Florida Senate - 2016 SB 1190
By Senator Diaz de la Portilla
40-01337-16 20161190__
1 A bill to be entitled
2 An act relating to growth management; amending s.
3 163.3167, F.S.; specifying that persons do not lose
4 the right to complete developments of regional impact
5 upon certain changes to those developments; amending
6 s. 163.3184, F.S.; revising the comprehensive plan
7 amendments that must follow the state coordinated
8 review process; establishing deadlines for the state
9 land planning agency to take action on recommended
10 orders relating to certain plan amendments; providing
11 a procedure for issuing a final order if the state
12 land planning agency fails to take action; amending s.
13 163.3245, F.S.; decreasing acreage minimums for
14 application as a sector plan; amending s. 380.06,
15 F.S.; authorizing specified parties to amend certain
16 agreements without the submission, review, or approval
17 of a notification of proposed change when a project
18 has been essentially built out; authorizing the
19 exchange of one approved land use for another under
20 certain conditions; providing that certain conditions
21 constitute a presumption of a standard deviation
22 rather than a deviation; establishing the manner by
23 which such a presumption may be rebutted; revising the
24 conditions under which such a presumption may be made;
25 revising requirements related to proposed
26 developments; specifying certain conditions under
27 which a proposed development is not required to
28 undergo review pursuant to the state coordinated
29 review process; providing an exception; amending s.
30 380.0651, F.S.; revising the conditions under which
31 the development of regional impact aggregation
32 requirements do not apply; amending s. 380.115, F.S.;
33 establishing procedures relating to rights, duties,
34 and obligations related to certain development orders
35 or agreements if a development elects to rescind a
36 development order; providing an effective date.
37
38 Be It Enacted by the Legislature of the State of Florida:
39
40 Section 1. Subsection (5) of section 163.3167, Florida
41 Statutes, is amended to read:
42 163.3167 Scope of act.—
43 (5) Nothing in This act does not shall limit or modify the
44 rights of any person to complete any development that has been
45 authorized as a development of regional impact pursuant to
46 chapter 380 or who has been issued a final local development
47 order, provided that and development has commenced and is
48 continuing in good faith. A person does not lose his or her
49 right to proceed with a development authorized as a development
50 of regional impact if a change is made to the development that
51 only has the effect of reducing height, density, or intensity of
52 the development from that originally approved.
53 Section 2. Paragraph (c) of subsection (2) and paragraph
54 (e) of subsection (5) of section 163.3184, Florida Statutes, are
55 amended to read:
56 163.3184 Process for adoption of comprehensive plan or plan
57 amendment.—
58 (2) COMPREHENSIVE PLANS AND PLAN AMENDMENTS.—
59 (c) Plan amendments that are in an area of critical state
60 concern designated pursuant to s. 380.05; propose a rural land
61 stewardship area pursuant to s. 163.3248; propose a sector plan
62 pursuant to s. 163.3245 or an amendment to an adopted sector
63 plan; update a comprehensive plan based on an evaluation and
64 appraisal pursuant to s. 163.3191; propose a development that is
65 subject to the review process under s. 380.06(30) qualifies as a
66 development of regional impact pursuant to s. 380.06; or are new
67 plans for newly incorporated municipalities adopted pursuant to
68 s. 163.3167 must shall follow the state coordinated review
69 process in subsection (4).
70 (5) ADMINISTRATIVE CHALLENGES TO PLANS AND PLAN
71 AMENDMENTS.—
72 (e) If the administrative law judge recommends that the
73 amendment be found in compliance, the judge shall submit the
74 recommended order to the state land planning agency.
75 1. If the state land planning agency determines that the
76 plan amendment should be found not in compliance, the agency
77 shall make every effort to refer the recommended order and its
78 determination expeditiously to the Administration Commission for
79 final agency action within 30 days after the agency receives
80 such order, but at a minimum within the time period provided by
81 s. 120.569.
82 2. If the state land planning agency determines that the
83 plan amendment should be found in compliance, the agency shall
84 make every effort to enter its final order within 30 days after
85 the agency receives the recommended order expeditiously, but at
86 a minimum within the time period provided by s. 120.569.
