April 12, 2012 –
2012 Legislative Summary

The Florida Legislature passed two growth management bills, three environmental bills and an Administrative Procedure Act (APA) bill during its regular session that ended March 9, 2012.

Below is a summary of the key points from these bills. The details for each section are complex and complicated; we recommend you contact a Gunster environmental and land use attorney to find out how these bills may affect your property.

I.  Growth Management Bills

House Bill (“HB”) 7081 (HB 7207 Glitch Bill)

HB 7081 is the glitch bill to the Community Planning Act approved under HB 7207 during the 2011 Florida Legislative Session.  The bill has been signed by the Governor and is in effect.

1. Concurrency: In 2011, HB 7207 removed state mandated concurrency for parks and recreation, transportation and schools. A local government has the option to apply concurrency to these three facilities.  If a local government decides to maintain concurrency for these facilities, it must meet the requirements set forth in § 163.3180, Florida Statutes, and if it decides to rescind concurrency for any of these facilities it must process a comprehensive plan amendment. HB 7081 clarifies that a comprehensive plan amendment rescinding concurrency requirements must be processed under a modified state expedited review process. This type of comprehensive plan amendment is not subject to state review nor required to be transmitted to the reviewing agencies. A local government must still transmit a copy of the comprehensive plan amendment to any local government or governmental agency that requests a copy and to any county within which a municipality that is processing such an amendment is located. The adopted amendment must be submitted to the Florida Department of Economic Opportunity (“DEO”) for informational purposes, to the Florida Department of Transportation (“FDOT”) if the amendment rescinds transportation concurrency and to the Department of Education if the amendment rescinds school concurrency.
2. Public School Interlocal Agreement: Each county and the municipalities within a county must enter into an interlocal agreement with the appropriate school district to coordinate the plans and processes of each entity as it relates to schools. A municipality could be exempt from the interlocal agreement requirement if it met certain criteria. When HB 7207 made school concurrency optional, it inadvertently removed the exemption from Sections 163.3177 and 163.31777, Florida Statutes, (which provide the requirements for school interlocal agreements) but kept it in Section 163.3180(6), Florida Statutes. This created uncertainty as to whether a municipality is exempt from the interlocal agreement requirement regardless of whether it opts in or out of school concurrency. HB 7081 fixes the uncertainty by removing the exemption from Section 163.3180(6), Florida Statutes, and including it in Section 163.31777, Florida Statutes.A municipality is exempt (regardless if it opts in or out of school concurrency) if it has no significant impact on school attendance as determined by meeting all of the following criteria:
   • the municipality issued development orders for less than 50 residential units during the last 5 years or has generated less than 25 additional public school students during the last 5 years;
   • the municipality has not annexed new land during the last 5 years in land use categories that permit residential uses that affect school attendance rates;
   • the municipality has no public schools within its boundaries; and
   • at least 80% of the developable land within the municipality is built.

   Any exempt municipality must be reassessed at the time its comprehensive plan evaluation and appraisal is due under Section 163.3191, Florida Statutes. In addition if a school district proposes a new school within an exempt municipality’s boundaries, the municipality must enter into the interlocal agreement within 1 year after the school district lists the new school in its 5-year district facilities work program.

   The school interlocal agreement requirements contained in Chapter 1013, Florida Statutes, have been deleted consistent with the changes in HB 7207 and HB 7081.

