House Bill 7203: growth management reform - fixing the glitches, pipelining, streamlining, and other evolutional changes.

• Author: Hughes, Timothy M.
• Position: Florida

Florida's current growth management program was established in 1985 and has been amended several times since then. In 2005, the legislature enacted S.B. 360, which made a number of changes to the program, mainly to address the issue of infrastructure. (1) At the beginning of this year, legislators began discussing the impact of S.B. 360 and the implementation problems that were being experienced. The need to address the bill became urgent as a result of the continued downward spiral of the real estate market. Department of Community Affairs (DCA) Secretary Thomas Pelham formed a Growth Management Advisory Committee (GMAC) to discuss the experiences with S.B. 360, along with the glitches and implementation issues of that bill, and to provide bigger-picture revisions to Florida's growth management program. (2) With the sponsorship of the Economic Expansion and Infrastructure Council of the House of Representatives and the Senate Committee on Community Affairs, what emerged was H.B. 7203, which makes numerous changes to Florida's growth management program. Enacted into law as Ch. 2007-204, Laws of Florida, the bill became effective July 1, 2007.

The growth management program changes of H.B. 7203 fall into five categories. The first two categories--a glitch package and concurrency reforms--essentially address S.B. 360. Two more--comprehensive planning reforms and tax increment financing for acquiring conservation lands--enhance and update the program. The fifth category provides time extensions for developments of regional impact (DRIs) and development agreements to account for current real estate conditions.

The Glitch Package

A portion of H.B. 7203 was dubbed the "glitch package" (3) because it was intended to correct several of the implementation issues of S.B. 360. The glitch package includes:

* Definitional Changes--The bill changed the term "urban redevelopment" in F.S. [section] 163.3164(26) to include "community redevelopment areas" created pursuant to Part III (Community Redevelopment) of F.S. Ch. 163. (4) In addition, the term "financial feasibility" was changed to clarify that comprehensive plans for school and transportation facilities need to be "financially feasible" for the appropriate planning period, which may be the five-year minimum required for the capital improvements element by F.S. [section] 163.3177(3)(b)(1) or a long-term concurrency management system that covers 10 or 15 years, as provided under F.S. [section] 163.3177(d). (5) Under either time period, the comprehensive plan will be deemed financially feasible if the plan demonstrates that the level-of-service standards will be met and maintained by the end of the applicable planning period.

* Satisfying Financial Feasibility--F.S. [section] 163.3177(2) was changed to clarify that the determination of financial feasibility applies to the five-year planning period as required by F.S. [section] 163.3177 (3)(a)(1), except that it may also apply to long-term transportation concurrency management systems that cover 10 or 15 years. (6) The deadline for a local government to amend its capital improvements element to demonstrate a financially feasible five-year schedule of capital improvements was extended from December 1, 2007, to December 1, 2008. (7) After this new deadline, local governments are prohibited from amending their future land use map (FLUM) until they have adopted the required annual capital improvement plan update. (8) The bill also authorizes a local government to consider a FLUM amendment to be financially feasible and achieve and maintain the level-of-service standards applicable to transportation facilities under two new instances. The first is where the amendment is supported by a DRI development order condition or a binding agreement that addresses proportionate share mitigation consistent with F.S. [section] 163.3180(12). The second is where a binding agreement addresses proportionate fair-share mitigation consistent with F.S. [section] 163.3180(16)(f) and the subject property "is located within an area designated in a comprehensive plan for urban infill, urban development, downtown revitalization, urban infill and development, or an urban service area." (9)

* Transportation Concurrency Exception Areas--The bill amends F.S. [section] 163.3180(5)(b) to allow local governments to create transportation concurrency exception areas (TCEAs) in urban service areas. To qualify, the urban service area must be "specifically designated as a TCEA which includes lands appropriate for compact, contiguous urban development." (10) The specified urban service area must not exceed the necessary amount of land needed to accommodate the projected population growth at densities consistent with the local government's adopted comprehensive plan within the plan's 10-year planning period, and the urban service area must be served or planned to be served with public facilities and services as provided by the local government's capital improvements element. In addition, the bill amends F.S. [section] 163.3180(5)(e) to require local governments to formulate and adopt "long-term" strategies into their comprehensive plans that will serve to support and fund mobility within designated TCEAs. (11) State agency review is broadened to require DCA consultation prior to the establishment of a TCEA. Prior law only required a local government to consult the Department of Transportation. The expansion of TCEAs to urban service areas, which are excepted from the concurrency requirements for transportation facilities, should help local governments to entice infill projects.

* Proportionate Share Mitigation in DRIs--Under the existing proportionate share provisions of F.S. [section] 163.3180(12), certain multiuse DRIs are eligible to satisfy the transportation concurrency requirements by paying a statutorily calculated proportionate share contribution that mitigates the traffic impacts of the proposed development. (12) This form of mitigation has been used to allow collected funds "to be 'pipelined' or used to make a single improvement that mitigates the impact of the development." (13) In some cases, such pipelining is considered "the best option where there are insufficient funds to improve all of the impacted roadways." (14) H.B. 7203 revises F.S. [section] 163.3180(12) to expand the use of proportionate share mitigation to all DRIs, Florida quality developments, and detailed specific area plans that implement optional sector plans pursuant to F.S. [section] 163.3245. (15) The bill also broadens the type of improvements that may qualify for proportionate share funds by referring to "mobility" improvements that benefit a regionally significant transportation facility. (16) However, H.B. 7203 also clarifies that proportionate share funds are not to be used toward the cost of reducing or eliminating existing transportation facility backlogs. This is expected to cause closer scrutiny of proportionate share amounts to ensure that the costs necessary to fix existing backlogs are not included as part of a developer's required contribution. The bill presumably makes it easier to implement proportionate share mitigation by deleting the previous requirement that a local comprehensive plan must first authorize the use of proportionate share mitigation before it may be utilized as a means to satisfy transportation concurrency requirements. Whether local governments will be required to accept this form of mitigation, and whether developers will be able to immediately take advantage of proportionate share mitigation even where a local government's comprehensive does not authorize its use, remains to be seen.

* Proportionate Fair-share Mitigation (Non-DRIs)--H.B. 7203 amends F.S. [section] 163.3180(16) to allow for the same type of "pipelining" permitted under proportionate share mitigation for DRIs by allowing funds to be directed toward specific transportation improvements that are "reasonably...