Linda Loomis-Shelley

 
 

September 1, 2009

Growth Management in the Old World
 
 
by Linda Loomis Shelley, Esq. -Fowler White Boggs P.A.
First, a disclaimer. Whether discussing the past, the present or the future, one person cannot accurately capture the views or expectations of all of the participants who experience an event, particularly not when the subject matter of the analysis is something as multi-faceted and complex as Florida’s growth management system.

Although I have some experience participating in different roles in the growth management process and have looked at the system from those different perspectives, I do not presume to understand the views of all of the participants.
 
This, then, is only my personal take on some of the events of the past, where we find ourselves now, and the challenges and opportunities I now see before us.

I find it helpful to divide the perspectives on the past twenty plus years of growth management into four categories: the state perspective, the local government perspective, the developer’s perspective and the citizen’s perspective.

The Past

From the state viewpoint, the early 1980’s has many similarities with the feelings being expressed about growth and development today. Growth – or more accurately – the perception that the state was not dealing effectively with growth, was number one in the polls gauging citizen’s concerns. Citizens believed that local governments were not responsible in dealing with the issue and demanded state action.
 
Governor Graham, taking from a page that had worked well in the past in dealing with this complex issue, appointed the ELMS 2 Committee, ably chaired by Bob Rhodes. The system the state came up with was a top-down, command and control solution, imposing a strong state oversight role into what had previously been almost exclusively a local government prerogative over land use decisions.
 
The vision included a state plan that would guide regional plans that in turn would guide local plans, so that we were all to be aware of what were declared to be our priorities and were to all head in the same direction in attempting to achieve them, and – very significantly – we would put our money where our mouth was by funding those things we said were important to us such as public education, environmental protection, criminal justice and infrastructure. We also set forth for the first time the concept of concurrency, a very logical concept borrowed from the development of regional impact program, that is difficult to argue with:

Infrastructure should be in place to accommodate the impacts of development.

I was fortunate to work for Governor Graham at the time and recall vividly his threat to veto the bill we had all worked so hard on if the Legislature did not provide a funding source for the infrastructure that would be needed to manage growth. It did, only to repeal the funding source – a robust State Infrastructure Trust Fund fueled by an expansion of the sales tax on services – a few years later.

We knew when the growth management bill was passed that the state faced significant funding deficits, most notably in transportation, because the Zwick Commission had put those facts in front of us to prove it.

The state comprehensive planning process never realized its potential, and indeed, in my opinion was the most glaring failure of the original conceptual framework. The Legislature has never bought into the idea that we will map out a course and stick with it for longer than a year at a time.

Local governments were understandably shocked, upset, rebellious and generally unenthusiastic about this massive intrusion into their previously unfettered discretion over most growth and development decisions. 
 
They were overwhelmed with the massive undertaking the state had mandated, but gamely, in large part, made a serious effort to respond. At an early stage, they passed a Constitutional amendment forbidding the state from making any more unfunded mandates unless certain requirements were met.
 
The Legislature resented this more than respected it, and made the requisite findings and achieved the pass rate required without blinking an eye. A consistent refrain during all the years has been: you (the State) are not paying your share of the burden and we don’t have enough money to meet the standards you are requiring by ourselves.
 
The response has generally been: stop whining, and here are some more requirements to meet while you are at it.

The development perspective at first was fear and bewilderment. One noted development representative – Wade Hopping – told me in 1985 that the legislation would stop growth in Florida. Not only did that not occur, but in fact, until recently Florida continued to grow relentlessly over the next 20+ years – far faster than our systems have been able to keep up with.
 
What developers know is that the growth management process has added time, expense and uncertainty to the development process. When businesses experience increased costs, these costs are passed along to the ultimate customers, the home buyers and commercial ventures.
 
To the extent they are not, the costs are passed along to the rest of us and primarily these costs then fall on local governments or the environmental and infrastructure systems that are affected. These are the same local governments who did not have enough resources to respond in the first place, and the same environmental and infrastructure resources that were stressed when we first started but to solve the problem. So, the hole has gotten deeper, the debt has gotten bigger.

From the citizens’ perspective, their early frustration turned briefly into optimism that – finally – someone was going to get a grip on the situation. They participated in vast numbers in preparing local plans, getting involved in the development review process at the local level and became politically involved to elect representatives who agreed with their views. Increasingly, however, their optimism faded.
 
The system, while providing unprecedented access to the process, did not give them the answers they wanted.

The Present

So, where are we now? The state perspective is reasonably described as schizophrenic. The legislature is now very sympathetic to the dire economic situation being experienced in the construction and development industry and passed a very confusing, some would say inelegant, measure this year under the banner of economic stimulation. Most likely, the primary stimulation will be to planning consultants and attorneys representing those few developers who are still on the playing field.
 
Yet only a few years ago, the Legislature passed the original
SB 360, which was a significant tightening of concurrency requirements. That legislation exalted numbers and how to calculate them – trips, student stations, per capita consumption of water and sewer capacity, acres of parks –over urban form, at best.
 
The Legislature must have forgotten that the state enacted strict concurrency provisions in the original 1985 growth management act and had to come back and create ways around it in the early 90’s – transportation concurrency exception areas, for example – because we found out that we didn’t like the result of only counting cars. Now, with more than 20 years of starving the infrastructure we thought was inadequate when we started, there still isn’t enough money to fix the problem, or even keep from losing additional ground.