3. Voter Referendum:  HB 7207 prohibited local governments from adopting a referendum or initiative process for development orders or local comprehensive plan amendments. Its effect made already adopted local government referendum and initiative processes invalid. HB 7081 includes a grandfathering provision which permits local government charter provisions that contain a referendum or initiative process for development orders or comprehensive plan amendments in effect as of June 1, 2011 to remain in effect.
4. Military Installations:  HB 7081 (and HB 7075) clarifies the reviewing authority of a military base’s commanding officer for certain land use applications. A military base’s commanding officer may submit to the appropriate local government advisory comments on certain comprehensive plan amendments, land development regulations and development orders that affect the mission of those military bases set forth in Section 163.3175(2), Florida Statutes. Although the comments are advisory in nature, local governments must consider these comments in the same way as they would comments from other reviewing agencies (e.g. Water Management District, FDOT, etc.) during the comprehensive plan amendment process. This means that if a commanding officer’s comments on a comprehensive plan amendment are not resolved during the comprehensive plan amendment process, the DEO may challenge the adopted amendment. A local government must also consider the comments in reviewing the above mentioned applications if the comments relate to the base mission, public safety and economic vitality of the base.
5. Population Projections:  HB 7081 requires population estimates and projections in comprehensive plans to be based on the population projections published by the Office of Economic and Demographic Research (“OEDR”) or the local government still has the option of generating the projections based upon professionally acceptable methodology. Prior to HB 7081, the population projections were provided by the University of Florida’s Bureau of Economic and Business Research (“BEBR”) or completed by the local government. The change from BEBR to OEDR is not a substantive change.  This change merely replaces the BEBR reference to OEDR to correctly reflect the entity that publishes the projections.  OEDR contracts with BEBR for the projections. The bill also requires population projections within a municipality and unincorporated area of a county to reflect each jurisdiction’s share of the total county population absent any physical limitations on growth.
6. Need: HB 7081 replaces the BEBR reference to OEDR for the need population projections. The requirement that need be based on at least the minimum amount of land required to accommodate medium population projections for a 10-year planning period remains unchanged. HB 7081 requires that future land use map amendments must be based on the minimum amount of land needed to satisfy the requirements of Section 163.3177, Florida Statutes, and not as determined by the local government.  This should be a less subjective standard, but it could potentially give DEO more authority over the need issue in the comprehensive plan amendment review process.
7. Timing: HB 7081 clarifies that the timing for a local government to transmit to the appropriate parties comprehensive plan amendments under the expedited state review process is 10 working days from the transmittal and adoption hearings. Also under the state expedited review process, agencies and local governments commenting on the comprehensive plan amendment(s) must submit any comments to the local government no later than 30 days after they receive the amendment(s).Currently under the state coordinated review process, a local government must immediately transmit the amendment(s) after the transmittal hearing. HB 7081 requires a local government to transmit this type of amendment within 10 working days of the transmittal hearing.  The bill also clarifies that these types of amendments must be submitted within 10 working days of the adoption hearing.The timing requirements for the issuance of a final order in a comprehensive plan amendment compliance challenge have been revised to address DEO’s concern that the prior time periods were difficult to adhere to.
8. Miscellaneous Changes:
   • Regional Councils: Regional councils may provide consulting services to a private developer for a project, so long as the council does not serve in a reviewing capacity of the project. HB 7081 still allows the regional councils to provide statutorily mandated services to developers regardless of its reviewing capacity.
   • Typos: HB 7081 corrects out dated or incorrect Chapter 163, Florida Statutes, and other statutory references in Section 380.06, Florida Statutes.
   • Housing:  A local government’s comprehensive plan housing element standards and strategies are no longer required to be based on the housing inventory in the latest decennial United States Census or more recent estimate.

HB 979 (DRI Bill)

HB 979 revises certain provisions relating to developments of regional impact (“DRI”).  The bill has been signed by the Governor and will take effect July 1, 2012.

