Wednesday, December 28, 2011

Congress Stays NPDES Permitting for Forest Roads

In a move that gives forest landowners a bit of comfort, Congress has stayed NPDES permitting for forest roads until October 1, 2012 through its Omnibus Appropriations Bill. The move was necessary because of a Ninth Circuit Court of Appeals decision that has been extremely unpopular, prompting legislators on both sides of the aisle to support action reversing it. Observers in the Ninth Circuit reported on the case below:
The Ninth Circuit [decision] will effectively require many timberland owners and logging companies to obtain permits for stormwater runoff from logging roads in the western U.S. The case, Northwest Environmental Defense Center (NEDC) v. Brown, involved two Oregon logging roads where stormwater runoff is collected in systems of ditches, channels, and culverts, and then discharged into adjacent rivers. The Ninth Circuit initially issued its decision in August 2010...On May 17, the court withdrew its earlier opinion and reissued a revised version. 
In the reissued opinion, the Ninth Circuit reiterated that the stormwater collection systems at issue unambiguously constitute “point sources” under the Clean Water Act (CWA), and that such discharges therefore require permits under the CWA’s National Pollutant Discharge Elimination System (NPDES) program. In so holding, the court significantly limited a decades-old regulation that had historically been viewed as excluding logging road runoff from the NPDES program and charged EPA with developing a general permit to handle the discharges.
The Ninth Circuit's decision could have big implications for forest landowners, and not just on the West Coast. EPA would likely develop forest roads permits for the entire country. This would be extremely difficult:
But while legal and Congressional challenges to the Ninth Circuit’s decision play out, the owners and users of forest roads in the western states (those within the Ninth Circuit’s jurisdiction) still must cope with the court’s holding that their discharges of channeled runoff fall under EPA’s Phase I stormwater regulations. The Ninth Circuit closed its opinion by saying “we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to” establish permitting for forest road discharges “effectively and relatively expeditiously.” That confidence does not appear to be well placed. 
To date, no general permits have been developed that are specifically tailored to channeled discharges from forest roads. Individual permits also are a theoretical possibility, but are unlikely to be developed given the resource commitments they would require for forest road owners and regulatory agencies. Absent a simpler solution, the discharges may have to fit within an existing general permit, although the effluent limits and discharge monitoring required by those permits are unlikely to be well suited to forest roads, and must be carefully evaluated. A closer examination of road networks with an eye toward whether runoff, even though channeled at some point, actually discharges to U.S. Waters from a point source may reduce somewhat the regulatory burden of the court’s decision. These and other regulatory strategies will likely be deployed if the court’s decision withstands the current challenges.
This comes just after the U.S. Supreme Court asked for the Solicitor General's position on the Ninth Circuit case. Forest landowners across the country are hoping the Supreme Court will accept the case and reverse the Ninth Circuit's opinion.

Friday, December 23, 2011

New Legislation May Allow Yankeetown to Keep Its Referedum Requirement

New comprehensive planning legislation that may interest my readers has been filed. For those who are not as familiar with comprehensive plans, the legislative staff analysis of one the bills that have been filed explains them briefly:
The Local Government Comprehensive Planning and Land Development Regulation Act (the Act), also known as Florida’s Growth Management Act, was adopted by the 1985 Legislature. The Act requires all of Florida’s counties and municipalities to adopt local government comprehensive plans that guide future growth and development. Comprehensive plans contain chapters or “elements” that address future land use, housing, transportation, water supply, drainage, potable water, natural groundwater recharge, coastal management, conservation, recreation and open space, intergovernmental coordination, capital improvements, and public schools. The state land planning agency that administers these provisions is the Department of Economic Opportunity. 
A local government may choose to amend its comprehensive plan for a host of reasons. It may wish to: expand, contract, accommodate proposed job creation projects or housing developments, or change the direction and character of growth. Some comprehensive plan amendments are initiated by landowners or developers, but all must be approved by the local government. The first step in the process is for the local government to develop a comprehensive plan amendment proposal. Public participation is a critical part of the comprehensive planning process. Citizens often want to be a part of planning their communities and landowners need to be aware of changes that could affect their property. A local government considering a plan amendment must hold at least two advertised public hearings on the proposed comprehensive plan or plan amendment. Notice must be published in a newspaper of general paid circulation in the jurisdiction of interest. The procedure for transmittal of a proposed or adopted comprehensive plan amendment requires the affirmative vote of a majority of the members of the governing body present at the hearing. 

