Senate Bill 1702er
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1
2 An act relating to the rulemaking authority of
3 the Department of Community Affairs and the
4 Florida Land and Water Adjudicatory Commission
5 (RAB); amending s. 20.255, F.S.; authorizing
6 the Florida Land and Water Adjudicatory
7 Commission to adopt rules; amending s.
8 163.3177, F.S.; including debt management
9 standards in local capital improvements
10 elements; providing local comprehensive
11 planning periods; amending s. 163.3184, F.S.;
12 specifying agencies for comprehensive plan
13 amendment review; allowing for adoption of
14 separate and distinguished plan amendments;
15 providing for municipal review of plan
16 amendments that affect municipal plans;
17 authorizing a schedule for agency review of
18 comprehensive plans and plan amendments;
19 ensuring conformity with the uniform rules of
20 procedure; amending s. 163.3191, F.S.;
21 providing for copies of submitted evaluation
22 and appraisal reports; providing for local
23 governments to request substantive comments
24 during sufficiency review of evaluation and
25 appraisal reports; providing for requests for
26 delegation of review of evaluation and
27 appraisal reports; amending s. 163.3202, F.S.;
28 clarifying that all municipalities adopt land
29 development regulations to implement municipal
30 plans and plan amendments; providing for notice
31 by the department of the need to adopt required
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1 land development regulations; supplementing
2 authority to adopt rules to allow schedules for
3 adoption of required land development
4 regulations; amending s. 190.005, F.S.;
5 authorizing the Florida Land and Water
6 Adjudicatory Commission to adopt rules relating
7 to community development districts; amending s.
8 373.114, F.S.; authorizing the commission to
9 adopt rules for review of water management
10 district rules or orders; amending s. 380.06,
11 F.S.; allowing the department to issue
12 clearance letters, upon request, as to whether
13 a development may be required to undergo
14 development-of-regional-impact review;
15 preventing reviewing agencies from objecting to
16 the use of assumptions and methodologies agreed
17 upon during preapplication procedures; allowing
18 for another preapplication conference to be
19 held if an application for development approval
20 is not submitted within 1 year; supplementing
21 authority to adopt rules to include criteria
22 for abandonment of developments of regional
23 impact; amending s. 380.061, F.S.;
24 supplementing authority to adopt rules for
25 Florida Quality Development annual reports and
26 criteria for determining a substantial change
27 to an approved Florida Quality Development;
28 amending s. 380.07, F.S.; supplementing
29 authority to adopt rules regarding development
30 orders in designated areas of critical state
31 concern; amending s. 380.22, F.S.;
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1 supplementing authority to adopt rules to
2 include procedures and criteria for evaluation
3 of subgrant applications under the federal
4 Coastal Zone Management Act; providing an
5 effective date.
6
7 Be It Enacted by the Legislature of the State of Florida:
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9 Section 1. Subsection (5) of section 20.255, Florida
10 Statutes, is amended to read:
11 20.255 Department of Environmental Protection.--There
12 is created a Department of Environmental Protection.
13 (5) Except for those orders reviewable as provided in
14 s. 373.4275, the Governor and Cabinet, sitting as the Land and
15 Water Adjudicatory Commission, has the exclusive authority to
16 review any order or rule of the department which, prior to
17 July 1, 1994, the Governor and Cabinet, as head of the
18 Department of Natural Resources, had authority to issue or
19 promulgate, other than a rule or order relating to an internal
20 procedure of the department.
21 (a) Such review may be initiated by a party to the
22 proceeding by filing a request for review with the Land and
23 Water Adjudicatory Commission and serving a copy on the
24 department and on any person named in the rule or order within
25 20 days after adoption of the rule or the rendering of the
26 order. Where a proceeding on an order has been initiated
27 pursuant to ss. 120.569 and 120.57, such review shall be
28 initiated within 20 days after the department has taken final
29 agency action in the proceeding. The request for review may be
30 accepted by any member of the commission. For the purposes of
31 this section, the term "party" shall mean any affected person
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1 who submitted oral or written testimony, sworn or unsworn, to
2 the department of a substantive nature which stated, with
3 particularity, objections to or support for the rule or order
4 that are cognizable within the scope of the provisions and
5 purposes of the applicable statutory provisions, or any person
6 who participated as a party in a proceeding instituted
7 pursuant to chapter 120.