87 3. If the state land planning agency fails to comply with
88 subparagraph 1. or subparagraph 2., and if written consent has
89 not been obtained from all parties to the proceeding to extend
90 the period of time within which the state land planning agency
91 must act, the recommended order:
92 a. If recommending denial of the plan amendment, shall be
93 transmitted by the Division of Administrative Hearings to the
94 Administration Commission for final agency action; or
95 b. If recommending a finding that the plan amendment is in
96 compliance, the order shall be entered as the final order in the
97 proceeding.
98 Section 3. Subsection (1) of section 163.3245, Florida
99 Statutes, is amended to read:
100 163.3245 Sector plans.—
101 (1) In recognition of the benefits of long-range planning
102 for specific areas, local governments or combinations of local
103 governments may adopt into their comprehensive plans a sector
104 plan in accordance with this section. This section is intended
105 to promote and encourage long-term planning for conservation,
106 development, and agriculture on a landscape scale; to further
107 support innovative and flexible planning and development
108 strategies, and the purposes of this part and part I of chapter
109 380; to facilitate protection of regionally significant
110 resources, including, but not limited to, regionally significant
111 water courses and wildlife corridors; and to avoid duplication
112 of effort in terms of the level of data and analysis required
113 for a development of regional impact, while ensuring the
114 adequate mitigation of impacts to applicable regional resources
115 and facilities, including those within the jurisdiction of other
116 local governments, as would otherwise be provided. Sector plans
117 are intended for substantial geographic areas that include at
118 least 5,000 15,000 acres of one or more local governmental
119 jurisdictions and are to emphasize urban form and protection of
120 regionally significant resources and public facilities. A sector
121 plan may not be adopted in an area of critical state concern.
122 Section 4. Paragraph (g) of subsection (15), paragraphs (b)
123 and (e) of subsection (19), and subsection (30) of section
124 380.06, Florida Statutes, are amended to read:
125 380.06 Developments of regional impact.—
126 (15) LOCAL GOVERNMENT DEVELOPMENT ORDER.—
127 (g) A local government may shall not issue permits for
128 development subsequent to the buildout date contained in the
129 development order unless:
130 1. The proposed development has been evaluated cumulatively
131 with existing development under the substantial deviation
132 provisions of subsection (19) subsequent to the termination or
133 expiration date;
134 2. The proposed development is consistent with an
135 abandonment of development order that has been issued in
136 accordance with the provisions of subsection (26);
137 3. The development of regional impact is essentially built
138 out, in that all the mitigation requirements in the development
139 order have been satisfied, all developers are in compliance with
140 all applicable terms and conditions of the development order
141 except the buildout date, and the amount of proposed development
142 that remains to be built is less than 40 percent of any
143 applicable development-of-regional-impact threshold; or
144 4. The project has been determined to be an essentially
145 built out built-out development of regional impact through an
146 agreement executed by the developer, the state land planning
147 agency, and the local government, in accordance with s. 380.032,
148 which will establish the terms and conditions under which the
149 development may be continued. If the project is determined to be
150 essentially built out, development may proceed pursuant to the
151 s. 380.032 agreement after the termination or expiration date
152 contained in the development order without further development
153 of-regional-impact review subject to the local government
154 comprehensive plan and land development regulations. The parties
155 may also amend the agreement without the submission, review, or
156 approval of a notification of proposed change pursuant to
157 subsection (19) or subject to a modified development-of
158 regional-impact analysis. As used in this paragraph, an
159 “essentially built out built-out” development of regional impact
160 means:
161 a. The developers are in compliance with all applicable
162 terms and conditions of the development order except the
163 buildout date; and
164 b.(I) The amount of development that remains to be built is
165 less than the substantial deviation threshold specified in
166 paragraph (19)(b) for each individual land use category, or, for
167 a multiuse development, the sum total of all unbuilt land uses
168 as a percentage of the applicable substantial deviation
169 threshold is equal to or less than 100 percent; or
170 (II) The state land planning agency and the local
171 government have agreed in writing that the amount of development
172 to be built does not create the likelihood of any additional
173 regional impact not previously reviewed.