As you may recall, as a part of last year's landmark growth management legislation, the Community Planning Act, ch. 2011-139, Laws of Fla. (HB 7207), prohibited referenda requirements. Yankeetown's charter requires it to hold a referendum for approval of any comprehensive plan changes, and Yankeetown wanted to keep the requirement. Consequently, Yankeetown filed a lawsuit alleging that the Community Planning Act was unconstitutional. St. Pete Beach later intervened in the case to protect its own referendum that had eliminated its referendum requirement (after years of court battles), and the state moved to dismiss Yankeetown's complaint.

On November 9, while the state's motion to dismiss was still pending, the parties filed a joint motion and settlement. The motion, which was approved by the court, holds the litigation while all parties use their best efforts to pass legislation to amend section 163.3167(8), Florida Statutes. The proposed legislation would allow Yankeetown's referendum requirement to stand, while banning other local governments from taking it up. If the required legislation is not passed, the litigation will likely continue.

Senator Mike Bennett has already filed the implementing legislation, SB 842. He was one of the principal authors of the Community Planning Act. The relevant language in the bill, with additions underlined, reads:
163.3167(8) An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment is prohibited. However, any local government charter provision that was in effect as of June 1, 2011, for an initiative or referendum process in regard to development orders or in regard to local comprehensive plan amendments or map amendments, may be retained and implemented.
Note that the language is quite strict: not only must local governments have already adopted their referendum requirements, but the requirements must also have adopted them as part of their charters. Charters are generally much more difficult to amend than simply passing an ordinance.

SB 440, also filed by Senator Bennett, contains the same language and appears to be moving through the committee structure even faster than SB 842. There is not yet a House companion bill.

For those interested, you can track SB 842 and SB 440 online.

Saturday, December 3, 2011

In Florida, Exactions Limitations Apply Only to Real Property, Not Personal Property

In a recent case, the Florida Supreme Court held that the law of exactions--a part of takings law--only applies to the dedication of real property for public use. St. Johns River Water Mgmt. Dist. v. Koontz, No. SC09-713 (Fla. Nov. 3, 2011). This case has important implications for landowners and city planners in Florida.

The Koontz Decision

In Koontz, a landowner requested permits from his local water management district to develop a greater portion of his commercial property than was authorized under existing regulations. The district agreed to grant the permit if the landowner would deed the remainder of the parcel into a conservation easement and pay for offsite mitigation measures unrelated to the landowner's property. The landowner agreed to the easement term but rejected the offsite mitigation. Consequently, the district denied the permit. The landowner sued, alleging a taking. After more than a dozen years in the Florida courts, the case ended up before the Florida Supreme Court.

The takings clause in the Florida Constitution is more or less equivalent to, or "coextensive" with, the takings clause in the U.S. Constitution. Id. at *2. Therefore, decisions by the U.S. Supreme Court about takings are the law in Florida. The Koontz case implicated two important U.S. Supreme Court decisions: Dolan v. Tigard, 512 U.S. 374, 384 (1994), and Nollan v. California Coastal Commission, 483 U.S. 825, 831-32 (1987). In a post at the Land Use Prof Blog on the Koontz decision, Ken Stahl of Chapman University provided background on Nollan and Dolan:
Some brief background on Nollan and Dolan for those who are not takings geeks: Taken together, the [they] hold that when a regulatory entity demands a condition in exchange for authorizing a use of land that would otherwise be prohibited (known as an "exaction") the condition imposed must have an "essential nexus" with (Nollan) and "rough proportionality" to (Dolan) some anticipated impact of the proposed use of land. Both Nollan and Dolan involved situations where the regulatory authority demanded the landowner physically dedicate some portion of his or her land for public use, and the Court in both cases emphasized that the condition demanded by the regulatory authority required the landowner to forfeit the sacrosanct "right to exclude." As a result, many commentators believed that Nollan and Dolan were limited to circumstances where the "exaction" was a requirement that real property be dedicated for public use, and did not extend, for example, to requirements that landowners pay an "impact fee" or other type of monetary payment in exchange for development permission. 
That interpretation, however, was rejected by one of the most significant lower court decisions to date dealing with Nollan and Dolan, the California Supreme Court's ruling in Ehrlich v. City of Culver City, 911 P.2d 429 (Cal. 1996). There, the court held that Nollan and Dolan did apply to certain types of impact fees, specifically fees imposed on a discretionary, individualized basis. The court emphasized what it saw as the underlying policy rationale of the Nollan/Dolan doctrine, to prevent regulatory authorities from using their monopoly power over the land use permitting process to extort concessions from politically powerless developers. This policy concern, the court noted, would apply equally regardless of whether the exaction was a physical dedication or an impact fee.
After a relatively brief analysis, the Florida Supreme Court concluded that Nollan and Dolan only apply to physical dedications of real property because (1) those cases only involved physical dedications and (2) regulatory agencies would by hamstrung and would likely deny more permits rather than face the uncertainty of negotiations.

