Do governmental entities have to follow local Florida land development regulations? It is commonly assumed that they don’t. But actually, unless they are given a specific exception, they generally do.
Are local governments exempt from their own regulations?
Common law rule.
Historically, whether a local government had to follow its own land development regulations when it used land the local government owned or controlled depended on what the land was to be used for. If the land was to be used for a “governmental function” (activities having to do with the exercise of some element of government power (sovereignty)1), the local government typically did not have to follow its own regulations.2 If, however, the government activity fell into the category of a “proprietary function” (functions which the local government may perform when considered to be for the best interest of the citizens; activities that promote or benefit the comfort, convenience, safety and happiness of citizens3), the local government activity was subject to the local government regulations, unless the regulations provided an exemption.4 In other words, governmental functions were exempt from regulation unless the regulations made them subject to the regulations and proprietary functions were subject to the regulations unless the regulations made them exempt.
This seemingly straight forward governmental-proprietary function rule had complicating factors, however. The first was the difficulty in determining which activities were governmental and which were proprietary. Case law classified many functions that benefited the convenience and safety of the citizens, and so would seem to have been proprietary functions, as being governmental functions, such as construction and operation of a sewage disposal system,5 construction of a garbage incinerator,6 and construction of a public parking garage.7
The second complication of the governmental-proprietary function rule was whether the local government’s regulations themselves recognized the exemption or brought the activity under the control of the land development regulations. If a local government’s regulations affirmatively stated they applied to the adopting government’s facility, it appears the common law exemption was waived.8 Similarly, if the local government’s regulations explicitly stated they did not apply to particular government uses, they did not apply,9 arguably even if the activity was a proprietary one.10
So the governmental-proprietary function rule was historically the common law rule in Florida—if the government activity is a “governmental function,” the local government did not have to follow its own regulations unless the land development regulations affirmatively said they did, but if the government activity fell into the category of a “proprietary function,” it was subject to the local government regulations unless specifically exempted. This apparently changed in 1974.11
In Parkway Towers Condo. Ass’n v. Metro. Dade County, 295 So.2d 295, (Fla. 1974), with almost no explanation, the Florida Supreme Court change the common law rule for governmental function facilities. The court stated that, going forward, “zoning variations to accommodate county or municipal facility purposes should either have been anticipated in zoning ordinances before construction or operation of such facilities is commenced or, if this has not been done, construction should not be undertaken thereof until after due modification or change therefor is made in existing zoning ordinances.”12
This “new” rule is, apparently, the controlling court decision on the issue.13 The Parkway Towers case, which addressed a governmental function, changed the historic rule for governmental functions, making it essentially the same as for proprietary functions. Therefore, the current common law rule requires that for a government facility, of any function, to be exempt from the land development regulations, that exemption must be addressed in the land development regulations, before the facility is constructed.
Growth management rules
The common law rule cases were decided, however, before the Florida growth management legislative acts. These statutory requirements also have an impact on the question.
The State Community Planning Act statutory requirements state that all development, both public and private, must be consistent with the comprehensive plan.14 Further, the statutes state that, “[a]fter a comprehensive plan … has been adopted…, all development undertaken by … governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted.”15 As the land development regulations are required to be consistent with the Comprehensive Plan,16 the governmental development must also be consistent with, not outside of or in exception to, the land development regulations. This would mean that, if the Comprehensive Plan says certain types of development activities must be handled in certain ways, without differentiating between private and public development, the land development regulations cannot exempt the government activity from being regulated in that way.
This applies unless the activity does not constitute “development” under the statutory definition of the term.17 The following common government activities are considered to not be “development” and are not, therefore, required to be controlled by the comprehensive plan:18
- “Work by a highway or road agency … for the maintenance or improvement of a road …, if the work is carried out on land within the boundaries of the right-of-way.”
- Work by any [entity] 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.”
- The creation or termination of rights of access, riparian rights, easements, … or other rights in land.
Several cases confirm this.19 Therefore, such non-“development” activities do not have to be addressed by or follow the requirements of the comprehensive plan.
Combining the common law rule with the requirements of the Community Planning Act, whether local government’s activities are controlled by their own regulations can be summarized as follows:
- All of a local government’s construction and activities must be in compliance and consistent with its comprehensive plan, unless there is a specific exemption for the activity in the comprehensive plan or the activity does not constitute “development.”
- All of a local government’s construction and activities must follow and be in compliance with its land development regulations, unless there is a specific exemption for the activity in the land development regulations.
