Tag Archives: LDRs

Summary of 2012 Florida Legislative Changes Related to Land Development Regulations

The Florida Legislature made several changes to the Florida Statutes in 2012 that are relevant to land development regulations. The following is a summary of several of those changes, grouped by the bills in which the changes were made.

House Bill 503 (Chapter 2012-205 from HB 503, Laws of Florida)

Language was added to §125.022 (which addresses counties) and §166.033 (which addresses municipalities)1 that, for development permits2 filed after July 1, 2012, prohibits counties and municipalities from requiring the applicant to obtain any state or federal permit3 unless the state or federal permit has already been denied.

This bill also includes, in language almost identical to prior years, a process to extend most local government development orders and building permits, as well as DEP and water management permits. This legislation addresses those permits that are to expire between January 1, 2012 and January 1, 2014 and extends them for 2 additional years. These extensions can be in addition to previous extensions, but the extended time cannot exceed a total of four years. To receive the extension, the permit holder must notify the permitting authority in writing by December 31, 2012.4 The local governments and state agencies cannot require the payment of a fee for the use of the extensions.5

This bill was signed by the governor May 4, 2012 and will be effective July 1, 2012.

House Bill 979 (Chapter 2012-75, Laws of Florida)

A provision was added to the DRI pre-application procedures6 that says that agencies participating in pre-application reviews may only make comments that are consistent with the applicable statutes rules or adopted local government ordinances. A new provision was added to the list of changes that do not constitute a substantial deviation to an existing DRI; “changes that do not increase the number of external peak hour trips and do not reduce open space and conserved areas within the project except as otherwise permitted by sub-subparagraph j.”7 A new type of development was added to the list of project types that are exempt from the DRI process; development, outside of areas of critical state concern, the Wekiva Study Area, and the Everglades Protection Area, that is not in a section 380.06(29), F.S., exempt dense urban land area, but is approved as a comprehensive plan amendment adopted through the state coordinated plan amendment review process (§163.3184(4), F.S.) and is subject to a section 288.106(5), F.S., tax refund agreement (with some additional restrictions on the agreement), are now exempt.8

Section 4 of the bill addresses changes that, based on the citation in the companion Senate bill, appear to intend to add a section 163.3165, addressing agricultural enclaves. Unfortunately, the adopted bill does not include any citation, so the language is adopted without identifying where it goes. The provisions allow the owner of a qualified agricultural enclave9 to apply for a plan amendment, which will be presumed to not constitute urban sprawl if the proposed land uses and intensities are consistent with the existing or allowable uses that surround the parcel. If the parcel is surrounded by only one land use designation, that land use designation must be presumed by the county to be appropriate for the parcel. To overcome these presumptions the county must find, by clear and convincing evidence, that approving the designation would be detrimental to the health, safety, and welfare of its residents. To qualify under this section as an agricultural enclave, the property owner must file a written application to the county by January 1, 2013.

This bill was signed by the governor on April 6, 2012. It is effective July 1, 2012.

House Bill 1197 (Chapter 2012-83, Laws of Florida)

This bill is only tangentially related to land development regulations, except for two provisions—the bill preempts local government regulation of honeybee colonies,10 and exempts “farm signs” from the Florida Building Code and any county or municipal code (except floodplain management).11 The honey bee provision12 will impact increasingly common attempts to regulate when and where bees can be kept in more urban environments; it is now no longer a local issue. The farm sign provisions13 define “farm sign” and requires the signs to meet certain of the same requirements as outdoor advertising signs under §479.11, F.S. This bill was signed by the governor on April 6, 2012. It is effective July 1, 2012.

House Bill 7081 (Chapter 2012-99, Laws of Florida)

This bill is what has been called the growth management glitch bill. It does make several corrections and clarifications. Probably the most anticipated is the language that has been added to §163.3167(8), F.S., to allow the initiative or referendum processes prohibited by the 2011 language of that subsection to continue in certain jurisdictions if that local government’s charter, in effect as of June 1, 2011, allowed for them.14

There were also some changes to §163.3175, F.S., (addressing the compatibility of development with military installations), clarifying that the commanding officer’s comments are advisory, and are to be supported by data and analyses, and that those comments are to be in the context of the strategic mission of the base, public safety, and the economic vitality associated with the base’s operations. There were changes to §163.3177, F.S., clarifying the sources and limitations on comprehensive plan data and calculations. The public schools interlocal agreement language of §163.31777 was amended and exemption language added. Local governments may more easily do away with any of the “optional” concurrency provisions through changes to §163.3180(1)(a), F.S., which would allow the plan amendment to rescind the concurrency provision to be through the expedited state review process with no requirement that the plan amendment be transmitted to reviewing agencies for comment unless requested. Several changes were also made to §163.31777(6)(a) and §1013.33, F.S., addressing school concurrency and interlocal agreements.

This bill was signed by the governor on April 6, 2012. It is effective immediately upon becoming law.

End Notes:

  1. The full language reads: “For any development permit application filed with the [county or municipality] after July 1, 2012, a [county or municipality] may not require as a condition of processing or issuing a development permit that an applicant obtain a permit or approval from any state or federal agency unless the agency has issued a final agency action that denies the federal or state permit before the [county or municipality] action on the local development permit. Issuance of a development permit by a [county or municipality] does not in any way create any rights on the part of the applicant to obtain a permit from a state or federal agency and does not create any liability on the part of the [county or municipality] for issuance of the permit if the applicant fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that result in a violation of state or federal law. A [county or municipality] may attach such a disclaimer to the issuance of a development permit and may include a permit condition that all other applicable state or federal permits be obtained before commencement of the development. This section does not prohibit a [county or municipality] from providing information to an applicant regarding what other state or federal permits may apply.” Click here to return to text.
  2. “[A]ny building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.” §163.3164, Florida Statutes. Click here to return to text.
  3. There is a potential issue in the allowed actions under the language, however. The first part states that a local government “may not require as a condition of processing or issuing a development permit that an applicant obtain a [federal or state] permit or approval.” But a later part says a local government “may include a permit condition that all other applicable state or federal permits be obtained before commencement of the development.” So, while a local government cannot require an applicant to get a state or federal permit before the local government will process the local application or issue the local development permit, they can put a condition on the permit that requires federal or state permits or approvals before the development (presumably including the amount of development that only triggered the local permits) can commence. This would put whether the development occurs, relative to state and federal approvals, still within local government’s control. It is unclear whether this condition would be enforceable by the local government, however, since the local government has no authority to take action to enforce federal or state laws. It may be little more than a general reminder to get all applicable approvals. Click here to return to text.
  4. Full language of Section 24:
     (1) Any building permit, and any permit issued by the Department of Environmental Protection or by a water management district pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from January 1, 2012, through January 1, 2014, is extended and renewed for a period of 2 years after its previously scheduled date of expiration. This extension includes any local government-issued development order or building permit including certificates of levels of service. This section does not prohibit conversion from the construction phase to the operation phase upon completion of construction. This extension is in addition to any existing permit extension. Extensions granted pursuant to this section; section 14 of chapter 2009-96, Laws of Florida, as reauthorized by section 47 of chapter 2010-147, Laws of Florida; section 46 of chapter 2010-147, Laws of Florida; or section 74 or section 79 of chapter 2011-139, Laws of Florida, shall not exceed 4 years in total. Further, specific development order extensions granted pursuant to s. 380.06(19)(c)2., Florida Statutes, cannot be further extended by this section.
    (2) The commencement and completion dates for any required mitigation associated with a phased construction project are extended so that mitigation takes place in the same timeframe relative to the phase as originally permitted.
    (3) The holder of a valid permit or other authorization that is eligible for the 2-year extension must notify the authorizing agency in writing by December 31, 2012, identifying the specific authorization for which the holder intends to use the extension and the anticipated timeframe for acting on the authorization.
    (4) The extension provided for in subsection (1) does not apply to:
    (a) A permit or other authorization under any programmatic or regional general permit issued by the Army Corps of Engineers.
    (b) A permit or other authorization held by an owner or operator determined to be in significant noncompliance with the conditions of the permit or authorization as established through the issuance of a warning letter or notice of violation, the initiation of formal enforcement, or other equivalent action by the authorizing agency.
    (c) A permit or other authorization, if granted an extension that would delay or prevent compliance with a court order.
    (5) Permits extended under this section shall continue to be governed by the rules in effect at the time the permit was issued, except if it is demonstrated that the rules in effect at the time the permit was issued would create an immediate threat to public safety or health. This provision applies to any modification of the plans, terms, and conditions of the permit which lessens the environmental impact, except that any such modification does not extend the time limit beyond 2 additional years.
    (6) This section does not impair the authority of a county or municipality to require the owner of a property that has notified the county or municipality of the owner’s intent to receive the extension of time granted pursuant to this section to maintain and secure the property in a safe and sanitary condition in compliance with applicable laws and ordinances. Click here to return to text.
  5. Per section 23 of the bill: “The holder of a valid permit or other authorization is not required to make a payment to the authorizing agency for use of an extension granted under section 73 or section 79 of chapter 2011-139, Laws of Florida, or section 24 of this act. This section applies retroactively and is effective as of June 2, 2011.” Click here to return to text.
  6. §380.06(7)(a), Florida Statutes. Language added: “The reviewing agencies may make only recommendations or comments regarding a proposed development which are consistent with the statutes, rules, or adopted local government ordinances that are applicable to developments in the jurisdiction where the proposed development is located.” Click here to return to text.
  7. §380.06(19)(e)2.k., Florida Statutes. Click here to return to text.
  8. 380.06(24)(x), F.S. Full language:
     (x) Any proposed development that is located in a local government jurisdiction that does not qualify for an exemption based on the population and density criteria in s. 264 380.06(29)(a), that is approved as a comprehensive plan amendment adopted pursuant to s. 163.3184(4), and that is the subject of an agreement pursuant to s. 288.106(5) is exempt from this section. This exemption shall only be effective upon a written agreement executed by the applicant, the local government, and the state land planning agency. The state land planning agency shall only be a party to the agreement upon a determination that the development is the subject of an agreement pursuant to s. 288.106(5) and that the local government has the capacity to adequately assess the impacts of the proposed development. The local government shall only be a party to the agreement upon approval by the governing body of the local government and upon providing at least 21 days’ notice to adjacent local governments that includes, at a minimum, information regarding the location, density and intensity of use, and timing of the proposed development. This exemption does not apply to areas within the boundary of any area of critical state concern designated pursuant to s. 380.05, within the boundary of the Wekiva Study Area as described in s. 369.316, or within 2 miles of the boundary of the Everglades Protection Area as defined in s. 373.4592(2). Click here to return to text.
  9. “In order to qualify as an agricultural enclave under this section, the parcel of land must be a parcel that:
    (a) Is owned by a single person or entity;
    (b) Has been in continuous use for bona fide agricultural purposes, as defined by s. 193.461, Florida Statutes, for at least 5 years before the date of any comprehensive plan amendment application;
    (c) Is surrounded on at least 95 percent of its perimeter by property that the local government has designated as land that may be developed for industrial, commercial, or residential purposes; and
    (d) Does not exceed 640 acres but is not smaller than 500 acres.” Click here to return to text.
  10. Under §586.10(1), F.S. Click here to return to text.
  11. Under §640.50, F.S. The existing language of this statute section currently exempts farm buildings and farm fences from the Florida Building Code and any county or municipal code or fee, except floodplain management regulations. Click here to return to text.
  12. New language in §586.10(1): “The authority to regulate, inspect, and permit managed honeybee colonies and to adopt rules on the placement and location of registered inspected managed honeybee colonies is preempted to the state through the department and supersedes any related ordinance adopted by a county, municipality, or political subdivision thereof.” Click here to return to text.
  13.  New language in §604.50 (1): “A farm sign located on a public road may not be erected, used, operated, or maintained in a manner that violates any of the standards provided in s. 479.11(4), (5)(a), and (6) – (8). New language in §604.50 (2)(b): “Farm sign” means a sign erected, used, or maintained on a farm by the owner or lessee of the farm which relates solely to farm produce, merchandise, or services sold, produced, manufactured, or furnished on the farm.” Click here to return to text.
  14. New language in §163.3167(8): “However, any local government charter provision that was in effect as of June 1, 2011, for an initiative or referendum process in regard to development orders or in regard to local comprehensive plan amendments or map amendments may be retained and implemented.” Click here to return to text.

