Senate Bill 360 refined: the impact of the 2007 legislative session on local government growth management.

• Author: Trevarthen, Susan L.
• Position: Part 1 - Florida

Three bills were adopted in the 2007 session of the Florida Legislature that affect municipal land use, planning, and zoning: House Bills 7203, 1375, and 985. (1) All were signed into law by Gov. Crist on June 19, 2007, and these bills make significant changes affecting developments of regional impact, transportation concurrency, affordable workforce housing, and school concurrency, among other matters. The conclusion of this two-part article includes a list of steps that local governments should take to implement new legal requirements and take advantage of new regulatory and financing options.

Developments of Regional Impact (DRIs)

* Phase, Buildout, and Expiration Dates Extended--In recognition of the 2007 real estate market conditions, both HB 1375 and HB 7203 amended the statutory provisions relating to the phase, buildout, and expiration dates for approved DRIs that were under "active construction" on July 1, 2007. (2) Such deadlines were uniformly extended for three years, regardless of any prior extension. This three-year extension will not be considered a substantial deviation, and is not subject to further DRI review. In addition, this three-year extension will not be considered when determining whether a subsequent extension is a substantial deviation.

* Hotel Thresholds Increased--The DRI review standard for hotels and motels proposed in large counties was revised. Previously, the DRI threshold was 350 rooms for all counties; only those geographic areas specifically designated as highly suitable for increased threshold intensity in an approved local comprehensive plan and in the strategic regional policy plan were entitled to a DRI threshold of 750 rooms. HB 1375 removes the requirement for a specific designation and automatically provides a 750-room threshold for all hotel or motel developments of 750 or more rooms that are located in counties with a population greater than 500,000.

* Changes for Sale as an Affordable Unit Not Subject to Additional DRI Review--HB 1375 provides that changes to a DRI development order to allow a developer to sell an affordable housing unit to a person earning less than 120 percent of the median income for the area will not be considered substantial deviations. Such changes will not be subject to the DRI review process if a) the developer actively marketed the unit for at least six months, and b) was unable to close a sale to a person in a lower income qualified class. (3) However, a certificate of occupancy must have already been issued and the purchase price cannot be greater than the purchase price at which the unit was originally marketed to the "lower income qualified class." Residential units which have already benefited from the exemptions provided under F.S. [subsection] 380.06(19)(b)(7) or (i) may not take advantage of this new exemption.

Transportation Concurrency Reformed

Some background on transportation concurrency is useful in understanding the significance of the changes made in the 2007 session. Transportation concurrency was a key component of the original Growth Management Act. (4) It required that adequate transportation facilities meeting the adopted level of service standard be provided concurrently with the impacts of new development. However, shortly after its implementation, policymakers learned that transportation concurrency had several unintended consequences. Chief among them was an unwanted incentive toward a suburban sprawl pattern of development. It was cheaper to build out on the urban fringe, where the roads were under utilized than in the downtown area, where congestion led to burdensome requirements for developer improvements.

In response to these problems, the Florida Legislature adopted a number of refinements to transportation concurrency in the 1990s, including options for transportation concurrency exception areas (TCEAs), (5) transportation concurrency management areas (TCMAs), (6) and de minimis provisions allowing redevelopment with an impact equivalent to 110 percent of previous development on the site. (7) The Florida Department of Community Affairs (DCA) also responded to the problem by first developing a sprawl policy and eventually adopting an urban sprawl rule. (8) Urban areas of the state quickly took advantage of these options. For example, the eastern halves of Broward and Miami-Dade counties were among the first TCEAs to be adopted.

Over time, these mechanisms perhaps worked too well. By the early 2000s, the Bush administration was faced with popular concern that the balance had swung too far in the other direction. It identified that many local governments had failed to fully implement the capital improvements mechanisms in the Growth Management Act to achieve and maintain the adopted level of service standards for roads. This, combined with the absence of developer participation in road improvements for exception areas, led to near gridlock conditions in some areas of the state.

The 2005 Florida Legislature adopted the Bush administration's "Pay as You Go" package in Senate Bill 360. (9) Since 2005, as local governments began to amend their comprehensive plans and codes to implement the more stringent capital improvement planning and budgeting requirements of SB 360 by the December 1, 2007, deadline, it became apparent the issue was more than regulatory. Many local governments were unable, with the available resources, to achieve and maintain...