CS/CS/CS/Senate Bill 360, Growth Management
Chapter 2005-290, Laws of Florida
The effective date of the bill is July 1, 2005.

The 2005 Florida Legislature passed this significant Growth Management legislation as their last action of the legislative session. The bill focuses on transportation, water and school concurrency and makes significant changes to the requirements for the capital improvements element of the local comprehensive plan.

Capital Improvement Element Changes

The bill requires a local government’s capital improvements element to be financially feasible, defined as where sufficient revenues are currently available or will be available from committed revenue sources for the first 3 years of the capital improvement schedule or will be available from committed or planned funding sources for years 4 and 5 of the schedule for financing capital improvements, and which are adequate to fund the projected costs of the capital improvements identified in the capital improvements plan necessary to meet adopted level-of-service standards. The capital improvements schedule must also include transportation improvements included in the applicable metropolitan planning organization transportation improvement program.

Local governments must update their capital improvements element to meet these new requirements no later than December 1, 2007. If a local government fails to meet this deadline, it is precluded from amending its future land use map until the local government has adopted the annual update and transmitted the update to the Department of Community Affairs (DCA). If the update is found not in compliance, DCA can seek sanctions from the Administration Commission.

Water

The bill requires water supply concurrency and strengthens the linkage between the regional water supply plans of water management districts and the potable water elements of local government comprehensive plans. Local governments, within 18 months of a water management district adopting an updated regional water supply plan, must incorporate into their potable water element alternative water supply projects selected by the local governments from those listed in the regional water supply plan. The potable water element must identify projects and conservation and reuse necessary to meet the water needs of the local government jurisdiction as identified in the regional water supply plan.

Local governments are required, prior to the issuance of a building permit or its equivalent, to determine whether adequate water supply to serve the development will be available no later than the issuance of a certificate of occupancy by the local government.

Transportation

The time-frames for evaluating transportation concurrency are changed so that transportation facilities needed to serve new development must be in place or under actual construction within 3 (as opposed to 5) years after the local government approves a building permit.

The bill requires each local government to adopt, by ordinance, a methodology for assessing proportionate fair share mitigation by December 1, 2006. Local governments must allow developers the choice of satisfying their transportation concurrency requirements by paying proportionate fair-share mitigation if transportation facilities or facility segments identified as mitigation are included in the 5-year schedule of capital improvements in the capital improvements element or if the contributions to the facilities are identified in the next regularly scheduled update of the 5-year capital improvements element. Proportionate fair-share mitigation must be applied as a credit against impact fees.

For purposes of determining “financial feasibility,” if the proportionate fair share process is used, and SB 360 requires that local governments must allow developers to select it as an option for meeting concurrency, the requirement that level-of-service standards be achieved and maintained does not apply.

The bill revises the criteria for the designation of transportation concurrency exception areas (TCEAs) by local governments to include strategies to support and fund mobility and to require consultation with the Department of Transportation (DOT) on the impact the proposed exception area is expected to have on the adopted level of service standards established for Strategic Intermodal System facilities. Existing TCEAs must meet these new requirements by July 1, 2006 or following the comprehensive plan update of the evaluation and appraisal report, whichever occurs last.

The bill revises the requirements for adoption of long-term concurrency management areas in order to promote urban infill and redevelopment. As with the designation of TCEAs, the local government must consult with DOT to assess the impact of the concurrency management area on adopted level-of-service standards for the Strategic Intermodal System facilities. Existing long-term transportation concurrency management systems must meet updated requirements by July 1, 2006, or following the adoption of evaluation and appraisal report amendments, whichever occurs last.

Local governments must adopt level-of-service standards established by DOT for facilities that are part of the Strategic Intermodal System in addition to the Florida Intrastate Highway System. Local governments are to also consider the compatibility of level-of-service standards for arterial and collector roads that cross jurisdictions with the standards set by the adjacent jurisdiction.

Schools

The bill requires local governments to implement school concurrency for the first time. Each local government, unless it meets certain criteria based on a low student growth rate, must prepare a public schools facilities element and interlocal agreement.