8 (b) Review by the Land and Water Adjudicatory
9 Commission is appellate in nature and shall be based on the
10 record below. The matter shall be heard by the commission not
11 more than 60 days after receipt of the request for review.
12 (c) If the Land and Water Adjudicatory Commission
13 determines that a rule or order is not consistent with the
14 provisions and purposes of this chapter, it may, in the case
15 of a rule, require the department to initiate rulemaking
16 proceedings to amend or repeal the rule or, in the case of an
17 order, rescind or modify the order or remand the proceeding to
18 the department for further action consistent with the order of
19 the Land and Water Adjudicatory Commission.
20 (d) A request for review under this section shall not
21 be a precondition to the seeking of judicial review pursuant
22 to s. 120.68, or the seeking of an administrative
23 determination of rule validity pursuant to s. 120.56.
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25 The Land and Water Adjudicatory Commission may adopt rules
26 setting forth its procedures for reviewing orders or rules of
27 the department consistent with the provisions of this section.
28 Section 2. Paragraph (a) of subsection (3) and
29 subsection (5) of section 163.3177, Florida Statutes, are
30 amended to read:
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1 163.3177 Required and optional elements of
2 comprehensive plan; studies and surveys.--
3 (3)(a) The comprehensive plan shall contain a capital
4 improvements element designed to consider the need for and the
5 location of public facilities in order to encourage the
6 efficient utilization of such facilities and set forth:
7 1. A component which outlines principles for
8 construction, extension, or increase in capacity of public
9 facilities, as well as a component which outlines principles
10 for correcting existing public facility deficiencies, which
11 are necessary to implement the comprehensive plan. The
12 components shall cover at least a 5-year period.
13 2. Estimated public facility costs, including a
14 delineation of when facilities will be needed, the general
15 location of the facilities, and projected revenue sources to
16 fund the facilities.
17 3. Standards to ensure the availability of public
18 facilities and the adequacy of those facilities including
19 acceptable levels of service.
20 4. Standards for the management of debt.
21 (5)(a) Each local government comprehensive plan must
22 include at least two planning periods, one covering at least
23 the first 5-year period occurring after the plan's adoption
24 and one covering at least a 10-year period.
25 (b) The comprehensive plan and its elements shall
26 contain policy recommendations for the implementation of the
27 plan and its elements.
28 Section 3. Subsections (3), (4), and (5), paragraph
29 (c) of subsection (6), and paragraph (b) of subsection (9) of
30 section 163.3184, Florida Statutes, are amended to read:
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1 163.3184 Process for adoption of comprehensive plan or
2 plan amendment.--
3 (3) LOCAL GOVERNMENT TRANSMITTAL OF PROPOSED PLAN OR
4 AMENDMENT.--
5 (a) Each local governing body shall transmit the
6 complete proposed comprehensive plan or plan amendment to the
7 state land planning agency, the appropriate regional planning
8 council and water management district, the Department of
9 Environmental Protection, and the Department of Transportation
10 immediately following a public hearing pursuant to subsection
11 (15) as specified in the state land planning agency's
12 procedural rules. The local governing body shall also transmit
13 a copy of the complete proposed comprehensive plan or plan
14 amendment to any other unit of local government or government
15 agency in the state that has filed a written request with the
16 governing body for the plan or plan amendment.
17 (b) A local governing body shall not transmit portions
18 of a plan or plan amendment unless it has previously provided
19 to all state agencies designated by the state land planning
20 agency a complete copy of its adopted comprehensive plan
21 pursuant to subsection (7) and as specified in the agency's
22 procedural rules. In the case of comprehensive plan
23 amendments, the local governing body shall transmit to the
24 state land planning agency, the appropriate regional planning
25 council and water management district, the Department of
26 Environmental Protection, and the Department of Transportation
27 the materials specified in the state land planning agency's
28 procedural rules and, in cases in which the plan amendment is
29 a result of an evaluation and appraisal report adopted
30 pursuant to s. 163.3191, a copy of the evaluation and
31 appraisal report. Local governing bodies shall consolidate all
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1 proposed plan amendments into a single submission for each of
2 the two plan amendment adoption dates during the calendar year
3 pursuant to s. 163.3187.
