Florida Senate - 2012                             CS for SB 1180
       By the Committee on Community Affairs; and Senator Bennett
       578-02950-12                                          20121180c1
    1                        A bill to be entitled                      
    2         An act relating to growth management; amending s.
    3         163.3184, F.S.; requiring that comprehensive plan
    4         amendments proposing certain developments follow the
    5         state coordinated review process; amending s. 380.06,
    6         F.S.; limiting the scope of certain recommendations
    7         and comments by reviewing agencies regarding proposed
    8         developments; revising certain review criteria for
    9         reports and recommendations on the regional impact of
   10         proposed developments; requiring regional planning
   11         agency reports to contain recommendations consistent
   12         with the standards of state permitting agencies and
   13         water management districts; providing that specified
   14         changes to a development order are not substantial
   15         deviations; providing an exemption from development
   16         of-regional-impact review for proposed developments
   17         that meet specified criteria and are located in
   18         certain jurisdictions; providing applicability;
   19         amending s. 380.115, F.S.; revising conditions under
   20         which a local government is required to rescind a
   21         development-of-regional-impact development order;
   22         creating s. 163.3165, F.S.; providing for application
   23         and approval of an amendment to the local
   24         comprehensive plan by the owner of land that meets
   25         certain criteria as an agricultural enclave; creating
   26         a 2-year permit extension; providing an effective
   27         date.
   29  Be It Enacted by the Legislature of the State of Florida:
   31         Section 1. Paragraph (c) of subsection (2) of section
   32  163.3184, Florida Statutes, is amended to read:
   33         163.3184 Process for adoption of comprehensive plan or plan
   34  amendment.—
   36         (c) Plan amendments that are in an area of critical state
   37  concern designated pursuant to s. 380.05; propose a rural land
   38  stewardship area pursuant to s. 163.3248; propose a sector plan
   39  pursuant to s. 163.3245; update a comprehensive plan based on an
   40  evaluation and appraisal pursuant to s. 163.3191; propose a
   41  development pursuant to s. 380.06(24)(x); or are new plans for
   42  newly incorporated municipalities adopted pursuant to s.
   43  163.3167 shall follow the state coordinated review process in
   44  subsection (4).
   45         Section 2. Paragraph (a) of subsection (7), subsection
   46  (12), and paragraph (e) of subsection (19) of section 380.06,
   47  Florida Statutes, are amended, and paragraph (x) is added to
   48  subsection (24) of that section, to read:
   49         380.06 Developments of regional impact.—
   51         (a) Before filing an application for development approval,
   52  the developer shall contact the regional planning agency having
   53  with jurisdiction over the proposed development to arrange a
   54  preapplication conference. Upon the request of the developer or
   55  the regional planning agency, other affected state and regional
   56  agencies shall participate in this conference and shall identify
   57  the types of permits issued by the agencies, the level of
   58  information required, and the permit issuance procedures as
   59  applied to the proposed development. The levels of service
   60  required in the transportation methodology shall be the same
   61  levels of service used to evaluate concurrency in accordance
   62  with s. 163.3180. The regional planning agency shall provide the
   63  developer information about the development-of-regional-impact
   64  process and the use of preapplication conferences to identify
   65  issues, coordinate appropriate state and local agency
   66  requirements, and otherwise promote a proper and efficient
   67  review of the proposed development. If an agreement is reached
   68  regarding assumptions and methodology to be used in the
   69  application for development approval, the reviewing agencies may
   70  not subsequently object to those assumptions and methodologies
   71  unless subsequent changes to the project or information obtained
   72  during the review make those assumptions and methodologies
   73  inappropriate. The reviewing agencies may make only
   74  recommendations or comments regarding a proposed development
   75  which are consistent with the statutes, rules, or adopted local
   76  government ordinances that are applicable to developments in the
   77  jurisdiction where the proposed development is located.
