1000 Friends of Florida offers its analysis of the Frankenstein Environmental Destruction Bill ... by gimleteye

The land speculators who wrecked Miami Dade County and county politics through their obsession with rezoning wetlands and farmland for suburban sprawl have been hoisting the Crystal and Moet since the close of the legislative session: they got what they wanted -- the chance to drive a stake through the heart of environmental protections in Florida but especially here, where the Urban Development Boundary prevented them from recouping losses suffered through massive purchases of land outside the UDB at the height of the housing bubble. Here is an interesting post from the blog, Homestead Is Home: that the crime rate in the most scavenged areas of the county, where ghost suburbs are the rule thanks to the influence of builders and developers who influenced the city and county commissions to get what they wanted, is off the charts in comparison to other similarly sized and located cities. 
Although there is no demand for housing or construction, the builders and developers in the Florida legislature used the economic crisis to undo decades of efforts to restrain unwise growth. It seems Florida's motto is, "Fail and Fail Again."


Preliminary Outline of the Growth Management Bill 7207.   SB 2156 includes the “restructuring”  of the Dept. of Community Affairs.  (1000 Friends of Florida prepared the following outline. Explanatory comments in blue for those not familiar with some of the terms used were provided by Sierra Club.)

1. Plan amendments

1. most amendments will use the alternative state review/expedited review process
2. all comp plan elements retained with some inclusion from 9J-5 put into statute  [9J-5 is the rule that implements most of the growth management act – it was repealed and pieces of it have been placed in statute.]
3. NO limit on timing or number of amendments submitted [plan amendments were previously limited to two per year. This change means they can change the plan every other day… which means it isn’t much of a plan, does it?]
4. local government still does two public hearings and submits package to DCA and state agencies – NO comments required (no compliance finding of any kind – plan amendment completeness review required and plan amendment goes into effect 31 days later unless timely challenged)
5. DCA comments limited to state and regional resource and/or facility impacts but these are optional
6. Need is eliminated  [I would note that need is redefined.  The new law will require plans for land use to accommodate the resident and seasonal populations and to allow the real estate market to operate.  The current meaning of need that is being eliminated is that a locality has to show a demand for more development before it sets land aside for that development.]
7. Financial feasibility is eliminated [If you don’t have a budget, you don’t have a plan!]
8. Energy efficiency eliminated
9. 9J-5 repealed – some portions inserted into Chapter 163, including urban sprawl (only have to show 4 of 8 techniques for addressing sprawl)
10. Affected parties may file appeals (no change to standing)– burden of proof fairly debatable – file within 30 days after local government adopts  [The fairly debatable standard is an awful change.  There are a number of standards in court proceedings. These standards are generally established at the same time one side or the other is granted some level of presumption.  A criminal defendant is “presumed innocent” unless his guilt is proven “beyond a reasonable doubt.”  This standard used in criminal case is the highest that is in use (absolute certainty would be higher, but it’s not in use).  Civil cases use less exacting standards: clear and convincing evidence is the next one down and preponderance of the evidence means the party has more and/or better evidence.  Fairly debatable is a tougher standard to meet than preponderance because it means that the quality of the challenger’s argument means nothing if the applicant or locality has any kind of an argument at all – even if they only have a scintilla of an argument while the challenger’s is immeasurably better.  It is almost impossible to win a suit as a challenger when the other party has the presumption and the standard is fairly debatable.]
11. State coordinated review process allows but does not require formal DCA comments when sector plan, rural land stewardship area, EAR based amendment, Area of Critical State Concern or new community plan proposed – any comments follow existing ORC process – regardless of comments made DCA must do compliance finding (45 days) and will post on the DCA website  [EAR refers to evaluation and appraisal report – a report localities were previously required to do each year to determine whether changes in their comp plans were needed. (no longer necessary), ORC refers to objections, recommendations, and comments – this was a report DCA used to provide to localities to indicate places in their proposed comp plan amendments where there were problems (no longer r equired)- Note: DCA used to be able to examine all the reports from all agencies which were not restricted as to what they could look at.  Now the agencies are restricted, so the state land planning agency (previously DCA, now SLPA) is limited in terms of what it is allowed to see – a great policy to ensure the state’s resources are protected… ]
12. Amendment goes into effect upon DCA notice unless timely challenged
13. DCA not allowed to intervene on 3^rd party challenges [which means the expertise the DCA has is denied to the courts – calculated to facilitate justice]
14. Comments by state agencies restricted [see k, above]
15. No definition of state or regional resources or facilities  [If it’s not defined, no one can go to court to protect them.]
16. No definition of what constitutes an adverse impact             [again, if undefined, no court case is possible]
17. Local government can challenge DCA finding of adverse impact to state/regional resources/facilities and DCA has burden of proof (clear and convincing) [a high burden of proof.  I believe it is currently preponderance of the evidence.]
18. No option for smaller cities and counties to ask for formal comments [smaller localities want  access to DCA’s expertise because they don’t have it.  They’ll be buried by developer’s lawyers and will be pushed into bad decisions.]
19. Small scale amendment process retained – now allows “related” text amendments
20. No supermajority votes allowed  [This refers to requiring a supermajority vote of the county commission to approve a comp plan amendment – this lowers it to a simple majority.]
21. No referendums allowed [This is in reaction to Hometown Democracy – no citizen will be able to start a referendum or start an initiative to forestall a development –(the Tea Party people should be going nuts over this!)]
22. DCA required to review/reassess all pending cases within 60 days and dismiss those inconsistent with new law
23. CHHA requirements retained including requirement to set LOS for hurricane evacuation (either 12 or 16 hours to shelter or out of area providing Category 5 protection)  [CHHA = Coastal High Hazard Areas]
24. No changes to ACSC plan amendments other than using state coordinated review process [ACSC = Areas of Critical State Concern]