174
175 The single-family residential portions of a development may be
176 considered “essentially built out” if all of the workforce
177 housing obligations and all of the infrastructure and horizontal
178 development have been completed, at least 50 percent of the
179 dwelling units have been completed, and more than 80 percent of
180 the lots have been conveyed to third-party individual lot owners
181 or to individual builders who own no more than 40 lots at the
182 time of the determination. The mobile home park portions of a
183 development may be considered “essentially built out” if all the
184 infrastructure and horizontal development has been completed,
185 and at least 50 percent of the lots are leased to individual
186 mobile home owners. In order to accommodate changing market
187 demands and achieve maximum land use efficiency in an
188 essentially built out project, one approved land use may be
189 exchanged for another approved land use in developing the
190 unbuilt land uses specified in the agreement. This exchange must
191 be implemented at a ratio that ensures there is no increase in
192 net external transportation impacts. Before the issuance of a
193 building permit pursuant to this exchange, the developer must
194 demonstrate to the local government that the exchange ratio will
195 not result in an increase in net external transportation
196 impacts.
197 (19) SUBSTANTIAL DEVIATIONS.—
198 (b) There is a rebuttable presumption that any proposed
199 change to a previously approved development of regional impact
200 or development order condition which, either individually or
201 cumulatively with other changes, exceeds any of the following
202 criteria in the following paragraphs creates shall constitute a
203 substantial deviation. If this presumption is not rebutted, and
204 shall cause the development shall to be subject to further
205 development-of-regional-impact review through the notice of
206 proposed change process under this subsection. without the
207 necessity for a finding of same by the local government:
208 1. An increase in the number of parking spaces at an
209 attraction or recreational facility by 15 percent or 500 spaces,
210 whichever is greater, or an increase in the number of spectators
211 that may be accommodated at such a facility by 15 percent or
212 1,500 spectators, whichever is greater.
213 2. A new runway, a new terminal facility, a 25 percent
214 lengthening of an existing runway, or a 25 percent increase in
215 the number of gates of an existing terminal, but only if the
216 increase adds at least three additional gates.
217 3. An increase in land area for office development by 15
218 percent or an increase of gross floor area of office development
219 by 15 percent or 100,000 gross square feet, whichever is
220 greater.
221 4. An increase in the number of dwelling units by 10
222 percent or 55 dwelling units, whichever is greater.
223 5. An increase in the number of dwelling units by 50
224 percent or 200 units, whichever is greater, provided that 15
225 percent of the proposed additional dwelling units are dedicated
226 to affordable workforce housing, subject to a recorded land use
227 restriction that shall be for a period of not less than 20 years
228 and that includes resale provisions to ensure long-term
229 affordability for income-eligible homeowners and renters and
230 provisions for the workforce housing to be commenced before
231 prior to the completion of 50 percent of the market rate
232 dwelling. For purposes of this subparagraph, the term
233 “affordable workforce housing” means housing that is affordable
234 to a person who earns less than 120 percent of the area median
235 income, or less than 140 percent of the area median income if
236 located in a county in which the median purchase price for a
237 single-family existing home exceeds the statewide median
238 purchase price of a single-family existing home. For purposes of
239 this subparagraph, the term “statewide median purchase price of
240 a single-family existing home” means the statewide purchase
241 price as determined in the Florida Sales Report, Single-Family
242 Existing Homes, released each January by the Florida Association
243 of Realtors and the University of Florida Real Estate Research
244 Center.
245 6. An increase in commercial development by 60,000 square
246 feet of gross floor area or of parking spaces provided for
247 customers for 425 cars or a 10 percent increase, whichever is
248 greater.
249 7. An increase in a recreational vehicle park area by 10
250 percent or 110 vehicle spaces, whichever is less.
251 8. A decrease in the area set aside for open space of 5
252 percent or 20 acres, whichever is less.
253 9. A proposed increase to an approved multiuse development
254 of regional impact where the sum of the increases of each land
255 use as a percentage of the applicable substantial deviation
256 criteria is equal to or exceeds 110 percent. The percentage of
257 any decrease in the amount of open space shall be treated as an
258 increase for purposes of determining when 110 percent has been
259 reached or exceeded.
