Florida Growth Management Law Declared Unconstitutional

On August 26, 2010, the Leon County Circuit Court declared Senate Bill 360 unconstitutional.  The Circuit Court Judge issued an order granting the Plaintiffs’ Motion for Summary Judgment in the lawsuit widely known as The City of Weston.  The order found that the Bill violated Article VII, Section 18(a) of the Florida Constitution because it constituted an “unfunded mandate.”   The Court specifically cited the costs related to the “[m]andated adoption of comprehensive plan amendments and transportation strategies to support and fund mobility.”  The Court estimated it would cost a minimum of $3,690,000 for the 246 counties and municipalities that were designated as Transportation Concurrency Exception Areas to process the comprehensive plan amendments.  The Court rejected the Defendants’ argument that these costs were “insignificant.”  The Florida Legislature has defined insignificant as “an amount not greater than the average statewide population for the applicable fiscal year times ten cents,” or approximately $1,860,000.

The Court also declared the Plaintiffs’ “single subject” challenge moot “by virtue of the enactment of SB 1760 [sic].”  The correct reference should have been SB 1752 from the 2010 legislative session.

On September 21st, the Court denied the Defendant’s Motion for a Rehearing. Defendants promptly filed a Notice of Appeal to the First District Court of Appeals.

In anticipation of an unfavorable ruling with respect to SB 360, the 2010 Florida Legislature adopted “bridge language” in SB 1752 which seeks to reauthorize portions of SB 360.

Along with the growth management related items mentioned below, SB 1752 also provides more than $200 million in tax incentives.  An overview of SB 1752 provides the following:

• Reauthorizes the two-year extension for permits extended under SB 360 and authorizes an additional two-year permit extension for those permits with an expiration date from September 1, 2008 through January 1, 2012.  Such extension is in addition to the two-year permit extension already provided.

• Authorizes that the two-year extension also applies to Development of Regional Impact buildout dates, including any extension of a buildout date that was previously granted.

• Extends the commencement and completion dates for required mitigation associated with a phased project.

• Requires that the permit holder notify the authorizing agency in writing by December 31, 2010, and identify the specific authorization for the extension and anticipated timeframe for acting on the authorization.

In addition to SB 1752, several local governments have made an effort to address the slowdown in the real estate market by adopting resolutions or ordinances implementing development permit extensions. Such local governments include the City of Orlando, Orange County and the City of Ocoee.  In order to ensure that a property’s development permits are properly extended, the local jurisdiction should be contacted so that a review may be made of their local rules related to extensions.

Another recent “hot topic” of discussion is the importance of a land use needs analysis to support comprehensive plan amendments.  Essentially, the issue is whether a comprehensive plan amendment request would result in more land in a specific land use designation than is needed to accommodate anticipated population growth.  The requirement was brought to the forefront in the 2009 case ofWoods v. Marion Countyin which the Administrative Law Judge agreed with a group of citizens to find a land use change request not in compliance.  It is clear that the Department of Community Affairs considers the needs analysis as an integral part of the planning process and, accordingly, careful consideration must be given to how need is documented as part of comprehensive plan amendment requests.