The Implications

In the near future, this means that the protections of exactions law do not apply when governments and agencies request personal property, rather than real property, as a condition preceding development. As Robert Thomas pointed out in his blog, Inverse Condemnation, exactions are an important and topical issue these days.

The U.S. Supreme Court recently declined certiorari review of an Oregon case, where a city required a developer to pay money and for infrastructure costs. The developer wanted the city's requirements to be subject to the heightened standard of review set out by the U.S. Supreme Court in Nollan and Dolan. Although there were arguments that Oregon law supported the developer's position, after the case bounced into and out of the federal courts, the Oregon Supreme Court ruled otherwise in its West Linn decision. Just before Supreme Court of the United States denied certiorari, the developer filed a supplemental brief pointing out the Koontz decision here in Florida:
The Florida Supreme Court's decision in Koontz underscores the importance of the issue posed by the petition in this case. Moreover, it demonstrates the deepening divide between the courts such as the Supreme Courts of California and Texas which perceive no principled reason to distinguish between disproportional exactions of personal as opposed to real property and those Courts such as the Supreme Courts of Oregon and Florida, as well as the Ninth Circuit, that erroneously perceive in this Court's decision in Lingle an unstated intent to limit Nollan and Dolan. Only this Court can decide this important conflict and bring clarity to this area of Constitutional law.
The supplemental brief points to the heart of the matter: why should there be any distinction between exactions of personal property and exactions of real property? Unfortunately, because case was denied, we'll have to wait for the U.S. Supreme Court to clarify whether exactions law extends to personal property, as well as real property. Here in Florida, a motion for rehearing was filed on November 18 in the Koontz case. While rarely granted, a rehearing would give the Florida Supreme Court a chance to clarify its decision, which commentators have already said lacks clarity.

Thursday, November 10, 2011

DCA files motion to dismiss Community Planning Act legislation

I've been following the Yankeetown v. DCA (37 2011 CA 002036) litigation. So far, I've written on Yankeetown's complaint alleging that the Community Planning Act is unconstitutional and on St. Pete Beach's motion to intervene in the litigation against Yankeetown.

The Department of Community Affairs was recently substituted in the litigation by its new administrative iteration, the Department  of Economic Opportunity. Just before that, DCA filed a motion to dismiss Yankeetown's complaint. DCA argues that officers of the state and state agencies must presume that laws affecting their duties are valid. Because the validity of the law must be assumed, the public officer is not given standing to challenge the law. That is, public officers are expected to uphold their office, not fight about it. Because this line of case law has been applied previously to both local governments and to growth management law, DCA argues, it should applied in this case.

If Yankeetown responds to the motion in writing before the hearing, I will post a summary here.

Thursday, October 20, 2011

Third Quarter 2011: Recent Florida Environmental and Land Use Case Law

This post continues my series of case law updates for those interested in recent environmental and land use cases in Florida. Once again, these cases come from the case law update that I coauthor in the newsletter of the Environmental and Land Use Law Section of the Florida Bar. Below are the cases we reviewed this quarter.

  • Walthour v. Malibu Lodging Investments, LLC, 2011 WL 2135594 (Fla. 3d DCA June 1, 2011), a city ordinance with no variance provision is constitutional as long as it does not create a “unique hardship” for the landowner.
  • Wilson v. Palm Beach Cnty., 62 So. 3d (Fla. 4th DCA June 15, 2011), holding that the Right to Farm Act does not prohibit the enforcement of local government ordinances regulating farming activities adopted prior to June 2000 (although this holding was likely reversed by Ch. 2011-007, Laws of Fla.)
  • Pembroke Ctr., LLC v. Dep’t of Transp., 2011 WL 2555569 (Fla. 4th DCA June 29, 2011), not allowing an inverse condemnation claim where the government is merely planning for future events and access is not lost.
  • Heritage 5, LLC v. Estrada, 2011 WL 2848664 (Fla. 4th DCA July 20, 2011), applying the reasonable use rule to man-made drainage schemes that further natural flows.
  • Highwoods DLF EOLA, LLC v. Condo Dev., LLC, 51 So. 3d 570 (Fla. 5th DCA 2010), establishing in potential conflict with the 2d DCA that quasi-judicial proceeding participants cannot be barred from subsequent certiorari proceedings. 

You can find more details in this quarter's newsletter. Please email me as you become aware of cases we should review.

Sunday, September 18, 2011

St. Pete Beach intervenes in Constitutional Challenge to Community Planning Act

Another city has piled onto Yankeetown's constitutional challenge to the Community Planning Act (HB 7207, signed into law as ch. 2011-139, Laws of Fla.). Recall that Yankeetown challenged the Community Planning Act on grounds that it unconstitutionally delegates power to the State Land Planning Agency to define certain terms. Yankeetown also challenged the Act for more technical reasons, including that it was adopted in contravention of the single subject requirement and that it was read by a misleading and inaccurate title.

