Timing of Adoption of Land Development Regulations

UPDATED TO ADDRESS THE 2011 LEGISLATIVE AMENDMENTS.

Timing is everything. For land development regulation adoptions, as well as many other things.

All too often, comprehensive plans get amended and nothing is done to amend the land development regulations that are needed to implement the changes. Lack of staff time and competing priorities are always issues, but, according to the statutes and at least one case, are not sufficient excuses.

It isn’t enough to adopt an amendment to a comprehensive plan and then just implement the amendment by directly regulating development on a case by case basis (under the requirement that all development orders must be consistent with the comprehensive plan (§163.3194(1)(a), F.S.)), while also maintaining conflicting land development regulations. Section 163.3194(1)(b), Florida Statutes, say that any existing land development regulations that are not consistent with the adopted comprehensive plan or plan amendment must be amended so as to make them consistent. So it must be done, but this is where the timing comes in.

The next part of §163.3194(1)(b), Florida Statutes, says that, if there is an inconsistent existing land development regulation still in effect, the local government must “adopt a schedule for bringing the land development regulation into conformity ….” But how long can that “schedule” extend? One year, according to another statutory section, §163.3202(1), F.S., (“Within 1 year after submission of its revised comprehensive plan for review pursuant to s. 163.3167(2), each county and each municipality shall adopt or amend and enforce land development regulations that are consistent with and implement their adopted comprehensive plan.”).

The one year time frame is confirmed by the case of Alexander v. Town of Jupiter, 640 So.2d 79 (Fla. 4th DCA 1994). In that case, the court said that, given the statutory one year time frame, which the court called a “standard of reasonableness of delay in resolving zoning/plan inconsistencies,” Alexander at 83, the several years the Town of Jupiter took to resolve an inconsistency between its comprehensive plan and its land development regulations was arguably beyond normal delay.

What happens if the land development regulations are not amended within one year. In many cases, probably nothing. But there is the risk that the Department of Economic Opportunity (formerly the Department of Community Affairs) will act under its authority, under §163.3202(4), F.S., to find that the local government has failed to adopt the required regulations and file an action in circuit court to require the adoption. There is also the risk that some affected party will bring a suit against the jurisdiction for issuing a development order, such as one that is consistent with the existing land development regulations, but not the comprehensive plan, or for not issuing a development order, such as the temporary takings case brought in Alexander.

Perhaps the most important repercussion of not promptly amending the land development regulations is that the comprehensive plan amendment doesn’t get implemented in a timely way. If all the time and effort is put into amending the comprehensive plan and it is adopted, it is only reasonable to believe there must be something important to the community that should be properly, and promptly, implemented.

So timing is everything. Not just to prevent the bad stuff, but also to implement the good.

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