Purposeful Land Development Regulations

Everyone that has been around small children knows their favorite questions – “Whatcha doing?” and “Why?” In the drafting of Florida land development regulations, it’s a good idea to ask these same questions (hopefully in a more adult way) – “What are we trying to prevent or achieve?” and “Why do we want to prevent or achieve that; what purpose will the regulation serve?”

Based on common sense, it would seem obvious that there should be a reason to regulate; that every regulation should serve some purpose. And, based on common law (relevant case law), that is the requirement—regulations must be based on legitimate public purposes, which protect the public health, safety, or welfare and have a substantial relationship to the promotion of that public purpose.1 But too often, in the rush to get something written to try to address the latest issue or crisis, only the terms of the regulation get debated and decided, not the purposes the regulation is to achieve. Without a clear understanding of what is to be achieved and why it needs to be achieved, it is all but impossible to achieve it. If everyone is advancing their own agenda, their own reasons for the proposals being made, you most likely will get regulations that advance conflicting purposes (or no real purpose). So, before we get started drafting new regulations, we should all ask “What are we trying to do” and “Why?”

Regulating To Prevent Harm

Preventing harm is a traditional purpose for the exercise of the local government’s police powers. A regulation is more likely to be considered an exercise of its police powers if it prevents a public harm.2 Accordingly, land development regulations typically have at least a strong core of regulating to prevent harm. The following are examples of some of the harms that LDRs may be intended to prevent (check back for future articles on some or all of these):

  • Nuisances
  • Economic harm
  • Harm to public health
  • Visual impacts
  • Noise impacts
  • Smoke/Pollution
  • Vibrations
  • Odors
  • Light – whether blockage of sunlight or the intrusion of artificial light
  • Unsafe situations – whether in structural safety, hazards, or from crime

To be sure that the regulation is actually going to prevent the harm that is of concern, however, it is important to regulate the actual causes of the harm, rather than trying to regulate the resulting harm. Two examples of regulating results rather than cause can be seen in regulating to prevent negative impacts on property values and, to a large degree, in regulating aesthetic impacts.

In preventing harm to (a decrease in) property values, the real question to be answered is what factors would cause the harm to the property values;3 what is it that future purchasers of the neighboring properties4 wouldn’t want around.5 These factors (such as noise, smells, or intrusive lights) should be what the regulations address, not the end result of lower property values. An attempt to regulate the results rather than the cause is likely to end in vague, inconsistently applied, or ineffective regulations.

Similarly, in regulating to prevent negative aesthetic impacts, the real question is whether it is the appearance of the use or structure itself that is of concern or the impact of that appearance; is the regulation to prevent ugly uses or structures or to prevent the appearance of the use or structure from negatively impacting other areas, uses, or structures. If, for example, a use with significant outdoor storage is to be placed in an area of an established protected scenic vista, the regulation should address the question of whether the proposed type of outdoor storage at the proposed location would impair or prevent the achievement of the purpose of the scenic vista. The question would not be whether the outdoor storage itself is ugly or not, but whether having the proposed outdoor storage would be so visible and obtrusive as to defeat the purpose of having the scenic vista.

Regulating To Advance A Goal

The concept of the use of police power to “protect and promote the public welfare” has continued to expand to encompass a large variety of regulatory purposes, many of which can be grouped under the heading of those intended to advance a goal or goals (the “what are we trying to do” question). A few examples of these goals (many of which future articles will discuss) include:

  • Amenity enhancement
  • Regulatory efficiency
  • Compatibility
  • Economic stability or growth
  • Job stability or growth
  • Coastal protection and management
  • Environmental protection
  • Quality of life protection
  • Efficiency in the provision of services
  • Sustainability
  • Energy efficiency and green design
  • Aesthetic advancement
  • Urban infill and redevelopment
  • Neighborhood planning
  • Regulating based on need

Once the goal that is to be achieved is identified, the question of why that goal is to be advanced—what purpose is to be achieved—becomes the focus. And, as with preventing harm, it is the identification of the relevant factors impacting that purpose that is important, to be sure the regulations actually achieve the goal.

Regulatory goals are often grouped under more general names, such as “smart growth,” form-based or design oriented regulations, “innovative” design and planning, or “planned” developments. It is good to have comprehensive and coordinated goals, but it is important that the grouping or method of the approach doesn’t become identified as the goal itself. By way of example, if the approach of a form-based code is chosen, having a form-based code shouldn’t become the goal itself, but rather the focus should be on having the approach actually advance the desired goals a form-based approach can address, such as walkable communities or encouraging mixed use developments, and aspects of the approach that don’t advance the  jurisdiction’s goals should not be included.6

Regulating for Inappropriate Purposes

Another reason to ask “Why?” is because it is also entirely possible to regulate for inappropriate purposes. Our country’s regulatory history, unfortunately, includes doing just that, such as restricting uses and property ownership based on race or economic status. Although they may not be as blatant as in the past, it is not difficult to find examples of regulations that, even if they don’t state it in the regulation, can have the effect of improper discrimination or other inappropriate purposes.

Many of these “inappropriate” purposes are recognized as improper under the U.S. and Florida constitutions. Others are addressed in the legislative statutes and regulations (U.S. Code, Code of Federal Regulations, Florida Statutes, or Florida Administrative Code). Other purposes may be improper because they advance the interests of individuals rather than those of the general public (see the article Limitations on Florida Police Power for more).

The purposes behind a regulation may also be “inappropriate” because they do not advance the local comprehensive plan. It is very easy to join the crowd rushing to implement the latest approach or to stop the problem of the day, but if the approaches or solutions are not compatible with and do not advance the relevant provisions of the local comprehensive plan, they are not consistent with the comprehensive plan (see the article Consistency with the comprehensive plan) and, therefore, cannot be allowed.

Beyond Stating The Purposes – Confirming The Regulation Does What It Is Supposed To Do

It isn’t enough to just list the purposes of the regulations at the beginning of the Code and never think about them again. It is also important to be sure the purposes are actually being advanced by the regulations. Not only must there be a substantial connection between the stated purposes and the regulations, the regulations must be tailored to actually address the public purpose(s), based on an actual analysis of the situation.7 The implementation of purposes is relevant in analyzing the legality of the regulations, but is also is relevant from a practical standpoint, in that if the regulations are not related to and advance the stated purposes, those purposes are not achieved.

Conclusion

In order to have effective, helpful regulations, one of the most important considerations is whether those regulations are purposeful—whether they relate to and actually implement identified and appropriate public purposes. To do so, at the start of the process and all the way through the drafting or amending of the LDRs, it is important to continuously ask “What are we doing,” “Why are we doing it,” and “Is what we are doing actually implementing what we want.”

Endnotes

  1. Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla. 1981); Newman v. Carson, 280 So.2d 426, 428 (Fla. 1973); Burritt v. Harris, 172 So.2d 820, 823 (Fla. 1965); City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430 (Fla. 1954) ; City of W. Palm Beach v. State ex rel. Duffey, 30 So.2d 491, 492 (Fla. 1947). See the FloridaLDRs.com article The Rules of the Game – Analyzing Development Standards for more on this point.Click here to return to text.
  2. As opposed to it being the exercise of eminent domain when the regulation creates a public benefit. See Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla. 1981). Click here to return to text.
  3. As outlined in 1 American Land Planning Law § 16:3 (Rev. Ed.)  (“An allegation that something will affect property values says nothing whatever on the subject of whether a prohibition of that something would further the appropriate goals of zoning; the question always is, what is the factor in question? … In other words, the fact that something allegedly will have an “adverse” effect on property values does not constitute a separate goal for public action; such an effect on property values is purely derivative, reflecting the presence of something else—and the latter is the primary factor, to be looked into and evaluated. The validity of public action depends in every instance on this primary factor, which must be identified, analyzed, and classified as a valid (or invalid) goal. To put the point rather strongly, then, an allegation that a given action will reduce property values really tells nothing about whether that given action is or is not appropriate”) and  Land Use Planning and Development Regulation Law § 3.14 (2d ed.) (“While none would likely quarrel with the preservation of value as a legitimate factor in zoning, it cannot stand alone. Value is a consequence of action or inaction, and it is the action or inaction that matters”). Click here to return to text.
  4. Because it is usually the neighbors’ property values that are said to be of concern, rather than that of the property owner seeking to use his or her property. Click here to return to text.
  5. This is under the concept that having something undesirable in the neighborhood would decrease the number of potential purchasers, and, therefore, reduce the price that could be achieved in a sale (the property value). Click here to return to text.
  6. If too many of the approach’s aspects are not consistent with the jurisdiction’s goals, then that may not be the right approach to use. Click here to return to text.
  7. See the FloridaLDRs.com article The Rules of the Game – Analyzing Development Standards for more. Click here to return to text.

The Rules of the Game – Analyzing Development Standards

SUMMARY:

Development standards are the parts of the LDRs that say what must be done and how it must be done; they are the measures against which development activities are reviewed to determine if they are being done “right.”

The development standards need to:

  • Implement and tie directly to the local government’s comprehensive plan, from concept to detail, to reflect the community’s adopted development perspective and goals;
  • Have, in each standard, a substantial relationship to the promotion of a legitimate public purpose that protects the public health, safety, or welfare and be tailored to actually address the public purpose;
  • Be effective; actually doing what they are intended to do without unintended consequences;
  • Inform everyone of the rules to be followed, so they know their rights, opportunities, and obligations;
  • Be specific and clear enough that a person of common intelligence can tell what conduct is restricted by the standard and does not have to guess at what the standard means;
  • Be specific and clear enough to direct the land use decisions so that the decision-makers do not have arbitrary discretion in making the decisions and clear enough to avoid arbitrary enforcement;
  • Be efficient by not being unnecessarily complex, including more than needs to be addressed, or being unreasonably difficult or costly to use, administer, or enforce;
  • Be equal and impartial in their operation; applicable in all like cases with fairly consistent, equitable results, treating like things alike;
  • Be reasonable and not impose unnecessary or excessive restrictions;
  • Not be so restrictive that they are confiscatory, precluding any reasonable use of a property;
  • Be internally consistent, so that the LDRs groupings of uses or activities make sense relative to the regulation’s purpose, with justifiable distinctions, and the restrictions placed on certain uses or activities are not arbitrarily different from those put on similar or similarly impacting uses/activities;
  • Be consistent with applicable federal and state laws, but not attempt to implement or regulate beyond recognizing those laws, unless so directed by those laws;
  • Restrict administrative or quasi-judicial actions to the adopted regulations and not allow the unlawful delegation of the legislative authority or arbitrary discretion in whether to follow the standards; and
  • Provide direction to the courts of what should have been the local governments review factors, so meaningful judicial review is available.

FULL ARTICLE

Several of the articles on this website discussing quasi-judicial hearings (We Could Play This Game Much Better If We Knew The Rules, Purpose of a Florida Quasi-judicial Land Use Hearing, Conducting Florida Quasi-Judicial Land Use Hearings That Work) say that the key to quasi-judicial hearings is that they apply the adopted regulations. But can those regulations say anything, in any manner, as long as they are adopted? As you probably suspected, the answer is no; there are limitations, both legal and practical.

These limits affect both the procedural and the substantive provisions of the LDRs. Putting aside the procedural provisions for other articles, this article addresses the substantive regulations, the development standards.

The development standards are the parts of the LDRs that say what must be done and how it must be done. They are the measures against which development activities are reviewed to determine if they are being done “right.” Without them, there are no regulations. Without properly written ones, there can be regulatory chaos or regulation only for the sake of regulation.

What are “properly written” development standards?

Standards that implement the local comprehensive plan.