The twist is that the new local government has moved to intervene as a defendant. In late August, St. Pete Beach moved to intervene in Yankeetown v. DCA (37 2011 CA 002036). If its motion succeeds, it will enter the case aligned with the State Land Planning Agency and possibly the State. St. Pete Beach would then be opposed to Yankeetown. In this case, St. Pete Beach claims an interest in the action through an adopted plan amendment that would be uncertain if the act were struck down. Section 76 of the Act states:
A comprehensive plan amendment adopted pursuant to s. 163.32465, Florida Statutes, subject to voter referendum by local charter, and found in compliance before the effective date of this act, may be readopted by ordinance, shall become effective upon approval by the local government, and is not subject to review or challenge pursuant to the provisions of s. 163.32465 or s. 163.3184, Florida Statutes.
St. Pete Beach's motion to intervene doesn't tip its hand beyond showing the city is clearly interested in the outcome of the case. However, the backstory hints at the city's intentions. St. Pete Beach, readers will remember, formerly had a referendum requirement similar to sought by advocates of Hometown Democracy. It's now embroiled in even more lawsuits - the most recent seeks to overturn the city's referendum that eliminated its comprehensive plan referenda requirement and to overturn the city's reinstatement of a comprehensive plan that was invalidated by a circuit court judge.

We should see more filings in the case soon.

Saturday, August 13, 2011

Yankeetown Files Complaint to Declare Community Planning Act Unconstitutional

Well, that didn't take long.

Tiny Yankeetown, with a population of less than a 1,000, has challenged HB 7207, this session's landmark growth management overhaul. I've written several times about the Community Planning Act. The Second Judicial Circuit has labeled the case as high profile, which means the docket is available online. I'll be following it to provide updates to all who are interested. Yankeetown filed an expedited complaint on August 1st and an amended complaint on August 8th.

In Yankeetown v. DCA (37 2011 CA 002036), Yankeetown requests that HB 7207 (ch. 2011-139, Laws of Fla.), be declared unconstitutional because it:
  1. contains more than one subject, was adopted in violation of the single subject rule, and was read by a misleading and inaccurate title; and because it
  2. contains an unconstitutional delegation, in violation of the non-delegation doctrine, to the State Land Planning Agency to define the vague terms "important state resources and facilities" and "important regional resources and facilities."
Yankeetown also seeks a declaratory judgment that it still apply its referenda provisions, requiring voters to approve all comprensive land use changes affecting more than five parcels. because they existed before HB 7207 was passed. The amended complaint adds allegations concerning the title of the bill and whether it was enacted properly.

Because HB 7207 went into effect upon being signed by Governor Scott in early June, local governments around Florida had to learn its provisions quickly. They must continue implementing the Community Planning Act, despite this challenge. If Yankeetown is successful, Florida land use and growth management law could get very messy, very quickly.

Wednesday, August 3, 2011

New Institute in Florida Pledges to Protect Property Rights

The Pacific Legal Foundation has created the Wade L. Hopping Institute for Private Property Rights. The Institute will fight to protect property rights through education and litigation. It will work, in part, through a network of pro bono attorneys to fight government abuse of property rights. It's a fitting tribute to Justice Hopping, with whom I had the privilege of working for at the firm he founded, Hopping Green & Sams.

The Institute already has environmental journalists and nonprofits worried. Their hand-wringing shows how much the Foundation's work is needed. Private property rights are about "individual autonomy and the enjoyment of liberty." But for folks like Monica Reimer of Earthjustice, private property rights can be reduced to nuisance claims. Ms. Reimer believes that growth management and environmental laws "were all intended to protect private property rights." Really? Those laws may have been intended, ostensibly, to protect the public health and safety. They may have intended to recognize "public environmental rights." Yet they have never been said to have been intended, first and foremost, to protect private property rights.

It's a testament to American's support for free enterprise that even environmentalists have hijacked the rhetoric of property rights advocates.

Monday, July 18, 2011

A Professional Planner's Take on the Community Planning Act

The president of the Florida Chapter of the American Planning Association, Merle Bishop, FAICP, recently responded to an article by St. Pete Times reporter Craig Pittman. The article  appeared in the July 2011 issue of Planning, the American Planning Association's magazine. Pittman's article is reproduced here. That blog shows that Pittman's article has given many a mistaken impression of what has happened to land use planning and growth management in Florida. 

