Florida Senate - 2012                                    SB 1180
       By Senator Bennett
       21-00965-12                                           20121180__
    1                        A bill to be entitled                      
    2         An act relating to developments of regional impact;
    3         amending s. 163.3184, F.S.; requiring that plan
    4         amendments proposing a development that is exempt from
    5         review as a development of regional impact follow the
    6         state coordinated review process; amending s. 380.06,
    7         F.S.; requiring that reviewing agencies make only
    8         recommendations and comments regarding a proposed
    9         development which are consistent with statutes, rules,
   10         or adopted local ordinances that are applicable to all
   11         developments in the jurisdiction where the proposed
   12         development is located; providing legislative intent
   13         regarding the issues that may be considered during the
   14         development-of-regional-impact review process;
   15         revising provisions relating to regional reports
   16         prepared and submitted by a regional planning agency;
   17         requiring that a regional planning agency make
   18         recommendations in its regional report which are
   19         consistent with the standards of state permitting
   20         agencies and the water management district or the
   21         adopted local government land development regulations
   22         if such standards are not applicable; providing that
   23         changes to a development order which do not increase
   24         the number of external peak hour trips and do not
   25         reduce open space and conserved areas within a project
   26         are not substantial deviations; providing an exemption
   27         from development-of-regional-impact review for any
   28         proposed development that a local government elects
   29         not to apply the review process if a comprehensive
   30         plan amendment for the development is adopted pursuant
   31         to the state coordinated review process; providing
   32         exceptions; amending s. 380.115, F.S.; requiring that
   33         a local government having jurisdiction rescind a
   34         development-of-regional-impact development order, upon
   35         request, and upon a showing that all required
   36         mitigation related to the amount of development that
   37         existed on the date of rescission will be completed
   38         under a permit or other authorization issued by a
   39         governmental agency; providing an effective date.
   41  Be It Enacted by the Legislature of the State of Florida:
   43         Section 1. Paragraph (c) of subsection (2) of section
   44  163.3184, Florida Statutes, is amended to read:
   45         163.3184 Process for adoption of comprehensive plan or plan
   46  amendment.—
   48         (c) Plan amendments that are in an area of critical state
   49  concern designated pursuant to s. 380.05; propose a rural land
   50  stewardship area pursuant to s. 163.3248; propose a sector plan
   51  pursuant to s. 163.3245; update a comprehensive plan based on an
   52  evaluation and appraisal pursuant to s. 163.3191; propose a
   53  development pursuant to s. 380.06(24)(x); or are new plans for
   54  newly incorporated municipalities adopted pursuant to s.
   55  163.3167 shall follow the state coordinated review process in
   56  subsection (4).
   57         Section 2. Paragraphs (a) and (b) of subsection (7),
   58  subsection (12), and paragraph (e) of subsection (19) of section
   59  380.06, Florida Statutes, are amended, and paragraph (x) is
   60  added to subsection (24) of that section, to read:
   61         380.06 Developments of regional impact.—
   63         (a) Before filing an application for development approval,
   64  the developer shall contact the regional planning agency having
   65  with jurisdiction over the proposed development to arrange a
   66  preapplication conference. Upon the request of the developer or
   67  the regional planning agency, other affected state and regional
   68  agencies shall participate in this conference and shall identify
   69  the types of permits issued by the agencies, the level of
   70  information required, and the permit issuance procedures as
   71  applied to the proposed development. The levels of service
   72  required in the transportation methodology shall be the same
   73  levels of service used to evaluate concurrency in accordance
   74  with s. 163.3180. The regional planning agency shall provide the
   75  developer information about the development-of-regional-impact
   76  process and the use of preapplication conferences to identify
   77  issues, coordinate appropriate state and local agency
   78  requirements, and otherwise promote a proper and efficient
   79  review of the proposed development. If an agreement is reached
   80  regarding assumptions and methodology to be used in the
   81  application for development approval, the reviewing agencies may
   82  not subsequently object to those assumptions and methodologies
   83  unless subsequent changes to the project or information obtained
   84  during the review make those assumptions and methodologies
   85  inappropriate. The reviewing agencies may make only
   86  recommendations or comments regarding a proposed development
   87  which are consistent with the statutes, rules, or adopted local
   88  government ordinances that are applicable to all developments in
   89  the jurisdiction where the proposed development is located.