A major role, if not the major role, of the LDRs is to implement the comprehensive plan, In addition to this being mandated by state law,1 as addressed in the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan, how well the LDRs development standards implement the comprehensive plan is a major part of whether the development orders approved under the LDRs are considered “consistent” with the comprehensive plan.

The development standards should also be the method of implementing the local government’s development perspective and goals. If the development standards do not reflect the city’s or county’s goals, they cannot implement those goals and are, in actuality, either reflecting some other goals or, by not reflecting any clear goals, creating confusion and unintended consequences.

Therefore, the development standards of the LDRs must be tied to the local comprehensive plan, from concept to detail. If a jurisdiction wants LDRs that reflect a particular approach, such as a form-based code, or include a particular concept, such as transfer of development rights, that approach or concept must be addressed, or at least be allowed, in the comprehensive plan; an approach or concept foreign to the comprehensive plan cannot be consistent with the plan and certainly does not implement the plan.

The development standards must also implement the details of the comprehensive plan. The greater the detail in the comprehensive plan, the more the LDRs development standards must reflect the plan language, even to the point of putting the plan language in the development standards directly.

Standards that relate to legitimate public purposes.

Development standards are limited by the power of the local government to make such regulations (as addressed in the articles Limitations on Florida Police Powers, Authority to Regulate Land, and Powers of Local Governments to Regulate Land). These development standards, as an exercise of these police powers, must have a substantial relationship to the promotion of a legitimate public purpose that protects the public health, safety, or welfare.2 Further, the regulation must be tailored to actually address the public purpose(s), 3 based on an actual analysis of the situation.4

Effective standards.

There is really little reason to have regulations if they are not effective; why have regulations if they don’t do what they are supposed to do. To effectively serve a public purpose, that purpose needs to be clearly identified (much more than just “to protect the public health, safety, and welfare”) and the regulations must remain true to that purpose from concept to detail. Standards for special exceptions or conditional uses should clearly delineate what is needed to make the use compatible with the permitted uses in the district or to mitigate the factors that make the use a special exception/conditional use, rather than a permitted use, in the first place. Standards that state they are for the purpose of encouraging a use or activity should not have so many restrictions that the use is actually discouraged. Similarly, if a use or activity is discouraged in a location or manner, the encouraged alternatives should be realistically possible, without so many restrictions that it is about as difficult to have the encouraged use/activity approved as it is the discouraged use/activity. Each standard should be reviewed for effectiveness against these tests: “What goal or purpose is this standard to implement? Does it implement that? Specifically, what is this standard to do? Does it do that? Does it do more than that or have unintended consequences? Is there a more effective way to do that, with less undesirable consequences?

Standards that inform.

The development standards are the “rules of the game.” As discussed in the article We Could Play This Game Much Better If We Knew The Rules, these “rules” should inform everyone (applicants, opponents, purchasers of property, users of property, and application or enforcement action decision-makers) of the rules to be followed. By these rules everyone knows their rights, opportunities, and obligations under the LDRs; what they have the right to do, must do, ought to do, and may do.

The development standards can also inform the user or potential user of the jurisdiction’s intent on certain subjects and overall approach to development. When the standards implement the comprehensive plan5 and are internally consistent, they can inform potential users of whether the community encourages urban development, rural conservation, rapid development review, slow growth, or any other community goal. Poorly written standards can also “inform” (whether it is true or not) the potential user that the jurisdiction doesn’t have a clear vision of what they want, isn’t interested in efficient effective regulations, or may be a regulatory nightmare that it isn’t worth the effort to wade into.

Standards that are certain and not inappropriately vague.

The LDR standards cannot be so uncertain as to be unconstitutionally vague under the Due Process provisions of the State and Federal Constitutions.6 To be constitutionally valid, regulations, such as the standards in LDRs,7 must be specific and clear enough that a person of common intelligence can tell what conduct is restricted by the standard and does not have to guess at what the standard means;8 the standard must give adequate warning or fair notice of what is required.

As stated by the Florida Supreme Court, “though easily enunciated, the vagueness test is often difficult to apply. … What constitutes unconstitutional vagueness is itself vague.”9 Imprecise language, by itself, does not make a standard fatally vague.10 A standard is not necessarily unconstitutionally vague just because it is subject to different interpretations.11To be sufficiently clear, the standard does not have to be intricately detailed;12 the amount of detail needed depends on the subject and the difficulty in providing highly detailed standards.13

One way to measure whether a standard is too vague is to evaluate the standard in its context of use. If the potentially ambiguous provisions of the standard gains sufficient meaning or clarity through a reading of the LDRs as a whole, the local comprehensive plan (which the LDRs are supposed to be implementing), state or federal law, common law, common trade usage, or some other relevant source (especially one referenced in the standards), it may not be considered unconstitutionally vague.14

Meeting constitutionality requirements is not the only reason a standard should not be vague, however. The standards are the rules that are to be followed. From a practical standpoint, if they are so unclear, so vague, that anyone that needs to use them can’t readily figure them out or has to resort to digging through multiple sources to figure out what they mean and what needs to be done, then they have failed as meaningful regulations. If it is not possible to tell from the standards what to do (or not do), the standards cannot implement the jurisdiction’s goals and intent in a consistent, efficient, and effective manner.

Standards that protect against arbitrary decisions and enforcement.

One major reason development standards should not be vague is because standards that people can’t figure out result in arbitrary decisions on when and how the standards apply. Arbitrary development standards15 are not lawful16 and do not aid in a fair, efficient and effective implementation of the comprehensive plan and the jurisdiction’s land development goals. The standards are vulnerable to claims of arbitrariness, not just when they have actually resulted in arbitrariness, but even when there is an opportunity for arbitrariness.17

The standards must be specific and clear enough to actually direct the land use decisions; standards cannot allow the decision-makers arbitrary discretion in making the decisions.18 The standards must also be clear enough to avoid arbitrary enforcement.19

Efficient standards.

Standards that are unnecessarily complex cannot be readily followed, meaning they are likely to result in longer review processes, be applied inconsistently, or be ignored, none of which is very efficient. Standards that include much more than needs to be addressed are similarly likely to be inefficient. Every development standard should be crafted with an eye to how it will be administered and enforced. If it cannot reasonably be administered or enforced or the cost, in terms of staff time and tax dollars spent, for doing so is too high, the standard’s inefficiency likely does more harm to the regulatory purpose it was to serve than good. Similarly, if the standards require too much of the user, beyond what is really necessary, there is every incentive for the user to try to get the standard waived or varied, or the user just ignores the requirement and hopes they aren’t called on it; this is also inefficient.

Standards that are equitable and nondiscriminatory.

The development standards must be equal and impartial in their operation,20 applying in all like cases with fairly consistent, equitable results. This does not mean that every person and every use must be treated the same, but that similar situations must be treated similarly.21 Consequently, the standards cannot group or separate uses in a way that creates unequal or discriminatory treatment between similarly situated uses.22 The test for determining the validity of a grouping or classification in the regulations is to assess “whether that classification rests upon some ground of difference having a fair and substantial relation to the object of the [regulation], so that all person similarly circumstanced shall be treated alike.”23

Reasonable and non-confiscatory standards

The development standards must be reasonable;24 and cannot impose unnecessary or excessive restrictions on a legitimate use of property.25 Additionally, the standards cannot be so restrictive that they are confiscatory (creating a regulatory taking of the land), precluding any reasonable use of property.26

Standards that are internally consistent.

Development standards need to all work together in a consistent manner. They need to be internally consistent, so that the LDRs groupings of uses or activities make sense relative to the regulation’s purpose and the restrictions placed on certain uses or activities are not arbitrarily different from those put on similar uses/activities or those with similar impacts on the community. There must be justifiable distinctions between the groupings or the way the uses or activities are treated.27

Further, the standards have to treat like things alike. The development standards cannot apply to only certain uses while permitting other similar uses to go unregulated or with lesser regulation28 and cannot unreasonably encroach on one’s right to conduct a legitimate business, even with the intent of promoting the public interests.29

Similarly, the regulations cannot be arbitrarily applied to uses or activities. There must be some analysis done to justify how the regulations will work in the particular jurisdiction and to demonstrate that they will advance the public purpose they purport to be related to;30 the standards need to have a reasonable or practical basis.31 This means that borrowing regulations from other jurisdictions without examining their fit in the target jurisdiction or pulling numbers out of the air because they sound good will not suffice.

Beyond not just conflicting with each other, the standards also need to all advance common goals or purposes.32 Standards that don’t have a grounding in the jurisdiction’s larger goals or which are at odds with the approach taken with other standards in the LDR often result in arbitrary requirements. It should be remembered that the standards adopted in the LDRs work with each other to define the jurisdiction’s intent on how the community is to be developed; a standard isn’t just about regulating that one use or activity, they cumulatively define the community’s regulatory theme.

Standards that are consistent with federal and state laws.

The development standards need to be consistent with applicable federal and state laws. But the standards should not, in most cases, attempt to implement these laws.

If the subject of the federal or state law is solely in the federal or state authority, the local development standards should recognize those laws and that authority, with no standards that conflict with the laws or the authority, but should not attempt to implement these laws (e.g. include requirements of proof of compliance, or penalties for non-compliance, with these laws). When the subject is exclusively in the federal or state authority, local governments have no authority to make laws on that subject (they are “preempted”) or to administer those laws, and any attempt to do so would not be valid.33

If the subject is also concurrently within the local government’s authority, care must be taken to keep local laws, and their implementation/enforcement, from creating conflicts with the state or federal law. Often, even though the local government may also has authority to regulate in a subject area, when the issue is not a major local issue or the review factors are so complex or expensive as to exceed the local government’s ability to enforce local standards, it may be more appropriate to just defer to the state or federal regulations in the local development standards.

There are some federal and state laws, however, that address local government actions34 and need to be directly integrated in the local development standards. These are federal and state laws that should (and usually must) be implemented by the local development standards.

Standards that restrict administrative and quasi-judicial actions to the proper role.

The standards are the rules to be followed. Only the legislative body can make these standards or rules. Accordingly, governmental decisions made or actions taken by persons or bodies, other than the legislative body acting in its legislative capacity, must only be to apply, administer, or enforce the adopted regulations.

If the standards in those regulations are essentially non-existent, too vague, or provides so little guidance that making decisions requires the use of factors or analysis other than those adopted for that purpose,35 the decision-maker becomes the rules-maker (by deciding what not-adopted rules must be met) rather than the administrator or applier of the law. This is beyond the scope of power (authority) of the administrator or quasi-judicial decision-maker.36 Therefore, the standards cannot authorize or allow consideration of any factors outside of the adopted standards.37

Further, the standards applied to development and land use activities must be adopted by the legislative body,38 in almost all situations within the LDRs,39 rather than being part of an administratively created development procedures manual, by interpretation, or by customary usage (so as to prevent unlawful delegation of the legislative authority).40 And, again, the legislative body cannot allow the standards it adopts in the LDRs to be so vague or inadequate, either purposefully or by default, that they would allow someone other than the legislative body to say what the rules are (an unlawful delegation of the legislative authority).

Additionally, the standards cannot allow arbitrary discretion in whether the standards must be followed or can be ignored.41 The standards have to actually create the rules that are to be followed and ensure that they, and only they, are followed.

Standards that provide direction to reviewing courts.

The standards should be able to provide direction to reviewing courts of what should have been the local governments review factors, so meaningful judicial review is available. If they are written and followed properly, there should be clear requirements that the decision-makers should have followed, so the reviewing court can accurately examine the situation, without wandering through the whole record and improperly re-weighing the particulars.

Implications of Improper Standards

Besides the very important problems of comprehensive plans not being implemented and LDRs not effectively or efficiently achieving their purposes, there are other implications of not having appropriate standards.

If an application meets the standards, it must be approved.

As has been addressed in several other articles,42 if an application for a development order, except for a rezoning, meets the adopted standards, the application must be approved. If the standards don’t regulate what the jurisdiction actually intends and relies on the “discretion” of the application reviewer/decision-maker to get the intended result, they may well fail.43 Therefore, the implication of having standards that don’t do what they are supposed to do is that there may be undesired development or greater numbers of lawsuits.

