There’s a desire to follow Land Development Regulations in WS but have not done so in decades

House Bill 503 (Chapter 2012-205 from HB 503, Laws of Florida)

Language was added to §125.022 (which addresses counties) and §166.033 (which addresses municipalities)1 that, for development permits2 filed after July 1, 2012, prohibits counties and municipalities from requiring the applicant to obtain any state or federal permit3 unless the state or federal permit has already been denied.

This bill also includes, in language almost identical to prior years, a process to extend most local government development orders and building permits, as well as DEP and water management permits. This legislation addresses those permits that are to expire between January 1, 2012 and January 1, 2014 and extends them for 2 additional years. These extensions can be in addition to previous extensions, but the extended time cannot exceed a total of four years. To receive the extension, the permit holder must notify the permitting authority in writing by December 31, 2012.4 The local governments and state agencies cannot require the payment of a fee for the use of the extensions.5

(26) “Land development regulations” means ordinances enacted by governing bodies for the regulation of any aspect of development and includes any local government zoning, rezoning, subdivision, building construction, or sign regulations or any other regulations controlling the development of land, except that this definition does not apply in s. 163.3213.

What is the “development” land development regulations can regulate?

Posted on January 23, 2011 | 2 comments

As discussed in Authority to Regulate Land, the State of Florida authorizes (and requires) local governments to create and administer land development regulations. The article What are Florida land development regulations? discusses what is meant by a “land development regulation.” But, underlying all the discussion about land development regulations is the question of what they are to regulate.

The two growth management acts authorize local governments to plan for and guide their “development and growth,” through comprehensive plans and the implementing land development regulations. Both acts refer to the same definition of “development” (apparently “growth” doesn’t need defining).

The definition, found at §380.04, Florida Statutes, defines “development” as “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.” §380.04(1), F.S. The definition states further that the following activities or uses are to be considered, under the growth management acts, to involve the defined “development:” §380.04(2), F.S.

  • A reconstruction, alteration of the size, or material change in the external appearance of a structure on land.
  • A change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units in a structure or on land.
  • Alteration of a shore or bank of a seacoast, river, stream, lake, pond, or canal, including any “coastal construction” as defined in s. 161.021.
  • Commencement of drilling, except to obtain soil samples, mining, or excavation on a parcel of land.
  • Demolition of a structure.
  • Clearing of land as an adjunct of construction.
  • Deposit of refuse, solid or liquid waste, or fill on a parcel of land.

The definition states that the following operations or uses shall not, under the growth management acts, be taken to involve “development:” §380.04(3), F.S.

  • Work by a highway or road agency or railroad company for the maintenance or improvement of a road or railroad track, if the work is carried out on land within the boundaries of the right-of-way.
  • Work by any utility and other persons engaged in the distribution or transmission of gas, electricity, or water, for the purpose of inspecting, repairing, renewing, or constructing on established rights-of-way any sewers, mains, pipes, cables, utility tunnels, power lines, towers, poles, tracks, or the like. This provision conveys no property interest and does not eliminate any applicable notice requirements to affected land owners. [See a future article under Electrical Facilities for more on this exemption]
  • Work for the maintenance, renewal, improvement, or alteration of any structure, if the work affects only the interior or the color of the structure or the decoration of the exterior of the structure. [See a future article under Design Criteria for a discussion of the impact of this provision on design regulations.]
  • The use of any structure or land devoted to dwelling uses for any purpose customarily incidental to enjoyment of the dwelling.
  • The use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products; raising livestock; or for other agricultural purposes. [See a future article under Agricultural Issues for more on this exemption.]
  • A change in use of land or structure from a use within a class specified in an ordinance or rule to another use in the same class.
  • A change in the ownership or form of ownership of any parcel or structure. [See a future article under Regulating Consistently for more on this exemption.]
  • The creation or termination of rights of access, riparian rights, easements, covenants concerning development of land, or other rights in land.

“Development,” when addressed in an ordinance, rule, or development permit, “includes all other development customarily associated with it unless otherwise specified. When appropriate to the context, ‘development’ refers to the act of developing or to the result of development.” §380.04(4), F.S.

So, these uses and activities are what land development regulations are authorized to regulate by the growth management acts.

 

What must be addressed in land development regulations, per the Florida Statutes

(1) Within 1 year after submission of its comprehensive plan or revised comprehensive plan for review pursuant to s. 163.3191, each county and each municipality shall adopt or amend and enforce land development regulations that are consistent with and implement their adopted comprehensive plan.  (It does not appear that LDR’s were sent to the State)

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.