   90         (b) The regional planning agency shall establish by rule a
   91  procedure by which a developer may enter into binding written
   92  agreements with the regional planning agency to eliminate
   93  questions from the application for development approval when
   94  those questions are found to be unnecessary for development-of
   95  regional-impact review. It is the legislative intent of this
   96  subsection to encourage the reduction of paperwork, to
   97  discourage the unnecessary gathering of data, and to encourage
   98  the coordination of the development-of-regional-impact review
   99  process with federal, state, and local environmental reviews
  100  when such reviews are required by law. It is also the
  101  legislative intent of this subsection to limit development-of
  102  regional-impact review to issues directly related to land use,
  103  environmental protection, and public facilities, including
  104  transportation. However, issues regarding hurricane preparedness
  105  and affordable housing may be considered if the local government
  106  has adopted an ordinance that generally applies to all other
  107  developments. Any other issue may not be considered during the
  108  development-of-regional-impact review.
  109         (12) REGIONAL REPORTS.—
  110         (a) Within 50 days after receipt of the notice of public
  111  hearing required in paragraph (11)(c), the regional planning
  112  agency, if one has been designated for the area including the
  113  local government, shall prepare and submit to the local
  114  government a report and recommendations on the regional impact
  115  of the proposed development. In preparing its report and
  116  recommendations, the regional planning agency shall identify
  117  regional issues based upon the following review criteria and
  118  make recommendations to the local government on these regional
  119  issues, specifically considering whether, and the extent to
  120  which:
  121         1. The development will have a favorable or unfavorable
  122  impact on state or regional resources or facilities identified
  123  in the applicable state or regional plans. As used in For the
  124  purposes of this subsection, the term “applicable state plan”
  125  means the state comprehensive plan. As used in For the purposes
  126  of this subsection, the term “applicable regional plan” means an
  127  adopted comprehensive regional policy plan until the adoption of
  128  a strategic regional policy plan pursuant to s. 186.508, and
  129  thereafter means an adopted strategic regional policy plan.
  130         2. The development will significantly impact adjacent
  131  jurisdictions. At the request of the appropriate local
  132  government, regional planning agencies may also review and
  133  comment upon issues that affect only the requesting local
  134  government.
  135         3. As one of the issues considered in the review in
  136  subparagraphs 1. and 2., the development will favorably or
  137  adversely affect the ability of people to find adequate housing
  138  reasonably accessible to their places of employment if the local
  139  government has adopted an affordable housing ordinance that
  140  generally applies to all other developments. The determination
  141  should take into account information on factors that are
  142  relevant to the availability of reasonably accessible adequate
  143  housing. Adequate housing means housing that is available for
  144  occupancy and that is not substandard.
  145         4. As one of the issues considered in the review in
  146  subparagraphs 1. and 2., the development will favorably or
  147  adversely affect hurricane preparedness if the local government
  148  has adopted a hurricane preparedness ordinance that generally
  149  applies to all other developments.
  150         (b)The regional planning agency report must contain
  151  recommendations that are consistent with the standards required
  152  by the applicable state permitting agencies or the water
  153  management district or that are consistent with the land
  154  development regulations adopted by the local government if a
  155  state permitting agency or water management district standard is
  156  not applicable. The regional planning agency may not recommend a
  157  standard unless the local government has adopted the same
  158  standard in its land development regulations or in an ordinance
  159  that generally applies to all other developments or unless the
  160  standard is required by state permitting agencies or the water
  161  management district.
  162         (c)(b) At the request of the regional planning agency,
  163  other appropriate agencies shall review the proposed development
  164  and shall prepare reports and recommendations on issues that are
  165  clearly within the jurisdiction of those agencies. Such agency
  166  reports shall become part of the regional planning agency
  167  report; however, the regional planning agency may attach
  168  dissenting views. When water management district and Department
  169  of Environmental Protection permits have been issued pursuant to
  170  chapter 373 or chapter 403, the regional planning council may
  171  comment on the regional implications of the permits but may not
  172  offer conflicting recommendations.
  173         (d)(c) The regional planning agency shall afford the
  174  developer or any substantially affected party reasonable
  175  opportunity to present evidence to the regional planning agency
  176  head relating to the proposed regional agency report and
  177  recommendations.
  178         (e)(d)If When the location of a proposed development
  179  involves land within the boundaries of multiple regional
  180  planning councils, the state land planning agency shall
  181  designate a lead regional planning council. The lead regional
  182  planning council shall prepare the regional report.