If the standards are found to be invalid, the regulations are void.

Some may think that having vague or otherwise inadequate standards gives the decision-makers more discretion. In reality, it puts the regulations at risk for being declared invalid or void (as if they did not exist).44 This can result in whole portions of the LDRs being declared void, as happened to Miami-Dade County’s “Unusual Uses” provisions after the Third District Court of Appeals’ first ruling in Miami-Dade County v. Omnipoint Holdings, Inc.,45 which was later quashed by the Florida Supreme Court,46 but resulted in a lot of headaches in the interim.

When the standards that are found to be invalid are for special exception type uses (uses that would not be allowed in a district unless they meet a heightened review level), the uses themselves become prohibited and become unavailable as potential uses in those districts.47 Ironically, this actually gives a disincentive to those applicants that might be inclined to challenge a denial on the grounds that the standards are inadequate, in that, rather than winning the challenge and being able to move forward with the use, the applicant can win the challenge and have no option to request the use; helping to perpetuate the inadequate regulations.

The decision-maker does not have the authority to ignore the standards.

Just as the decision-maker does not have the authority to go outside the adopted standards to consider other factors, the decision-maker also does not have the authority to ignore what is adopted, even if it is not relevant or is inconsistent with other, controlling, laws.48 This means that, unless the regulations provide for exceptions or circumstances when the standards can be determined to be inapplicable or irrelevant, all of the standards in a group or section would have to be applied, whether they should be or not. It also means that standards that do not follow or are not consistent with federal or state law, or even the local comprehensive plan, must be followed and applied. Since these laws and the comprehensive plan are supposed to be superior to local regulations, it is clear that keeping outdated or inconsistent standards in the LDRs can create significant legal problems.

Conclusion

The purposes for having the standards define the limits that are placed on the drafting and administration of the standards. To follow the relevant constitutional limits, they must be within the proper scope of power of the jurisdiction and the actual decision-maker. To implement the local goals, they must provide meaningful regulations that, when applied and enforced, actually implement the intent and requirements of the local charter and comprehensive plan. To be efficient, effective, and fair, they must allow and require actions and decisions that are consistent, non-arbitrary, and equitable. To inform, they must be sufficiently clear and consistent as to actually advise every one of the rules they are to follow.

The standards are the heart of the LDRs. They say what must be done; everything else is just administration or process. As indicated in this article, there are many legal requirements for how the standards should be drafted. In reality, however, the courts are fairly lenient on how tightly these legal requirements bind the local governments. So what incentive is there for local governments to potentially tie their hands with specific standards? The biggest one, and the only one they should need, is to be able to actually implement the goals they have developed for the community, through clear, efficient and effective standards that address what is intended to be addressed, fairly and predictably. This should be enough to justify making the effort.

Endnotes:

  1. See the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan for the list of the Florida Statues addressing LDRs’ implementation of the comprehensive plan. Back to text.
  2. Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla. 1981) (“If the regulation does not promote the health, safety, welfare, or morals of the public, it is not a valid exercise of the police power”); Newman v. Carson, 280 So.2d 426, 428 (Fla. 1973) (“Legislative action exercised under the state’s police power is valid if such exercise is confined to those acts which may reasonably be construed as expedient at least for the protection of public safety, public welfare, public morals or public health.”); Burritt v. Harris, 172 So.2d 820, 823 (Fla. 1965) (“The owner will not be required to sacrifice his rights [to make legitimate use of his lands] absent a substantial need for restrictions in the interest of public health, morals, safety or welfare. If the zoning restriction exceeds the bounds of necessity for the public welfare, … they must be stricken as an unconstitutional invasion of property rights”); City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430 (Fla. 1954) (“It is well settled that a zoning ordinance to be valid must bear a substantial relation to the public health, safety, morals or general welfare”) ; City of W. Palm Beach v. State ex rel. Duffey, 30 So.2d 491, 492 (Fla. 1947) (“When regulations are to be imposed in order to promote health, welfare, safety and morals it is necessary that … the ordinance must have some relation to a lawful purpose-to promote health, welfare, safety and morals”). Back to text.
  3.  101 C.J.S. Zoning s16, as cited in Davis v. Sails, 318 So.2d 214, 218 (Fla. 1st DCA 1975) (“The required relationship of the zoning ordinance or regulation must be real and not feigned. The law will not tolerate an invasion of the right of property under the guise of a police regulation in the professed interest of the public health or safety when it is manifest that such was not the object of the regulation. Hence, a restrictive ordinance which bears no material relation to the public health, safety, morals, or general welfare cannot, under the guise of a zoning regulation, either confiscate property or inflict a substantial injury on the owner thereof”). Back to text.
  4.  7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“[A] zoning ordinance enacted simply as a piece of guesswork, with no attempt to study the city’s problems and no effort to accomplish some general plan adapted to the city’s needs in the way of health, safety, prosperity, welfare, and the like, and attended by no surety of the existing situation to which it applies, is generally unsustainable as a reasonable or valid police regulation”), citing State ex rel. Henry v. City of Miami, 117 Fla. 594, 158 So. 82 (1934) and Innkeepers Motor Lodge, Inc. v. City of New Smyrna Beach, 460 So. 2d 379 (Fla. 5th DCA 1984). Back to text.
  5. Assuming the comprehensive plan is well written. Back to text.
  6. The Federal and State Constitutions (Amendment XIV of the U.S. Constitution and Article I, Section 9, of the Florida Constitution) provide that people cannot be deprived of life, liberty, or property without due process of law. Generally speaking, the greater the potential impact on the interest, the greater the amount of due process protections required. This means that criminal laws, those laws that involve highly protected interests, and those involving major economic impact (especially when there are lesser public interests protected by those laws) are typically construed to require greater amounts of due process protections. LDRs probably fall fairly far down the protection scale, except in the cases of freedom of speech rights or other “fundamental” rights. That being said, however, due process rights still control the LDRs, albeit at a lesser level than in some other situations. Back to text.
  7. There is at least one case, however, that said this test does not apply to regulations such as the LDRs unless someone who violates the regulations is subject to penalty (a “fine, penalty, or confinement inflicted upon a person by the authority of the law”). Florida E. Coast Indus. Inc. v. State, Dept. of Cmty. Affairs, 677 So.2d 357, 362 (Fla. 1st DCA 1996). Back to text.
  8. D’Alemberte v. Anderson, 349 So.2d 164, 166 (Fla. 1977); Webb v. Department of Professional Regulation, Bd. of Professional Engineers, 595 So.2d 1103 (Fla. 5th DCA 1992); Bertens v. Stewart, 453 So.2d 92, 93-94 (Fla. 2d DCA 1984), City of St. Petersburg v. Pinellas County Police Benev. Ass’n, 414 So.2d 293, 294-95 (Fla. 2d DCA 1982). Back to text.
  9. D’Alemberte v. Anderson, 349 So.2d 164, 166 (Fla. 1977). Back to text.
  10. Cashatt v. State, 873 So.2d 430, 435 (Fla. 1st DCA 2004). Back to text.
  11. Dep’t of Ins. v. Se. Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla. 1983). Back to text.
  12. Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007); Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 639 (Fla. 1st DCA 1999) (“Impossible standards are not required.”); Life Concepts, Inc. v. Harden,562 So.2d 726, 728 (Fla. 5th DCA 1990) (“While it is true that the ordinance did not contain specific quantitative guidelines …, that level of specificity is neither required nor workable.”). Back to text.
  13. Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007) (“The specificity of the guidelines will depend on the complexity of the subject and the “degree of difficulty involved in articulating finite standards”) quoting Askew v. Cross Key Waterways, 372 So.2d 913, 918 (Fla.1978). Back to text.
  14. D’Alemberte v. Anderson, 349 So.2d 164, 166-69 (Fla. 1977). Back to text.
  15. As one guide, according to § 120.57(1)(e)2.d., F.S., which regulates state agency rules, “[a] rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational ….” Back to text.
  16. N. Bay Village v. Blackwell, 88 So.2d 524, 526 (Fla.1956) (“An ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particular structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment”); ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 149 (Fla. 1st DCA 1979) (“Any standards, criteria or requirements which are subject to whimsical or capricious application or unbridled discretion will not meet the test of constitutionality.”); Friends of Great Southern., Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007). Back to text.
  17. ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 150 (Fla. 1st DCA 1979) (“Nor is it necessary that the record reveal that the governing body or its members have in fact acted capriciously or arbitrarily. It is the opportunity, not the fact itself, which will render an ordinance vulnerable”); City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100, 1104 (Fla. 3rd DCA 1983). Back to text.
  18. Drexel v. City of Miami Beach, 64 So. 2d 317, 319 (Fla. 1953) (“The generally accepted rule is to the effect that an ordinance which vests in municipal authorities arbitrary discretion to grant or revoke a license to carry on an ordinarily lawful business, without prescribing definite rules and conditions for the guidance of the authorities in the execution of their discretionary power, is invalid”), quoting Permenter v. Younan, 31 So.2d 387, 389 (Fla 1947); City of W. Palm Beach v. State ex rel. Duffey, 30 So.2d 491, 492 (Fla. 1947); Alachua County v. Eagle’s Nest Farms, Inc., 473 So.2d 257, 260 (Fla. 1st DCA 1985) (Without sufficient standards, “councilmen can act upon whim, caprice or in response to pressures which do not permit of ascertainment or correction”), quoting Effie, Inc. v. City of Ocala, 438 So.2d 506, 509 (Fla. 5th DCA 1983); City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100 (Fla. 3rd DCA 1983). Back to text.
  19. State v. Mark Marks, P.A., 698 So.2d 533, 539 (Fla. 1997). Back to text.
  20. City of Wilton Manors v. Starling, 121 So.2d 172, 174 (Fla. 2d DCA 1960); Patch Enterprises v. McCall, 447 F.Supp 1075 (M.D. Florida 1978) (“[T]he specific exercise of police power … must be impartial and nondiscriminatory in its proscription”); City of Homestead v. Schild, 227 So. 2d 540, 543 (Fla. 3d DCA 1969) (“[T]he law of Florida is committed to the doctrine of the requirement that zoning ordinances and their exceptions must be predicated upon legislative standards which can be applied to all cases, rather than to the theory of granting an administrative board or even a legislative body the power to arbitrarily decide each case entirely within the discretion of the members of the administrative board of legislative body …”). Back to text.
  21. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
  22. Eskind v. City of Vero Beach, 159 So.2d 209, 211 (Fla.1963) (stating “Customarily, community attractiveness is accomplished by general zoning plans and related regulations which do not segregate selected businesses or activities for … discriminatory treatment. A regulation … must not impose discriminatory restrictions on the activities of a carefully selected business while permitting others similarly conditioned to engage in the prohibited activity”); Patch Enterprises v. McCall, 447 F.Supp 1075 (M.D. Florida 1978) (“Persons engaged in similar business activities must be treated without favoring any particular ones”). Back to text.
  23. State v. Lee, 356 So. 2d 276, 279 (Fla. 1978). Back to text.
  24. Dade County v. Nat’l Bulk Carriers, Inc., 450 So.2d 213, 216 (Fla. 1984); City of Wilton Manors v. Starling, 121 So.2d 172, 174 (Fla. 2d DCA 1960) (“In order to be upheld the ordinance must … be reasonable …); 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“Although police powers of municipalities are sufficiently broad so as to control the use of property under a general zoning plan, the application of the plan must not be unreasonable …”) citing, in addition to National Bulk Carriers, Oka v. Cole, 145 So. 2d 233 (Fla. 1962) and Dade County v. Moore, 266 So. 2d 389 (Fla. 3d DCA 1972). Back to text.
  25. Burritt v. Harris, 172 So.2d 820, 823 (Fla. 1965) (“The constitutional right of the owner of property to make legitimate use of his lands may not be curtailed by unreasonable restrictions under the guise of police power”); 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“The right of owners to devote their land to any legitimate use is properly within the terms of the United States Constitution and the legislature may not, under the guise of the police power, impose unnecessary or unreasonable restrictions on that use”), citing Prescott v. Charlotte County, 263 So. 2d 623 (Fla. 2d DCA 1972); William Murray Builders, Inc. v. City of Jacksonville, 254 So. 2d 364 (Fla. 1st DCA 1971); and 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“An excessive restriction on the use of private property that does not contribute substantially to the public health, morals, safety, and welfare is arbitrary and unreasonable and thus, unconstitutional”) citing City of Boca Raton v. Boca Villas Corp., 371 So. 2d 154 (Fla. 4th DCA 1979). Back to text.
  26. City of Hollywood v. Hollywood, Inc., 432 So.2d 1332, 1336 (Fla. 4th DCA 1983). Back to text.
  27. City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430-31 (Fla. 1954). Back to text.
  28. Cleburne v. Cleburne Living Center, Inc., 473 US 432, 448 (1985) (One use cannot be regulated more restrictively than other uses with similar aspects unless the first use “would threaten legitimate interests of the [local government] in a way that other permitted uses … would not. … [M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating [one use] differently from [other similar uses]. … [The local government] may not avoid the strictures of [the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic. ‘Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.’ [citation omitted]”). Back to text.
  29. Eskind v. City of Vero Beach, 159 So.2d 209, 212 (Fla.1963), (“When there is no reasonably identifiable rational relationship between the demands of the public welfare and the restraint upon private business, the latter will not be permitted to stand”); State v. Reeve, 139 So. 817, 820 (Fla. 1932), (“An individual has the right to pursue any trade, calling, or occupation, without restriction, which is not injurious to the public. The exercise of the police power for the regulation of any trade, occupation, or calling can be justified only on the ground of necessity for the health, safety, welfare, or comfort of society). Back to text.
  30. Innkeepers Motor Lodge, Inc. v. City of New Smyrna Beach, 460 So.2d 379, 380 (Fla. 5th DCA 1984). Back to text.
  31. Florida League of Cities, Inc. v. Dep’t of Envtl. Regulation, 603 So.2d 1363, 1368 (Fla. 1st DCA 1992). Back to text.
  32. E.g., special exception uses in a district should have standards that mitigate the special exception issues or concerns to make the “possible” special exception use compatible with the permitted uses in the district, so all the uses allowed in the district work together for the same goal. Back to text.
  33. State v. Harden, 938 So.2d 480, 485-86 (Fla. 2006) as to federal preemption. Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309, 314 (Fla. 2008) as to state preemption. Back to text.
  34. E.g., Section 47 U.S.C. 332(c)(7) (of the Telecommunications Act of 1996, addressing local zoning review of wireless telecommunications facilities) and the Community Planning Act in Part II, Chapter 163 of the Florida Statutes. Back to text.
  35.  E.g., standards that state “The structure must be appropriately located on the lot” without delineating what factors make it “appropriate” or “inappropriate;” decisions that are based on whether or not neighbors object to the request, making the neighbors’ variable opinions the controlling rule. Back to text.
  36. N. Bay Vill. v. Blackwell, 88 So. 2d 524, 526 (Fla. 1956) (“The rule is well stated in Yokley on Zoning Law and Practice, Vol. 1, Section 62, as follows: ‘The general rule is that a zoning ordinance must prescribe definite standards and that neither the city council, the board of appeals created by ordinance or statute, nor the building inspector are properly vested with discretionary rights in granting building permits or variances in exception to the zoning ordinance unless there has been established a definite standard to guide them in the exercise of such powers’”). Back to text.
  37. Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 638 (Fla. 1st DCA 1999) (“While a local government may deny a development order based on a determination that a proposed development would be inconsistent with the stated goals of the locality’s comprehensive plan, [citation omitted], a local government may not deny a development order based on criteria which are not specifically enumerated in its land use regulations”), citing Drexel v. City of Miami Beach, 64 So.2d 317 (Fla.1953); Effie, Inc. v. City of Ocala, 438 So.2d 506 (Fla. 5th DCA 1983); ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146 (Fla. 1st DCA 1979); Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 375, 377 (Fla. 3d DCA 2003) (“[Q]uasi-judicial boards cannot make decisions based on anything but the local criteria enacted to govern their actions”). Back to text.
  38. Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 638 (Fla. 1st DCA 1999); City of St. Petersburg v. Schweitzer, 297 So.2d 74, 76 (Fla. 2d DCA 1974). Back to text.
  39. One exception to the standards being required to be adopted in the LDRs is when the standard is found in the local comprehensive plan. As is addressed in the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan, there are many problems with relying on standards within the comprehensive plan that are not also addressed in the LDRs (not the least of which is the fact that such an approach is arguably inconsistent with the intent of the 2011 version of section 163.3177(1), F.S., which indicates that the implementing standards are to be found in the LDRs, not the comprehensive plan itself), but, regardless, the comprehensive plan, as an ordinance adopted by the local legislative body, meets the “adopted in an ordinance” requirement. Back to text.
  40. Askew v. Cross Key Waterways, 372 So. 2d 913, 924–25 (Fla. 1978) (The doctrine of nondelegation of legislative power “represents a recognition of the express limitation contained in the second sentence of Article II, Section 3 of our [State] Constitution. … Under this doctrine fundamental and primary policy decisions shall be made by members of the legislature who are elected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program.”); Sarasota County v. Barg, 302 So.2d 737, 742 (Fla. 1974) (“The determination of what conduct falls within the proscription of these ambiguous provisions is left to the unbridled discretion of those responsible for applying and enforcing the Act. This amounts to an unrestricted delegation of legislative authority, in violation of the Florida Constitution, Article II, Section 3, F.S.A.”); Smith v. Portante, 212 So. 2d 298, 299 (Fla. 1968) (“No matter how laudable a piece of legislation may be in the minds of its sponsors, objective guidelines and standards should appear expressly in the act or be within the realm of reasonable inference from the language of the act where a delegation of power is involved . . . .”); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla. 1968). (“When a statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say What the law shall be …”). Back to text.
  41. City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100, 1105 (Fla. 3d DCA 1983) (“[A]n ordinance which permits a legislative agency to totally disregard listed criteria and to base a decision upon unlisted or no criteria” is not constitutional), as cited in Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 831 (Fla. 4th DCA 2007). Back to text.
  42. See We Could Play This Game Much Better If We Knew The Rules; Limited or “anything goes?” – Testimony evidence in a Florida quasi-judicial land use hearing. Back to text.
  43. They would likely legally fail, but, whether challenged or not, would likely fail to achieve the jurisdiction’s adopted goals, because that isn’t what the regulations require. Back to text.
  44. Drexel v. City of Miami Beach, 64 So. 2d 317, 319 (Fla. 1953); North Bay Village v. Blackwell, 88 So.2d 524 (Fla.1956). Back to text.
  45. 811 So.2d 767 (Fla. 3rd DCA 2002). Back to text.
  46. 863 So.2d 195 (Fla. 2003). Back to text.
  47. City of St. Petersburg v. Schweitzer, 297 So.2d 74, 76-78 (Fla. 2d DCA 1974). Back to text.
  48. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 375, 377 (Fla. 3d DCA 2003). Back to text.