I haven't been able to find a copy of Mr. Bishop's letter online so it is reproduced below. It gives some perspective on how planning professionals are dealing with the Community Planning Act and HB 7207.
I was somewhat disappointed in reading your article in the July 2011 issue of Planning, titled “Florida Kills Growth Management Act.” I understand that the article appeared in the “News Briefs” section of the magazine which does not provide sufficient column space to fully explain a complex topic as House Bill (HB) 7207 and the recent changes to Florida’s Growth Management Act. Your article certainly offers a very disheartening viewpoint regarding the recent legislative changes in Florida. Especially, to any reader who has not followed the legislative process, much less read HB 7207. I say this because it is my belief, which I believe is shared by many of my planning colleagues, that Florida did not kill the Growth Management Act. I understand the argument that changes to the role of DCA as a strong, centralized state planning agency in the oversight and approval process of Comprehensive Plans weakens the overall planning effort in Florida. However, I also recognize that there is a lot of good planning that is taking place at the local level and does not need a “top down” planning structure or state oversight to be successful. In a sense, I believe it boils down to some people seeing the glass as half empty while others see it as half full.
Most of the planning requirements of the Growth Management Act remain unchanged and, while Rule 9J-5 was repelled, several of the provisions of the rule have been incorporated into the Growth Management Act (Chapter 163, F.S.) In fact, if you step back and take a look at the new law in its totality, there remains a decent planning process, that if followed, will provide local governments the necessary tools to guide their futures. Your article states that the new legislation bans cities and counties from imposing impact fees on non-residential development for two years. This is simply not the case. This provision was discussed earlier in the legislative process, but not included in the final, adopted version of the legislation.
Certainly, the statutory changes did not diminish the importance of local governments ability to make sound decisions that are based on plans developed over decades of hard work, public investment and public participation. The big question, in light of the changes, is how will local governments respond to those changes? Will they remove concurrency for transportation, schools and park facilities? Will they remove their School Facilities Element from their Comprehensive Plan? Will they make bad planning decisions that result in sprawl and adverse environmental impacts? Will citizen involvement in the planning process and public opinion have any influence or bearing on local decisions and choices? I guess these questions remain to be answered as we move into future with the changes in HB 7207. It can be argued that planning requirements contained in state law and rule are not essential to achieve good planning. In fact, changes in these requirements can present new opportunities for local governments to be proactive and creative in making planning decisions and securing a better future for existing and future populations. As a planning profession, I believe it is critical that planners in the state provide leadership in identifying those creative and innovative solutions.
One of the more frustrating aspects of the legislative debate, was that it appeared to focus heavily on comprehensive plans as a regulatory impediment to economic development. Seemingly lost in the debate is the strong linkage between good planning and economic development, including job creation. A comprehensive plan is not an end unto itself but it is a tool to guide a community towards economically vibrant, sustainable and active communities. It is my opinion that most local communities throughout Florida “get this” and will “stay the course” by maintaining concurrency, including a school facilities element, as part of their plans. Additionally, they will “step up” and make good planning decisions without having DCA as a “backstop” for bad planning decisions. Craig, I hope that you take the time and opportunity to speak with other planners in leadership roles around the state to get different perspectives from professionals who work with the growth management act and the recent changes on a daily basis. I realize that planners don’t make the decisions, elected official do and when local politics are involved, anything can happen. I acknowledge that some bad choices and decisions will occur. However, many of the elected officials that I know sincerely want to do the right thing and understand the significance of sound planning and a following a good plan for the future of their community.
In closing, I encourage you to point out that there is still a planning requirement in place in Florida and local governments are now more accountable to existing and future populations to make good decisions based on their plans developed over the years. I believe that local citizens also have a very important role in the new planning structure for Florida. They should be encouraged to become educated and more aware of their community’s planning efforts and to get involved – participate in local planning and visioning efforts to provide guidance to appointed planning and zoning boards and local elected officials. Planning is definitely alive and well in the state. Governments have taken on different roles and local governments are capable of implementing the plans and vision of their local community.
Merle H. Bishop, FAICP
APA Florida President

Sunday, June 26, 2011

Resource for Recent Florida Environmental and Land Use Case Law

For those who are interested in recent environmental and land use case law in Florida, the Environmental and Land Use Section of the Florida Bar publishes its newsletter, the Section Reporter, online. As of the June 2011 edition, I am now coauthoring the Florida Case Law Update column with my colleague at Hopping Green & Sams, Gary K. Hunter, Jr.