3) This section shall be construed to encourage the use of innovative land development regulations which include provisions such as transfer of development rights, incentive and inclusionary zoning, planned-unit development, impact fees, and performance zoning. These and all other such regulations shall be combined and compiled into a single land development code for the jurisdiction. A general zoning code shall not be required if a local government’s adopted land development regulations meet the requirements of this section.

 

163.02 Councils of local public officials.

(1) The governing bodies of any two or more counties, municipalities, special districts, or other governmental subdivisions of this state, or any of them, herein referred to as member local governments, may, by resolution, enter into an agreement with each other for the establishment of a council of local public officials. Any council established under the authority of this section shall be a corporation not for profit.
(2) Representation on the council shall be in the manner provided in the agreement establishing the council. The representative from each member local government shall be the elected chief executive of said local government or, if such government does not have an elected chief executive, a member of its governing body chosen by such body to be its representative. Any member may withdraw from the council upon 60 days’ notice subsequent to formal action by its governing body.
(3) The local government council shall have the power to:

(a) Study such area governmental problems as it deems appropriate, including but not limited to matters affecting health, safety, welfare, education, economic conditions, and area development;
(b) Promote cooperative arrangements and coordinate action among its members; and
(c) Make recommendations for review and action to the members and other public agencies that perform local functions and services within the area.
(4) The council shall adopt bylaws designating the officers of the council and providing for the conduct of its business. The council may employ a staff, consult and retain experts, and purchase or lease or otherwise provide for such supplies, materials, equipment and facilities as it deems desirable and necessary.
(5)(a) The governing bodies of the member governments may appropriate funds to meet the necessary expenses of the council. Services of personnel, use of equipment and office space, and other necessary services may be accepted from members as part of their financial support.
(b) The council may accept funds, grants, gifts, and services from the state, from any other governmental unit, whether participating in the council or not, from the Government of the United States, and from private and civic sources.
(c) The council shall make an annual public report of its activities to each of the member local governments, and shall have its accounts audited annually.

163.055 Local Government Financial Technical Assistance Program.

(1) Among municipalities and special districts, the Legislature finds that:

(a) State and federal mandates will continue to place additional funding demands on all municipalities and special districts.
(b) State government lacks the specific technical expertise or resources to effectively perform ongoing educational support and financial emergency detection or assistance.
(2) Recognizing the findings in subsection (1), the Legislature declares that:

(a) The fiscal challenges confronting various municipalities and special districts require an investment that will facilitate efforts to improve the productivity and efficiency of their financial structures and operating procedures.
(b) Current and additional revenue enhancements authorized by the Legislature should be managed and administered using appropriate management practices and expertise.
(3) The purpose of this section is to provide technical assistance to municipalities and special districts to enable them to implement workable solutions to financially related problems.
(4) The Chief Financial Officer shall enter into contracts with program providers who shall:

(a) Be a public agency or private, nonprofit corporation, association, or entity.
(b) Use existing resources, services, and information that are available from state or local agencies, universities, or the private sector.
(c) Seek and accept funding from any public or private source.
(d) Assist municipalities and independent special districts in developing alternative revenue sources.
(e) Provide for an annual independent financial audit of the program, if the program receives funding.
(f) Provide assistance to municipalities and special districts in the areas of financial management, accounting, investing, budgeting, and debt issuance.
(g) Develop a needs assessment to determine where assistance should be targeted, and to establish a priority system to deliver assistance to those jurisdictions most in need through the most economical means available.
(h) Provide financial emergency assistance upon direction from the Executive Office of the Governor pursuant to s. 218.503.
(5)(a) The Chief Financial Officer shall issue a request for proposals to provide assistance to municipalities and special districts.
(b) The Chief Financial Officer shall review each contract proposal submitted.
(c) The Chief Financial Officer shall consider the following factors in reviewing contract proposals:

1. The demonstrated capacity of the provider to conduct needs assessments and implement the program as proposed.
2. The number of municipalities and special districts to be served under the proposal.
3. The cost of the program as specified in a proposed budget.
4. The short-term and long-term benefits of the assistance to municipalities and special districts.
5. The form and extent to which existing resources, services, and information that are available from state and local agencies, universities, and the private sector will be used by the provider under the contract.
(6) A decision of the Chief Financial Officer to award a contract under this section is final and shall be in writing.
(7) The Chief Financial Officer may enter into contracts and agreements with other state and local agencies and with any person, association, corporation, or entity other than the program providers, for the purpose of administering this section.
(8) The Chief Financial Officer shall provide fiscal oversight to ensure that funds expended for the program are used in accordance with the contracts entered into pursuant to subsection (4).
History.s. 22, ch. 99-251; s. 1, ch. 2000-340; s. 157, ch. 2003-261; s. 20, ch. 2011-34.

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