What is the “Subdivision of Land” Regulated by Florida LDRs?

Florida land development regulations (“LDRs”) are required to “regulate the subdivision of land” by §163.3202(2)(a) of the Florida Statutes. What does that mean?

In its simplest explanation, a subdivision of land is the division of a parcel into sub-parcels. So, in its simplest form, the regulations of the subdivision of land addressed in the LDRs would be regulations on any division of parcels. But do the LDRs have to address every parcel division?

It may help to have a little history. The Florida Statutes used to have extensive definitions of and requirements for subdividing and subdivisions, as part of the State zoning and subdivision enabling legislation. That changed in 1972 and further in 1985 when the State adopted the growth management acts, which shifted the focus from regulatory control through zoning codes and subdivision regulations to comprehensive planning and the implementing land development regulations (“LDRs”).

But the LDRs are still required by the Florida Statute to “regulate the subdivision of land.” There is amazingly little in the Florida Statutes to guide what that means, however, with even less State guidance now, with the deletion of the Chapter 9J-5 F.A.C. subdivision provisions in 2011. Consequently, there appears to be only one remaining definition directly addressing the subdivision or subdividing of land in the Florida Statutes,1 and that is under the platting requirements (§177.031(18), F.S.).

If the only definition of the subdivision of land in the Florida Statutes is under the platting requirements, does that mean that the Florida Statutes consider subdividing to only include actions that fall under the platting requirements under chapter 177 and is that is the only “subdivision of land” the statutes require the LDRs to regulate? Possibly, but it may not be that simple.2

Looking specifically at that statutory definition of subdivision, it says a “subdivision” is “the division of land into three or more lots, parcels, tracts, tiers, blocks, sites, units, or any other division of land; and includes establishment of new streets and alleys, additions, and resubdivisions; and, when appropriate to the context, relates to the process of subdividing or to the lands or area subdivided.” §177.031(18), F.S. That seems simple – a subdivision is the division of land into three or more divisions.

But, what is the division of land into two parcels? If that is not a subdivision, what is it when someone divides land into two parcels, waits a month or a year, and then divides each of those two parcels into two more parcels, making a total of four parcels from the original parcel? Is that a subdivision?

Additionally, the definition says “and includes establishment of new streets and alley, additions, and resubdivisions.” Does that mean a division of land must include at least one of those to be a subdivision? The terms “additions and resubdivisions” seems to suggest that the term subdivision includes additions to subdivisions and re-division of the subdivision. But, since divisions to create streets and alleys would seem to be a type of division of the land, the “establishment of new streets and alleys” wouldn’t seem to need to be addressed separately, unless the wording was meant to require the presence of streets and alleys before the division of land is considered a subdivision under this definition. In other states, that is exactly what it means; the establishment of streets language has been held to mean that subdivision controls don’t apply to divisions of land without streets (e.g. fronting on a public road).3 So, perhaps the division of land has to include streets to be considered a subdivision under the platting definition.

Clearly, the statutory definition of subdivision under the platting requirements leaves some questions about what it means to regulate the subdivision of land. But there are indications elsewhere in the statutes, at least as far as the statutory minimum requirements of LDR subdivision regulation are concerned, that some of these questions are not going to be answered at the State level. Such indications are found in the statutory definitions of a “development order,” a “development permit” and “development.”

Subsection 163.3164(15), F.S., defines a “development order” as “any order granting denying, or granting with conditions an application for a development permit” and subsection (16) defines a “development permit” as including “any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.” This means, for the subject discussion, that a development order is any decision on an application for a subdivision approval, with the inference that a subdivision approval is a type of official action of the local government that has the effect of authorizing the development of land. This seems to indicate that a subdivision approval authorizes “development.”

Section 380.04, F.S., defines “development,” in part, as “the dividing of land into three or more parcels.”4 This would indicate, therefore, that a subdivision approval is the authorization of the division of land into three or more parcels. This also matches part of the platting definition of subdivision.

Putting all this together, it appears that the statutes require that, at a minimum, LDRs regulate the division of land into three or more parcels.5 It may require more to plat a subdivision. But how those three parcels are determined to be created, what lands might be excepted from formal subdivision review, when and how the statutory platting requirements apply, and other issues related to those divisions appear to be largely left up to the local governments. See future articles on Platting and The Purpose of Subdivision Regulations for more on subdivision regulation issues.


End Notes

1There are a few definitions that include the word subdivision, but the definitions use the word without actually defining what a subdivision is.

2 For example, a 1998 amendment to the chapter 177 definition of “subdivision” changed the definition from the phrase “the platting of land” to current phrase “the division of land.” That change arguably pulled the defined “subdivision” from only those associated with platting to include all divisions of land. But other provisions in the definition and chapter 177 seem to reunite the statutory subdivision with plats.

3Patricia E. Salkin, American Law of Zoning § 31:2 (5th ed. 2010).

