Tag Archives: Comprehensive plan

Consistency with the Comprehensive Plan

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

Consistency is required.

Once a jurisdiction’s comprehensive plan has been properly adopted, all “development” (see What is the development LDRs can regulate), both public and private, must be consistent with the comprehensive plan. §§163.3161(5) and 163.3194(1)(a), F.S. Similarly, all the jurisdiction’s land development regulations must also be consistent with the plan. §163.3194(1)(b), F.S.

“The statute is framed as a rule, a command to cities and counties that they must comply with their own Comprehensive Plans …. The statute does not say that local governments shall have some discretion as to whether a proposed development should be consistent with the Comprehensive Plan. Consistency with a Comprehensive Plan is therefore not a discretionary matter.” Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 198 (Fla. 4th DCA 2001).

Definition of Consistency

The Florida Statutes provide a definition of what is meant by consistent. Section 163.3194(3)(a) , F.S., says:

A development order or land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.

Breaking the definition down, first, it is the aspects of development that are at issue. Land uses, densities and intensities are specifically called out and, therefore, probably are the aspects of greatest issue, but the catch-all “other aspects” brings in all aspects of development. All aspects of development would mean not only the negative aspects, but also the positive ones. Second, the aspects of concern are only those permitted by the development order (abbreviated as “D.O.” for the rest of this article) or land development regulation (“LDR”). If the D.O. or LDR does not allow a development aspect, that aspect is not part of the review.

For the next part of the definition, “are compatible with” and “furthers,” the plan, §163.3177, F.S. formerly provided a definition of what was meant by these phrases in the context of consistency of local plans to state and regional plans, where “compatible with” meant not in conflict with and “furthers” meant to take action in the direction of the goals.” But those provisions were deleted by the 2011 changes. It is probably reasonable to assume the deletions had more to do with the decreased focus on comparing local comprehensive plans against state requirements than it being a statement that the definitions were no longer correct. Regardless, the recent amendments to the growth management statutes do now provides a definition of “compatibility” (“a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition”) in the statutes, in §163.3164(9), F.S., which may help in analyzing what consistency means.

Using that definition of compatibility this would mean that the D.O. or LDR is “compatible with” (has achieved compatibility with) the comprehensive plan if it “can coexist” in “a stable fashion” without “unduly negatively impacting” the plan. This is essentially the same as the previous statute definition, of being not in conflict with.

But the definition of consistency also requires that the D.O or LDR must “further” the goals or policies of the comprehensive plan. There is no clear definition of “furthers” in the current growth management statutes, but it is not unreasonable, given its usage, to use the ordinary meaning – furthers means to advance or assist in moving forward. This would mean that the D.O. or LDR must not only not conflict with, but must also help advance, the provisions of the comprehensive plan. This requires an affirmative action – an implementing of the comprehensive plan provisions.

The last part (“and if it meets all other criteria enumerated by the local government”) seems a bit vague, especially in reference to an LDR. The “it” referenced appears to be the D.O. or LDR and, as the sentence is in the conjunctive, the “other criteria enumerated” appear to potentially be criteria separate from the comprehensive plan (reading that part of the sentence as “A [D.O. or LDR] shall be consistent with the comprehensive plan … if it meets all other criteria enumerated by the local government). It isn’t clear if these would be procedural criteria or some other type of criteria.

Putting all these provisions together, a D.O. or LDR is consistent with the comprehensive plan if:

  1. The aspects of development allowed by the D.O./LDR are:
    1. Not in conflict with; and
    2. Advance or assist in moving forward the goals, objectives, policies, land uses, densities, and intensities in the comprehensive plan; and
  2. The D.O./LDR meets all the other criteria enumerated by the local government.

The part of the comprehensive plan relevant in a consistency evaluation.

Once it is determined what is meant by “consistent,” the issue becomes what parts of the comprehensive plan a D.O. or LDR must be measured against for consistency. The easy, but perhaps too simple, answer is all parts. The growth management act say development is expected to conform with the comprehensive plan, elements, or portions thereof. §§ 163.3161(5) and 163.3194(1)(a) and (b), F.S. An often cited case said that the review is to determine conformity with “each element and the objectives of the land use plan ….” Machado v. Musgrove, 519 So.2d 629, 632 (Fla. 3d DCA 1987). Although certainly highly relevant, courts have also said that all of the elements, not just the future land use element, that should be considered. Sw. Ranches Homeowners Ass’n, Inc. v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987).

