The 2015 Florida Legislature passed several bills of note to those interested in property rights, land use, and environmental laws in Florida.
Because the House of Representatives adjourned prior to the end of the session, many bills remain in limbo. Among the other casualties of the abrupt end to the legislative session was the passage of a comprehensive water policy bill, which is certain to come back next year.
Below is a summary of the key points from bills that did manage to pass.
If you have any questions or would like more information, please feel free to contact us.
Senate Bill 1216 – growth management and planning
SB 1216 consolidates several different growth management bills. The bill (i) modifies requirements for certain local governments’ comprehensive plans; (ii) amends the review process for new developments of regional impact; (iii) modifies the sector planning process; (iv) creates a connected-city corridor pilot program in Pasco County; (v) impacts regional planning councils; and (vi) modifies several miscellaneous growth management and planning statutes.
1. Modifications to comprehensive plan requirements
Local government comprehensive plans must contain a sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element. Part of that element must include a work plan, covering at least 10 years, which describes how the local government intends to construct adequate water supply infrastructure in order to meet future public demand. The work plan, and consequently local government comprehensive plans, must be updated at least every 5 years and within 18 months of the applicable water management district’s approval of an updated water supply plan. SB 1216 provides exemptions for local governments from having to maintain a work plan or update their comprehensive plans if they (i) do not own, operate or maintain their own water supply facilities (i.e., wells, treatment facilities, distribution infrastructure, etc.); (ii) receive their water supply from a public water utility that is permitted to supply more than 300 million gallons of water per day; and (iii) their water usage is less than 1 percent of the public water utility’s allowed allocation. Exempt local governments must maintain an up-to-date sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element in their comprehensive plans.
2. Review process for new DRIs
SB 1216 provides that any new proposed DRIs will be exempt from the current DRI review process described in Sec. 380.06, Florida Statutes. The bill amends the review process, to require new DRIs to undergo the state coordinated, comprehensive plan amendment review process outlined in Sec. 163.3184(4), Florida Statutes, in lieu of the detailed DRI review process in Sec. 380.06, Florida Statutes.
3. Changes to sector planning
The amendments implemented by SB 1216 make numerous changes to the sector planning process. The bill allows local governments the authority to request more extensive data and analysis from sector plan applicants than that required by Sec. 163.3245, Florida Statutes. The bill also adds language to Sec. 163.3245, Florida Statutes, clarifying that the requirements specifically applicable to sector plans in Sec. 163.3245, Florida Statutes, will supersede the generally applicable planning provisions contained in Chapter 163, Florida Statutes, when those provisions would otherwise apply to sector planning.
Additionally, SB 1216 clarifies the review process for amendments to sector plans; amendments must undergo the state coordinated review process outlined in Sec. 163.3184(4), Florida Statutes, consistent with the process for new sector plans.
SB 1216 also implements changes to the review process for detailed area site plans (“DSAPs”) related to sector plans under Sec. 163.3245, Florida Statutes. Prior to approval of a DSAP by the local government, an application for a DSAP must be sent to various state agencies (i.e., Department of Economic Opportunity (“DEO”), the applicable regional council and water management district, Department of Environmental Protection, Department of State, Department of Transportation, Fish and Wildlife Conservation Commission, etc.). Within 30 days of receiving the DSAP application, the state agencies must determine whether it is consistent with the applicable comprehensive plan and long-term master plan and provide any comments regarding their review to the applicable local government and DEO. The purpose is to promote improved, coordinated review between local governments and state agencies.
SB 1216 also makes certain changes to the conservation requirement for sector plans that will provide greater flexibility moving forward. The bill provides that language may be included in new conservation easements that allows modification of the conservation easement subsequent to conveyance, as long as the consent of the grantee (typically the applicable water management district) is obtained, which may not be unreasonably withheld. This requires that substitute land be provided that has equivalent environmental value, is contiguous with the conservation easement, and contains at least as much acreage as the land being removed from the conservation easement. Further, the legal description of the property contained in conservation easements conveyed in conjunction with the enactment of a long-term master plan and/or DSAP may be based on digital orthophotography (a detailed aerial view), rather than a ground survey of the property. Additionally, upland or wetland preservation areas contained within conservation easements previously granted in conjunction with a long-term master plan and/or DSAP may be used to satisfy mitigation requirements for permitting contained in Chapter 373, Florida Statutes (regarding water resources) and/or Chapter 379, Florida Statutes (regarding fish and wildlife conservation).
