Hillsborough County Developing Mobility Fee to Replace Concurrency and Impact Fee

As I wrote about with my colleagues recently, Hillsborough County is developing a mobility fee:

These fees are levied on development to pay for the development's impacts on offsite public facilities. While more familiar mechanisms like impact fees and concurrency focus on roads, mobility fees are intended to pay for even more forms of transportation infrastructure, including that used by vehicles, cyclists, pedestrians, and transit users. Pasco County was the first county in the state to adopt a mobility fee in 2011, and a handful of other local governments have followed suit, including the City of Jacksonville and Osceola County.

These fees come while Hillsborough County is focused on a number of transportation funding mechanisms, including Go Hillsborough, a half-cent sales tax that would be earmarked for transportation.

While staff has reported that this fee will replace both concurrency and the impact fee, the mobility fee is currently proposed at a rate that will be three to ten times higher than today's impact fee. New details are emerged recently through a "Terms Sheet" that outlines the key terms of a future mobility fee ordinance. Another recent update explained that the mobility fee will likely even affect ongoing projects that might initially seem to be "vested" against the new fees:

The Term Sheet, as drafted, subjects Proportionate Share Agreements approved after January 1, 2016 to the mobility fee. The Term Sheet also proposes new limitations for the amendment of both existing Development Agreements as well as Development of Regional Impact (DRI) Agreements. Consequently, it is unclear how these agreements will be processed in the near and long term. 

Obtaining extensions of agreements for ongoing projects may become difficult in the future. As drafted, the Term Sheet does not allow agreements to be extended, and mobility fees must be paid for all future development after the current expiration date.

Many questions remain, including how to treat the millions in credits that developers have received from projects where the offsite transportation improvements that they constructed cost more than the impact fees that the developers would otherwise have to pay. More details will emerge over the next 6-8 weeks, with a workshop scheduled to for staff to brief the Board of County Commissioners in February.

Legislative Session Wrap-Up Part 2: Land Development

In addition to some of the bills I mentioned in Part 1 of my legislative session wrap-up, these bills will be of interest to the land development community.

Land Development Bills

HB 319: This bill clarified and amended transportation concurrency, which was overhauled by the 2011 Community Planning Act. The legislative staff report on the bill summarizes its effects:

[The bill places] new requirements on local governments that implement alternative mobility funding systems. The bill requires these alternative systems to allow developers to “pay and go” for new development. Under the bill, once a developer pays for its identified transportation impacts, the local government must allow the development process to move forward. The bill encourages local governments without a transportation concurrency funding system to implement an alternative mobility funding system.  

The bill prohibits alternative mobility funding systems that are not mobility fee based from requiring developers to pay for existing transportation deficiencies. Local governments must apply revenue they collect from alternative funding systems to implement the needs upon which the revenue collection was based and mobility fees must comply with the dual rationale nexus test. Under the dual rationale nexus test, a court will find an impact fee reasonable if: 1) it offsets needs that are sufficiently attributable to the new development and 2) the fees collected are adequately earmarked for the benefit of the residents of the new development. 

The bill makes the following changes to transportation concurrency mechanisms: (1) Allows developers to satisfy the transportation concurrency requirements of a local comprehensive plan by making a good faith offer to enter a binding agreement to pay for or construct its proportionate share of impacts; (2) Allows local government to pool contributions from multiple applicants to apply toward one regionally significant transportation facility; (3) Requires local governments to provide the basis upon which landowners will be assessed a proportionate share of cost addressing the transportation impacts from a proposed development; (4) Clarifies that s. 163.3180(5)(h), F.S., applies to local governments that continue to implement transportation concurrency; (5) Clarifies when local governments are not required to approve new development.

HB 357: This bill is aimed at increasing Florida's competitiveness in the manufacturing sector. Again, the legislative staff report provides an excellent analysis. Local governments are encouraged to establish local manufacturing development programs aimed increasing capital investment and job creation within the manufacturing industry. The Department of Economic Opportunity (DEO) is charged with developing a model ordinance for local governments to do so. Most importantly for business owners, the bill creates a coordinated approval process for development approvals and permits for manufacturers managed by DEO in order to streamline the process for manufacturers participating in local manufacturing development programs. Finally, DEO and Enterprise Florida are to develop and distribute materials indicating which areas have developed local manufacturing development programs.

HB 375: This bill reduces permitting and inspection requirements for septic tanks and related systems (technically called onsite sewage treatment and disposal systems). For landowners, the biggest changes is that some single-family homeowners may now operate and maintain their own systems with approval by the Department of Environmental Protection.

Finally, there was HB 999--this session's bill that every environmental organization loved to hate. There was a great deal of press about this bill, much of it negative. But what this bill did do was decrease a number of environmental permitting burdens. For that reason, I've included in it my land use and development roundup, even though it might have been better left to Part 3 of my legislative session wrap-up, where I will review environmental and natural resource bills. Below is a summary of changes taken from the legislative staff report.