But the reality is that not every part of the comprehensive plan is necessarily relevant to the particular aspects of development allowed by each D.O./LDR. If, for example, the D.O. is for a use that has no wetland impacts (positive or negative), the comprehensive plan policies related to wetlands would not be relevant. There may be whole sections of the comprehensive plan that may have no relevance to a specific D.O or LDR (e.g. the Capital Improvement Element is not relevant to a D.O. for a use that has no impact on public facilities).

A recent case reflects this position, saying the section 163.3194(4)(a), F.S., admonition that courts should consider the “reasonableness of the comprehensive plan” means that irrelevant provisions in the comprehensive plan should not be considered and that the relevant provision should be reviewed as a whole, to produce “the most reasonable and holistic interpretation, based on both the text and the synthesis of the document ….” Arbor Properties, Inc. v. Lake Jackson Prot. Alliance, Inc., 51 So. 3d 502 (Fla. 1st DCA 2010), reh’g denied (Jan. 26, 2011). Similarly, another recent case, Katherine’s Bay, LLC v. Fagan 52 So. 3d 19 (Fla. 1st DCA, 2010), stated that, in a review of consistency with the comprehensive plan, not only should the rule of construction that all provisions on related subjects be read in pari materia and harmonized so that each is given effect be applied, but the rules of construction that specific provisions control over general ones and that one provision should not be read in such a way that it renders another provision meaningless also apply.

Another recent case, however, seems to suggest that, in at least some circumstances, the controlling factor is whether the requested D.O. is consistent with the land uses allowed in the applicable land use category, without regard to other potential violations of the goals, policies, or objectives of the comprehensive plan. Rehman v. Lake County, 56 So. 3d 852(Fla. 5th DCA 2011).

Level of Review – Strict Scrutiny

The expectation of consistency with the comprehensive plan is very high. When courts examine the issue, they do not defer to the local government in the government’s decision of what is or isn’t consistent, as is done in some other reviews of local government determinations, Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla, 4th DCA 2001); the standard of court review is “strict scrutiny.” Machado v. Musgrove, 519 So.2d 629, 633 (Fla. 3d DCA 1987). So what does that mean?

First, although the name is the same, strict scrutiny in the comprehensive plan consistency context is not the same as the type of strict scrutiny review in some constitutional cases. Bd. of County Com’rs of Brevard County v. Snyder, 627 So.2d 469, 475 (Fla. 1993). The court in Machado, defined strict scrutiny based on the meaning of the two words, saying “[s]trict implies rigid exactness or precision. A thing scrutinized has been subjected to minute investigation. Strict scrutiny is thus the process whereby a court makes a detailed examination of a statute, rule or order of a tribunal for exact compliance with, or adherence to, a standard or norm. It is the antithesis of a deferential review.” Machado, 519 So.2d at 632 (internal citations omitted). This means that, since the courts will hold them to that standard, every decision on a development order and every change to a land development regulation must exactly comply with the applicable provisions of the comprehensive plan.

Consistency of Land Development Regulations with Comprehensive Plan

Putting the components of consistency together, to achieve consistency with the comprehensive plan, a LDR provision, new or existing, must regulate the subject aspects of development in a way that not only does not conflict with the relevant provisions of the comprehensive plan, but also implements the applicable provisions of the plan, and must do so with exactness and precision. Given the way many LDRs, not to mention comprehensive plans, are written, this is a pretty tall order.

Consistency of Development Orders with Comprehensive Plan

Putting the components of consistency together, for a D.O., to achieve consistency with the comprehensive plan, an approved D.O. must allow the specific aspects of development in a way that not only does not conflict with the relevant provisions of the comprehensive plan, but also implements the applicable provisions of the plan, with exactness and precision; and must meet all of the applicable criteria of the LDRs or other applicable regulations. For an approval through a quasi-judicial hearing process, at least, there must be competent substantial evidence in the record demonstrating such consistency compliance. See the article What is competent substantial evidence in Florida land use hearings for more on compentent substantial evidence.