Other relevant changes to sector planning implemented by SB 1216 include amendments to Sec. 163.3256(9), Florida Statutes, relating to agricultural and silvicultural uses within an area encompassed by a longer-term master plan and/or DSAP. Language added clarifies that new agricultural and silvicultural uses may be established in areas subject to an existing long-term master plan and/or DSAP plan, as long as the new agricultural and silvicultural uses are consistent with the plans contained in the long-term master plan and/or DSAP.
SB 1216 also makes certain changes relating to water allocation and consumptive use permits in certain sector planned areas. If a sector plan is subject to a master development order obtained pursuant to Sec. 380.06(21), Florida Statutes, a water management district may approve a consumptive use permit for the duration of that master development order. However, a water management district may only issue a consumptive use permit equal to the duration of the master development order if the master development order has been issued by a county, which, at the time of issuance, (i) was designated as a rural area of opportunity pursuant to Sec. 288.0656, Florida Statutes; (ii) was not in an area subject to a regional water supply plan; and (iii) was not located within a territory encompassed by a basin management action plan of a first magnitude spring.
4. Pasco County connected-city corridor pilot program
SB 1216 implements a new 10 year, connected-city corridor pilot program in Pasco County. The program is only applicable to land located within a connected-city corridor to be established in Pasco County, the precise area of which will be specified by DEO no later than July 15, 2015. The goal is to implement a modified comprehensive planning and amendment process for projects located within the connected-city corridor that will promote and facilitate innovative projects (i.e., projects that improve the environment, limit urban sprawl, protect wildlife, provide for efficient use of land and resources, promote alternative transportation networks, enhance job creation, etc.).
Comprehensive plan amendments within the connected-city corridor will be primarily controlled by the local government, with less regional and state oversight than typical comprehensive plan amendments. Additionally, comprehensive plan amendments within the connected-city corridor may exceed the planning period contemplated by Pasco County’s comprehensive plan and are not required to show need based on future population estimates or any other rationale. Moreover, if Pasco County adopts long-term transportation and financial feasibility plans, projects within the connected-city corridor that comply with those plans will be deemed to have satisfied all concurrency and state or local transportation mitigation requirements (other than site specific, access requirements). Lastly, if Pasco County declines to seek DEO review of DRIs within the connected-city corridor, development order approval will be exempt from DRI review.
SB 1216 also provides that within Pasco County’s connected-city corridor, community development districts (“CDDs”) of up to 7,000 acres may be created through enactment of a local government ordinance (elsewhere, only CDDs containing less than 1,000 acres may be authorized by local government ordinance).
By December 1, 2024, the Office of Program Policy Analysis and Government Accountability will submit a report on the connected city-corridor pilot program that will make recommendations regarding any changes that should be made to the program and for implementing it statewide.
5. Regional planning councils
SB 1216 makes numerous changes to different Florida Statutes, restructuring regional planning councils (RPCs) and limiting their role in planning and development throughout the state. These include:
- RPCs cannot review a new DRI proposed within a certified “rural area of opportunity” when the local government declines to seek DEO review of the DRI.
- RPCs may no longer participate in development of rural land stewardship area plans.
- RPCs may no longer establish a negotiation process with local governments to resolve inconsistencies between local and regional plans.
- The Withlacoochee RPC is eliminated and its respective counties are placed within other abutting regional planning councils’ territories; there are now 10 distinct regional planning councils. For any municipalities or counties that were moved into new regional planning councils’ territories as a result of SB 1216, the former strategic regional policy plan shall remain applicable until the new regional planning council amends its strategic regional policy plan to include the new municipality or county.
- Beginning January 1, 2016, the Governor will have the ability to modify RPC territories.
- RPCs may no longer and provide recommendations regarding urbanized area transportation plans and other transportation plans created by metropolitan planning organizations pursuant to Sec. 339.175, Florida Statutes, or to assist local governments that are not included in a metropolitan area transportation plan with creating the transportation element of their respective comprehensive plans.
- RPCs no longer need to notify local governments when they have not received DRI biennial reports by the required due date.