260 10. A 15 percent increase in the number of external vehicle
261 trips generated by the development above that which was
262 projected during the original development-of-regional-impact
263 review.
264 11. Any change that would result in development of any area
265 which was specifically set aside in the application for
266 development approval or in the development order for
267 preservation or special protection of endangered or threatened
268 plants or animals designated as endangered, threatened, or
269 species of special concern and their habitat, any species
270 protected by 16 U.S.C. ss. 668a-668d, primary dunes, or
271 archaeological and historical sites designated as significant by
272 the Division of Historical Resources of the Department of State.
273 The refinement of the boundaries and configuration of such areas
274 shall be considered under sub-subparagraph (e)2.j.
275
276 The substantial deviation numerical standards in subparagraphs
277 3., 6., and 9., excluding residential uses, and in subparagraph
278 10., are increased by 100 percent for a project certified under
279 s. 403.973 which creates jobs and meets criteria established by
280 the Department of Economic Opportunity as to its impact on an
281 area’s economy, employment, and prevailing wage and skill
282 levels. The substantial deviation numerical standards in
283 subparagraphs 3., 4., 5., 6., 9., and 10. are increased by 50
284 percent for a project located wholly within an urban infill and
285 redevelopment area designated on the applicable adopted local
286 comprehensive plan future land use map and not located within
287 the coastal high hazard area.
288 (e)1. Except for a development order rendered pursuant to
289 subsection (22) or subsection (25), a proposed change to a
290 development order which individually or cumulatively with any
291 previous change is less than any numerical criterion contained
292 in subparagraphs (b)1.-10. and does not exceed any other
293 criterion, or which involves an extension of the buildout date
294 of a development, or any phase thereof, of less than 5 years is
295 not subject to the public hearing requirements of subparagraph
296 (f)3., and is not subject to a determination pursuant to
297 subparagraph (f)5. Notice of the proposed change shall be made
298 to the regional planning council and the state land planning
299 agency. Such notice must include a description of previous
300 individual changes made to the development, including changes
301 previously approved by the local government, and must include
302 appropriate amendments to the development order.
303 2. The following changes, individually or cumulatively with
304 any previous changes, are not substantial deviations:
305 a. Changes in the name of the project, developer, owner, or
306 monitoring official.
307 b. Changes to a setback which do not affect noise buffers,
308 environmental protection or mitigation areas, or archaeological
309 or historical resources.
310 c. Changes to minimum lot sizes.
311 d. Changes in the configuration of internal roads which do
312 not affect external access points.
313 e. Changes to the building design or orientation which stay
314 approximately within the approved area designated for such
315 building and parking lot, and which do not affect historical
316 buildings designated as significant by the Division of
317 Historical Resources of the Department of State.
318 f. Changes to increase the acreage in the development, if
319 no development is proposed on the acreage to be added.
320 g. Changes to eliminate an approved land use, if there are
321 no additional regional impacts.
322 h. Changes required to conform to permits approved by any
323 federal, state, or regional permitting agency, if these changes
324 do not create additional regional impacts.
325 i. Any renovation or redevelopment of development within a
326 previously approved development of regional impact which does
327 not change land use or increase density or intensity of use.
328 j. Changes that modify boundaries and configuration of
329 areas described in subparagraph (b)11. due to science-based
330 refinement of such areas by survey, by habitat evaluation, by
331 other recognized assessment methodology, or by an environmental
332 assessment. In order for changes to qualify under this sub
333 subparagraph, the survey, habitat evaluation, or assessment must
334 occur before the time that a conservation easement protecting
335 such lands is recorded and must not result in any net decrease
336 in the total acreage of the lands specifically set aside for
337 permanent preservation in the final development order.
338 k. Changes that do not increase the number of external peak
339 hour trips and do not reduce open space and conserved areas
340 within the project except as otherwise permitted by sub
341 subparagraph j.