4 This part of the definition was completely overlooked (or ignored) in a rather strange recent case that found that a plat did not constitute a development order. Graves v City of Pompano Beach,___ So. 3d ___, 36 Fla. L. Weekly D778, 2011 WL 1376617, (Fla. 4thDCA 2011). Although the substituted opinion, at 74 So. 3d 595, issued November 23, 2011, after rehearing, reversed and found that a plat does constitute a development order, based on the City’s ordinance and a liberal reading of the statutory definition of a development permit, it still did not recognize the subdivision/platting aspect of the definition of development.

5 Whether the local governments can go beyond the statute to regulate divisions of land into less than three parcels through the LDRs goes to the question of whether LDRs are limited to only regulating “development,” which is an issue for another article.

Conducting Florida Quasi-Judicial Land Use Hearings That Work

Have you attended a land use hearing in a Florida city or county that was identified as being a quasi-judicial hearing? Were you impressed? Did it seem to work well, fairly, efficiently? Odds are, no. Most quasi-judicial land use hearings don’t seem to work very well.

Given that we are supposed to have been holding them on land use matters for a couple of decades or more, you would think we would have gotten them right by now. But that doesn’t seem to be case. There are many reasons. The purpose of this article is to try to address several of those reasons and make suggestions on how they can be fixed.1

The problems with quasi-judicial hearings start well before the actual hearing. They start in the misunderstanding of why the hearings are held and what is to be achieved and they continue through the regulations and into the hearing. Accordingly, this article is broken into four parts, which are:

1. Recognizing the proper function and purpose of the hearings;
2. Fixing the problems with the LDRs’ substantive provisions;
3. Changing the LDRs’ procedural provisions; and
4. Altering the way the hearings themself are conducted.

1. Proper Function and Purpose of Quasi-judicial Land Use Hearings

The first step to efficient and effective quasi-judicial land use hearings is to understand their function and purpose and how they are fundamentally different from the legislative type hearings we are used to holding. See the article Purpose of a Florida Quasi-judicial Land Use Hearing for the details, but, bottom line, the function of a quasi-judicial land use hearing is to be judicial-like in only applying the existing adopted regulations or policies to specific development applications, as opposed to the legislative-like creation of new laws or policies.2 Given this function, the only purpose of a quasi-judicial land use hearing is to apply the existing adopted regulations/policies/requirements to a specific application (i.e. to make a determination on whether the application meets the existing regulations/ policies/ requirements).3

The effect of this function/purpose is that it completely changes the focus of the hearing and, consequently, completely changes what happens (should happen) at those hearings. The focus is shifted from information gathering in a wide universe of possible issues to information gathering on very narrow points of regulation. It changes the roles of the participants in the process and their focus.4 It changes what evidence is presented, who presents it, and what must be done with it.5 And, most importantly, it changes what the decision-maker is being asked to do; the question before them is not “what do we want to do,” but “does this application do what it is required to do.” This fundamental shift must be recognized and be the foundation of the entire review process.

2. Fixing the Problems with the Substantive Provisions of the Land Development Regulations

With the focus of the quasi-judicial hearing entirely on the regulations to be applied, the scope, quality, and content of the regulations themselves becomes critical. Accordingly, the fixes start with the substantive provisions of the LDRs.

It goes without saying that the provisions of the LDRs must be lawful.6 There are also several concept changes to the substantive provisions that can improve the quasi-judicial process. Given the quasi-judicial hearing purpose, the main changes can be summarized as a) only require public hearings when needed; b) have specific, quality requirements; and c) clearly identify those requirements for each type of application.

a. Only Require Public Hearings When Needed

Not every application has to go to a hearing. If a hearing is required by the statutes, the local charter, or the comprehensive plan, it has to. But, for all the other applications, consideration should be given as to why it is going to a hearing.

Given the function and purpose of a quasi-judicial land use hearing, what are some improper7 reasons to review an application through a public hearing?

  • The request is controversial and neighbors are upset.
  • This type of use has been controversial in the past, so send it to a public hearing just in case.
  • The governing body, as the elected officials, wants to have a say in whether something is approved or not.

None of these reasons (or others like them) have anything to do with evaluating whether the request meets the applicable LDR and comprehensive plan requirements.

What are proper reasons to review an application through a public hearing?

  • The determination of whether there is compliance with a regulation8 or whether to grant certain waivers to or variances from the regulations9 cannot be definitively determined from information available to the staff.10
  • To make discretionary determinations which are beyond the authority of staff.11

These “proper” reasons are pretty narrow. It is likely a large number of applications that are currently sent to a public hearing would not need to go to a hearing, if analyzed under these reasons.

Similarly, many uses are classified as requiring a hearing review without an adequate understanding of what is the issue to be resolved at that level of review.12 If it is not understood what problem, issue, or concern caused the use to be in that classification, there is no way to determine what needs to be done to correct the problems to make the use approvable13 and no way to have specific standards or criteria to direct the decision. To resolve this, there needs to be clear understanding about why uses are classified as they are in the LDRs and that understanding needs to be clearly articulated and reflected in the LDRs criteria and standards.

b. Have Specific, Quality Requirements

Once it is understood why certain types of applications and uses are being sent to a public hearing, there must be appropriate, specific standards adopted in the LDRs that address those issues and that, if met, will resolve the issues; making it clear what needs to be done to allow the use to be approved.

As discussed in the article The Rules of the Game – Analyzing Development Standards, what is to be achieved by these standards must have a substantial relationship to the promotion of legitimate public purposes addressing the public health, safety, and welfare. The standards must be tailored to actually address (implement) those public purposes, based on an actual analysis of the situation. This means that the regulations must identify what they are trying to achieve and actually allow it to be achieved.14

As also discussed in the Development Standards article, the standards must be definitive, capable of consistent application, and reasonable. As discussed in the article We Could Play This Game Much Better If We Knew The Rules, although some Florida cases have upheld standards that many would consider rather vague, it is a much more appropriate goal to advance good decisions, which fully and consistently implement the local government’s adopted Comprehensive Plan and land development regulations, through clear, reasonable standards, than to make the standards so vague the decision-makers can make whatever decision seems expedient at the moment.

c. Clearly Identify Requirements

Before there can be a determination of whether an application meets the applicable regulations, it must be possible to identify what regulations are applicable; in this case, what are the requirements that must be met for the application to be approved through the quasi-judicial hearing review.

Determining the applicable criteria for rezoning applications is one example of a common criteria identification problem area. It is often difficult to find specific requirements that are to apply to rezoning decisions. The LDRs will either not list any criteria or will use phrases such as “the rezoning must be consistent with the provisions of the LDRs.” How can anyone tell what has to be met, much less measure whether they have been met?

A different problem is often seen for special exception15 applications. Special exceptions are uses that are allowed in certain circumstances. But many LDRs require review of not only those “certain circumstances,” but also review of whether the use meets criteria that have nothing to do with the use being a special exception (e.g. reviewing the criteria that also apply to the use where it is allowed as a permitted use), review of criteria that have nothing to do with the use (e.g. review of the aspects of the structure that would house the use that would otherwise be allowed without extraordinary review), or review of restrictions on property or structures not associated with the request being made (e.g. requiring a binding site plan for portions of the property that have nothing to do with the requested special exception).

The ways to fix these problems are to:

  • Clearly identify the different types of review and what they are to achieve;
  • Gather the applicable regulations for a particular type of review in one place in the LDRs or, at least, use extensive cross references, so it is immediately clear what is required for a particular type of application to be approved;
  • Be specific in the regulations which all applications of each type must meet to be approved;
  • If there are any, state the specific regulations that different applications of the same type must meet to be approved;
  • Only list regulations that go to the reason that the application requires a public hearing review;
  • If there are characteristics of the development, property, structure, or use that trigger the public hearing review (i.e. but for these characteristics, it would not have to be reviewed in this public hearing), only address those characteristics.

3. Problems with the Procedural Provisions of the Land Development Regulations

The solutions for a more efficient hearing process also start with the LDRs. In addition to complying with the requirements that govern all land use processes,16 there are common procedural problems that impact the efficiency and effectiveness of the quasi-judicial land use process. Some of these can be described as: a) not having a clear, proper process; b) not requiring that the proper process be followed; and c) not allowing and requiring the participants in the process to be responsible for their roles.

a. Clear and Proper Process

In many LDRs, the development review process is so onerous and confusing, it requires a professional engineer, planner, or attorney to navigate the way through the process. While good for those practitioners, it is not very efficient.

The quasi-judicial review process should have specific objectives to be achieved.17 Efficiency and effectiveness, as well as consistency and fairness in application, should always be objectives. The procedures to meet those review process objectives should be clearly laid out in a step-by-step process. Although there must be contingencies procedures for situations that do not fit the typical pattern, the guidelines for the application of these alternative procedures should also be clearly spelled out, so they are consistently and fairly applied.

The process must advance the proper purpose. As indicated above, the function of a quasi-judicial hearing is very limited. The procedures for that hearing process must implement and advance that limited function and not allow the proceedings to wander (or be forced) into improper areas.

b. Require the Proper Process Be Followed.

Even if the LDRs lay out clear and proper processes, they don’t mean anything if the words used weaken or supplant the process. One example of this is when the procedures are laid out clearly but words are used, such as “guide” or “steer,” that can be interpreted as allowing discretion in whether or not to follow the requirements. If certain standards are the adopted requirements, they must be applied; unless the provisions specifically lay out how and when certain requirements are not to be applied, there is no discretion in whether they control or not—they control.18

The procedures must also make it clear which are critical components. For example, if the provision of timely helpful information is one of the objectives of the process, this creates critical time-frames (e.g. the procedures must require that applications cannot be amended after certain points, notice of the application must be provided by a certain date, staff reports have to be finalized and available well before the hearing, participants wishing to have party-intervenor status must declare that intention by a certain point, and the potential participants must declare the nature of their concerns by a certain point). Those critical components then must be required to be strictly followed.

Anyone that may wish to speak at the hearing also needs to know what they need to address, in what form, and then be held to it. As was suggested in the article We Could Play This Game Much Better If We Knew The Rules, the list of the applicable standards the application needs to meet, and against which the appropriateness of the application will be measured in the hearing, should be provided in the notice to surrounding neighbors. The standards also should be readily available, on an application petition by petition basis, on a source, such as the local government’s web site, that can be accessed by anyone that might be interested in commenting.19

c. Allow and Require the Participants To Be Responsible For Their Roles

As described in the Rules and Testimony articles, each participant in the quasi-judicial process has a specific role to play. The provisions of the LDRs must clarify what those roles are, what they entail, and what must be done to fulfill those roles. And the requirements must hold the participants to their role.

The regulations must also allow the roles to be fulfilled; must set out clear pathways that don’t allow one participant (or the process itself) to create roadblocks or unreasonable obstacles. This means, in addition to timely notice, full and timely information availability to and from all participants. Consideration should be given to requiring at least an outline of the evidence points to be raised by opponents before the hearing, so there is less risk of the hearing version of “trial by ambush” occurring.

One of the most critical participants in the quasi-judicial role is the decision-making body. For there to be any chance of the quasi-judicial process working properly, the LDRs must clearly delineate what the decision-makers are to consider and what they are not. And the LDRs must hold them to those requirements.

4. Problems with the Way Quasi-judicial Hearings Are Conducted

Now we come to the hearing itself. Some of the problems at the hearing can be summarized as: a) procedures are not followed, b) too much irrelevant information is allowed in the hearing record, c) the decision-makers do not have a reasonable opportunity to consider the evidence provided, and d) there is no way to know why the decision-makers made the decision or the evidence on which it was based.

a. The procedures are not followed;

All the procedures in the world mean nothing, if they are not followed. If the participants in the hearing do not have confidence that the written procedures are going to be followed, they cannot prepare efficiently or effectively; the only recourse is to address everything and the kitchen sink, in the hope that something works. To work fairly, effectively, and efficiently, the adopted standards and procedures must be consistently applied at the hearings.20

b. Too much irrelevant information is allowed in the hearing record;

As explained in the Testimony article, the only appropriate testimony in a quasi-judicial land use hearing is that which provides competent substantial evidence on whether or not the application meets the relevant code requirements. Anything else isn’t helpful to the process and, in fact, can be quite harmful, with its distraction from and confusion of the relevant issues and the actual basis of the decision.

