A vision of the future of Florida land use law.

• Author: Weaver, Ronald L.

In this article, the author offers his version of the possible future scope and direction of land use law in Florida.

Article VIII, [subsections] 1 and 2 of the Florida Constitution grant counties and municipalities, respectively, the power to govern themselves, consistent with general laws of the state.

Evolving Sources of Zoning Power and Their Limitations

Over the next decade, new trends will emerge. Local governments will not be able to solve certain problems with origins and cures beyond their jurisdictions. Seven new regional governments will greatly expand the powers and responsibilities of the 11 existing under-utilized regional planning councils. The new regional governments will meet unique needs in areas connected by culture, environment, infrastructure, and, most important]y, each regional government's political will to fund that region's unique points of excellence, whether they be entertainment, converging technological industries, agriculture, or service and light industries. The regional governments will create new political boundaries and utilities like Hillsborough, Pinellas, and Pasco counties' new water efforts in a Tampa Bay water utility on April 30, 1998. Water sources, major transportation, overall planning, resource and capacity rationing, crime prevention, health care, economic development, tourism, higher education, and regional technological challenges and opportunities will be among the regional problems which will require a new wider scope of studies, solutions, and integrated exactions and funding courage spread over the right new rate or user base, with the right courage in a resource's time constraints.

Growth Management and Comprehensive Planning

"Comprehensive plan amendment," "deferral areas," "compact deferral areas," "congested links," "constrained facilities," "backlogged facilities," and "inadequate public facilities" are some of the new "growth management speak" of Florida citizens dealing with the effects of Florida's 1985 Growth Management Act and its concurrency management requirements. Greater discipline in facilities-based approval requires cautious gauging where road and other facility capacities remain or can be enhanced concurrent with a development's impacts.

New "consistent" development regulations were required to be compiled into one single development code for each jurisdiction. F.S. [sections] 163.3202(1).

There were certain minimum requirements set forth in the statute for specific detailed provisions in the development code which:

1. Regulate the subdivision of land;

2. Regulate the use of land and water for those land use categories included in the land use element and ensure the compatibility of adjacent uses and provide for open space;

3. Provide for protection of potable water well fields;

4. Regulate areas subject to seasonal and periodic flooding and provide for drainage and stormwater management;

5. Ensure the protection of environmentally sensitive lands designated in the comprehensive plan;

6. Provide that public facilities and services meet or exceed the standards established in the capital improvements element required by [sections] 163.3177 and are available when needed for the development, or that development orders and permits are conditioned on the availability of these public facilities and services necessary to serve the proposed development. No development order or permit may be issued which results in a reduction in the level of services for the affected public facilities below the level of services provided in the comprehensive plan of the local government.

Concurrency and Effects of Growth Management Laws

Concurrency is a legislatively enacted growth management tool for ensuring the availability of adequate public facilities and services to accommodate development. The foundation for a legally viable concurrency system is the formulation and implementation of a capital improvements plan for delivering essential public facilities in a timely manner, by linking the approval of new development to the current and future availability of adequate public facilities. Ideally, concurrency regulations should seek to avoid the necessity for any moratoria on development by ensuring that both existing and planned public facilities are available as needed in light of a community's growth. Currently there are seven mandatory facilities which are subject to concurrency requirements as required by F.S. Ch. 163, part II. These mandatory facilities for which local governments are required to adopt level of service standards include roads, sanitary sewer, solid waste, drainage, potable water, parks, and mass transit.[1] A capital improvements program must be set forth in the local government's comprehensive plan and establish both level of service standards for the facilities subject to concurrency and present the means for meeting the those standards.[2] Impacts of development that result in service levels below the adopted level of service will not be allowed.

Legal challenges will limit concurrency enforcement and substitute disciplines will be required. Five legal principles generally govern whether enforcement of public policies like concurrency require compensation of...