342 l. A phase date extension, if the state land planning
343 agency, in consultation with the regional planning council and
344 with the written concurrence of the Department of
345 Transportation, agrees that the traffic impact is not
346 significant and adverse under applicable state agency rules.
347 m. Any other change that the state land planning agency, in
348 consultation with the regional planning council, agrees in
349 writing is similar in nature, impact, or character to the
350 changes enumerated in sub-subparagraphs a.-l. a.-k. and that
351 does not create the likelihood of any additional regional
352 impact.
353
354 This subsection does not require the filing of a notice of
355 proposed change but requires an application to the local
356 government to amend the development order in accordance with the
357 local government’s procedures for amendment of a development
358 order. In accordance with the local government’s procedures,
359 including requirements for notice to the applicant and the
360 public, the local government shall either deny the application
361 for amendment or adopt an amendment to the development order
362 which approves the application with or without conditions.
363 Following adoption, the local government shall render to the
364 state land planning agency the amendment to the development
365 order. The state land planning agency may appeal, pursuant to s.
366 380.07(3), the amendment to the development order if the
367 amendment involves sub-subparagraph g., sub-subparagraph h.,
368 sub-subparagraph j., sub-subparagraph k., or sub-subparagraph m.
369 sub-subparagraph l. and if the agency believes that the change
370 creates a reasonable likelihood of new or additional regional
371 impacts.
372 3. Except for the change authorized by sub-subparagraph
373 2.f., any addition of land not previously reviewed or any change
374 not specified in paragraph (b) or paragraph (c) shall be
375 presumed to create a substantial deviation. This presumption may
376 be rebutted by clear and convincing evidence.
377 4. Any submittal of a proposed change to a previously
378 approved development must include a description of individual
379 changes previously made to the development, including changes
380 previously approved by the local government. The local
381 government shall consider the previous and current proposed
382 changes in deciding whether such changes cumulatively constitute
383 a substantial deviation requiring further development-of
384 regional-impact review.
385 5. The following changes to an approved development of
386 regional impact shall be presumed to create a substantial
387 deviation. Such presumption may be rebutted by clear and
388 convincing evidence.
389 a. A change proposed for 15 percent or more of the acreage
390 to a land use not previously approved in the development order.
391 Changes of less than 15 percent shall be presumed not to create
392 a substantial deviation.
393 b. Notwithstanding any provision of paragraph (b) to the
394 contrary, a proposed change consisting of simultaneous increases
395 and decreases of at least two of the uses within an authorized
396 multiuse development of regional impact which was originally
397 approved with three or more uses specified in s. 380.0651(3)(c)
398 and (d) and residential use.
399 6. If a local government agrees to a proposed change, a
400 change in the transportation proportionate share calculation and
401 mitigation plan in an adopted development order as a result of
402 recalculation of the proportionate share contribution meeting
403 the requirements of s. 163.3180(5)(h) in effect as of the date
404 of such change shall be presumed not to create a substantial
405 deviation. For purposes of this subsection, the proposed change
406 in the proportionate share calculation or mitigation plan may
407 not be considered an additional regional transportation impact.
408 (30) NEW PROPOSED DEVELOPMENTS.—A new proposed development
409 otherwise subject to the review requirements of this section
410 shall be approved by a local government pursuant to s.
411 163.3184(4) in lieu of proceeding in accordance with this
412 section. However, if the proposed development is consistent with
413 the comprehensive plan as provided in s. 163.3194, the
414 development is not required to undergo review pursuant to s.
415 163.3184(4) or this section. This subsection does not apply to
416 amendments to a development order governing an existing
417 development of regional impact.
418 Section 5. Paragraph (c) of subsection (4) of section
419 380.0651, Florida Statutes, is amended to read:
420 380.0651 Statewide guidelines and standards.—
421 (4) Two or more developments, represented by their owners
422 or developers to be separate developments, shall be aggregated
423 and treated as a single development under this chapter when they
424 are determined to be part of a unified plan of development and
425 are physically proximate to one other.