Each quarter, we review and summarize the most important cases in the Florida appellate courts dealing with environmental, land use, growth management, property rights, and natural resources law. This quarter, we review the following cases:
  • Miami-Dade County v. DCA, 54 So. 3d 633 (Fla. 1st DCA Feb. 28, 2011), explaining the judicial review powers of the Administration Commission, and judicial review of the Commission itself.
  • Hasselback v. DEP, 54 So. 3d 637 (Fla. 1st DCA 2011), regarding proper legal notice of permits to be issued by the Department of Environmental Protection.
  • City Nat’l Bank of Fla. v. Tampa, 2011 WL 1295874 (Fla. 2d DCA 2011), allowing state court review of federal equal protection claims under 42 U.S.C. section 1983.
  • Graves v. Pompano Beach, 2011 WL 1376617 (Fla. 4th DCA 2011), establishing that plat approval does not constitute a development order under section 163.3215, Florida Statutes.
  • Allen v. Key West, 2011 WL 1485992 (Fla. 3d DCA 2011), declaring a nonconforming land use where the previous owner relied on the city's actions and maintained all required licenses.
  • Atwater v.  Weston, 2011 WL 1634234 (Fla. 1st DCA 2011), which I previously reviewed, dismissing a challenge to the 2009 growth management bill, SB 360.
As you come across relevant cases, please forward them to me.

Sunday, June 19, 2011

Deadline approaches for forest landowners fighting beetle infestations

Pine beetle outbreaks in Florida have resulted in millions of cubic feet of pine timber over thousands of acres. Private, non-industrial forest landowners in northern and central Florida have a limited amount of time left to apply for a cost-share program designed to fight these pine beetle infestations. 

Because the program is intended as a preventative, landowners do not need to have an infestation to apply for the program. Payments may be used to pay for practices like first pulpwood thinning, pre-commercial thinning, prescribed burning, planting longleaf pines, and mechanical underbrush treatment. Funding must cover at least 10 acres and may not exceed $10,000. Unlike similar programs in previous years that were first-come-first-served, funding requests will be prioritized according to program priorities. Property is prioritized based on a number of factors, including the type of activity planned, whether funding has been given in previous years, whether a forest management plan has been prepared, and whether the region is at a high risk of infestation based on historical activity.

Landowners have until Monday, June 27 to submit applications to the Division of Forestry, part of the Florida Department of Agriculture and Consumer Services.

Monday, June 13, 2011

Will the Community Planning Act Revive Rural Land Stewardship?

The Community Planning Act and HB 7207 redesigned growth management in Florida. When the Act was signed into law, it changed more than just  the comprehensive plan amendment process. More quietly, the Community Planning Act made a number of other changes. For instance, it also prohibits comprehensive plan amendment referenda. It also may have resurrected an interesting large area planning tool called Rural Land Stewardship.

Rural Land Stewardship: Innovative, Large Scale, Rural Planning

Rural Land Stewardship was born out of Collier County's struggles in court to bring its comprehensive plan into compliance with the Growth Management Act. Collier County came up with a collaborative solution that was authorized by the Legislature as a pilot project. Governor Bush's Growth Management Study Commission suggested a form of the program as a way to bring incentive-based planning to rural areas. Early results looked promising, and the program was expanded for statewide use in 2004. Collier County's Rural Land Stewardship Program, which covers almost 200,000 acres, is still being implemented today. Collier County posts a great deal of data, analysis, and planning studies on its website about its program. 

Part of the beauty of Rural Land Stewardship, as implemented in Collier County, was its flexibility. It promoted agriculture, conserved land and resources, and protected private property rights. In 2009, I published an article finding that Rural Land Stewardship was important because it was one of the first programs in the country to show that growth management could be integrated with ecosystem services to conserve agriculture. Florida was truly on the cutting edge of large scale planning in rural areas.

Rural Land Stewardship, however, never took off. A second Rural Land Stewardship Area would have transferred the development rights from Adams Ranch in St. Lucie County to a non-contiguous development called Cloud Grove. It would have preserved about 17,000 acres. Family Lands Remembered has a good deal of information about this plan. DCA approved the plan, but St. Lucie County's support wore thin later. After years of negotiations, however, the plan failed to materialize. Different accounts of this areas' failure have circulated, but it did seem to spook planners and developers from the concept.

Furthermore, the Department of Community Affairs (DCA) hindered Rural Land Stewardship. It drafted a rule, 9J-5.026, Florida Administrative Code, making Rural Land Stewardship so difficult to implement, that it effectively killed the program. The rule development began in 2007, and landowners immediately became leery of a program with mercurial goals. Why spend thousands of dollars studying and planning with no assurances the game would be the same when DCA reviewed a project?

The Community Planning Act Revives Rural Land Stewardship

Over at the Florida Land Development Regulation blog, Laura Barber Bellflower has posted a helpful summary of the new Rural Land Stewardship statute. She has also posted a document showing how the previous §163.3177(d), Florida Statutes, was incorporated into the new §163.3248, Florida Statutes. For the most part, the new statute adds detail to the bare-bones structure of the previous statute. Some descriptive portions seem to have been taken from the rule, but they do not seem to overburden the updated program.

