Senate Bill 360: growth management reform arrives and it is all about infrastructure.

• Author: Trevarthen, Susan L.

After a legislative session where most of the discussion about growth management focused on the inadequacy of state funding for infrastructure, the legislature enacted a bill (S.B. 360) that provides some additional funding, but falls far short of the total need. (1) As is customary, the bill was being amended and negotiated right up until the last minutes of the session. Most interested parties woke up on May 7, 2005, with no clear understanding of what actually was enacted. A 2006 glitch bill is likely, as has been the case with prior growth management bills enacted in Florida.

Infrastructure Funding

S.B. 360 provides $1.5 billion of new infrastructure funding for next year. Only $750 million is recurring revenue for what is generally estimated to be at least a $35 billion backlog in infrastructure investment statewide, due to opposition in the House of Representatives to further increases. (2) No dedicated source of future state funding is provided to address future infrastructure needs resulting from growth. Finally, the funding that is provided is primarily slated for state and regional roadway improvements; counties and municipalities are not given any direct funding for their infrastructure needs. Nor have they received any additional flexibility related to existing funding sources requiring a referendum, as had been considered earlier in the session. Three million dollars of recurring revenue is appropriated for the Department of Community Affairs (DCA) to provide technical assistance to local governments and school boards related to compliance with these statutory changes. (3)

Regulatory Changes

While the impact of S.B. 360 on infrastructure funding is relatively minor, its regulatory impact is significant for local governments. The most important changes relate to infrastructure funding and planning. Several changes affect the growth management act's concurrency requirement, which was intended to ensure that key public services and facilities were in place before, or no later than, the time that the impact of new development is experienced.

* Financial Feasibility

For the first time, S.B. 360 requires both the entire comprehensive plan and the capital improvements element (CIE) to be "financially feasible." (4) Relevant projects include committed items from the first three years of the adopted CIE, and committed or planned items from the fourth or fifth years of that element. All projects must be funded and, if a revenue source requiring a referendum is identified, alternative funding mechanisms must also be identified in the event the referendum is not successful. In addition, the element must contain improvements sufficient to maintain the adopted levels of service for public facilities and services in the comprehensive plan. (5)

S.B. 360 still requires an annual update of the CIE, but that update must now be accomplished by a comprehensive plan amendment which is not exempt from the twice-a-year time frame. Also, it will no longer be possible to change the date of construction of an improvement without a comprehensive plan amendment. As of December 2007, local governments will not be allowed to amend the future land use map until this CIE update is adopted. Therefore, from now on, the timing of each local government's comprehensive plan amendment cycle will be dictated by the timing of the update of the CIE. Also, the financial feasibility requirement opens up a new theory for comprehensive plan consistency challenges by third parties with new opportunities to challenge every year.

* Exemptions from State Review For several years, growth management laws have provided for voluntary visioning. (6) S.B. 360 encourages visioning and also encourages the designation of an urban service boundary (USB) on the future land use map, for areas that are appropriate for compact, contiguous urban development within 10 years. Development outside the USB line may not be prohibited, but S.B. 360 encourages the use of a full cost accounting model, such as the fiscal impact analysis model commissioned by DCA to determine whether such development is appropriate.

While neither of these provisions are mandates, it is likely that many local governments will choose to follow them. Under S.B. 360, if a local government has adopted a vision and a USB with the requisite public involvement, its plan amendments will no longer be subject to traditional DCA review. In contrast, under current growth management law, local governments have to complete an onerous qualification process and execute an agreement with DCA to become certified if they want to be exempt from traditional DCA review of plan amendments. (7) Future land use map amendments in designated urban infill and redevelopment areas are also exempted from traditional DCA review by S.B. 360, and may be handled through the small scale amendment process.

Under current growth management laws, many developments by definition are developments of regional impact (DRIs), (8) but are exempted from the DRI review procedures. S.B. 360 expands these statutory exemptions to include proposed developments: (a) which are located within an adopted USB, a designated urban infill and redevelopment area, or a rural land stewardship area; (b) where the local government has entered into a binding agreement with adjacent jurisdictions and the Florida Department of Transportation (FDOT) regarding the...