- RPCs no longer have a role in the planning and review process for proposed electrical power plant sites, proposed electric transmission line locations, and proposed natural gas pipeline sites, and Sec. 186.0201, Florida Statutes, which required electric utilities to notify RPCs of their siting plans for the next 5 year period, is repealed.
- RPCs will no longer participate in the amnesty day program, whereby the state permits the disposal of small amounts of hazardous waste with no cost to the entity disposing of it.
6. Miscellaneous modifications to growth management and growth planning statutes
Community redevelopment areas are established to rejuvenate and redevelop property located within blighted areas. There are numerous factors that may be taken into account in determining whether a particular area qualifies as a blighted area pursuant to Sec. 163.430(8), Florida Statutes. SB 1216 amends Sec. 163.430(8), Florida Statutes to specifically provide that areas where “a substantial number or percentage of properties damaged by sinkhole activity which have not been adequately repaired or stabilized” is a factor to consider.
SB 1216 grants county land authorities the ability to transfer a percentage of the revenue obtained from tourist impact taxes collected in areas of critical state concern to the county’s municipality with the highest population, or to that municipality’s housing authority, upon request from the governing body of the municipality. Those impact tax revenues can be used for the construction and maintenance of affordable housing in areas of critical state concern that are located within the applicable municipality.
SB 1216 repeals Sec. 260.018, Florida Statutes, which required state agencies, regional planning councils, and local governments to note the special character of publicly owned lands and waters designated by the state as greenways and trails, and precluded those entities from taking any action that was detrimental to those areas’ use.
This bill took effect upon approval by the Governor on May 14, 2015.
Senate Bill 1094 – flood planning and insurance reform
The intent of SB 1094 is to modify certain planning and insurance requirements to ensure that local governments and the state are more adequately prepared to prevent and handle the hazards associated with coastal flooding. All counties and municipalities located in coastal areas must have a coastal management element as a part of their comprehensive plans; in order to achieve its goal, SB 1094 requires this coastal management to contain additional guidelines and information.
The coastal management element of a comprehensive plan must contain a redevelopment component that (1) contains strategies and engineering alternatives designed to reduce the flood risk associated with hurricanes, flash flooding, storm water runoff, and any other weather event that may cause sea-levels to rise; (2) encourages development practices in coastal areas that result in the construction of property outside of flood zones designated by the Federal Emergency Management Agency (“FEMA”); (3) identifies planning and construction techniques that will reduce the extent of losses in the event of a flood; (4) contains development and construction standards that are equal to or more exacting than those contained in the Florida Building Code or the flood plain management regulations contained in the Code of Federal Regulations (44 C.F.R. 60); (5) requires all construction taking place closer to the ocean than the coastal construction control lines outlined in Sec. 161.053, Florida Statutes to be consistent with the construction regulation requirements contained in Chapter 161, Florida Statutes; and (6) urges local governments to participate in the National Flood Insurance Program Community Rating System in order to help their residents obtain flood insurance premium discounts.
Additionally, SB 1094 places new requirements on surveyors and mappers. Beginning January 1, 2017, when surveying new properties, if surveyors and/or mappers complete an elevation certificate in conjunction with a survey or map of a subject property, which certifies how far above sea-level the property is, said elevation certificate must be submitted to the Division of Emergency Management within 30 days of its completion. Elevation certificates were created by FEMA pursuant to federal floodplain management regulations.
This bill takes effect on July 1, 2015.
House Bill 383 – relating to private property rights
HB 383 reflects legislative response to past and anticipated judicial decisions applying the Bert J. Harris Private Property Rights Protection Act (Ch. 70.001 Fla.Stat., a.k.a. “Harris Act”) and the United States Supreme Court’s decision in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013).
Section 1 of the bill amends the Harris Act in three ways: (1) it further clarifies that the Act applies only to inordinate burdens upon property that is subject of and directly affected by the allegedly offending government action (this appears directed at eliminating the argument at issue in cases like City of Jacksonville v. R. Lee Smith and Christy Smith, —So. 3d—, 2015 WL 798154 (Fla. 1st DCA 2015) concerning whether adjacent property owners can sue for alleged devaluations arising from adjacent land uses); (2) it clarifies that the provisions of the Act allowing settlement agreements to contravene regulations that would otherwise apply (so long as the public interest is still protected under the circumstances) include settlements reached before or after suit is filed (this is in response to a recent appellate decision, Collier County v. Hussey, 147 So. 3d 35 (Fla. 2d DCA 2014), which invalidated a settlement on the grounds that it had not been reached during the statutory pre-suit negotiation period); and (3) it creates a new exclusion for claims based on local government adoption of FEMA Flood Insurance Rate Maps for the purpose of participating in the National Flood Insurance Program (this appears designed to cutoff future claims of this sort given the pendency of several, particularly in Lee County, and a concern that local governments not be constrained in their participation by concerns over liability exposure).