The Legislature made clear that it stands behind Rural Land Stewardship and large scale planning in Florida: "This section constitutes an overlay of land use options that provide economic and regulatory incentives for landowners outside of established and planned urban service areas to conserve and manage vast areas of land for the benefit of the state's citizens and natural environment while maintaining and enhancing the asset value of their landholdings." §163.3248, Fla. Stat.

Perhaps the most important aspect of the new Rural Land Stewardship statute is that rulemaking is not allowed. The statute must simply be implemented as it stands. Elsewhere in HB 7207, the Legislature repealed the Rural Land Stewardship rule, along with the rest of chapter 9J-5. Combined with the responsibility for growth management that has been handed to local governments through the Community Planning Act, the uncertainty caused by state-level policy may have been controlled.

Rural Land Stewardship is one of the "Planning Innovations" in chapter 163, Florida Statutes. It has yet to fully live up to its expectations. The Community Planning Act, however, has made Rural Land Stewardship more accessible and less bureaucratic. Sector plans, another large-scale planning tool for rural areas, were also made more accessible by the Community Planning Act. Together, these two tools give communities better options for large-scale rural planning.

Sunday, June 5, 2011

See How Florida's New Comprehensive Plan Amendment Process Works: HB 7207 is Now Law

Governor Scott recently signed House Bill 7207 into law. The new law, the Community Planning Act, makes significant changes to Florida growth management system.  Even so, the changes are more course correction than rewrite. These changes went into effect immediately: they are now the law of the land.

There are certainly some big changes in store for Florida, as I've blogged about before. One big change is that all comprehensive plan amendments will now fall into one of three tracks. Because HB 7207 went into effect immediately, even current plan amendments and corresponding challenges must be processed along this new scheme.

See How the New Process Works

Hopping Green & Sams has developed a flow chart that diagrams these three tracks. It is clear from this flow chart that the state retains important oversight of comprehensive plan amendments. Generally, there is the state coordinated review track, the expedited review track, and a small scale review track. Third parties may mount a challenge against an amendment proceeding under any of these three tracks.

  • The state coordinated review track is very similar to the previous amendment review process. It will be used for the most comprehensive or regional amendments. The state coordinates a review and issues an objections, recommendations, and comments (ORC) report. The local government then addresses issues raised in the ORC report. 
  • The expedited review track will be used for the majority of comprehensive plan amendments. The local government is in charge of compiling comments from state agencies, which may comment on the amendments and challenge those that, in the agency's expertise, are found lacking.
  •  The small scale amendment track is also similar to today's process for small comprehensive plan amendments. There is no state oversight for these small amendments, which must be limited to a map amendment and text directly implementing it. Depending on location, these are limited to 10 or 20 acres, and a local government may only use this process for 120 acres per year.

Consequently, many accounts of the law are just plain wrong. Perhaps the worst description quotes David Guest of Earthjustice, who said, "essentially, all of the growth management laws in Florida were repealed." Several blogs and environmental groups also call the law a "repeal." The New York Times was less bold, but it still called HB 7207 a "parting gift" to developers and implied that state oversight has disappeared and a culture of corruption will follow. Misunderstandings about Florida growth management system were legion, even before HB 7207, but these reports show incredible ignorance about the new law. The authors could have read one of the many summaries available prepared by practitioners who know the law. Some were probably upset that the law was pushed through without much debate, but that's no excuse for shoddy, opinionated reporting.

More Changes to Come

More changes are probably to come. For example, Senate Bill 2156 abolishes The Department of Community Affairs (DCA). DCA's Division of Community Planning, which administers Florida growth management laws, will be moved into the new Department of Economic Opportunity. This bill may be the source of some of the more absurd statements that Florida's growth management system is being abolished SB 2156 has not been sent to the governor's office yet, but it is widely expected to pass when it does.

Monday, May 23, 2011

Adverse Possession Now More Difficult in Florida

Senate Bill 1142 was sent to Governor Scott today. This bill reforms adverse possession in Florida. Generally, adverse possession allows people to acquire title to property owned by someone else after they have used it as if it were his own in some specified way for a number of years. In Florida, this ancient English doctrine of property law is defined in chapter 95, Florida Statutes. Under Florida law, there are two ways to adversely possess property. First, a person can adversely possess by actually possessing it and claiming color of title, or claiming a right to it based on a recorded document, for seven years. Second, a person can actually possess a property and, within the first year of possession, file a claim with the county property appraiser's office. Under this method, the person also has to pay property taxes during the seven year possession period.