• Limiting to three the number of times a local government may request additional information when reviewing an application for a development permit, unless the applicant waives the limit; 
• Expanding the activities that qualify as "phosphate-related expenses" for the purpose of receiving severance tax proceeds;
• Providing lease fee calculation for certain marinas, boatyards, and marine retailers and providing conditions for the discount and waiver of these fees;
• Providing general permits for local governments to construct certain mooring fields;
• Increasing the size of certain multi-family docks on sovereign submerged lands that are exempt from paying lease fees;
• Prohibiting water management districts (WMDs) from reducing allocations due to additional water supplies resulting from developing of desalination plants;
• Providing that the issuance of well permits is the sole responsibility of WMDs, delegated local governments, or local county health departments, and prohibiting government entities from imposing certain requirements and fees;
• Providing that licensure of water well contractors by a WMD must be the only water well contractor license required in the state or any political subdivision;
• Exempting certain farm ponds and wetlands from regulatory requirements;
• Increasing the amount the Department of Environmental Protection (DEP) is authorized to enter into a contract for preapproved advanced cleanup work for designated contaminated sites in each fiscal year;
• Allowing a person to bring a cause of action for damages resulting from a discharge or certain pollution if not authorized pursuant to chapter 403, F.S.;
• Extending the payment deadline of permit fees for major sources of air pollution;
• Specifying that field procedures and lab methods for certain water quality testing must be adopted by rule or approved by order;
• Prohibiting a local government from using a recovered materials dealer's registration information to compete unfairly with the dealer for a period of 90 days after it is submitted; 
• Authorizing DEP to establish permits for special events relating to boat shows;
• Authorizing expedited permitting for natural gas pipelines and for summary hearings; and
• Ratifying certain leases on state-owned uplands in the Everglades Agricultural Area.

Because of the implications of this bill to agriculture (explicitly relating to farm ponds and implicitly in other ways), I've now cross-referenced this post with Part 1 of my legislative session wrap-up.

Legislative Session Wrap-Up Part I: Land Use, Agricultural, and Adverse Possession Bills

After a long legislative session, it's time to see which bills made it through the sausage factory and are on their way to the Governor's desk. I've discussed most of these bills previously. This is Part I of a series; environmental bills will be addressed in a future post. For land use issues generally, it was a tame session with few important developments. Agricultural landowners were the real winners in land use issues this session. At the end of this post I also summarize the bills the did not make it through session, but which you may have heard about.

Land Use Bills of Interest

HB 537: This is the glitch bill for the glitch bill. Recall that Yankeetown sued for a declaration that the 2011 Community Planning Act was unconstitutional. That litigation was settled last year when the Legislature passed a bill to allow local governments like Yankeetown keep their referenda processes. The only problem was the language was not narrow enough and a Palm Beach County judge interpreted the language to include a broad swath of referenda. The Legislature came back to fix it this year. After this, very very few local governments in Florida will be able to have referenda on land use issues. The bill states:

(b) An initiative or referendum process in regard to any local comprehensive plan amendment or map amendment is prohibited. However, an initiative or referendum process in regard to any local comprehensive plan amendment or map amendment that affects more than five parcels of land is allowed if it is expressly authorized by specific language in a local government charter that was lawful and in effect on June 1, 2011; a general local government charter provision for an initiative or referendum process is not sufficient.  

(c) It is the intent of the Legislature that initiative and referendum be prohibited in regard to any development order. It is the intent of the Legislature that initiative and referendum be prohibited in regard to any local comprehensive plan or map amendment, except as specifically and narrowly permitted in paragraph (b) with regard to local comprehensive plan or map amendments that affect more than five parcels of land. Therefore, the prohibition on initiative and referendum stated in paragraphs (a) and (b) is remedial in nature and applies retroactively to any initiative or referendum process commenced after June 1, 2011, and any such initiative or referendum process that has been commenced or completed thereafter is hereby deemed null and void and of no legal force and effect.

The bill also repeals the agricultural enclave language passed in last year's Chapter 2012-75, Laws of Florida. This should not affect many one way or the other, since that language was aimed at a narrow pet project.

HB 7019 - This bill includes the same language as HB 537, above, and some other miscellaneous provisions. Of note to the land-use community is that it extend the deadline for notifying a local government or agency that a permit holder wishes to extend a permit for two years (for the holder of "any building permit, and any permit issued by the Department of Environmental Protection or by a water management district pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from January 1, 2012, through January 1, 2014, is extended and renewed for a period of 2 years after its previously scheduled date of expiration").

Agricultural Bills of Interest

HB 203 - The 2003 Agricultural Lands & Practices Act preempted counties from adopting any new ordinance regulating a farm or forestry operation beyond adopted BMPs. This bill extends the preemption to nearly all local governments (water management and drainage districts are excluded). It also extends the preemption so that local governments may not assess any fees on farm and forestry operations subject to BMPs.