Exemption from other government’s regulations
What happens when one government wants to build a government facility within the boundaries of another jurisdiction; can the local regulations be ignored? Does it make a difference if the building government is “superior” in the governmental hierarchy to the host jurisdiction?
Local government over local government
For one local government’s activities in another local government’s boundaries, the rule is simple. The use of land by one local government (Government A) within the boundaries of another local government (Government B) is governed by Government B’s land development regulations unless specifically exempted in Government B’s regulations.20 The governmental-proprietary function test, when it had any application, was not applicable in this situation.21 The courts have held that requiring Government A to go through Government B’s regulatory process allows the review and balancing of the competing governmental interests22 and allows the greatest flexibility and fairness in resolving the issue.23
Local government over State agency
There is an argument that, since all local governments are entities under the State of Florida, a State agency is superior to a local government and is, therefore, not bound by the lower government’s regulations. This argument was pretty much refuted, however, in the case of City of Temple Terrace v. Hillsborough Ass’n for Retarded Citizens, Inc.24 In that case, a State of Florida facility was to be established in the City of Temple Terrace that was inconsistent with the City’s zoning requirements. The court reviewed the different potential tests by which to decide the issue, including the superior jurisdiction test, and rejected all others in favor of a form of the balancing of interest test.25 The court said that if the State legislature specifically states that local government zoning requirements do or do not apply to other government units, that pronouncement would control, but that in the absence of such a statement, there is no presumption one way or another. In upholding the district court decision, the Florida Supreme Court26 stated “[e]xcept where a specific legislative directive requires a non-[con]forming use in the particular area, local administrative proceedings will provide the forum in which the competing interests of governmental bodies are weighed,” noting that the courts are available to review the balance and that the State of Florida always possesses the power to specifically exempt itself from local land development regulations.
So, State agencies must follow the regulations of the host local government except in three situations: 1) the host government’s regulations exempt the State agency; 2) through a review by the host local government, an exception or variance to the local regulations is approved; or 3) the State law specifically exempts the State activity from local regulations. These exceptions for State agencies also, apparently, apply to private entities performing the State activity in the State’s place.27
Local government over federal government
Even federal government activities are not automatically exempt from local land development regulations; mere ownership or control of the land or facility by the federal government does not create an exception. “The Federal Government does not assert exclusive jurisdiction over the public lands … and the State [and local government] is free to enforce its … laws on those lands” unless those laws conflict with federal law.28
The federal government does have the power to expressly exempt federal activities from local regulation.29 Further, the federal government activity can be allowed, regardless of local regulatory prohibitions or restrictions, if it falls under a federal regulatory authority that is exclusively within the federal authority (i.e. the local regulation is “preempted” by the federal regulation).30 The state or local law can be preempted in two ways: 1) the legislation created by Congress expressly states or evidences an intent to exclusively regulate an issue; or 2) the state or local law conflicts with the federal law, such that it is impossible to comply with both the state or local law and the federal law or the local law stands as an obstacle to accomplishing the full purposes and objectives of Congress.31
Local governments must follow the regulations of the local government in which the proposed government activity is to be located unless the host government’s regulations exempt such activities from regulation or, through the host government’s review, it is determined that an exception is warranted. Similarly, State agencies must also follow the regulations of the host local government unless the host government’s regulation or review provides an exception, but have the added exemption opportunity where the State legislature exempts such State activity from local regulations. Federal government activities must also comply with local government land development regulations unless specifically exempted at the local level, expressly exempted by federal law, or the federal regulatory authority preempts the local regulation.
Although many people assume there is a blanket exemption from local government regulations for government facilities, this is not the case. Generally, the default is that the local regulations must be met; all levels of government have to follow the land development regulations of the local government in which they are building a facility or undertaking an activity unless there is some action (by the local government or the higher authority) that affirmatively removes that requirement.
- Daly v. Stokell, 63 So.2d 644, 645 (Fla. 1953). Click here to return to text.
- A1A Mobile Home Park, Inc. v. Brevard County, 246 So.2d 126, 129 (Fla. 4th DCA 1971) (“[I]n the performance of [governmental functions,] a governmental body need not comply with its own zoning ordinances”). Click here to return to text.
- Black’s Law Dictionary 1219 (6th ed. 1990), cited in Sebring Airport Auth. v. McIntyre, 642 So.2d 1072, 1074 (Fla. 1994); and Daly v. Stokell, 63 So.2d 644, 645 (Fla. 1953). Click here to return to text.
