Transportation concurrency in dense urban land use areas after passage of the Community Renewal Act of 2009.

• Author: Roth, Cari L.

Since the beginning of state-mandated comprehensive planning in 1985, local government comprehensive plans in Florida were required to ensure that public facilities and services be available concurrent with the impacts of development. (1) The application of this concurrency principal specifically to transportation has been one of the most challenging practical implications of the requirement and one of the most expensive for the development community and local governments. One of the hallmarks of the Community Renewal Act of 2009 is the creation of statutory exceptions to these transportation concurrency requirements by the creation of "automatic" transportation concurrency exception areas (TCEAs) in dense urban land use areas (DULAs.) (2)

Controversy has arisen over the authority and obligations of local governments in which these statutory TCEAs are created. The act also stated: "The designation of a transportation concurrency exception area does not limit a local government's home rule power to adopt ordinances or impose fees." (3) The Department of Community Affairs, in a published opinion, has opined that the statutory TCEA designation in the legislation is not effective to eliminate transportation concurrency in TCEAs until--and only if--the local government amends its comprehensive plan and land development regulations to remove transportation concurrency provisions. (4) Others, including the legislators who had leadership roles in the passage of SB 360, believe that no local action is necessary to effectuate the TCEA implementation. (5) The controversy begs for legislative clarification, and, more broadly, clear legislative intent on the areas of the growth management requirements where the legislature seeks uniformity in application, and those areas where local diversity in response to legislative requirement is allowable or desirable.

The cardinal rule of statutory construction is, "when a statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent." (6) The statute states unambiguously that the "following are transportation concurrency exception areas." (7) There are no qualifiers or preconditions requiring local action in the legislation for the statutory TCEAs. Since the legislature also specifically stated that the home rule authority of local governments to adopt ordinances and impose fees is not limited by...