4 (c) A local government may adopt a proposed plan
5 amendment previously transmitted pursuant to this subsection,
6 unless review is requested or otherwise initiated pursuant to
7 subsection (6).
8 (d) In cases in which a local government transmits
9 multiple individual amendments that can be clearly and legally
10 separated and distinguished for the purpose of determining
11 whether to review the proposed amendment, and the state land
12 planning agency elects to review several or a portion of the
13 amendments and the local government chooses to immediately
14 adopt the remaining amendments not reviewed, the amendments
15 immediately adopted and any reviewed amendments that the local
16 government subsequently adopts together constitute one
17 amendment cycle in accordance with s. 163.3187(1).
18 (4) INTERGOVERNMENTAL REVIEW.--If review of a proposed
19 comprehensive plan amendment is requested or otherwise
20 initiated pursuant to subsection (6), the state land planning
21 agency within 5 working days of determining that such a review
22 will be conducted shall transmit a copy of the proposed plan
23 amendment to various government agencies, as appropriate, for
24 response or comment, including, but not limited to, the
25 Department of Environmental Protection, the Department of
26 Transportation, the water management district, and the
27 regional planning council, and, in the case of municipal
28 plans, to the county land planning agency. These governmental
29 agencies shall provide comments to the state land planning
30 agency within 30 days after receipt of the proposed plan
31 amendment. The appropriate regional planning council shall
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1 also provide its written comments to the state land planning
2 agency within 30 days after receipt of the proposed plan
3 amendment and shall specify any objections, recommendations
4 for modifications, and comments of any other regional agencies
5 to which the regional planning council may have referred the
6 proposed plan amendment.
7 (5) REGIONAL, AND COUNTY, AND MUNICIPAL REVIEW.--The
8 review of the regional planning council pursuant to subsection
9 (4) shall be limited to effects on regional resources or
10 facilities identified in the strategic regional policy plan
11 and extrajurisdictional impacts which would be inconsistent
12 with the comprehensive plan of the affected local government.
13 However, any inconsistency between a local plan or plan
14 amendment and a strategic regional policy plan must not be the
15 sole basis for a notice of intent to find a local plan or plan
16 amendment not in compliance with this act. A regional
17 planning council shall not review and comment on a proposed
18 comprehensive plan it prepared itself unless the plan has been
19 changed by the local government subsequent to the preparation
20 of the plan by the regional planning agency. The review of the
21 county land planning agency pursuant to subsection (4) shall
22 be primarily in the context of the relationship and effect of
23 the proposed plan amendment on any county comprehensive plan
24 element. Any review by municipalities will be primarily in the
25 context of the relationship and effect on the municipal plan.
26 (6) STATE LAND PLANNING AGENCY REVIEW.--
27 (c) The state land planning agency shall establish by
28 rule a schedule for, upon receipt of comments from the various
29 government agencies pursuant to subsection (4). The state land
30 planning agency, shall have 30 days to review comments from
31 the various government agencies along with a local
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1 government's comprehensive plan or plan amendment. During
2 that period, the state land planning agency shall transmit in
3 writing its comments to the local government along with any
4 objections and any recommendations for modifications. When a
5 federal, state, or regional agency has implemented a
6 permitting program, the state land planning agency shall not
7 require a local government to duplicate or exceed that
8 permitting program in its comprehensive plan or to implement
9 such a permitting program in its land development regulations.
10 Nothing contained herein shall prohibit the state land
11 planning agency in conducting its review of local plans or
12 plan amendments from making objections, recommendations, and
13 comments or making compliance determinations regarding
14 densities and intensities consistent with the provisions of
15 this part.
16 (9) PROCESS IF LOCAL PLAN OR AMENDMENT IS IN
17 COMPLIANCE.--
18 (b) The hearing shall be conducted by an
19 administrative law judge of the Division of Administrative
20 Hearings of the Department of Management Services, who shall
21 hold the hearing in the county of and convenient to the
22 affected local jurisdiction and submit a recommended order to
23 the state land planning agency. The state land planning
24 agency shall allow 10 days for the filing of exceptions to the
25 recommended order and shall issue a final order within 30 days
26 after receipt of the recommended order if the state land
27 planning agency determines that the plan or plan amendment is
28 in compliance. If the state land planning agency determines
29 that the plan or plan amendment is not in compliance, the
30 agency shall submit, within 30 days after receipt, the
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1 recommended order to the Administration Commission for final
2 agency action.