Section 2 of the bill establishes new Sec. 70.45 entitled “Government Exactions.” This section embraces the holding in Koontz that monetary exactions, like exactions of real property, can be unconstitutional when imposed as conditions of land use approval that are unrelated or disproportionate to the impacts of the proposed development. The new section also speaks to the issue not reached in Koontz – whether monetary damages are among the remedies available under Florida law for the imposition of an unconstitutional regulatory condition. Because the Koontz family sued under Sec. 373.617 Florida Statutes, and the question of whether the money damages available under that statute include this type of exaction claim was remanded and remains pending before the Florida Supreme Court, it appears the Legislature may have intended to effectively preempt an interpretation on this point. The new § 70.45 represents an expansion of excessive exactions relief to include unreasonable exercises of the police power by any state or local regulatory authority.
New Sec. 70.45 specifically codifies the long standing Nollan/Dolan test for unconstitutional exactions and clarifies that in addition to injunctive relief, monetary damages are available (measured by loss in fair market value of land or the amount of excessive fees or infrastructure costs that exceed permissible limits; non-ad valorem assessments and impact fees are exempt). New Sec. 70.45 provides that its remedies are in addition to those available by common law, and specifies a more narrow scope and shorter limitations period than common law exactions claims.
Under new Sec. 70.45, claims may be brought only upon actual imposition of the offending development condition or written requirement of the exaction as a condition of approval, and a pre-suit notice identifying the offending condition and estimate of damages must be provided by the complaining landowner to the regulatory agency no later than 180 days such imposition or written requirement. The government agency must respond in writing to the notice of claim by either specifically identifying the basis for the exaction and explaining why the government maintains the demanded exaction is proportional to the impacts of the proposed development or offering to delete or lessen the demand. If there is no resolution, in any litigation, the government has the burden of proof concerning the legitimacy of the exaction and the landowner has the burden of proof concerning damages. A court may award fees and costs to the prevailing party, but must award fees and costs to a landowner who prevails on the nexus or proportionality issue, regardless of the form or amount of remedy obtained.
Section 3 of HB 383 provides that new § 70.45 should not be construed as part of the Harris Act (Sec. 70.001, Florida Statutes) or the Florida Land Use & Environmental Dispute Resolution Act (Sec. 70.51, Florida Statutes).
If approved by the Governor, this bill takes effect October 1. The bill has not yet been presented to the Governor.
House Bill 787 – relating to recycled and recovered materials
HB 787 provides relief from liability for a person who sells, transfers, or arranges for the transfer of recycled and recovered materials to a facility owned or operated by another person for the purpose of reclamation, recycling, manufacturing or reuse for hazardous substances released or threatened to be released from the receiving facility. However, relief from such liability shall not apply if the person fails to exercise reasonable care in relation to the materials. The bill also defines recycled and recovered materials under the subsection and that the liability relief applies only to causes of action accruing after July 1, 2015, or causes of action accruing before July 1, 2015 in the event a lawsuit has not yet been filed.
If approved by the governor, this bill takes effect July 1, 2015.
House Bill 7083 – relating to ratification of rules/construction & demolition debris disposal and recycling/DEP
HB 7083 ratifies specified rules requiring liners and lecheate collection systems at construction and demolition debris facilities found in Rule 62-701.730, Florida Administrative Code. If approved by the governor, this bill takes effect upon becoming law. It has not yet been presented to the governor.
House Bill 7081 – relating to ratification of rules/minimum flows & levels and recovery & prevention strategies/DEP
HB 7081 ratifies specified rules relating to minimum flows and levels for the Lower Santa Fe and Ichetucknee Rivers found in Rule 62-42.300, Florida Administrative Code. If approved by the governor, this bill takes effect upon becoming law.
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