  183         (19) SUBSTANTIAL DEVIATIONS.—
  184         (e)1. Except for a development order rendered pursuant to
  185  subsection (22) or subsection (25), a proposed change to a
  186  development order which that individually or cumulatively with
  187  any previous change is less than any numerical criterion
  188  contained in subparagraphs (b)1.-10. and does not exceed any
  189  other criterion, or which that involves an extension of the
  190  buildout date of a development, or any phase thereof, of less
  191  than 5 years is not subject to the public hearing requirements
  192  of subparagraph (f)3., and is not subject to a determination
  193  pursuant to subparagraph (f)5. Notice of the proposed change
  194  shall be made to the regional planning council and the state
  195  land planning agency. Such notice must shall include a
  196  description of previous individual changes made to the
  197  development, including changes previously approved by the local
  198  government, and must shall include appropriate amendments to the
  199  development order.
  200         2. The following changes, individually or cumulatively with
  201  any previous changes, are not substantial deviations:
  202         a. Changes in the name of the project, developer, owner, or
  203  monitoring official.
  204         b. Changes to a setback which that do not affect noise
  205  buffers, environmental protection or mitigation areas, or
  206  archaeological or historical resources.
  207         c. Changes to minimum lot sizes.
  208         d. Changes in the configuration of internal roads which
  209  that do not affect external access points.
  210         e. Changes to the building design or orientation which that
  211  stay approximately within the approved area designated for such
  212  building and parking lot, and which do not affect historical
  213  buildings designated as significant by the Division of
  214  Historical Resources of the Department of State.
  215         f. Changes to increase the acreage in the development, if
  216  provided that no development is proposed on the acreage to be
  217  added.
  218         g. Changes to eliminate an approved land use, if provided
  219  that there are no additional regional impacts.
  220         h. Changes required to conform to permits approved by any
  221  federal, state, or regional permitting agency, if provided that
  222  these changes do not create additional regional impacts.
  223         i. Any renovation or redevelopment of development within a
  224  previously approved development of regional impact which does
  225  not change land use or increase density or intensity of use.
  226         j. Changes that modify boundaries and configuration of
  227  areas described in subparagraph (b)11. due to science-based
  228  refinement of such areas by survey, by habitat evaluation, by
  229  other recognized assessment methodology, or by an environmental
  230  assessment. In order for changes to qualify under this sub
  231  subparagraph, the survey, habitat evaluation, or assessment must
  232  occur before prior to the time that a conservation easement
  233  protecting such lands is recorded and must not result in any net
  234  decrease in the total acreage of the lands specifically set
  235  aside for permanent preservation in the final development order.
  236         k. Changes that do not increase the number of external peak
  237  hour trips and do not reduce open space and conserved areas
  238  within the project except as otherwise permitted by sub
  239  subparagraph j.
  240         l.k. Any other change that which the state land planning
  241  agency, in consultation with the regional planning council,
  242  agrees in writing is similar in nature, impact, or character to
  243  the changes enumerated in sub-subparagraphs a.-k. a.-j. and that
  244  which does not create the likelihood of any additional regional
  245  impact.
  247  This subsection does not require the filing of a notice of
  248  proposed change but requires shall require an application to the
  249  local government to amend the development order in accordance
  250  with the local government’s procedures for amendment of a
  251  development order. In accordance with the local government’s
  252  procedures, including requirements for notice to the applicant
  253  and the public, the local government shall either deny the
  254  application for amendment or adopt an amendment to the
  255  development order which approves the application with or without
  256  conditions. Following adoption, the local government shall
  257  render to the state land planning agency the amendment to the
  258  development order. The state land planning agency may appeal,
  259  pursuant to s. 380.07(3), the amendment to the development order
  260  if the amendment involves sub-subparagraph g., sub-subparagraph
  261  h., sub-subparagraph j., or sub-subparagraph k., or sub
  262  subparagraph l. and if the agency it believes that the change
  263  creates a reasonable likelihood of new or additional regional
  264  impacts.
  265         3. Except for the change authorized by sub-subparagraph
  266  2.f., any addition of land not previously reviewed or any change
  267  not specified in paragraph (b) or paragraph (c) shall be
  268  presumed to create a substantial deviation. This presumption may
  269  be rebutted by clear and convincing evidence.
  270         4. Any submittal of a proposed change to a previously
  271  approved development must shall include a description of
  272  individual changes previously made to the development, including
  273  changes previously approved by the local government. The local
  274  government shall consider the previous and current proposed
  275  changes in deciding whether such changes cumulatively constitute
  276  a substantial deviation requiring further development-of
  277  regional-impact review.
