As discussed in Authority to Regulate Land, the State of Florida authorizes (and requires) local governments to create and administer land development regulations. The article What are Florida land development regulations? discusses what is meant by a “land development regulation.” But, underlying all the discussion about land development regulations is the question of what they are to regulate.
The two growth management acts authorize local governments to plan for and guide their “development and growth,” through comprehensive plans and the implementing land development regulations. Both acts refer to the same definition of “development” (apparently “growth” doesn’t need defining).
The definition, found at §380.04, Florida Statutes, defines “development” as “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.” §380.04(1), F.S. The definition states further that the following activities or uses are to be considered, under the growth management acts, to involve the defined “development:” §380.04(2), F.S.
- A reconstruction, alteration of the size, or material change in the external appearance of a structure on land.
- A change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units in a structure or on land.
- Alteration of a shore or bank of a seacoast, river, stream, lake, pond, or canal, including any “coastal construction” as defined in s. 161.021.
- Commencement of drilling, except to obtain soil samples, mining, or excavation on a parcel of land.
- Demolition of a structure.
- Clearing of land as an adjunct of construction.
- Deposit of refuse, solid or liquid waste, or fill on a parcel of land.
The definition states that the following operations or uses shall not, under the growth management acts, be taken to involve “development:” §380.04(3), F.S.
- Work by a highway or road agency or railroad company for the maintenance or improvement of a road or railroad track, if the work is carried out on land within the boundaries of the right-of-way.
- Work by any utility and other persons engaged in the distribution or transmission of gas, electricity, or water, for the purpose of inspecting, repairing, renewing, or constructing on established rights-of-way any sewers, mains, pipes, cables, utility tunnels, power lines, towers, poles, tracks, or the like. This provision conveys no property interest and does not eliminate any applicable notice requirements to affected land owners. [See a future article under Electrical Facilities for more on this exemption]
- Work for the maintenance, renewal, improvement, or alteration of any structure, if the work affects only the interior or the color of the structure or the decoration of the exterior of the structure. [See a future article under Design Criteria for a discussion of the impact of this provision on design regulations.]
- The use of any structure or land devoted to dwelling uses for any purpose customarily incidental to enjoyment of the dwelling.
- The use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products; raising livestock; or for other agricultural purposes. [See a future article under Agricultural Issues for more on this exemption.]
- A change in use of land or structure from a use within a class specified in an ordinance or rule to another use in the same class.
- A change in the ownership or form of ownership of any parcel or structure. [See a future article under Regulating Consistently for more on this exemption.]
- The creation or termination of rights of access, riparian rights, easements, covenants concerning development of land, or other rights in land.
“Development,” when addressed in an ordinance, rule, or development permit, “includes all other development customarily associated with it unless otherwise specified. When appropriate to the context, ‘development’ refers to the act of developing or to the result of development.” §380.04(4), F.S.
So, these uses and activities are what land development regulations are authorized to regulate by the growth management acts.
This definition raises interesting questions about the uses and activities not included in the definition of development, especially those specifically excluded. If they are not “development” that can be regulated through the growth management acts’ comprehensive plans and land development regulations, what, if any authorization, can be found for local government regulation of these activities and uses? If the local government can regulate the use or activity through its other authorized police powers, can the regulation be included in the LDRs or would it have to be a separate regulation? Can there be regulation of land separate from the LDRs? Let me know your thoughts on these questions and I will have a future post addressing them.