It is difficult, however, for participants to drop the decades long perpetuated expectation of legislative hearing type testimony; people are used to “having their say” at land use hearings and are reluctant to change. Rather than continue to allow it at quasi-judicial land use hearings, however, there needs to be meaningful alternatives.

One major alternative is to take as many steps as reasonably possible to encourage community testimony on comprehensive plan formation and amendment and in the formation of the LDRs; in other words, boost community input on the legislative policy making steps. This is often difficult to do. People don’t focus on an issue until it impacts (or is believed to impact) them directly.

So, another alternative would be to have a public discussion point at each public hearing (or at least those held before the governing body), outside of the actual quasi-judicial hearing, where people are allowed to talk about what they feel are short-comings of or changes needed to the comprehensive plan, the LDR standards, or other such policy issues. The points they raise would not be considered in the actual hearing on the specific applications, but this would provide an entry point to address future changes that may need to be made, raised by those that are most immediately concerned.

Another way of reducing irrelevant issues being considered in the quasi-judicial hearing is to take the elected body out of the quasi-judicial review process. Worries about how the voting constitutes will view a decision on a single application or whether a vote is a wise political move are not legitimate consideration in a quasi-judicial hearing. Taking the politicians out of the process may go a long way toward taking the politics out of the review. This may be strongly resisted in some jurisdictions, but it should be given due consideration in an effort to keep the proper focus in quasi-judicial hearings.

c. The decision-makers do not have a reasonable opportunity to consider the evidence provided.

If all the evidence is presented at the hearing, how is a decision-maker that has to make a decision immediately, at the hearing, supposed to wade through and analyze what is and what isn’t competent substantial evidence? In most quasi-judicial hearings, as they are conducted today, it is not realistic to think it can be done. A spur of the moment decision is very likely to be based on emotions rather than facts. So what is the solution?

One option is to change when and how the evidence is presented into the record. If the evidence is largely in the record before the hearing, the hearing itself would be just to cross-examine the providers of the testimony, to seek clarifications, and resolve any questions. This would require significant procedural changes to the LDRs,21 but would allow for well-informed hearings with less surprises.

A second option would be for there to be two meetings on each application; the first would be the public hearing, where all the evidence is gathered, and the second, some reasonable time later, would be a “Government in the Sunshine” law compliant meeting, where no testimony would be given, but the decision-making body can discuss the evidence among the members.22 This option could have one body hold both hearing/meetings or would allow one body or hearing officer to hold the public hearing and a different body make the final decision at the meeting.

A third option would be to have a hearing officer conduct the public hearing and make the decision some period after the conclusion of the hearing. This would allow time for consideration of the submitted evidence before the formation of the final decision. This option would be available for all types of quasi-judicial decision except, possibly, for rezonings,23 and, maybe even for them.24

d. There is no way to know why the decision-makers made the decision or the evidence on which it was based.

Fulfilling their decision-maker role of determining if the application meets the existing regulations probably means the decision-makers must explain their reasoning. Regardless of when the decision is made, the only way to have any meaningful understanding of what was the basis of the decision is for the decision-maker to say. This doesn’t need to be in excruciating detail, but there does need to be statements made as part of the motion25 that review the applicable requirements and state how and why they are or are not met.26 This can involve going through each requirement or be as simple as stating: “the applicant has met the burden of proving compliance with the applicable requirements, as evidenced by X, Y, and Z of the application material, and the application opponents have not sufficiently demonstrated that this is not the case;” or “the application does not meet requirement X because the evidence shows this situation versus the required situation.” This, of course, doesn’t mean the decision-maker didn’t really decide based on some improper information, but if there is competent substantial evidence to support what they said was the reason for the decision, that is all that is required, and is probably as much as it is reasonably possible to consistently achieve.

It has been said that requiring the decision-maker to say why they reached the decision takes away the discretionary power of the decision maker and ties them to statements that may not reflect the full reasoning behind each decision-maker’s decision. In response to the first part, it should be remembered that the only discretion the decision-makers have in a quasi-judicial hearing is determining whether or not, based on the evidence in the record, the application met the applicable requirements. Therefore, their discretion is already significantly restricted and stating how that allowed discretion was applied does not create a further limit. As to the second point, it probably isn’t possible to have a statement that captures the entire reasoning of the decision-makers, but it should be possible to capture at least the essence of the reason, and that essence must be on proper grounds. Regardless of the full reasoning behind the decision, if the decision-maker cannot provide at least one legitimate justification for the decision, based on the restrictions of the proper function of a quasi-judicial hearing, the decision should not prevail. Leaving the participants and any reviewing court to dig through the record to try to find one piece of competent substantial evidence to support the decision may make it easier for local governments to win lawsuits, but it does not provide any information that would allow an understanding of how the regulations are to be applied in the future. Further, it eliminates the likelihood of consistent application of the requirements and is fundamentally unfair to the other participants–applicant and opposition alike.

There is debate currently about whether local governments must provide written findings of fact. State law27 requires that denials be in writing, with a citation to the requirement or authority supporting the denial. This seems to indicate that, at least for denials, that there should be a written determination indicating the grounds for the denial. That doesn’t mean, however, that it needs to be formal findings of fact and conclusions of law, but it does indicate the intent of the legislature that, at least for denials, there needs to be a written explanation of the reason for the denial. The statute supports the point that the only way there can be a meaningful explanation of the action taken is if the decision-maker provides an explanation in the record. So, although it may not be necessary to have formal findings, there does need to be written reasons for the decision, relaying and reflecting what was said by the decision-maker(s) in the hearing.28

Conclusion

Changing the efficiency and effectiveness of Florida quasi-judicial land use hearings is a difficult complicated task. Even though they may have been called quasi-judicial hearings, Florida has seen decades of what were essentially legislative type hearings. This is the type of hearing most jurisdictions are used to and it is difficult to break away from that. But it is suggested that, in addition to being more legally sound, there are significant benefits that can come from improving the efficiency and effectiveness of the quasi-judicial land use process, such as increasing predictability, decreasing processing times, and helping to more fully and effectively implement the local comprehensive plan and planning policies.

Ways to do this can be summarized as follows:

  • Recognize in the regulations and the hearings that the
    proper function and purpose of the hearing is only to determine whether the application meets the adopted requirements.
  • Fix the problems with the LDRs’ substantive provisions that
    inhibit or prevent the exercise of the proper quasi-judicial function, through methods such as:

    1. Only requiring public hearings when needed;
    2. Having specific, quality requirements; and
    3. Clearly identifying the applicable requirements.
  • Change the LDRs’ procedural provisions that negatively
    impact efficient, effective, and proper hearings, through methods such as:

    1. Making the applicable process clear and for proper reasons;
    2. Require that the proper process be followed, without
      conflicting or undermining provisions; and
    3. Allow and require the participants to be responsible for their roles.
  • Alter the way the hearing itself is conducted, through steps
    such as:

    1. Consistently following the adopted procedures;
    2. Limiting the information presented to competent substantial evidence, as much as possible, by ensuring everyone knows the “rules” and by providing other forums outside the hearing to allow them to “have their say;”
    3. Provide the decision-makers reasonable opportunities to
      consider the evidence in the record before making a decision; and
    4. Require the decision-makers to make at least basic
      statements of their decision reasoning and what competent substantial evidence they are using to support their decision.

End Notes

1. There are many reasons and many aspects of the reasons for the problems with quasi-judicial hearings. The same is true for the solutions. What is proposed here is an attempt to understand and address fundamental core issues and to offer starting points for solutions. Back to text.
2. Bd. of County Com’rs of Brevard County v. Snyder, 627 So.2d 469, 474 (Fla. 1993); Evergreen Tree Treasurers of Charlotte County, Inc. v. Charlotte County Bd. of County Com’rs, 810 So.2d 526, 532 (Fla. 2d DCA 2002); D.R. Horton, Inc.–Jacksonville v. Peyton, 959 So.2d 390, 398-99 (Fla. 1st DCA 2007). Back to text.
3. For rezonings, one of those requirements is determining whether it is appropriate to change the status quo. Back to text.
4. See the article We could play this game much better if we knew the rules. Back to text.
5. See the articles on Limited or “anything goes” – Testimony evidence in land use quasi-judicial hearings and What is Competent Substantial Evidence in Florida Land Use Hearings? for more. Back to text.
6. See the article Limitations on Florida Police Powers for more on what is needed to make them lawful. Back to text.
7. The reasons are “improper” if the issues they raise can only be resolved by reviews outside of the adopted lawful regulations. Back to text.
8. If compliance with a regulation can be definitively determined by staff, with no additional information being needed (e.g. whether a setback is met), there is no reason to send the application to a public hearing. If the regulation is met, the application must be approved; if not, it must be denied. If, however, the compliance question requires additional information not readily available to the staff, but may be available through a public hearing, then it would be appropriate to send the application to a public hearing to gather that information. Back to text.
9. Again, if the staff can definitively determine if the waiver/variance meets the requirements for the granting of the waiver or variance without additional information, it is appropriately reviewed at an administrative level, rather than at a public hearing level. If, however, determining compliance with the waiver/variance criteria requires additional information that may be available through a public hearing, it would be appropriate to send the application to a public hearing to gather that information. Back to text.
10. There may be relevant (competent substantial) information that surrounding property owners or the general public can provide that is not otherwise available to staff, but it is questionable whether a public hearing is the best way to gather that information. If there is a concern that there may be relevant information unavailable to staff, it may be more appropriate to devise a way to solicit that information in the staff review process, rather than attempt to acquire the information through the rather hit-or-miss information gathering environment of a public hearing. Back to text.
11. There are basically two types of non-legislative decisions local government may, lawfully, make—ministerial (one based on a nondiscretionary duty to act as required by the law (i.e. the official has no choice but to make a decision and the law lays out what must be done)) and discretionary (a non-ministerial decision that the official has the authority to make, as specified in the authorizing legislation, if there are adequate standards in the legislation to restrict the discretion exercised). See the future article on Ministerial versus Discretionary Decisions for more. A ministerial decision would not be beyond staff’s discretion because, by its definition, there is no discretion on whether and how to act. A discretionary decision can be made by staff, if they are so authorized by the applicable legislation. Because all discretionary administrative decisions, by staff or by a decision-making body, must be limited by definitive standards, it can be difficult to quantify what would make it more appropriate to have a non-staff body make the discretionary decision rather than staff. Back to text.
12. Quasi-judicial hearings cannot create new rules or make policy decisions (a decision that goes beyond the application of the criteria). Therefore, the reasons a development request is classified as a special exception, rather than an administrative staff level permitted use review cannot be so the public can decide if they want the use in their neighborhood, or to allow the decision-making body to make a case-by-case analysis of the appropriateness of a use in the jurisdiction, or to allow the staff to bump a politically unpopular or controversial request to the elected officials level. The policy decision of whether a use can ever be made appropriate in the jurisdiction or a particular area, and the standards that would make it appropriate, must be made at the time the regulations are created and adopted. That cannot be done on a case-by-case basis. A controversial applicant or application must be reviewed in the same way as the same use in a similar area that is not expected to create controversy. See the future article Classification of Uses for more. Back to text.
13. The fact that the use is listed as a possible use (if approved in the quasi-judicial hearing) says that there must be some way to make the use appropriate. Otherwise it would be prohibited. Back to text.
14. For example, an “X” use shall be reviewed as a special exception in the “Y” zoning district to determine whether the “Z” type impacts have been mitigated to the same or equivalent level as the permitted uses allowed in the zoning district. The goal, in this example, in reviewing this use as a special exception is to have specific impacts mitigated; the measurement (how the goal is implemented) is whether the mitigation makes the impacts comparable to those from permitted uses in the district. Back to text.
15. The term “special exception” is used here to include conditional uses, special uses, special permits, or any other such classification that requires a public hearing to determine if the use is to be allowed in a specific location. Back to text.
16. As with all government actions, the quasi-judicial land use process and its decisions must be in accordance with applicable constitutional protections. The most relevant ones in this case are protections of due process and equal protections rights of an opportunity to be heard, fairness, equal application of requirements, and unbiased, impartial decision-makers. The process and decision must also be consistent with all other applicable laws (federal, state, and local, including any local charter and the comprehensive plan). Back to text.
17. Examples of objectives might be to require the submittal of all necessary information from the applicant before the review starts; to keep the review focused only on the issues to be addressed in the review; to provide meaningful information at a meaningful time to the applicant and all potentially interested persons; etc. Back to text.
18. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 375, 377 (Fla. 3d DCA 2003) (finding that “quasi-judicial boards cannot make decisions based on anything but the local criteria enacted to govern their actions”). Back to text.
19. Also in this notice and information source should be an explanation of what is competent substantial evidence, perhaps with examples. Back to text.
20. One of the key parts of following the procedure is to keep the list of adopted standards in the forefront of the discussion, as a part of the notices to neighbors, in the staff report, and as a list before the decision-makers. Back to text.
21. Such as requiring that potentially impacted or interested persons be notified of the application when it is filed (or found complete for processing), rather than just notice of the hearing; requiring those wishing to be considered “parties” to seek that status early; requiring everyone to put their evidence in writing; a process for times when significant new information is presented at the hearing; and safeguards to prevent abuse of the system. Back to text.
22. It would require that the evidence be collected in a meaningful form for the body’s consideration well before the decision meeting. Back to text.
23. The statutory requirements that rezonings be adopted by ordinance or resolution (§166.041 and 125.66, F.S.) suggest that the governing body must make the final decision on the matter. Back to text.
24. It may be possible, however, to delegate the decision to a hearing officer and have the governing body ratify the decision in an ordinance or resolution. This would work well with an appeal opportunity to the governing body of the hearing officer’s decision; if the rezoning decision is appealed, an appeal hearing would be heard and if it is not appealed, the ordinance would be approved without review. Back to text.
25. Each decision-maker can probably even make a different statement about why they are voting a certain way (e.g. “I am voting for the motion, not for the reasons that Commissioner A stated, but because ….”). Back to text.
26. Since the application has to meet every applicable requirement to be approved and only needs to not meet one to be denied, it is much easier to state the reason for a denial. Back to text.
27. Sections 166.033 (for municipalities) and 125.022 (for counties), F.S.Back to text.
28. This doesn’t include a written creation by the staff or local government attorney that manufactures after the fact justifications for the decision not reflective of what the decision-maker actually said. Back to text.