426 (c) Aggregation is not applicable when the following
427 circumstances and provisions of this chapter are applicable:
428 1. Developments which are otherwise subject to aggregation
429 with a development of regional impact which has received
430 approval through the issuance of a final development order may
431 shall not be aggregated with the approved development of
432 regional impact. However, nothing contained in this subparagraph
433 does not shall preclude the state land planning agency from
434 evaluating an allegedly separate development as a substantial
435 deviation pursuant to s. 380.06(19) or as an independent
436 development of regional impact.
437 2. Two or more developments, each of which is independently
438 a development of regional impact that has or will obtain a
439 development order pursuant to s. 380.06.
440 3. Completion of any development that has been vested
441 pursuant to s. 380.05 or s. 380.06, including vested rights
442 arising out of agreements entered into with the state land
443 planning agency for purposes of resolving vested rights issues.
444 Development-of-regional-impact review of additions to vested
445 developments of regional impact does shall not include review of
446 the impacts resulting from the vested portions of the
447 development.
448 4. The developments sought to be aggregated were authorized
449 to commence development before prior to September 1, 1988, and
450 could not have been required to be aggregated under the law
451 existing before prior to that date.
452 5. Any development that qualifies for an exemption under s.
453 380.06(29).
454 6. Newly acquired lands comprise an area that is less than
455 or equal to 10 percent of the total acreage that is subject to
456 the existing development of regional-impact development order,
457 if these lands were acquired subsequent to the development of an
458 existing development of regional impact.
459 Section 6. Section 380.115, Florida Statutes, is amended to
460 read:
461 380.115 Vested rights and duties; effect of size reduction,
462 changes in guidelines and standards.—
463 (1) A change in a development-of-regional-impact guideline
464 and standard does not abridge or modify any vested or other
465 right or any duty or obligation pursuant to any development
466 order or agreement that is applicable to a development of
467 regional impact. A development that has received a development
468 of-regional-impact development order pursuant to s. 380.06, but
469 is no longer required to undergo development-of-regional-impact
470 review by operation of a change in the guidelines and standards;
471 a development that or has reduced its size below the thresholds
472 specified in s. 380.0651;, or a development that is exempt
473 pursuant to s. 380.06(24) or (29); or a development that elects
474 to rescind the development order; shall be governed by the
475 following procedures:
476 (a) The development shall continue to be governed by the
477 development-of-regional-impact development order and may be
478 completed in reliance upon and pursuant to the development order
479 unless the developer or landowner has followed the procedures
480 for rescission in paragraph (b). Any proposed changes to those
481 developments which continue to be governed by a development
482 order must shall be approved pursuant to s. 380.06(19) as it
483 existed before a change in the development-of-regional-impact
484 guidelines and standards, except that all percentage criteria
485 are shall be doubled and all other criteria are shall be
486 increased by 10 percent. The development-of-regional-impact
487 development order may be enforced by the local government as
488 provided in by ss. 380.06(17) and 380.11.
489 (b) If requested by the developer or landowner, the
490 development-of-regional-impact development order shall be
491 rescinded by the local government having jurisdiction upon a
492 showing that all required mitigation related to the amount of
493 development that existed on the date of rescission has been
494 completed or will be completed under an existing permit or
495 equivalent authorization issued by a governmental agency as
496 defined in s. 380.031(6), if provided such permit or
497 authorization is subject to enforcement through administrative
498 or judicial remedies.
499 (2) A development with an application for development
500 approval pending, pursuant to s. 380.06, on the effective date
501 of a change to the guidelines and standards, or a notification
502 of proposed change pending on the effective date of a change to
503 the guidelines and standards, may elect to continue such review
504 pursuant to s. 380.06. At the conclusion of the pending review,
505 including any appeals pursuant to s. 380.07, the resulting
506 development order is shall be governed by the provisions of
507 subsection (1).
508 (3) A landowner who that has filed an application for a
509 development-of-regional-impact review before prior to the
510 adoption of a sector plan pursuant to s. 163.3245 may elect to
511 have the application reviewed pursuant to s. 380.06. Such review
512 must be conducted using the, comprehensive plan provisions in
513 force before prior to adoption of the sector plan, and any
514 requested comprehensive plan amendments that accompany the
515 application.
516 Section 7. This act shall take effect upon becoming a law.