SB 1106 - Provides that a "local government may not adopt an ordinance, regulation, rule or policy that prohibits, restricts, regulates, or otherwise limits an agritourism activity on land classified as agricultural…” An agritourism activity is “any activity consistent with a bona fide farm or ranch that allows members of the general public…to view or enjoy agricultural-related activities….” The bill also limits the liability for landowners using their land for agrictourism, where land is posted in a specific manner.

HB 1193 -This bill makes the greenbelt assessment more favorable for landowners. Under the current law, the greenbelt assessment can be removed when: (1) the landowner changes the zoning of the land, even if it remains agricultural; (2) land classified as agricultural is surrounded by development and the county commission determines that it acts as a deterrent to further development; and (3) agricultural land is sold and the purchase price of land is three or more times the agricultural assessment. The bill removes these 3 provisions, making the only cause for removal of an agricultural assessment to be that it is no longer being used for an agricultural use. It also eliminates the ability of a value adjustment board to review the classifications made by the property appraiser unless a request is made by the landowner.

HB 7087 -  Tucked away inside this bill is a directive to FWCC to develop wildlife BMPs for agricultural lands. After these are developed, they could provide significant protection to landowners who follow them, as, under the Agricultural Lands & Practices Ac, the BMPs would likely preempt local governments from regulating issues that they encompass.

Best management practices for wildlife.-The department and the Fish and Wildlife Conservation Commission recognize that agriculture provides a valuable benefit to the conservation and management of fish and wildlife in the state and agree to enter into a memorandum of agreement to develop and adopt by rule voluntary best management practices for the state's agriculture industry which reflect the industry's existing contribution to the conservation and management of freshwater aquatic life and wild animal life in the state. 

(1) The department shall enter into a memorandum of agreement with the Fish and Wildlife Conservation Commission for the purpose of developing the best management practices pursuant to this section and applying such best management practices on agricultural lands within the state. The agreement may allow for selected pilot projects in order to better facilitate the development of the best management practices. 

(2) The department may adopt rules establishing the best management practices pursuant to this section. The rules must include provisions for a notice of intent to implement the best management practices and a system to assure the implementation of the best management practices, including recordkeeping requirements. 

(3) Notwithstanding any other provision of law, including s. 163.3162, the implementation of the best management practices pursuant to this section is voluntary and except as specifically provided under this section and s. 9, Art. IV of the State Constitution, an agency, department, district, or unit of local government may not adopt or enforce any ordinance, resolution, regulation, rule, or policy regarding the best management practices on land classified as agricultural land pursuant to s. 193.461.

EDIT 5/20/13: HB 999 also contains some provisions exempting farm ponds from some water regulations. For more detailed information, see my legislative session wrap-up Part 2.

Property Bills of Interest

HB 903: The adverse possession bill I wrote about previously was passed in a watered-down form. Adverse possession will be more difficult, as has been the trend in recent sessions, but not as much as in some of the bill proposals we saw earlier in the session. The big changes are (1) that an adverse possessor must pay all taxes and assessments in the first year and continuously throughout the possession and (2) anyone who occupies a structure solely by adverse possession is guilty of trespass. The second requirement will make it difficult to achieve some of the squatting we have seen in the news here in Florida.

Bills of Interest that were not Passed

HB 321 / SB 1716 - Would have exempted some small developments from transportation concurrency, proportionate fair share, and impacts fees.

HB 673 / SB 772 - Would have limited the ability of local governments to impose land use exactions.

HB 33 / SB 466 - Would have allowed landowners with lands contiguous to state-owned lands to submit a request to the state to exchange state-owned land for a conservation easement on privately-held land.

HB 901 / SB 584 - Would have require governments purchasing conservation lands to return an equal amount to private hands.

HB 7149 - Would have made the campus master planning process drastically simpler.

Community Planning Glitch Bill Headed to Gov. Scott's Desk

House Bill 7081 is headed to Governor Scott's desk after being passed by the Senate yesterday. The bill approves language settling Yankeetown v. DEO (37 2011 CA 002036). Yankeetown had asked the court to declare that the Community Planning Act, HB 7207 (ch. 2011-139, Laws of Fla.), was unconstitutional. The real rub for Yankeetown was that the Act did not grandfather previously-enacted local government comprehensive planning referendum requirements when it prohibited them. This glitch reportedly also affected Longboat Key, Key West, and Miami Beach.

The House staff analysis is available here. It notes some other effects of the bill:

• clarifying provisions relating to the coordination between local governments and military installations regarding local land use decisions;
• providing criteria for municipalities and the unincorporated area within a county to use in determining population projections;
• removing criteria that exempts certain municipalities from being signatories to the school interlocal agreement as a prerequisite to implementing school concurrency, because school concurrency is now optional, and restoring criteria to exempt certain municipalities from being a party to the school interlocal agreement; 
• extending the time for the state land planning agency and the Administration Commission to issue recommended and final orders, since the current time requirement is unworkable, and providing a time requirement for the state land planning agency to issue a notice of intent for a plan amendment adopted pursuant to a compliance agreement;
• deleting a required annual report by the Department of Economic Opportunity related to the optional sector plan pilot program.

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. Weston, 2011 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.