3 Section 4. Subsections (4), (9), and (10) of section
4 163.3191, Florida Statutes, are amended to read:
5 163.3191 Evaluation and appraisal of comprehensive
6 plan.--
7 (4) The governing body shall adopt, or adopt with
8 changes, the report or portions thereof within 90 days after
9 receiving it from the local planning agency. The governing
10 body shall amend its comprehensive plan based on the
11 recommendations contained in the adopted evaluation and
12 appraisal report, pursuant to the procedures in ss. 163.3184,
13 163.3187, and 163.3189. Amendments to the plan and the
14 adoption of the report may be simultaneous. When amendments to
15 the plan do not occur simultaneously with the adoption of the
16 evaluation and appraisal report, the report shall contain a
17 schedule for adoption of proposed amendments within 1 year
18 after the report is adopted, except that the state land
19 planning agency may grant a 6-month extension for adoption of
20 such plan amendments if the request is justified by good and
21 sufficient cause as determined by the agency. Three copies of
22 the report shall be transmitted to the state land planning
23 agency, with the related amendments when the amendments are
24 transmitted pursuant to s. 163.3184.
25 (9) The state land planning agency shall conduct a
26 sufficiency review of each report to determine whether it has
27 been submitted in a timely fashion and contains the prescribed
28 components. The agency shall complete the sufficiency
29 determination within 60 days of receipt of the report. The
30 agency shall not conduct a compliance review. However, a local
31 government may request that the department provide substantive
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1 comments regarding the report or addendum during the
2 department's sufficiency review to assist the local government
3 in the adoption of its plan amendments based on the evaluation
4 and appraisal report. Comments provided during the sufficiency
5 review are not binding on the local government or the
6 department and will not supplant or limit the department's
7 consistency review of the amendments based on the adopted
8 evaluation and appraisal report. A request for comments must
9 be made in writing by the local government and must be
10 submitted at the same time the adopted report is submitted for
11 sufficiency review.
12 (10) The state land planning agency may delegate the
13 review of reports to the appropriate regional planning
14 council. When the review has been delegated to a regional
15 planning council, any local government in the region, except
16 for areas of critical state concern, may elect to have its
17 report reviewed by the council rather than the agency. The
18 agency shall adopt rules for accepting requests for delegation
19 and for uniform and adequate review of reports. The agency and
20 shall retain oversight for any delegation of review to a
21 regional planning council. Any plan amendment recommended by
22 the report shall be reviewed by the agency pursuant to s.
23 163.3184 and be adopted by the local government pursuant to s.
24 163.3189.
25 Section 5. Subsections (1), (4), and (5) of section
26 163.3202, Florida Statutes, are amended to read:
27 163.3202 Land development regulations.--
28 (1) Within 1 year after submission of its revised
29 comprehensive plan for review pursuant to s. 163.3167(2), each
30 county and, each municipality required to include a coastal
31 management element in its comprehensive plan pursuant to s.
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1 163.3177(6)(g), and each other municipality in this state
2 shall adopt or amend and enforce land development regulations
3 that are consistent with and implement their adopted
4 comprehensive plan.
5 (4) The state land planning agency may require a local
6 government to submit one or more land development regulations,
7 if it has reasonable grounds to believe that a local
8 government has totally failed to adopt any one or more of the
9 land development regulations required by this section. Once
10 If the state land planning agency determines after review and
11 consultation with local government whether that the local
12 government has adopted failed to adopt regulations required by
13 this section, the state land planning agency shall notify the
14 local government in writing within 30 calendar days after
15 receipt of the regulations from the local government. If the
16 state land planning agency determines that the local
17 government has failed to adopt regulations required by this
18 section, it may institute an action in circuit court to
19 require adoption of these regulations. This action shall not
20 review compliance of adopted regulations with this section or
21 consistency with locally adopted plans.
22 (5) The state land planning agency shall adopt rules
23 for review and schedules for adoption of land development
24 regulations.
25 Section 6. Paragraph (g) is added to subsection (1) of
26 section 190.005, Florida Statutes, to read:
27 190.005 Establishment of district.--
28 (1) The exclusive and uniform method for the
29 establishment of a community development district with a size
30 of 1,000 acres or more shall be pursuant to a rule, adopted
31 under chapter 120 by the Florida Land and Water Adjudicatory
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1 Commission, granting a petition for the establishment of a
2 community development district.
