2002 reforms to growth management.

• Author: Roth, Cari L.
• Position: Environmental and Land Use Law - Florida

The 2002 Florida Legislature, with the active involvement and guidance of Gov. Jeb Bush and the Department of Community Affairs (DCA), passed comprehensive changes to the 1985 Local Government Comprehensive Planning Act and related statutes. Although the changes are more aptly described as evolutionary than revolutionary, several provisions will affect the broad citizenry of the state. Remarkable for this area of law and public policy, the changes were drafted with great consensus and enjoyed broad approval from a wide array of interest groups. Many of the changes evolved from the suggestions of the 2000-01 Governor's Growth Management Study Commission. (1)

The majority of the changes made during the 2002 legislative session started as separate bills but were ultimately combined into one large omnibus piece of legislation in the Committee Substitute for Senate bills 1906 and 550. (2) The legislation addresses coordinated school planning, improved water supply planning, changes to the process for judicial review of local land use decisions, new school financing, and several changes designed to improve both the quality of land use planning and the procedural aspects of both comprehensive planning and development of regional impact review.

Coordinated School Planning

Preexisting law required local governments to enter into interlocal agreements with their school boards but had little guidance for its contents and was not adhered to with any consistency throughout the state. Both the governor and the Growth Management Study Commission put a great deal of emphasis on filling the gaps in the law on school planning. The new legislation elevates the importance of these interlocal agreements by specifying what they must address, adopting a parallel requirement for school boards, creating a review role for both DCA and the Department of Education, and imposing sanctions in the event these local entities do not meet their new responsibilities. Interlocal agreements must be submitted between March 1, 2003, and December 1, 2004, on a schedule to be published by DCA.

The new interlocal agreements must address school siting, establish a process to ensure consistent enrollment and population forecasting, and participation by local government in decisions such as school siting, renovation, and closure, and all short and long range school facility planning. Conversely, the new law requires participation by the school board in comprehensive planning and rezoning proposals, which is enhanced by mandating school board representation on local planning agencies and regional planning councils. The agreements must address how to provide on-and off-site improvements to meet the infrastructure and safety requirements of schools, and joint use of facilities such as parks and libraries. It also must create procedures for resolution of disputes and an oversight process to ensure the implementation of the interlocal agreement. The new requirements are designed to ensure an elevated dialogue on these important issues with a great deal of flexibility at the local level as to how to meet these new requirements.

The new legislation does not alter the current optional provisions for school concurrency when adopted as part of a local comprehensive plan, nor does it grant the authority to a local government to deny development orders based on lack of school capacity. However, the legislature did so in light of a closely watched case arising out of Orange County. The Orange County Commission adopted a policy to deny comprehensive plan amendments and rezonings when they created unmitigated impacts on already over-crowded schools. (3) In Mann vs. Board of County Commissioners of Orange County, No. CIO 00-6722, 8 Fla. L. Weekly Supp. 473 (9th Cir. May 15, 2001), cert. denied, No. 5D01-1741 (5th DCA Feb. 11, 2002), the property owner challenged a denial of a rezoning. The circuit court found that Orange County's policy was consistent with its comprehensive plan and therefore the denial was permissible by law. The landowner appealed but the Fifth District denied the petition for writ of certiorari. As of the date of this writing, pending motions for rehearing have not been ruled on by the appellate court.

The legislation also authorizes the creation of educational facilities benefit districts pursuant to interlocal agreement between a school district and local government. The benefit district is an alternative mechanism for funding the construction and maintenance of educational facilities. If the local government and school district agree to create such a district, the district will assist in the construction and maintenance of school facilities with a levy of a non-ad valorem assessment. The school board contributes impact fee revenue generated by development within the benefit district, and up to one half of the remaining construction costs.

Water Supply Planning

During the recent drought, citizens were baffled by new developments being approved while restrictions on water use were vastly curtailing usage by existing residential and business customers...