2011 Changes to Florida’s Planning Laws: Impacts on Coastal Planning

Governor Scott recently signed a bill passed by the Florida Legislature that makes significant changes to comprehensive planning in the state. This brief note is not intended to give a complete summary of the bill, which is almost 200 pages, but to mention some of the most significant changes included in the law before looking more carefully at the implications for planning in coastal communities.

GENERAL CHANGES IN PLANNING LAW

The most important changes in the law include:

• Replaces the Department of Community Affairs with the Department of Economic Opportunity, which will house the Division of Community Development, which is the division that replaces the Division of Community Planning under the previous structure;
• Eliminates the limitation that only allowed comprehensive plan amendments twice per year with numerous exceptions;
• Eliminates state sufficiency review of the required Evaluation and Appraisal Report (EAR) required every seven years of local governments;
• Eliminates the energy efficiency and greenhouse gas reduction provisions from comprehensive planning (enacted in 2008);
• Eliminates Chapter 9J-5 from the Florida Administrative Code (some portions moved into statute); this Chapter represented the minimum requirements that the Department of Community Affairs used to evaluate comprehensive plan elements for compliance with state planning requirements;
• Eliminates state concurrency requirements for transportation, schools, parks, and recreational facilities while allowing optional concurrency provisions;
• Requires consultation with FDOT for local governments that add an optional transportation concurrency element, and requires that developers be allowed to use proportionate share mitigation to meet concurrency;
• Substantially rolls back in the need to demonstrate the financial feasibility of capital improvement plans;
• Eliminates requirement for a public school element;
• Removes mining, industrial use, hotel, and multi-screen movie theater developments from Development of Regional Impact Review;
• Removes state oversight of small-scale comp plan amendments while a limited number of other plan amendments go through the “state coordinated review process,” which is similar to the review process under previous law;
• Limits the comments allowable by regional planning councils and agencies of the state on plan amendments proposed by local governments;
• Makes substantial changes to Florida’s Rural Land Stewardship Area Program;
• Prohibits the use of the initiative or referendum process in regard to any development order, comp plan amendment, or map amendment (directed at the “Hometown Democracy” effort to promote this).

Changes to state laws no longer need to be incorporated into local comp plans until the next scheduled evaluation and appraisal report (EAR). Under EAR requirements, every seven years a local government determines whether plan amendments are necessary to meet the requirements of new laws enacted since the previous EAR.

Some areas of the law are not very clear. For example, “important state resources and facilities” is a recurring phrase in the law that is not defined. At this time, state officials indicate that the meaning of this will likely be developed through agency practice and case law. They also indicate that regional plans will likely be an important source of information for identifying “important state resources and facilities”: If a resource is not identified as important in a regional comprehensive plan, it will likely not be considered an important state resource or facility.

With the many changes in the law, it is important to note that the core requirement that “no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof,” remains the same.

 

CHANGES ESPECIALLY IMPACTING COASTAL PLANNING LAW

A disproportionate share of Florida’s population, resources, infrastructure, and assets reside in in Florida’s coastal jurisdictions. Nonetheless, the new planning law spends little time addressing the coastal management element of comp plans. The new law did not directly alter Florida Statute section 163.3178 , which lists requirements for a comp plan’s coastal management element and remains a cornerstone for coastal planning. Still the new law overall decreases requirements for the coastal management element of local comp plans.

The new law eliminates previous statutory encouragement for local governments to develop policies for recreational surface water use even as it maintains language to “encourage preservation of recreational and working waterfronts for water dependent uses in coastal communities.”

With the elimination of Chapter 9J-5 from the Florida Administrative Code, the new law did away with over three pages of detail on the requirements for local comprehensive plan coastal management elements. Eliminated sections of the Florida Administrative Code included detail and requirements related to post-disaster and resilience planning, evaluation of erosion and accretion trends and their impacts, public access, infrastructure, and other considerations. Without Chapter 9J-5, coastal jurisdictions are no longer explicitly required to develop post-disaster redevelopment plans.[1]

A small amount of material from Chapter 9J-5 relevant to coastal planning found its way into the new law. The law incorporates Chapter 9J-5’s requirement that “coastal high hazard areas” be included on the Future Land Use Map (FLUM). Other examples include: the definition of “compatibility” was added to the statute as was the definition of “suitability,” which means “the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development.” Such definitions may be relevant in determinations of what coastal uses should be permitted or encouraged.

The new law does not only decrease coastal planning requirements—it also opens some doors. The law adds the option for local governments to address sea-level rise adaption as part of the coastal management element. Potential criteria to include in such an area are very broad and include, but are not limited to: areas for which the land elevations are below, at, or near mean higher high water, areas with a hydrologic connection to coastal waters, or areas which are designated as evacuation zones for storm surge. This addition is reinforced by addition of a definition for “adaptation action area” or “adaptation area,” which is defined as “a designation in the coastal management element of a local government’s comprehensive plan which identifies one or more areas that experience coastal flooding due to extreme high tides and storm surge, and that are vulnerable to the related impacts of rising sea levels for the purposes of prioritizing funding for infrastructure needs and adaptation planning.” Interestingly, neither of these definitions explicitly includes low-lying areas that flood during heavy rains because of their low elevation and poor drainage, which may be exacerbated by tides or storms. The existing definitions in the law should allow for inclusion of such areas as “adaptation action areas.”

Seemingly minor word changes may also have far-reaching implications in coastal planning. For example, the law previously required that the coastal management element limit “public expenditures that subsidize development in high-hazard coastal areas.” The new law changes “high-hazard coastal areas” to “coastal high-hazard” areas. “Coastal high-hazard areas” is strictly defined in statute to specific areas whereas local governments were able to define “high-hazard coastal areas” more broadly than the statutory definition of “coastal high-hazard area.” Conversely, it is also possible that some local governments could have interpreted “high-hazard coastal area” as less inclusive than the “coastal high-hazard area.”

In summary, the changes to comprehensive planning law in 2011 do not prevent Florida’s local governments from engaging in detailed, pro-active efforts to increase their resilience to coastal hazards such as erosion, storms, and sea-level rise. At the same time, the changes will allow those communities that least want to consider resilient planning to avoid thoughtful analysis of issues like erosion and sea-level rise. The planning horizons in the law are too short to effectively require consideration of climate change and sea-level rise impacts, even when considering infrastructure or development with usable life spans of many decades. The new law does not prohibit longer time frames either; it allows “additional planning periods for specific components, elements, land use amendments, or projects.”

While the new law does not stop pro-active resilience planning by coastal local governments, it does remove the “political cover” that state requirements provide to help push forward local planning. Without such cover, Florida’s coastal communities that seek to increase the economic and physical resilience of their community and resource, will need to find the political will to act without the benefit of state requirements as an impetus for doing so.