3 (g) The Florida Land and Water Adjudicatory Commission
4 may adopt rules setting forth its procedures for considering
5 petitions to establish, expand, modify, or delete uniform
6 community development districts or portions thereof consistent
7 with the provisions of this section.
8 Section 7. Paragraph (f) of subsection (1) of section
9 373.114, Florida Statutes, is amended to read:
10 373.114 Land and Water Adjudicatory Commission; review
11 of district rules and orders; department review of district
12 rules.--
13 (1) Except as provided in subsection (2), the Governor
14 and Cabinet, sitting as the Land and Water Adjudicatory
15 Commission, have the exclusive authority to review any order
16 or rule of a water management district, other than a rule
17 relating to an internal procedure of the district, to ensure
18 consistency with the provisions and purposes of this chapter.
19 Subsequent to the legislative ratification of the delineation
20 methodology pursuant to s. 373.421(1), this subsection also
21 shall apply to an order of the department, or a local
22 government exercising delegated authority, pursuant to ss.
23 373.403-373.443, except an order pertaining to activities or
24 operations subject to conceptual plan approval pursuant to
25 chapter 378.
26 (f) By July 1, 1994, the The Florida Land and Water
27 Adjudicatory Commission may shall adopt amendments to its
28 procedural rules to set forth its procedures for reviewing an
29 order or rule of a water management district consistent with
30 the provisions of this section include provisions for the
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1 scheduling of meetings to hear requests for review to assure
2 maximum participation by members of the commission.
3 Section 8. Paragraph (i) is added to subsection (4) of
4 section 380.06, Florida Statutes, and subsections (7) and (26)
5 of that section are amended to read:
6 380.06 Developments of regional impact.--
7 (4) BINDING LETTER.--
8 (i) In response to an inquiry from a developer, the
9 state land planning agency may issue an informal determination
10 in the form of a clearance letter as to whether a development
11 is required to undergo development-of-regional-impact review.
12 A clearance letter may be based solely on the information
13 provided by the developer, and the state land planning agency
14 is not required to conduct an investigation of that
15 information. If any material information provided by the
16 developer is incomplete or inaccurate, the clearance letter is
17 not binding upon the state land planning agency. A clearance
18 letter does not constitute final agency action.
19 (7) PREAPPLICATION PROCEDURES.--
20 (a) Before filing an application for development
21 approval, the developer shall contact the regional planning
22 agency with jurisdiction over the proposed development to
23 arrange a preapplication conference. Upon the request of the
24 developer or the regional planning agency, other affected
25 state and regional agencies shall participate in this
26 conference and shall identify the types of permits issued by
27 the agencies, the level of information required, and the
28 permit issuance procedures as applied to the proposed
29 development. The regional planning agency shall provide the
30 developer information about the development-of-regional-impact
31 process and the use of preapplication conferences to identify
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1 issues, coordinate appropriate state and local agency
2 requirements, and otherwise promote a proper and efficient
3 review of the proposed development. If agreement is reached
4 regarding assumptions and methodology to be used in the
5 application for development approval, the reviewing agencies
6 may not subsequently object to those assumptions and
7 methodologies unless subsequent changes to the project or
8 information obtained during the review make those assumptions
9 and methodologies inappropriate.
10 (b) The regional planning agency shall establish by
11 rule a procedure by which a developer may enter into binding
12 written agreements with the regional planning agency to
13 eliminate questions from the application for development
14 approval when those questions are found to be unnecessary for
15 development-of-regional-impact review. It is the legislative
16 intent of this subsection to encourage reduction of paperwork,
17 to discourage unnecessary gathering of data, and to encourage
18 the coordination of the development-of-regional-impact review
19 process with federal, state, and local environmental reviews
20 when such reviews are required by law.
21 (c) If the application for development approval is not
22 submitted within 1 year after the date of the preapplication
23 conference, the regional planning agency, the local government
24 having jurisdiction, or the applicant may request that another
25 preapplication conference be held.