The Department of Community Affairs must adopt a phased schedule for adoption of the public school facilities element that requires each county and local government to adopt the public school facility element no later than December 1, 2008. If the established deadlines are not met, a local government will be prohibited from adopting comprehensive plan amendments that increase residential density until the requirement is met.

School concurrency must be applied so that adequate school facilities to serve the development will be in place or under actual construction within 3 years after the issuance of final subdivision or site plan approval. School concurrency is satisfied if the developer issues a legally binding commitment to provide proportionate share mitigation following a menu of options including the contribution of land, among other options. The proportionate share mitigation must be directed by the school board to a capacity improvement identified in a financially feasible 5-year district work plan and must satisfy the demands created by the development.

Local governments are required to initially apply school concurrency on a district-wide basis and, within 5 years, apply school concurrency on a school attendance zone or concurrency service area basis.

The bill requires local governments to establish concurrency management systems for schools and allows local governments to create long-term concurrency management areas in order to meet the requirements for school concurrency.

Other Provisions

Urban Service Boundary Incentives

The bill provides several regulatory incentives to local governments that adopt a community vision and urban service boundary. In order to adopt a community vision under the terms of the bill, a local government must hold two public meetings that address at least 5 of 9 possible planning topics such as provision of adequate workforce housing, economic development, and environmental preservation. The local government must discuss strategies for addressing:
• Strategies to preserve open space and environmentally sensitive land;
• Incentives for mixed-use development;
• Incentives for workforce housing;
• Designation of an urban service boundary;
• Strategies to provide mobility within the community and to protect the Strategic Intermodal System.

The bill encourages local governments to adopt urban service boundaries that are based on an area that is appropriate for compact, contiguous urban development within a 10-year planning horizon. The urban service area must be identified on the future land use map.

Once a local government adopts a community vision and an urban service boundary, comprehensive plan map amendments within the urban service boundary are treated as small-scale amendments and not subject Department of Community Affairs review. Similarly, map amendments submitted by a municipality for an area designated as an urban and redevelopment area under s. 163.2517, Florida Statutes, are treated as small scale amendments. Excluded from small-scale amendment treatment is any amendment within an area of critical state concern, text changes or any amendment that increases residential density in coastal high-hazard areas.

The bill grandfathers certain urban service boundaries that were adopted by a local government before July 1, 2005 which are determined by DCA to substantially comply with the urban service boundary criteria set forth in the bill.

In addition, developments within the urban service boundary adopted following the procedures in SB 360, or an urban infill area and redevelopment area designated under s. 163.2517 are exempt from the development-of-regional-impact review if they have entered into a binding agreement with adjacent jurisdictions and DOT regarding the mitigation of transportation impacts on state and regional transportation facilities.

Rural Land Stewardship Program

The bill amends the requirements for the designation of a rural land stewardship area to require the consideration of adequate work-force housing as a component of the development anticipated in the receiving area and performance of a listed species survey on the designated receiving area. In addition, local governments establishing a rural land stewardship area must establish the methodology for the creation, conveyance and use of the transferable rural land stewardship credits.

The bill exempts development within a designated rural land stewardship area from development-of-regional impact review if the local government has entered a binding agreement with the local government jurisdictions and DOT regarding the mitigation of impacts on regional and state transportation facilities.

Small Scale Amendments in Rural Areas of Critical Economic Concern

The bill increases the acreage of parcels that can be processed as small-scale amendments in rural areas of critical economic concern from 10-acres to 25-acres. The residential density allowed within a small scale amendment is modified to allow a maximum residential density that is the same or less than the density allowed under the existing future land use category. The residential density limitation does not apply to small scale amendments involving the construction of certain affordable housing projects.

Plan amendments that are submitted by a local government designated as a rural area of economic concern by the Governor are exempt from the twice a year limitation on the submission of plan amendments to the Department of Community Affairs.

EAR Update Requirements

After July 1, 2006, the failure of a local government to timely transmit and adopt amendments to implement their Evaluation and Appraisal Report results in the sanction of a prohibition of new plan amendments until the EAR requirements is satisfied.

Commissions and Studies

The School Concurrency Task Force

An 11-member task force is created to review the requirements for school concurrency and report to the Governor, the President of the Senate and Speaker of the House of Representatives no later than December 1, 2005.