- City of Treasure Island v. Decker, 174 So.2d 756, 759 (Fla. 2d DCA 1965) (“[T]he governmental body itself if operating in a proprietary capacity is governed by the zoning regulations of the area in the absence of specific legislative pronouncement to the contrary”). Click here to return to text.
- A1A Mobile Home Park, Inc. v. Brevard County, 246 So.2d 126, 129 (Fla. 4th DCA 1971) (“[T]he construction and operation of a sewage disposal system is governmental, as distinguished from a proprietary, function”). Click here to return to text.
- But perhaps it was so classified only because this construction was declared a governmental function by a Special Act of the State legislature. See Nichols Eng’g & Research Corp. v. State ex rel. Knight, 59 So.2d 874, 875 (Fla. 1952). Click here to return to text.
- Jefferson Nat. Bank of Miami Beach v. City of Miami Beach, 267 So.2d 100, 101-02 (Fla. 3d DCA 1972). Click here to return to text.
- Metro. Dade County v. Parkway Towers Condo. Ass’n, 281 So.2d 68, 69 (Fla. 3d DCA 1973), but this was replaced by the Florida Supreme Court’s review of the case. See infra. Click here to return to text.
- Jefferson Nat. Bank of Miami Beach v. City of Miami Beach, 267 So.2d 100, 101-02 (Fla. 3d DCA 1972) (“A zoning authority has the right, upon the adoption of a comprehensive zoning ordinance, to exempt itself from the regulations applicable to private interests”). Click here to return to text.
- This is under the argument that if the local governments have the authority to regulate the uses, they also have the authority to exempt them from regulation. Click here to return to text.
- The Third District Court of Appeals in Metro. Dade County v. Parkway Towers Condo. Ass’n, 281 So.2d 68 (Fla. 3d DCA 1973) considered an appeal of a temporary injunction preventing Dade County from building a county jail until the County zoned the property to a district that allowed the jail. After finding that the construction of the proposed county jail facility was a governmental function, the court found that the County had a common law right to place the jail on any site and, without an affirmative showing of an intent to waive the right, a general provision in the Code, did not waive this right. The court found that, unlike a specific Code restriction on where police stations could be located, the County’s regulations did not address jails at all and, since the regulations did not affirmatively show an intent to regulate jails, the County was free to exercise the government function of building a jail, without regard to the provisions of the land development regulations. The court then reversed the injunction, allowing the construction of the jail to go forward. The case was appealed to the Florida Supreme Court (Parkway Towers Condo. Ass’n v. Metro. Dade County, 295 So.2d 295, (Fla. 1974)). The court agreed to consider the district court’s decision to repeal the injunction (issued a writ of certiorari), but later decided that action was “improvident” and discharged the writ. In deciding to not hear the matter, the court stated that, since the County had held two public hearings on the issue of going forward with the jail (the court perhaps reasoning that these public hearings were the equivalent to public hearings on amending the zoning code to address the jail), and the jail construction was proceeding, nothing would be gained to pause the construction so that the County could amend the regulations to allow the jail. Then, without further explanation, the court changed the common law rule. Click here to return to text.
- Parkway Towers, 295 So.2d at 295-96. Click here to return to text.
- There is only one case that cites the Florida Supreme Court Parkway Towers case, relative to this issue, and that is a federal case, Everett v. City of Tallahassee, 840 F. Supp. 1528, 1539 (N.D. Florida 1992). In that case, the court found the Florida Supreme Court’s decision in Parkway Towers controlled, even though a later case confirmed by the Florida Supreme Court seemed to say the governmental-proprietary function test still applied in the review of a local government’s ability to ignore its own regulations. The Everett court found that, because the issue in the Temple Terrace case (discussed infra) was whether one local government had to follow another government’s regulations, rather than an issue of a government following its own regulations and the statements about a government’s own regulations was dicta, the Parkway Towers Florida Supreme Court decision controlled. Click here to return to text.
- §163.3161(5), F.S. Click here to return to text.
- §163.3194(1)(a), F.S. Click here to return to text.
- §163.3194(1)(b), F.S. Click here to return to text.
- Under the §380.04(3), F.S., definition. See also the article What is the “development” land development regulations can regulate. Click here to return to text.
- Whether they may be addressed by a comprehensive plan is another question, for another article. Click here to return to text.