26 (26) ABANDONMENT OF DEVELOPMENTS OF REGIONAL
27 IMPACT.--There is hereby established a process to abandon a
28 development of regional impact and its associated development
29 orders. A development of regional impact and its associated
30 development orders may be proposed to be abandoned by the
31 owner or developer. The local government in which the
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1 development of regional impact is located also may propose to
2 abandon the development of regional impact, provided that the
3 local government gives individual written notice to each
4 development-of-regional-impact owner and developer of record,
5 and provided that no such owner or developer objects in
6 writing to the local government prior to or at the public
7 hearing pertaining to abandonment of the development of
8 regional impact. The state land planning agency is authorized
9 to promulgate rules that which shall include, but not be
10 limited to, criteria for determining whether to grant, grant
11 with conditions, or deny a proposal to abandon, and provisions
12 to ensure that the developer satisfies all applicable
13 conditions of the development order and adequately mitigates
14 for the impacts of the development. If there is no existing
15 development within the development of regional impact at the
16 time of abandonment and no development within the development
17 of regional impact is proposed by the owner or developer after
18 such abandonment, an abandonment order shall not require the
19 owner or developer to contribute any land, funds, or public
20 facilities as a condition of such abandonment order. The
21 rules shall also provide a procedure for filing notice of the
22 abandonment pursuant to s. 28.222 with the clerk of the
23 circuit court for each county in which the development of
24 regional impact is located. Any decision by a local
25 government concerning the abandonment of a development of
26 regional impact shall be subject to an appeal pursuant to s.
27 380.07. The issues in any such appeal shall be confined to
28 whether the provisions of this subsection or any rules
29 promulgated thereunder have been satisfied.
30 Section 9. Paragraph (b) of subsection (8) of section
31 380.061, Florida Statutes, is amended to read:
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1 380.061 The Florida Quality Developments program.--
2 (8)
3 (b) The department shall adopt, by rule, standards and
4 procedures necessary to implement the Florida Quality
5 Developments program. The rules must include, but need not be
6 limited to, provisions governing annual reports and criteria
7 for determining whether a proposed change to an approved
8 Florida Quality Development is a substantial change requiring
9 further review.
10 Section 10. Subsections (1) and (2) of Section 380.07,
11 Florida Statutes, are amended to read:
12 380.07 Florida Land and Water Adjudicatory
13 Commission.--
14 (1) There is hereby created the Florida Land and Water
15 Adjudicatory Commission, which shall consist of the
16 Administration Commission. The Commission may adopt rules
17 necessary to ensure compliance with the area of critical state
18 concern program and the requirements for developments of
19 regional impact as set forth in this chapter.
20 (2) Whenever any local government issues any
21 development order in any area of critical state concern, or in
22 regard to any development of regional impact, copies of such
23 orders as prescribed by rule by the state land planning agency
24 shall be transmitted to the state land planning agency, the
25 regional planning agency, and the owner or developer of the
26 property affected by such order. The state land planning
27 agency shall adopt rules describing development order
28 rendition and effectiveness in designated areas of critical
29 state concern. Within 45 days after the order is rendered, the
30 owner, the developer, or the state land planning agency may
31 appeal the order to the Florida Land and Water Adjudicatory
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1 Commission by filing a notice of appeal with the commission.
2 The appropriate regional planning agency by vote at a
3 regularly scheduled meeting may recommend that the state land
4 planning agency undertake an appeal of a
5 development-of-regional-impact development order. Upon the
6 request of an appropriate regional planning council, affected
7 local government, or any citizen, the state land planning
8 agency shall consider whether to appeal the order and shall
9 respond to the request within the 45-day appeal period. Any
10 appeal taken by a regional planning agency between March 1,
11 1993, and the effective date of this section may only be
12 continued if the state land planning agency has also filed an
13 appeal. Any appeal initiated by a regional planning agency on
14 or before March 1, 1993, shall continue until completion of
15 the appeal process and any subsequent appellate review, as if
16 the regional planning agency were authorized to initiate the
17 appeal.
18 Section 11. Subsection (3) of section 380.22, Florida
19 Statutes, is amended to read:
20 380.22 Lead agency authority and duties.--
21 (3) The department Secretary of Community Affairs
22 shall adopt by rule procedures and criteria for the evaluation
23 of subgrant applications that seek to receive a portion of
24 those funds allotted to the state under the federal Coastal
25 Zone Management Act a specific formula for allocation of
26 federal funds for the administration of the program.
27 Section 12. This act shall take effect upon becoming a
28 law.
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