What must be addressed in land development regulations, per the Florida Statutes

UPDATED TO REFLECT 2011 LEGISLATIVE AMENDMENTS.

Florida land development regulations (LDRs) are supposed to be more than just a zoning code or even several ordinances on a variety of land related issues put together into one book (see What are Florida land development regulations). What is included in each jurisdiction’s LDRs will vary, but the statutes state the minimum regulations that must be addressed.

The Florida Statutes, in section 163.3202, lay out what must be addressed in the LDRs. The statutes require that the following regulations, and “all other such regulations,” be combined and compiled into a single land development code for the jurisdiction. §163.3202(3), Florida Statutes (F.S.) At a minimum LDRs must “contain specific and detailed provisions necessary or desirable to implement the adopted comprehensive plan.” §163.3202(1), F.S.

  • See Board of County Com’rs of Brevard County v. Snyder, 627 So.2d 469, 473 (Fla., 1993) (“The local plan must be implemented through the adoption of land development regulations that are consistent with the plan.”)
  • See also Johnson v. Gulf County, 26 So. 3d 33 (Fla. 1st DCA, 2009), where the court ruled that Gulf County must regulate development near wetlands in a manner consistent with its Comprehensive Plan. (“The County is required to implement its comprehensive plan ‘through the adoption of land development regulations that are consistent with the plan.’ [citing Snyder]. The County cites no authority for the proposition that it can enact a land use regulation which is inconsistent with its comprehensive plan. … Gulf County’s comprehensive plan required it to take jurisdiction and regulate any development within 50 feet of wetlands under its land development regulations.” Johnson v. Gulf County, 26 So. 3d 33, 42 (Fla. 1st DCA, 2009.)

They also must:

Regulate the use of land and water. §163.3202(2)(b), F.S. This is the more traditional “zoning code” type of regulations. These regulations are indicated as being for those land uses categories included in the local Comprehensive Plan Future Land Use Element. §163.3202(2)(b), F.S. This is another tie to the requirement that the LDRs must implement the comprehensive plan, in this case the Future Land Use Element. See Implementing the Comprehensive Plan through LDRs.

The LDRs also must ensure the compatibility of adjacent land uses. §163.3202(2)(b), F.S. Compatibility is a term frequently used in LDRs and reviews of applications, but is seldom defined or applied consistently. See the article What is compatibility for more on compatibility. Additionally, the LDRs must provide for open space. §163.3202(2)(b), F.S.

Regulate the subdivision of land§163.3202(2)(a), F.S. Chapter 177, Part I, of the Florida Statutes addresses the requirements for platting and subdivision regulations, but there is amazingly little guidance in the statutes as to what regulating the subdivision of land means, especially since the repeal of the rules of 9J-5, F.A..C. For more on this issue, see What is the “Subdivision of Land” Regulated in LDRs? and other future articles on Subdivision Regulations.

Provide for protection of potable water wellfields. §163.3202(2)(c), F.S. Regulating for the protection of potable (drinking) water wellfields, and the potable water supply, is a less expected part of the LDRs, although keeping drinking water available and protected from contamination has long been the subject of public health regulations. See future article Regulating wellfields

Regulate areas subject to seasonal and periodic flooding and provide for drainage and stormwater management, §163.3202(2)(d), F.S. 

Ensure the protection of environmentally sensitive land. §163.3202(2)(e), F.S. The statutes indicate those environmentally sensitive lands to be protected are those designated in the comprehensive plan.

Regulate signage. §163.3202(2)(f), F.S. See a future article on sign regulations.

Address concurrency. The LDRs must require that public facilities and services meet or exceed the standards established in the local Comprehensive Plan’s Capital Improvements Element and either are available when needed for development (concurrent with development impacts) or that development orders and permits are conditioned on the availability of the public facilities and services necessary to serve the proposed development. §163.3202(2)(g), F.S. This is commonly known as “concurrency.” Interestingly, this provision, which was not amended in 2011, is slightly at odds with the 2011 concurrency requirements (Concurrency). See the future article Implementing Concurrency for details on the concurrency requirements and how this discrepancy might be resolved.

Ensure safe and convenient on-site traffic flow, §163.3202(2)(h), F.S. The specified issue to take into consideration is needed vehicle parking. §163.3202(2)(h), F.S. 

Maintain the existing density of residential properties or recreational vehicle parks if the properties are intended for residential use and are located in the unincorporated areas that have sufficient infrastructure, as determined by a local governing authority, and are not located within a coastal high-hazard area. §163.3202(2)(i), F.S.

The statutes also encourage the use of innovative regulations, including provisions such as transfer of development rights, incentive and inclusionary zoning, planned-unit development, impact fees, and performance zoning. Although the previous provision of chapter 9J-5, F.A.C. that implemented the land development regulation provisions of the statute has been repealed, unlike some other sections, the statute does still authorize the state land planning agency to adopt rules for this section. §163.3202(3), F.S. If the agency does so, they will be noted here.

 

What are Florida land development regulations?

I guess if this is a multi-page website talking about them, it makes sense to first figure out what are the land development regulations being discussed. They aren’t any one thing. There are, at least, the “street” concept, several statutory definitions, the ideal model, and the practical reality.

When asked about land controlling regulations, most people think of zoning codes. Many of the references to the regulation of land in the Florida Statutes talk about zoning authority, zoning requirements, even when more general land regulations are included. Without a doubt the zoning aspects, meaning the regulation of where and how uses and structures may be placed on the land, are a very major focus. But in Florida, land development regulations must be more than just a zoning code.

The Florida statutes have six specific, somewhat conflicting, definitions of “land development regulations” that vary based on the intent of the regulation in which it is contained – §§163.3164(23), 163.3213(2)(b), 163.3221(8), 365.172(3)(n), and 380.031, Florida Statutes (F.S.)  All include zoning and subdivision regulations in the definition. All but one include sign regulations. Two of the definitions also include landscaping and tree protection regulations. Looking at the list of other topics that the statutes say must be addressed by land development regulations (see What must be addressed in Land Development Regulations, per the Florida Statutes), there are also other types of regulation not addressed in the definitions that must be included in land development regulations. These other regulations are addressed in the definitions by the catch-all inclusion of “any other regulations controlling the development of land” included in all the definitions.

All, but one, of the statute definitions include building or building construction regulations in the land development regulations. The one exception is found at §365.172(3)(n), F.S., addressing wireless facilities, which separates the construction codes of the statutes chapter 553 from the other land regulations to distinguish the “zoning” review of wireless facilities from the building permit review. It may be that the other definitions’ inclusion of “building construction regulations” are also not intended to include the construction codes found in chapters 553 and 633 of the statutes. This reading would be consistent with the provisions of chapters 553 and 633, which specifically separate the Building Code and the Fire Prevention Code from zoning or land use requirements (“The Florida Building Code does not apply to … zoning requirements [or] land use requirements ….” §553.73(13), F.S. “The Florida Fire Prevention Code does not apply to zoning or land use requirements.” §633.0215(6), F.S.) and with the finding of the court in Galaxy Fireworks, Inc. v. City of Orlando, 842 So. 2d 160, 165 (Fla. 5th DCA 2003), which found that the Fire Prevention Code is not a land development regulation (because it “does not regulate what can be built on land, in the sense of land development, but rather it mandates requirements for the structure of a building, if used for certain purposes, in order to safeguard the public from fire hazards.”). 

The definitions all address regulations controlling the development of land. The line can be somewhat blurred, however, as to what is the regulation of the use or development of land and what is regulation of conduct on the land. The court in City of Sarasota v. 35 S. Lemon, Inc., 722 So. 2d 268, 269 (Fla. 2nd DCA 1998) held that a noise ordinance that regulated conduct, rather than land development, was not a statutorily defined land development regulation, requiring certain adoption procedures. Similarly, the court in T.J.R. Holding Co., Inc. v. Alachua County, 617 So. 2d 798, 800 (Fla. 1st DCA 1993) held that an ordinance prohibiting adult use conduct in establishments serving alcohol was not a land development regulation, but the regulation of conduct, and the court in M & A Mgmt. Corp. v. City of Melbourne, Fla., 653 So. 2d 1050, 1051 (Fla. 5th DCA 1995) found that an ordinance regulating the conduct of bingo games and bingo halls was not a land development regulation.

Some of the statute provisions say that land development regulations are ordinances (plural) adopted by local governments and others say ordinance (singular). Ideally, all the land development regulations would be adopted at one time, rather than a piece-meal adoption of separate ordinances. This often isn’t practically possible. Whether adopted over time or all at once, to be effective, however, land development regulations should be a unified implementation of the jurisdiction’s comprehensive plan and regulatory objectives, with consistent language and approaches. This is the ideal.

In reality, land development regulations are often separate codes or ordinances adopted and amended over the years, as new issues and problems arise or new laws require adjustments, with each ordinance introducing new, possibly conflicting, definitions, concepts, and standards. This is the reality of land development regulations that are unified only in the fact that they are all found in the same book or chapter of the jurisdiction’s code.

So, the land development regulations addressed in this website are all of these descriptions. The intent is to provide information on what must, can, and should be included in land development regulations, ideas on how they may be viewed by Florida courts, and suggestions on practical approaches to make them functional and effective – working with the reality toward the ideal.