Because §163.3215 consistency challenges may be brought to challenge a denial, as well as an approval, of the D.O., if the applicant provides evidence that the D.O. will be consistent with the comprehensive plan, to deny it, the local government must counter that evidence or, in the case of a rezoning application, show that the existing zoning is also consistent with the comprehensive plan. County Com’rs of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993).

A §163.3215 consistency challenge to a D.O. can arise in three instances: “1) where it materially alters the use of a property; 2) where it materially alters the density of [the] property; or 3) where the intensity of the use of the property is materially altered.” Lake Rosa v Board of County Com’rs, 911 So. 2d 206 (Fla. 5th DCA 2005) referencing §163.3215(1), F.S. The limitation to these three instances raises the question of whether such a challenge can be brought when the challenge is to the characteristics of the use, other than density or intensity, rather than the allowance of the use (i.e. can suit be brought when a use is a permitted use, of permitted intensity or density, but has characteristics, such as aesthetic impacts or the potential to increase traffic congestion, that may be inconsistent with provisions in the comprehensive plan). Although not specifically addressed in the opinion, this might be the situation in Rehman v. Lake County, 56 So. 3d 852 (Fla. 5th DCA 2011), discussed above, and the reason the court found the D.O. consistent with the comprehensive plan.

In bringing a §163.3215 consistency challenge, it is the comprehensive plan that is in place at the time of the decision on the D.O. that governs. Lake Rosa v. Board of County Com’rs, 911 So.2d 206, 209 (Fla. 5th DCA 2005). The action that governs when the filing time frame begins to run for a §163.3215 challenge is when the clerk for the governing body files the development order in the official records. 5220 Biscayne Blvd., LLC v. Stebbins, 937 So.2d 1189 (Fla. 3rd DCA 2006).

In the judicial review of the consistency question, the statutes say a reviewing court “may consider, among other things, the reasonableness of the comprehensive plan, [relative to the issue raised for the court’s consideration,] or the appropriateness and completeness of the comprehensive plan … in relation to the governmental action or development regulation under consideration,” §163.3194(4)(a), F.S., but that the act is to be “construed broadly to accomplish its stated purposes and objectives.” §163.3194(4)(b), F.S. This has been found to be “a recognition of the court’s inherent power to take into account fundamental fairness questions as may arise from a strict application of the plan ….” Machado v. Musgrove, 519 So.2d 629, 635 (Fla. 3d DCA 1987).

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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.

Make them the star – why land development regulations are (the most) important.

Florida is a state that, despite some fears about the 2011 amendments to the planning/growth management provisions in the Florida Statutes, has a strong emphasis on planning and land regulation; one of the strongest in the nation. But how to translate that strong emphasis into a functioning reality is the real issue.

I believe that, in the translation of that planning emphasis, each local government’s land development regulations are the most important part of the land planning and regulating effort. Comprehensive planning gets all the attention from the planners and the individual applications get the attention from everyone else, but it’s the land development regulations that should be the star.

What good is comprehensive planning if there aren’t regulations to implement it? How can individual applications be decided fairly and consistently if there aren’t good regulations to guide the decisions? The land development regulations (aka: the zoning code, the land development code) are where the rubber meets the road, where the real world happens. If they don’t work well, the objectives of the planning and the intentions of the regulating don’t get implemented. Good planning decisions are dependent on good planning regulations.

But, more often than not, the land development regulations are relegated to the background. The writing of them is often viewed as not as important as other tasks and is left up to people who don’t have the information or support they need for the job. Because codes often have regulations that are internally inconsistent, confusing, or don’t fit the jurisdiction’s situation, the exact wording is interpreted or glossed over to make it work, or ignored all together.

For those that need to use the regulations – whose property is being controlled by the regulations – poorly drafted, confusing, or improperly grounded land development regulations leave them without any idea what the rules are and what they are supposed to do, or not do. These property owners’ representatives sometimes have only a moderately greater knowledge of the details of the code or believe that the details of the regulations are not where they need to focus their attention, often resorting to political solutions instead.