2. DRIs 

1. Exempts Mining (solid minerals [including phosphate]), Industrial, Hotel/Motel and Movie Theaters category – NOTE that Miami-Dade Lake Belt Area not included
2. Does not include House version with 150% increase in all thresholds or 100% increase in substantial deviation thresholds – various increases in several categories are made [this is one of the few “bright spots”]
3. 4 year extension for all DRI timelines/mitigation
4. Exemptions for dense urban land areas, rural land stewardship areas,
5. OPPAGA to present DRI assessment report by 12/1/17

3. Sector Plans

1. pilot status removed
2. minimum size increased to 15,000 acres
3. no longer requires DCA approval other than initial plan amendment for long term master plan
4. detailed specific area plans approved by ordinance not plan amendment [This change will mean a change of venue from administrative to civil court.  Civil judges are not familiar with land use law and it is a more expensive process.]
5. timeframes can exceed planning horizon of comp plan
6. need is eliminated
7. MPO required to match its plans with sector plan needs [MPO = metropolitan planning organization]
8. Water management district plans required to be consistent with sector plan [A huge sector plan that will use large amounts of water becomes everyone else’s problem.]
9. DCA, landowner, local government can appeal DSAPs to Land and Water Adjudicatory Commission within 45 days of adoption
10. 3^rd party challenges to DSAPs by 163.3215 only

4. Rural Land Stewardship Areas (RLSA)

1. no longer requires DCA approval other than initial plan amendment
2. local government then adopts overlay ordinance for the area specifying methodology for credits, maximum numbers
3. credits can only be transferred after a stewardship easement recorded
4. receiving areas designated by LDR [LDR – land development regulations]
5. timeframes can exceed local planning horizon
6. exempt from DRI [DRI= Development of regional impact]
7. minimum size is 10,000 acres
8. recognizes the Collier County process as RLSA

5. Concurrency

1. Transportation, Schools, Parks eliminated as mandatory – locals can retain or remove by plan amendment (no DCA comment allowed)
2. Potable water, solid waste, drainage, sanitary sewer still required 

6. Regional Planning Councils

1. 2 seats added for business and development interests (may not have been included – still checking)
2. No other changes 

7. Other                                                                  

1. Local Planning Agency review of plan amendments not mentioned – local government may retain at its discretion?
2. EAR process streamlined – no requirement to address statutory changes any earlier than once every 7 years unless proposed amendments touch a statutory change.
3. 2 year permit extension on local permits
4. No change to impact fee burden of proof
5. 2 year moratorium on new/increased fees not adopted
6.  Climate change/sea level rise adaptation allowance
7. Mobility plans no longer need to show financing mechanisms [absurd given that transportation is one of, if not the most expensive items in putting a community together.]
8. Century Commission retained but expires 2013
9. 30 year developer agreements authorized

8. DCA (see SB2156)

1. budget still shows 61 positions – no clarity on how many involved with growth management duties
2. DCA reference eliminated in statute; becomes “state land planning agency”
3. Will become Division of Community Development within new agency, Department of Economic Opportunity
4. Duties include

      1..local government planning assistance/DRIs/planning process

                        2.  grant administration [CDBG, LIHEAP, Weatherization, NSP [CDBG = Community Development Block Grant; LIHEAP = Low Income Heating Energy Assistance Program; NSP =  Neighborhood Stabilization Program]                     

3.  Front Porch FL

                        4.  assist in development of 5  year state strategic plan

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