SB 1142 amends the current law to make it harder to acquire property by adverse possession by paying taxes on a parcel. Currently, there is no requirement that a property owner be notified that someone has stepped in to pay taxes on the property. It requires property appraiser to notify the rightful property owner when someone files for adverse possession with the appraiser. When filing, the possessor must disclose the intended use of the property.

The bill was passed unanimously in both the House and the Senate because there is a perception that some property owners are being taken advantage of. Because there are so many vacant homes in Florida now, after the residential housing market bust, it's not hard to imagine that might be the case. There has only been a small bit of media coverage on the bill. Most of it has been neutral, probably because of the complexity of the arcane law. The Florida Realtors have reported seeing this. One article describes some of the abusive practices. An interesting blog post condoned the practice as a sort of sticking-it-to-the-man. Senate staffers don't believe that this will affect many Floridians. While that's probably true, landowners--especially those away from Florida for significant periods of time--should keep abreast of this bill in order to monitor their properties. If Governor Scott signs it, property owners will be able to rest a bit easier.

June 3, 2011 - Governor Scott signed SB 1142 into law yesterday (June 2). It becomes effective July 1, 2011.

Tuesday, May 17, 2011

Florida's Growth Management Reform Prohibits Comprehensive Plan Amendment Referenda

As most Floridians have probably heard by now, Florida's 2011 Growth Management Reform legislation, the Community Planning Act, passed in the form of HB 7207.  The summary Governor Scott is expected to sign the bill into law soon. He has championed major reform in Florida's system since his campaign.

The media has had a field day with this legislation. It's been described as a repeal of Florida growth management laws and the Build Baby Build Act. Even so, they've completely missed the ball. Beyond industry-specific coverage, the only positive comments I've been able to find are in the relatively limited scope of blogs by practitioners Robert Lincoln and Rosa Schechter. For more detailed commentary, Hopping Green & Sams released a summary and analysis of the bill today. This is a great summary of the bill's 349 pages.

I hope to offer more commentary on the bill eventually, as there are some interesting provisions that have not been discussed in detail anywhere yet. Section 7 of the bill, for example, prohibits any comprehensive plan amendment referenda. Current law only prohibits a referendum if it affects five or fewer parcels. If this sounds familiar, it should. During the 2010 election cycle, Florida Hometown Democracy ran a failed campaign to require, by operation of the Florida Constitution, votes on every comprehensive plan change. Floridians wisely voted it down, but they were clearly spooked. Section 7 should provide some comfort to Floridians that we won't all have to repeat the mistakes of the referendum boondoggle in St. Pete Beach. That city also realized its solution was unworkable and did away with its referendum process this March. This is just one of a bundle of victories for small enterprise out of this year's legislative session.

June 3, 2011 - A reader commented that, as the Florida Chapter of the American Planning Association points out (link downloads a word document),  "any amendment adopted prior to this act that was subject to a voter referendum by local charter can be readopted by ordinance and not subject to challenge."

Wednesday, May 4, 2011

First District Court of Appeals reverses decision declaring Florida's 2009 growth management bill unconstitutional

Florida's 2009 growth management bill may have another chance. On May 2, Florida's First District Court of Appeals reversed a decision that had declared SB 360 (2009) unconstitutional. Atwater v. Weston2011 WL 1634234, Case No. 1D10-5094 (Fla. 1st DCA 2011). The Florida Legislature passed the bill in 2009, intending to correct problems with Florida's growth management laws. The bill extended all local development orders by two years. It moved to away from requiring developers to pay for road improvements, known as transportation concurrency. It instituted a mobility fee instead to finance transportation infrastructure. SB 360 also gave cities and counties the option to exempt other areas from transportation concurrency. Finally, it exempted "Dense Urban Land Areas" from undergoing Development of Regional Impact review, Florida's process for reviewing large developments.

Within a month of Governor Crist signing the bill, a coalition of local governments filed suit. They claimed it violated the Florida Constitution's mandate in against laws with more than a single subject. They also claimed it violated the Florida Constitution by imposing an unfunded mandate on counties and municipalities. The circuit court in Leon County agreed and entered summary judgment on grounds the bill imposed an unfunded mandate.

The First District Court of Appeals reversed and remanded the case for dismissal. It did not reach these constitutional questions. Instead, it found that the group of governmental plaintiffs did not sue the proper defendants. They sued the Governor, individual legislators, and others because they were improper plaintiffs. They might have been proper, had the action involved "a broad constitutional duty of the State implicating specific responsibilities." Instead, it held the proper party was the secretary of the Department of Community Affairs because the secretary would have enforced the law.

The decision may not mean much, however, for growth management in Florida. With the proposals moving through the Legislature that intend to scale back state oversight of growth management, it may become a moot point. The bill that looks set to pass would eliminate "concurrency," a requirement that was intended to make development and growth pay for itself, but which has been widely criticized lately.