The $50,000 appropriated for the task force was vetoed by the Governor. As the funding for the school concurrency task force was line-itemed vetoed by Governor Bush, it does not appear that this task force will be created.

The Florida Impact Fee Review Task Force

The bill creates a 15 member study group charged with reviewing the use of impact fees by local government as a method of financing infrastructure. The task force, to be staffed by the Legislative Committee on Intergovernmental Relations, must provide a report to the Governor and the Legislature by February 1, 2006.

The members of the Impact Fee Commission have been appointed and include: John Delaney, President, University of North Florida; Annetta Jenkins, Local Initiatives Support Corporation; Tom Greer, Osceola County School District; Jon Thaxton, Sarasota County; Rick Lott, Plant City; Cathy Whatley, Buck and Buck Realtors; David Carter, David C. Carter Consulting Engineers, LLC; Senator Lee Constantine; Frank O’Reilly, Polk County Public Schools; Robert Stewart, Pinellas County; Daniel Davis, City of Jacksonville; Dan Delisi, The Bonita Bay Group; Al Zichella, Elias Brothers Communities; Representative Larry Cretul and Heidi Hughes, General Counsel of DCA.

The first meeting of the group occurred on August 23, 2005 in Jacksonville.

Boundary Adjustment of Sub state Districts

The bill requires the Office of Program Policy Analysis and Government Accountability to perform a study on adjustments to the boundaries of Florida Regional Planning Councils, Florida Water Management Districts and Department of Transportation Districts. The report must be submitted to the Governor and Legislature by January 15, 2006.

Century Commission for a Sustainable Florida

Unlike most blue ribbon commission, the Century Commission is intended to function as a standing body “to help citizens of this state envision and plan their collective future with an eye towards both 25-year and 50-year horizons.” The Commission is to be composed of 15-members, five members each to be appointed by the Governor, the President of the Senate and the Speaker of the House of Representatives. Annual written reports are to be sent to the Governor and the Legislature beginning January 16, 2007. In addition, the President of the Senate and Speaker of the House of Representatives are directed to create a joint select committee in 2007 to review the Commission’s findings.

The recurring money to fund the Century Commission, $250,000, was vetoed by the Governor.

The Governor’s appointments to the Century Commission for a Sustainable Florida include: Mayor Richard Baker of St. Petersburg; Commissioner Robert Bullard of Highlands County; Commissioner Mary McCarty of Palm Beach County; Kathleen Shanahan, CEO of WRS Infrastructure and Environment in Tampa; and Steve Uhlfelder of Tallahassee. The Speaker of the House appointed: Chris Corr of the St. Joe Co.; Gary Schraut, a Brooksville real estate agent; Julio Robaina, a Hialeah developer; Dennis Gilkey, a Bonita Springs developer; and John LaCapra, president of the Florida Ports Council. As of this writing, Senate President Tom Lee had not yet announced his appointments.

Infrastructure Funding Programs

Transportation

The bill includes significant appropriations to fund transportation, water and school infrastructure. The bulk of the 1.5 million dollars appropriated is earmarked for transportation purposes. A total of $541.75 million in each fiscal year and $600 million in fiscal year 2006 is to be used for:

• Strategic Interposal System projects
• The Transportation Regional Incentive Program
• The New Starts Transit Program
• Small County Outreach Program
• State Infrastructure Bank

Water

The bill appropriates 100 million dollars of nonrecurring funds and 100 million recurring dollars to fund alternative water supply development pursuant to Senate Bill 444.

Schools

The bill appropriates $41.65 million dollars for fiscal year 2005-2006 and $75 million in recurring funds to the Classrooms for Kids Program. The bill also appropriates $30 million in non-recurring funds and $30 million in recurring funds for the High Growth Capital Outlay Assistance Growth Assistance Program. The 30 million dollars in recurring dollars was vetoed by the Governor.

Technical Assistance

Three million dollars is appropriated to the Department of Community Affairs to fund technical assistance efforts.