1. Agency Comments: HB 979 limits the ability of reviewing agencies to make recommendations and comments during the pre-application conference for an Application for Development Approval related to a DRI. The agencies can now only make recommendations and comments consistent with state law or local ordinances applicable to developments in the jurisdiction the proposed DRI is located.During the DRI approval process, the appropriate regional council is required to submit a recommendation report that recommends DRI development order conditions that will mitigate regional impacts. HB 979 limits a regional council’s comments on affordable housing impact to only allow comments if the council has adopted an affordable housing policy as part of its strategic regional policy plan. As a result of HB 979, regional councils without an affordable housing policy in their plans may attempt to adopt such a policy.HB 979 further limits the regional councils’ commenting authority by requiring its DRI recommendation report to contain recommendations consistent with the standards required by the state permitting agencies or water management district. This will hopefully provide DRI applicants more certainty as to the regional councils’ recommendations and consistency among the DRI reviewing agencies, although it is unclear if the agency “standards” must be officially adopted or an incipient policy.
2. Substantial Deviation Criteria:  HB 7081 amends the DRI substantial deviation criteria to find that changes to a DRI development order that do not increase the number of external peak hour trips and do not reduce open space and conserved areas within a DRI are not a substantial deviation. A change to a DRI development order that meets these criteria is not required to go through the formal notice of proposed change (“NOPC”) process in Section 380.06, Florida Statutes. Rather, the changes may be adopted as an amendment to the DRI development order pursuant to the local government’s approval process and will not be subject to the 45-day review period by the regional council and DEO. If the local government approves an amendment, it must submit the amendment to the DEO. If the DEO believes the amendment creates a reasonably likelihood of new or additional regional impacts, it may appeal the amendment.At first read, this new nonsubstantial deviation criterion may appear to allow a substantial amount of changes to DRI development orders to be processed as amendments and not formal NOPCs. However, this new criteria may not be as beneficial in practice. This is because even if a proposed DRI development order change does not increase the number of external peak hour trips and reduce open space and conserved areas, it may trip one of the other substantial deviation criteria in Section 380.06(19), Florida Statutes, and subject the change to the formal NOPC process. For instance, a multi-use DRI that proposes to increase one use and decrease another use as provided in Section 380.06(19)(5)b, Florida Statutes, is presumed to be a substantial deviation. Even if this type of proposed change does not increase the trip count or decrease open space, the local government and applicable regional council may require the change be processed through the formal NOPC process due to the presumption under Section 380.06(19), Florida Statutes, that the change is a substantial deviation. Further the preservation of appeal to any amendment by DEO may place the amendment at risk. It is important that prior to filing a change to a DRI development order a developer consult with the Gunster Environmental and Land Use Practice Group as to whether the change should be processed as an amendment or formal NOPC.
3. DRI Statutory Exemptions:  HB 979 adds a new DRI exemption for qualified target industry projects. Development that is (i) located in a jurisdiction that is not a DULA, (ii) approved as a comprehensive plan amendment under the state coordinated review process and (iii) a qualified target industry business which is subject to a tax refund agreement as described in Section 288.106, Florida Statutes, may be exempt from DRI review once an agreement (“Agreement”) is entered into between the development applicant, local government and DEO. DEO will enter into an Agreement once it is determined the development is subject to a tax refund agreement and that the local government has the capacity to assess the development impacts. The local government will enter into an Agreement upon proper notice to adjacent governments and approval by its governing body. This DRI exemption is not applicable to projects located within an area of critical state concern, the Wekiva Study Area or within 2 miles of the Everglades Protection Area boundary.The effect of this DRI exemption is to allow qualified target industry projects, which typically create higher paying and skilled jobs, to be exempt from the time consuming and expensive DRI review process. Note that even if a project qualifies as a target industry project and is subject to a tax refund agreement, the project may not qualify for the exemption if the DEO determines that the local government lacks the substantive review capacity, which is a very subjective requirement. Section 163.3184, Florida Statutes, is revised to require these types of projects be processed under the state coordinated review process.
4. DRI Rescission: Section 380.115, Florida Statutes, sets forth regulations for DRIs that would no longer be required to be DRIs due to a change in the DRI thresholds or because the DRI is located within a DULA jurisdiction. This section allows a DRI developer to rescind the development order under these circumstances so long as the project has mitigated the impacts of development constructed to date. HB 979 and 7081 also applies recession to DRI projects that are no longer required to be DRIs because of a statutory exemption. These types of DRIs which are no longer required to be DRIs may request the DRI development order be rescinded regardless of whether the mitigation requirements have been completed if the required mitigation can be completed under an existing permit or similar authorization issued by a governmental agency and the permit or authorization is subject to enforcement through judicial or administrative remedies.
5. Agricultural Enclaves: Section 163.3162, Florida Statutes, sets forth protections to encourage agricultural activities to continue within the state. This section also permits lands classified as an agricultural enclave (as defined in Section 163.3184, Florida Statutes) to be subject to a comprehensive plan amendment that will allow nonagricultural development on the land. A land owner with an agricultural enclave and the local government must enter into an agreement to process the comprehensive plan amendment.HB 979 provides an additional opportunity for agricultural land owners to develop land without the need for an agreement between the land owner and local government.  Land that qualifies for an agricultural enclave as defined in Section 4 of HB 979 may be subject to a comprehensive plan amendment to allow non-agricultural uses on the land. The definition of agricultural enclave is different under HB 979 than under Section 163.3184, Florida Statutes. To qualify for an agricultural enclave under HB 979, the land must be located in an unincorporated county and must (i) be owned by a single person or entity; (ii) be in continuous use for bona fide agricultural purposes (as defined in Section 193.461, Florida Statutes) for at least 5 years before the date of a comprehensive plan amendment; (iii) be surrounded on at least 95% of its perimeter by property designated for industrial, commercial or residential development; and (iv) not exceed 640 acres and no smaller than 500 acres. The comprehensive plan amendment will not be presumed to constitute urban sprawl if the amendment proposes uses and intensities consistent with industrial, commercial or residential areas/uses that surround the land. If the agricultural enclave is abutted on all sides by land with one land use designation, that land use designation is presumed to be appropriate for the agricultural enclave. A county must grant the agricultural enclave land the same land use designation as the surrounding land that abuts it unless the county finds by clear and convincing evidence that the approval is detrimental to the health, safety and welfare of its residents. This agricultural enclave provision does not preempt the protection in place for property located within the Wekiva Study Area or the Everglades Protection Area. To qualify for this provision, a comprehensive plan amendment application must be submitted by January 1, 2013.