The other variable on the state side of the equation is the uneven implementation of the program over the years by the Department of Community Affairs. We started with Tom Pelham when the plans were initially due and without question, he set the bar for an aggressive, proactive role for DCA.
 
Other secretaries range from showing what some might view as too much deference to local government decision making prerogatives, to what former Secretary Tom Lewis referred to as “zero tolerance” under Tom Pelham’s leadership.
 
Given the legislative reaction and apparent dislike of this higher level of oversight, it is uncertain whether such an approach is sustainable, particularly in the context of DCA’s sunset review scheduled for 2010.

Local governments are still reeling from a combination of tax restrictions and a declining tax base due to reductions in property values. They are generally resentful of the tight rein being held by DCA, and are cutting planning staff to make budgets balance so have little ability to ramp up for more extensive state requirements on issues such as residential needs analysis and strategies to reduce greenhouse gas emissions.
 
 The politics of local growth management issues are variable, but generally there is still considerable fear by local officials that they will get a reputation as a “developer’s handmaiden,” and they will shy away from any solution that is perceived in that manner. Local planning staff is also variable, but overall the level of professionalism has significantly increased over the years.

The citizens are generally back to where they were in the early 80’s.  They are now rallying to pass a Constitutional amendment – Florida Hometown Democracy – that would require voter approval of all comprehensive plan amendments. With some notable exceptions, many citizen groups now want the same thing they wanted in the first place – they want someone to control local growth management decisions and they are turning increasingly to voter referenda as a replacement solution.
 
In my opinion, this is the worst, most ill-conceived idea to ever enter the growth management fray. Comprehensive planning is complicated, fact-intensive, has potentially far-reaching consequences, and theoretically at least, at some point has to come together in a reasonable, cogent approach.
 
This ticking time bomb has the potential to completely change the growth management process, changing a deliberative process into a popularity contest. And let us not forget the growing number of local petition initiatives now pending, already passed or in the discussion phase that will accomplish the same objective – direct citizen votes on plan amendments.
 
Some of them are restricted to particular issues such as height restrictions, others are sweeping changes. And although many local governments already have a supermajority requirement for plan amendments – with more of those on the way – in at least one instance, the courts have approved a unanimous vote of the elected body in order to adopt a plan amendment. How that squares with a representative democracy – providing essentially a veto power to the minority – is a question that deserves serious consideration.

If Hometown Democracy passes, the Legislature should seriously consider repealing the state oversight portion of our growth management system. State oversight was enacted in order to make local government more accountable, and if that accountability is replaced by a ballot box, state oversight is superfluous and duplicative. What difference does it make what performance standards apply to a plan if the only way the decision is made is by popular vote or by who runs the slickest ad campaign?
 
Given the expense and long-term impossibility of keeping
comprehensive plans up to date and meaningful, consideration should also be given to making comprehensive planning once again an optional process, or at lease drastically reducing the mandatory elements for each plan.

Conclusion

The history of growth management in Florida should provide a litany of “lessons learned” yet we persist in acting precipitously and paying the price for it later. To use an old phrase, “Legislate in haste, repent at leisure.” This is evident in both the original SB 360 passed in 2005 which significantly tightened the growth management screws, and the new SB 360 which careened in the opposite direction. The latest changes, however, are being played out in an historically significant economic downturn and it is impossible to predict what impact, if any, will be felt in our communities.

Despite its imperfections, the new SB 360 can be implemented successfully if reason and good motives prevail. Unfortunately, the same could have been said about many of the failed growth management initiatives that have been enacted over the years.
 

http://www.fowlerwhite.com/

 

Author Bio

Linda Loomis Shelley has experience in environmental and land permitting before state, regional and local entities and provides advice and assistance regarding Florida administrative practice and litigation.

Representative Experience

  • Florida Department of Insurance, Office of the Treasurer & State Fire Marshall, Tallahassee, FL
    Chief of Staff, February 2000-December 2000
  • Florida Residential Property & Casualty, Joint Underwriting Association, Tallahassee, FL
    Assistant Executive Director, January 1999-February 2000
  • Office of the Governor, Tallahassee, FL
    Chief of Staff, August 1995-January 1999
  • Florida Department of Community Affairs, Tallahassee, FL
    Secretary, May 1992-August 1995
  • Law Firm of Dixon, Blanton & Shelley, Tallahassee, FL
    Partner, January 1987-May 1992
  • Governor Bob Graham, Tallahassee, FL
    General Counsel, October 1985-December 1986
  • Florida Department of Community Affairs, Tallahassee, FL,
    General Counsel, February 1985-October 1985
  • Governor Bob Graham, Tallahassee, FL
    Assistant General Counsel, September 1981-February 1985
  • Law Firm of Corlett, Merritt, Killian & Sikes, Miami, FL
    Associate, November 1977-September 1981

Professional Affiliations

  • Environmental and Land Use Law Section Executive Committee Liaison
  • Florida Association for Women Lawyers
  • Tallahassee Bar Association

Community Involvement

  • Leadership Florida
  • TaxWatch: Board of Trustees
  • University of Florida Law Center Association: Board of Trustees
  • William F. Stafford Inn of Court and Federal Judicial Nominating Commission: Northern District, and Advisory Council of the Florida Conflict Resolution Consortium
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