Interim Projects and Other Issues

“Glitch Bill” Interim Projects

Both the Senate Committee on Community Affairs and the House Growth Management Committees are conducting interim projects on any “glitches” that need to be addressed to fix problems or inconsistencies in SB 360.) Each of the Committees solicited comments from stakeholders on potential glitches. The issue of how the proportionate share mitigation is implemented has generated the most interest in terms of areas of the bill to clarify or change. In addition, some stakeholder groups have raised issues regarding the extent of the role of the Department of Transportation in reviewing local transportation concurrency decisions as they affect the Strategic Intermodal System. (SIS1000 Friends submitted a letter identifying glitches and other proposed changes, a copy of which is in the packet.

Department of Community Affairs Implementation Efforts

DCA has issued guidance and established schedules governing the submission of the comprehensive plan updates required by SB 360. First, SB 360 requires each county and each municipality within the county, unless exempt or subject to a waiver, to adopt a public school facilities element that is consistent with those adopted by the other local Governments within the county and to update the interlocal agreement to implement public school concurrency. DCA has adopted a schedule for submission of an adopted public school facility element and updated interlocal agreement with a range of due dates from 1/1/08 to 12/1/08. In addition, DCA is distributing up to $750,000 to counties willing to complete updates by September 1, 2006.

Developments-of-Regional Impacts

DRI Process Changes: Over the past two legislative session, the Florida Association of Community Developers, among others, have sought major changes to the DRI program that includes substantially increasing substantial deviation thresholds, eliminating some of the existing categories of developments including marinas, mines and attractions, as requiring DRIs and limiting the issues that are part of state and regional review of DRIs. While these changes were unsuccessfully promoted during the 2004 session, they were put aside during the debate over SB 360 and left for future consideration.

Development of Regional Impact Affordable Housing Mitigation

The House Committee on Growth Management is conducting an interim project which examines how the affordable housing rule that requires a DRI developer to make provision for the employees of all non-residential portions of their property and that such housing must be provided within a radius of 10 miles or a 20 minute drive from the project, whichever is less. The description of the project cites concerns with DCA’s “very strict and formulaic application of the rule,” and that “with DCA strictly applying the rule and requiring development to update their housing element, questions have arisen as to whether developers should be subject to the requirement, and, if so, what methodology should apply.”

Growth Management Bills that Didn’t Pass but May be Back Next Year

Agricultural Enclaves- Senate Bill 716 by Nancy Argenziano and House Bill 561 by Joe Pickens.

The bill would have created a new Bert Harris cause of action for a landowner inordinately burdened by the changing of an existing agricultural land use designation or the lowering of residential density on unincorporated property classified as agricultural land, for ad valorem tax purposes. In addition, the mediation period that must occur before an agricultural property owner may file a Bert Harris claim against a county is reduced from 180-days to 90-days. The concept of an agricultural enclave is created to mean a parcel of unincorporated land owned by a single person or entity that is surrounded on at least 75 percent of its perimeter by existing industrial, commercial or residential development or that may be developed for industrial, commercial or residential purposes without future amendment of the comprehensive plan and where certain urban services are or will be provided within 5-years. The owner of a parcel of land classified as an agricultural enclave can apply for a comprehensive plan amendment and such amendment shall be “deemed to prevent urban sprawl” and be in compliance with chapter 163. The Governor vetoed a similar version of this bill following the 2005 legislative session.

Coastal Redevelopment –Senate Bill 976 by Dennis Jones and House Bill 477 by Everett Rice.

For the third year, a coastal redevelopment bill failed to pass the Florida Legislature. The bill would create a pilot project for up to five local governments to amend their comprehensive plans to allow for the redevelopment of coastal areas within the coastal high hazard area, even if the redevelopment involves an increase in density or development potential. The bill also requires local governments to consider the need for hazard mitigation strategies in their future land use plan.

Interlocal Service Boundary Agreement (Annexation)—Senate Bill 926 by Lee Constantine and House Bill 1495 by Randy Johnson.

A version of this bill was also considered during the 2004 legislative session. The bill encourages cities and counties to enter interlocal service boundary agreements that can include identification of future annexation areas. The bill allows counties to grant a municipality, as part of an interlocal service agreement, land use authority over land within the unincorporated area that is identified for future annexation. The bill also allows the annexation of non-compact, non-contiguous parcels of land by municipalities if such parcels are identified in an interlocal service boundary agreement.