On Friday, June 28, 2019, Florida Governor Ron DeSantis signed into law House Bill 7103, which took effect immediately. This represents the most sweeping change to growth management and community planning law in the legislative session, containing important – and in some cases very controversial – measures. The key changes important to land owners and developers are the following:
Affordable housing
The availability of housing for critical workforce (often referred to as “affordable housing,” “workforce housing,” or “essential services housing”) has long been a topic as Florida continues to grow and flourish economically. This year, the legislature tackled the issue head on, setting policy statewide on how counties and municipalities can regulate workforce housing through the use of inclusionary zoning (i.e., a requirement for workforce housing to be included in development). Although inclusionary zoning has been allowed by Florida law, Sections 125.01055, Florida Statutes (as to counties) and 166.04151, Florida Statutes (as to municipalities) have been refined and clarified:
- Inclusionary zoning remains allowable
- If used, except in areas of critical state concern as designated in Section 380.0552, Florida Statutes, inclusionary zoning (whether by providing workforce housing units or payment in lieu thereof) must provide incentives to “fully offset all costs to the developer” of that contribution.
- The incentives may include density/intensity bonus or more floor space than allowed under land use or zoning, reduction or waiver of fees, or “other incentives.”
These changes do not diminish the use of inclusionary zoning, but instead requires that it not unduly burden a developer. The critical question will now be how to determine that the incentives “fully offset” the costs of the contribution. This will often occur on a case by case basis. However, as local governments implement this directive, it would be well worth the time to work with the development community to find a realistic way to analyze cost and incentives so that instead of fighting about affordable housing programs, they can be implemented.
Development permit/development order reviews
Similar to provisions of affordable housing, the legislature adopted regulations for both counties (Section 125.022, Florida Statutes) and municipalities (Section 166.033, Florida Statutes) related to the time frames for review of both development permits and development orders; this is not applicable to building permits or areas of critical state concern as designed in Section 380.0552, Florida Statutes:
- Within thirty (30) days of receipt of an application for approval of a development permit or development order, they must review for completeness and issue a letter indicating either (1) that all required information is submitted or (2) specifying with particularity any deficiencies.
- If deficiencies are identified, the applicant has thirty (30) days to address them.
- Within 120 days from an application being complete if not quasi-judicial or 180 days if quasi-judicial, the local government must approve, approve with conditions, or deny the application.
- These time frames may be extended by reasonable request of both applicant and government, particularly in the event of force majeure or other extraordinary circumstances.
- The government decision must include written findings supporting the decision.
Comprehensive planning and land development regulations
HB 7103 included changes to Section 163.3167 and 163.3202 applicable to comprehensive plans and land development regulations adopted after January 1, 2019. Specifically, the local governments are required to incorporate each existing development order prior to the effective date, may not impair development in accordance with such development order, and must vest the density/intensity approved by such development order. In other words, a local government cannot adopt a subsequent regulation that impairs rights granted by a development order then in place.
Mobility and impact fees
As governments begin to implement the mobility fees already provided for (and encouraged) by the Community Planning Act, Section 163.3180(5)(i), Florida Statutes, now notes that the system must comply with Section 163.31801, Florida Statutes governing impact fees.
Section 163.31801, Florida Statutes was also amended to provide more detail than merely identifying the “dual rational nexus test,” among other changes:
- The statute now includes that impact fees may not be collected prior to the issuance of building permits for the property subject to the fee.
- The fee must be “proportional and reasonably connected to, or have a rational nexus with” the need for added capital facilities and increases generated by the proposed residential or commercial construction.
- The fee must be “proportional and reasonably connected to, or have a rational nexus with” the expenditure of the funds collected and the benefits accruing to the new residential or nonresidential construction.
- The funds collected must be used to acquire, construct or improve capital facilities “to benefit new users.”
- The local government must provide credits against “any contribution” regardless of the form of exaction related to public education facilities on a dollar for dollar basis.
- If impact fees are increased, any holder of credits in existence before the increase is entitled to the full benefit of the intensity or density prepaid by the credit balance when first established.
Challenges to development orders
The changes to Section 163.3215 were some of the most watched. In short, Section 163.3215(8)(c) will now provide that the prevailing party in a challenge under this statutory provision is entitled to recover reasonable attorney’s fees and costs. This means that parties who file challenges will have to think carefully about whether they wish to bring the challenge, and governments and developers defending them will have to think as carefully about whether to defend. It will hopefully also encourage parties to reach reasonable settlements.
Another provision included in Section 163.3215(8)(a) and (b), is the provision of the summary procedure as set forth in Section 51.011, Florida Statutes. This procedure is available at the request of either party unless the other shows by clear and convincing evidence that it does not apply. The summary procedures provide for short time frames for responses to pleadings, limitations on hearings, and written discovery only on order of the court.
Development order extensions due to emergency
With various emergency orders having been issued by governors, not all of which impact development, the legislature has clarified that Section 252.363, Florida Statutes, providing for extension of permits and other governmental authorizations, only applies where the state of emergency is issued “for a natural emergency.”