Citizens that wish to address individual applications are often intimidated by the sheer size of the code or confusing terms and, rather than the code being a resource they can use to make their points, it is ignored in favor of tried and true methods such as packing the room with opponents or presenting multi-page petitions. The decision-makers often aren’t much better off and, without clear procedures and standards, fall back on gauging the amount of opposition, acting on their personal feelings about the matter, or making the most politically expedient decisions.

The purpose of this web site is to try to help change the perceptions and the function of Florida’s land development regulations. I hope that, through the information and resources provided here, with thoughts, comments, and questions from you, we can start to turn around how land development regulations are perceived and how they work – to make them the star they deserve to be.

Authority to Regulate Land – Giving Power and Responsibility

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

Unlike many other states, the State of Florida not only gives local governments (cities and counties) the authority to regulate land use and development, it requires it. Section 163.3167(1), Florida Statutes, states: “The several incorporated municipalities and counties shall have power and responsibility:

  • To plan for their future development and growth.
  • To adopt and amend comprehensive plans, or elements or portions thereof, to guide their future development and growth.
  • To implement adopted or amended comprehensive plans by the adoption of appropriate land development regulations or elements thereof.
  • To establish, support, and maintain administrative instruments and procedures to carry out the provisions and purposes of this act.”

The details of this power and responsibility are laid out in two key parts of the statutes –

  • The Community Planning Act (§§163.2511 – 163.3248, Florida Statutes) (a link will be provided when the 2011 amendments are integrated into the statutues in the near future); and
  • The Florida Environmental Land and Water Management Act of 1972 (§§380.012, 380.021, 380.031, 380.04, 380.05, 380.06 (DRIs), 380.07, and 380.08, Florida Statutes) (a link will be provided when the 2011 amendments are integrated into the statutues in the near future)

and supported by the Florida State Comprehensive Planning Act of 1972 (§§ 186.001-186.031 and 186.801-186.901, Florida Statutes), which addresses state comprehensive planning.

 The authority to regulate the divisions of land is addressed in Platting – §177.011, Florida Statutes.

Implementing the Comprehensive Plan Through Land Development Regulations

From the specific use or user standpoint, the purpose of land development regulations (“LDRs”) is to regulate specific land activities. But from the other end, the broader policy oriented perspective, the purpose of Florida LDRs is to carry out the jurisdiction’s comprehensive plan. Basically, if the comprehensive plan is the “what we want to do,” the jurisdiction’s LDRs are “how we are going to do it.”

The statutes state the LDRs are to be based on, related to, and a means of implementation for comprehensive plan. §163.3201, Florida Statutes. So, in addition to whatever other reason a local government wants LDRs, the foremost reason is to carry out the adopted comprehensive plan. New language in section 163.3177(1), F.S. (2011) provides that the comprehensive plan itself is not to include the implementing regulations, but, rather, to provide meaningful and predictable standards and guidelines indicating how the land development regulations, along with other programs and activities, are to implement the plan. 

Consistency. The LDRs also must be consistent with the adopted comprehensive plan. §163.3194(1)(b), Florida Statutes. If the existing LDRs aren’t consistent with the adopted comprehensive plan (either the original plan or any amendments), the LDRs must be amended, to make them consistent. If that can’t be done immediately, the local government must adopt a schedule for bringing the LDRs into conformity and, during the interim, the provisions of the comprehensive plan control. §163.3194(1)(b), Florida Statutes.

The statute definition of consistency, section 163.3194(3)(a), Florida Statutes, is not particularly helpful in pinning down what is needed to be consistent. It states:

A … land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such … regulation [are] compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.

See Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan for more on the definition of consistency.

Challenging consistency. If someone wants to challenge whether the LDRs are consistent with the adopted comprehensive plan, the statutes, at §163.3213, Florida Statutes, state that the administrative procedure outlined in the statute is the only way a challenge can be brought. This means a challenge cannot be brought straight to court; this procedure must be followed first.

The rules previously adopted to implement this section, published in former §9J-5.023, Florida Administrative Code, outlined the criteria the agency would use in such an administrative challenge to decide the consistency of LDRs with the adopted comprehensive plan. With the repeal of chapter 9J-5 by the 2011 legislature (Chapter 2011-139, Section 72, Laws of Florida), these are no longer the controlling rules.