Friday, August 16, 2013

What Effect has the Community Planning Act had on Growth Management in Florida?

Robert Rhodes has a thoughtful piece in the Florida Bar's Environmental and Land Use Section Reporter, entitled "The 2011 Community Planning Act: Certain Change, Uncertain Reform." Bob served as the first chair of the section. In his piece, he focuses on the Community Planning Act's effects on the state's oversight role and its defects. Ultimately, he proposes:
[T]he Legislature should statutorily define the operative terms, important state resources and facilities, and adverse impact. This is core legislative policy-making and a legislative prerogative and responsibility. For reference points, the Legislature can review current state planning policies noted below, the statutory definitions of development of regional impact and the general law guidelines for designating an area of critical state concern. Other useful reference points are the SRPPS, which identify regionally significant resources and facilities.
Depending on the specificity of the statutory definitions, they can be further refined by rules developed by the Governor and Cabinet with the assistance of DEO and other review agencies. If the Legislature decides not to statutorily define the operative terms, rules should be developed and could be subject to legislative review and possible action.
Rulemaking is more than a policy choice. Standing alone, the undefined operative terms are vulnerable to constitutional attack because they are broad, vague, variable and delegate unrestrained legislative policy making to the executive branch review agencies.
He also discusses the state agency's burden of persuasion and how to clarify the act's compliance standards. Bob concludes:
The 2011 Act was branded by proponents as significant growth management reform. Reform means to change for the better, to improve. But it may also mean to end. I’m optimistic the recent legislation may be a catalyst in many communities for improvement and not the beginning of the end of the state planning program. But to borrow a phrase from The New York Times columnist Tom Friedman, I’m now a paranoid optimist.