II.  Environmental Bills

HB 503 (Water Policy and Permitting)

HB 503 was unanimously approved on March 8, 2012 by the Senate 40-0 and sent to the Governor where it awaits his signature (expected since the bill was supported by the Florida Department of Environmental Protection (“DEP”)), and if signed will go into effect July 1, 2012.  The bill provides assistance to landowners and municipal and industrial facilities in several important ways:

1. Recognizes zones of discharges (mixing) in groundwater.  This is already provided by rule but was not always followed by DEP staff.  Groundwater quality criteria would apply outside a property boundary for a facility which has such a zone of discharge by rule or permit. This can provide major cost savings on soil or groundwater cleanup issues. It can also result in savings on monitoring costs.
2. Excludes waste treatment works sludge from the definition of solid waste when beneficially reused under certain circumstances.  This provides incentive to reuse solids (sludge) from wastewater treatment facilities.
3. Exempts the new solid waste disposal areas at an already permitted facility from having to be specifically authorized in a permit if the area is covered by an existing or modified groundwater monitoring plan.
4. These amendments complement an existing statutory exemption from permitting for disposal of one’s own waste on one’s own property so long as the environmental effects of such disposal are monitored in an existing permit or groundwater monitoring plan.
5. It also clarifies that Soil Cleanup Target Levels are in fact target levels, not standards, and may not be treated as standards in permitting or enforcement.
6. Prohibits a county or a municipality from conditioning the processing for a development permit on an applicant obtaining a permit or approval from any other state or federal agency.
7. Authorizes the DEP to issue a coastal construction permit before an applicant receives an incidental take authorization.
8. Expands eligibility for those entities entitled to reduced or waived permit processing fees.
9. Expands the use of Internet-based self-certification services and general permits.
10. Exempts previously authorized underground injection wells from Chapter 373, part III, Florida Statutes, except for Class V, Group 1 wells.
11. Reduces the time for agency action or proposed action on a permit from 90 to 60 days.
12. Provides for an expanded state programmatic general permit.
13. Raises the qualifying low-scored site initiative priority ranking score from 10 to 29, and exempts certain expenditures from counting against the program.
14. Revises qualifications for fiscal assistance for innocent victim petroleum storage system restoration.
15. Provides expedited permitting for intermodal logistic centers (inland ports).
16. Authorizes zones of discharges existing installations, with certain limitations.
17. Revises requirements for permit revocation.
18. Revises the definition for “financially disadvantaged small community”.
19. Revises the definition of industrial sludge.
20. Specifies recycling credits available for counties that operate waste-to-energy facilities.
21. Revises provisions related to solid waste disposal and management.
22. Provides for a general permit for small surface water management systems.
23. Expands the definition for “transient noncommunity water systems” to include religious institutions.
24. Clarifies creation of regional permit action teams for certain businesses.
25. Allows for sale of unblended fuels for specified applications, and specifies that alternative fuels other than ethanol may be used as blending fuels for blending gasoline.
26. Prohibits the collection of permit renewal fees for those permits that were automatically extended by Ch. 2011-139, ss. 73 and 79 of the Laws of Florida.
27. Authorizes a two-year extension to any building permit, local government development order or building permit, including certificates of levels of service, and permit issued by the DEP or a water management district pursuant to part IV of Chapter 373, Florida Statutes, with an expiration date from January 1, 2012 through January 1, 2014. This extension is in addition to any prior extensions. However extensions to permits or local government development orders under this HB 503, section 14 of Chapter 2009-96, Laws of Florida, as reauthorized by section 47 of Chapter 2010-147, Laws of Florida, section 46 of chapter 2010-147, Laws of Florida, section 74 or section 79 of Chapter 2011-139, Laws of Florida, and the four-year extensions granted under Section 380.06(19)(c)2, Florida Statutes, cannot exceed four years in total. A developer or landowner who is eligible for the two-year extension must notify the authorizing agency in writing by December 31, 2012 of its intent to use the extension.