- See Rinker Materials Corp. v. Town of Lake Park, 494 So.2d 1123 (Fla.1986); Board of County Commissioners of Monroe County v. Department of Community Affairs, 560 So.2d 240 (Fla. 3d DCA 1990; 1000 Friends of Florida, Inc. v. St. Johns County, 765 So.2d 216, 217-18 (Fla. 5th DCA 2000). Click here to return to text.
- See City of Treasure Island v. Decker, 174 So.2d 756, 759 (Fla. 2d DCA 1965), which explained that this “permits each governmental unit to perform its functions without serious interference from the other.” Click here to return to text.
- Orange v. City of Apopka, 299 So.2d 652, 654-56 (Fla. 4th DCA 1974) (“[T]he purpose of zoning is orderly development and the preservation of property values. Each governmental unit is charged with the responsibility of preparing a comprehensive plan which will provide optimum development in an orderly fashion. It strikes us as anomalous to allow one governmental unit charged with a specific responsibility, such as supplying housing, airports, or sewerage facilities, to enter another governmental unit and unilaterally decide to locate one of its governmental facilities anywhere it may choose”). Click here to return to text.
- Palm Beach County v. Town of Palm Beach, 310 So.2d 384, 385 (Fla. 4th DCA 1975) (“We affirm the general proposition of law espoused in Orange County v. City of Apopka …; in resolving conflicts between different governmental units the balancing-of-competing interests test is to be applied”); Pal-Mar Water Mgmt. Dist. v. Martin County, 377 So.2d 752, 754-55 (Fla. 4th DCA 1979). Click here to return to text.
- Vill. of N. Palm Beach v. Sch. Bd. of Palm Beach County, 349 So.2d 683, 683-84 (Fla. 4th DCA 1977). Click here to return to text.
- 322 So.2d 571, 573-79 (Fla. 2d DCA 1975) aff’d, 332 So.2d 610 (Fla. 1976). Click here to return to text.
- Specifically, the court found that the “superior sovereign test,” which says that the higher government in a governmental hierarchy should not be bound by the requirements of a lower government, was not applicable because of the Florida Constitutional and statutory powers of local governments; that the governmental-proprietary function test only applied to situations where a government seeks to violate its own zoning ordinance (which, as discussed earlier in this article, was no longer true at this point; the test did not even apply in that situation); and that the “power of eminent domain” test, which says that where a political unit has condemnation authority, it is automatically immune from local zoning regulations when it is performing its public function, does not apply because the power to condemn has nothing to do with the power to use property. The court ultimately adopted the “balancing of interests” test as the fairest method by which to decide such cases, as it allows a case by case determination that takes into consideration all of the relevant factors. The court held that “[w]hen the state legislature is silent on the subject, the governmental unit[, State agency or otherwise,] seeking to use land contrary to applicable zoning regulations should have the burden of proving that the public interests favoring the proposed use outweigh those mitigating against a use not sanctioned by the zoning regulations of the host government. There may be cases in which a state agency may be so convinced of the overriding public need for a particular land use that it may choose to go forward without resort to local authorities. Yet, under normal circumstances one would expect the agency to first approach the appropriate governing body with a view toward seeking a change in the applicable zoning or otherwise obtaining the proper approvals necessary to permit the proposed use.” Click here to return to text.
- In Hillsborough Ass’n for Retarded Citizens, Inc. v. City of Temple Terrace, 332 So.2d 610, 613 (Fla. 1976). Click here to return to text.
- City of Temple Terrace v. Hillsborough Ass’n for Retarded Citizens, Inc., 322 So.2d 571, 573 (Fla. 2d DCA 1975) aff’d, 332 So.2d 610 (Fla. 1976) (“Traditionally, where a state agency is immune from municipal zoning, those parties contracting to do the services which would otherwise be performed by the state have also been held to be immune”). Click here to return to text.
- Kleppe v. New Mexico, 426 U. S. 529, 543 (1976). Click here to return to text.
- Hillsborough County v. Automated Medical Laboratories, Inc., 471 US 707, 712-13 (1985). Click here to return to text.
- California Coastal Comm’n v. Granite Rock Co., 480 US 572, 580-81 (1987) quoting Kleppe v. New Mexico, 426 U. S. 529, 539 (1976) (“Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause”). Click here to return to text.
- Id.; Hillsborough County v. Automated Medical Laboratories, Inc., 471 US 707, 712-13 (1985). Click here to return to text.