, none of the speakers felt confident in explaining how it was to be collected, whether collections would be kept locally and where the decision on how to spend the monies collected under the fee would be made.  However, notwithstanding such huge gaps in the legislation, Secretary Pelham was sanguine about a resolution of the problem.

Mr. Pelham predicted that corrective legislation would emerge in the 2010 Legislative Session.  He expressed confidence that this  legislation will clarify the purpose, application and administration of the changes made by SB 360.  None of the other speakers challenged that prediction.  The end result is that Senate Bill 360 may, by this time next year, be nothing more than an historical curiosity.  Attendees who were expecting a debate over Senate Bill 360 were disappointed.  However, when a question was asked about future rule making, the symposium  attendees became audience to an unexpected, lively debate between the two Secretaries over an issue that may have more far reaching implications that anything contained in SB 360 now or after it is fixed in 2010.  The term used by the Secretaries to describe this issue is “Needs Analysis.”

During Secretary Pelham’s first tour as DCA Secretary, the Department was confronted with an issue which both Secretaries labelled “over-allocation.”  Over-allocation means that the maximum densities allowed in the various land use categories of a local comprehensive plan, would, if the densities were to be built to those maximum levels, accommodate a resident population that would exceed State-mandated population projections.  The Secretaries agreed that local plans, on average, provide for development which exceeds projected population by a factor of 300%.  Stated differently, if the State were to project a future population of, say, one million residents within the planning horizon (usually twenty years) of a particular local government plan, on average three times more land area will already been approved to accommodate that population than the acreage that actually will be needed.

The concern for a Needs Analysis, using the example of a projected population of one million residents, is not that two million more people than are expected will unexpectedly arrive simply because the comprehensive plan provides theoretical space for them.  Rather, it is because the projected population of one million people will have so much room in which to spread out, that it will likely do that (i.e., sprawl) rather than be developed in contiguous compact areas.  The concept of “Needs Analysis” is based on a policy which would require the Department to oppose a proposed comprehensive plan amendment which would increase the surplus of over-allocated theoretical entitlement rights, unless the amendment is accompanied by data and analysis which justify the need for it.

Secretary Shelley expressed frustration that DCA appears to be in the throes of applying a Needs Analysis requirement without any administrative rule to support it or explain it.  Secretary Shelley complained that an applicant for a comprehensive land use change is hard-pressed to know how to perform a sufficient needs analysis in the absence of any rule which provides methodology or guidance.  In reaffirmation of  the continuing wisdom in the old adage that one should be careful when making a wish lest it come true, Secretary Pelham announced that one of his priorities in 2010 would be the promulgation of  a needs analysis rule.  The state-wide implications of such a rule perhaps are not obvious to anyone who was not at the symposium, but those persons who did attend were left in no doubt of the Secretary’s intentions.

For the last twenty years it has been the practice of local governments to adopt comprehensive land use plan amendments to accommodate new development proposals that extend into rural and open space areas where the maximum density or type of use allowed is either too low or otherwise inappropriate to meet developer expectations.  This practice has become almost routine and Secretary Pelham is clearly upset by it.  He made an empassioned argument that such routine amendments destroy the very purpose of long-range comprehensive planning.  In his view plans that are routinely amended cannot be viewed as long-range plans.

The implications for any land owner or developer whose development vision would require a comprehensive plan amendment should be obvious:  Apply for it now before new rules make it difficult, if not impossible.  However, given the current market conditions, when the demand for new development is virtually nonexistent, it may be unrealistic to expect many potential applicants to be enthusiastic about spending money they currently do not have in order to pursue a land use change for which there may not be a demand.  This presents a real dilemma for land owners, developers and all of their consultants.

Those who might argue that one should not read too much into Secretary Pelham’s statements should talk to veterans, like the author, who was involved in litigation with the Department when it challenged Lee County’s comprehensive plan in the late 1980’s on the grounds that it over-allocated potential development densities and intensities.  That dispute was resolved on the eve of administrative hearings in a settlement reached  with Secretary Pelham, who agreed to allow Lee County to adopt certain overlay features which would theoretically direct growth where it was wanted, without requiring substantial reductions in the densities allowed under the land use categories underlying the overlays.  Even then, Lee County had to adopt density reduction changes in certain outlying areas.  Those reductions, which are still mostly in place, have been whittled away on a regular basis ever since.  The Secretary appears ready to reverse this trend throughout the state.  The Secretary’s views on the subject of over-allocation must be taken with the utmost seriousness.  These views are not new.  They reflect a position that is entirely consistent with the one he took twenty years ago.

The Secretary offered no insights into the approach that DCA may propose in a needs analysis rule, but certain alternatives approaches are logical.  The most simplistic approach undoubtedly would be to require a reduction in densities and/or intensities in an existing plan commensurate with the proposed increase which would be allowed by the amendment.  The end result would be essentially a wash.  It would have the virture of simplicity but that would be off-set by both a legal and a political problem.  The legal problem would be the potential decrease in the fair market value of the property (think “Bert Harris”) from which density or intensity views is transferred to the benefit of the property where it will be increased.  Moreover, unless the same owner owns or controls both the reduction area and the increase area the elected officials who will be required to approve any proposed amendment may encounter stiff political opposition from the “losing” land owner(s).

A more realistic rule alternative would be to look favorably upon those amendments which can be viewed as infill within existing urban boundaries.  Barring environmental limitations or other policy priorities, it would be difficult for DCA to oppose such amendments on the grounds that they promote urban sprawl.  Such sprawl still can occur if development goes to outlying areas already approved for suburban development densities, but such sprawl can only be blamed on what was already in the comprehensive plan and not on the proposed amendment.

A third approach rule would be one which would allow changes in outlying areas, if a persuasive case can be made to demonstrate how the assumed negative impact of such sprawl is offset by improvements in other plan goals, objectives or policies made as a direct  consequence of the development that would be permitted under the proposed amendment.  Perhaps the most obvious example would be the required construction of new water and sewer service facilities which would be necessary to serve the new area but which also would increase capacity to areas outside of the amendment area.

No doubt other alternatives can be devised and one should expect the unexpected in whatever emerges.  However, regardless of what may emerge in any proposed rule, one must assume that it will require more than the mere throwing of words and paper at the problem.  Comprehensive plan amendments, in the view of the Secretary, have become too frequent and too easy to get approved.  If the Secretary has his way, any new rule will have teeth and make it harder to amend comprehensive plans.  If such a new rule proposal is able to survive the political opposition which no doubt will develop from owners of large tracts of rural, agriculture and  open lands, and possibly from among developers whose expertise lies in converting such lands into suburban development, one may foresee a genuine shift in development patterns in Florida if market demand shifts from suburban development to one favoring a denser, more urban lifestyle, as many experts are predicting.  The reality of that shift is expected to be the subject of the next symposium which the sponsors are planning.

Author Bio

Michael J. Ciccarone practices in the areas of real estate, land development and eminent domain for Fowler, White and Boggs, P.A.  He is experienced in the development of Community Development Districts (CDDs) and Developments of Regional Impact (DRIs).  In addition, Mr. Ciccarone handles Bert Harris litigation, special master proceedings, water management and district permitting issues, and wetlands permitting.  He also has experience in biosolids regulation, management and litigation.

Professional Affiliations

  • The Florida Bar: Grievance Committee for 20th Judicial Circuit
  • Lee County Bar Association
  • Urban Land Institute