HB 7051 (Rules Establishing Numeric Nutrient Criteria)

1. This bill exempts proposed numeric nutrient criteria rule amendments to Rules 62-302 and 62-303 of the Florida Administrative Code (“F.A.C.”) from legislative ratification under Section 120.541(3), Florida Statutes.  The rules were proposed for adoption by the Environmental Regulation Commission (“ERC”) on December 8, 2012.  It clarifies that ERC acted within its legislative authority in proposing for adoption Rule 62-302.531(9), F.A.C. Lastly, the bill directs the DEP to submit the proposed rules to the U.S. Environmental Protection Agency within 30 days of this bill becoming a law.
2. The bill allows submission of the NNC rules prior to resolution of pending rule challenges by environmental groups.  The rules have been submitted and await EPA review on whether it will approve the state rules and repeal its own which have been the subject of extensive litigation and a part of which dealing with fresh flowing waters and downstream protection values for lakes were recently invalidated as arbitrary and capricious by a federal court.
3. These provisions were approved by unanimous vote in both houses and were signed by the Governor and are in effect.

HB 7003 (Uniform Environmental Resource Permitting Rules)

1. Requires DEP, in coordination with water management districts, to develop statewide resource permitting rules for activities relating to management and storage of surface waters.  It preserves an exemption from causes of action under the Private Property Rights Protection Act and provides an exemption from the Administrative Procedure Act to encourage the adoption of the uniform rules. Counties, municipalities, and delegated local pollution control programs are required to amend ordinances and regulations accordingly. It provides a presumption of compliance and exemptions for specified stormwater management systems and permitted activities.  The bill has been signed by the Governor and  will take effect July 1, 2012.

III.  Administrative Procedure Act Bill

HB 541 (APA Revision)

1. This revision to the act provides authority for review of agency rules by the Office of the Governor (“EOG”).  This is helpful because it allows another avenue or remedy when an agency is not considering important comments or concerns.  Directs agencies under the Administrative Procedure Act to send written notice of certain rules affecting small businesses to rules ombudsman in EOG.  It also provides that the electronic version of Florida Administrative Code is the official compilation of administrative rules of state; it renames the “Florida Administrative Weekly” as “Florida Administrative Register” and requires continuous revision & publication of the Florida Administrative Register on an Internet website.  The bill has been signed by the Governor and will take effect October 1, 2012.