  278         5. The following changes to an approved development of
  279  regional impact shall be presumed to create a substantial
  280  deviation. Such presumption may be rebutted by clear and
  281  convincing evidence.
  282         a. A change proposed for 15 percent or more of the acreage
  283  to a land use not previously approved in the development order.
  284  Changes of less than 15 percent shall be presumed not to create
  285  a substantial deviation.
  286         b. Notwithstanding any provision of paragraph (b) to the
  287  contrary, a proposed change consisting of simultaneous increases
  288  and decreases of at least two of the uses within an authorized
  289  multiuse development of regional impact which was originally
  290  approved with three or more uses specified in s. 380.0651(3)(c),
  291  (d), and (e) and residential use.
  292         6. If a local government agrees to a proposed change, a
  293  change in the transportation proportionate share calculation and
  294  mitigation plan in an adopted development order as a result of
  295  recalculation of the proportionate share contribution meeting
  296  the requirements of s. 163.3180(5)(h) in effect as of the date
  297  of such change shall be presumed not to create a substantial
  298  deviation. For purposes of this subsection, the proposed change
  299  in the proportionate share calculation or mitigation plan may
  300  shall not be considered an additional regional transportation
  301  impact.
  302         (24) STATUTORY EXEMPTIONS.—
  303         (x) Any proposed development for which a local government
  304  elects not to apply the development-of-regional-impact review
  305  process, if a comprehensive plan amendment for the development
  306  is adopted pursuant to the state coordinated review process in
  307  s. 163.3184(4), is exempt from this section. This exemption does
  308  not apply to areas within the boundary of any area of critical
  309  state concern designated pursuant to s. 380.05, within the
  310  boundary of the Wekiva Study Area as described in s. 369.316, or
  311  within 2 miles of the boundary of the Everglades Protection Area
  312  as defined in s. 373.4592(2).
  314  If a use is exempt from review as a development of regional
  315  impact under paragraphs (a)-(u), but will be part of a larger
  316  project that is subject to review as a development of regional
  317  impact, the impact of the exempt use must be included in the
  318  review of the larger project, unless such exempt use involves a
  319  development of regional impact that includes a landowner,
  320  tenant, or user that has entered into a funding agreement with
  321  the Department of Economic Opportunity under the Innovation
  322  Incentive Program and the agreement contemplates a state award
  323  of at least $50 million.
  324         Section 3. Subsection (1) of section 380.115, Florida
  325  Statutes, is amended to read:
  326         380.115 Vested rights and duties; effect of size reduction,
  327  changes in guidelines and standards.—
  328         (1) A change in a development-of-regional-impact guideline
  329  and standard does not abridge or modify any vested or other
  330  right or any duty or obligation pursuant to any development
  331  order or agreement that is applicable to a development of
  332  regional impact. A development that has received a development
  333  of-regional-impact development order pursuant to s. 380.06, but
  334  is no longer required to undergo development-of-regional-impact
  335  review by operation of a change in the guidelines and standards
  336  or has reduced its size below the thresholds in s. 380.0651, or
  337  a development that is exempt pursuant to s. 380.06(24) or (29)
  338  380.06(29) shall be governed by the following procedures:
  339         (a) The development shall continue to be governed by the
  340  development-of-regional-impact development order and may be
  341  completed in reliance upon and pursuant to the development order
  342  unless the developer or landowner has followed the procedures
  343  for rescission in paragraph (b). Any proposed changes to those
  344  developments which continue to be governed by a development
  345  order shall be approved pursuant to s. 380.06(19) as it existed
  346  before prior to a change in the development-of-regional-impact
  347  guidelines and standards, except that all percentage criteria
  348  shall be doubled and all other criteria shall be increased by 10
  349  percent. The development-of-regional-impact development order
  350  may be enforced by the local government as provided by ss.
  351  380.06(17) and 380.11.
  352         (b) If requested by the developer or landowner, the
  353  development-of-regional-impact development order shall be
  354  rescinded by the local government having jurisdiction upon a
  355  showing that all required mitigation related to the amount of
  356  development that existed on the date of rescission has been
  357  completed or will be completed under a permit or other
  358  authorization issued by a governmental agency as defined in s.
  359  380.031(6).
  360         Section 4. This act shall take effect July 1, 2012.