   78         (12) REGIONAL REPORTS.—
   79         (a) Within 50 days after receipt of the notice of public
   80  hearing required in paragraph (11)(c), the regional planning
   81  agency, if one has been designated for the area including the
   82  local government, shall prepare and submit to the local
   83  government a report and recommendations on the regional impact
   84  of the proposed development. In preparing its report and
   85  recommendations, the regional planning agency shall identify
   86  regional issues based upon the following review criteria and
   87  make recommendations to the local government on these regional
   88  issues, specifically considering whether, and the extent to
   89  which:
   90         1. The development will have a favorable or unfavorable
   91  impact on state or regional resources or facilities identified
   92  in the applicable state or regional plans. As used in For the
   93  purposes of this subsection, the term “applicable state plan”
   94  means the state comprehensive plan. As used in For the purposes
   95  of this subsection, the term “applicable regional plan” means an
   96  adopted comprehensive regional policy plan until the adoption of
   97  a strategic regional policy plan pursuant to s. 186.508, and
   98  thereafter means an adopted strategic regional policy plan.
   99         2. The development will significantly impact adjacent
  100  jurisdictions. At the request of the appropriate local
  101  government, regional planning agencies may also review and
  102  comment upon issues that affect only the requesting local
  103  government.
  104         3. As one of the issues considered in the review in
  105  subparagraphs 1. and 2., the development will favorably or
  106  adversely affect the ability of people to find adequate housing
  107  reasonably accessible to their places of employment if the
  108  regional planning agency has adopted an affordable housing
  109  policy as part of its strategic regional policy plan. The
  110  determination should take into account information on factors
  111  that are relevant to the availability of reasonably accessible
  112  adequate housing. Adequate housing means housing that is
  113  available for occupancy and that is not substandard.
  114         (b) The regional planning agency report must contain
  115  recommendations that are consistent with the standards required
  116  by the applicable state permitting agencies or the water
  117  management district.
  118         (c)(b) At the request of the regional planning agency,
  119  other appropriate agencies shall review the proposed development
  120  and shall prepare reports and recommendations on issues that are
  121  clearly within the jurisdiction of those agencies. Such agency
  122  reports shall become part of the regional planning agency
  123  report; however, the regional planning agency may attach
  124  dissenting views. When water management district and Department
  125  of Environmental Protection permits have been issued pursuant to
  126  chapter 373 or chapter 403, the regional planning council may
  127  comment on the regional implications of the permits but may not
  128  offer conflicting recommendations.
  129         (d)(c) The regional planning agency shall afford the
  130  developer or any substantially affected party reasonable
  131  opportunity to present evidence to the regional planning agency
  132  head relating to the proposed regional agency report and
  133  recommendations.
  134         (e)(d)If When the location of a proposed development
  135  involves land within the boundaries of multiple regional
  136  planning councils, the state land planning agency shall
  137  designate a lead regional planning council. The lead regional
  138  planning council shall prepare the regional report.
  139         (19) SUBSTANTIAL DEVIATIONS.—
  140         (e)1. Except for a development order rendered pursuant to
  141  subsection (22) or subsection (25), a proposed change to a
  142  development order which that individually or cumulatively with
  143  any previous change is less than any numerical criterion
  144  contained in subparagraphs (b)1.-10. and does not exceed any
  145  other criterion, or which that involves an extension of the
  146  buildout date of a development, or any phase thereof, of less
  147  than 5 years is not subject to the public hearing requirements
  148  of subparagraph (f)3., and is not subject to a determination
  149  pursuant to subparagraph (f)5. Notice of the proposed change
  150  shall be made to the regional planning council and the state
  151  land planning agency. Such notice must shall include a
  152  description of previous individual changes made to the
  153  development, including changes previously approved by the local
  154  government, and must shall include appropriate amendments to the
  155  development order.
  156         2. The following changes, individually or cumulatively with
  157  any previous changes, are not substantial deviations:
  158         a. Changes in the name of the project, developer, owner, or
  159  monitoring official.
  160         b. Changes to a setback which that do not affect noise
  161  buffers, environmental protection or mitigation areas, or
  162  archaeological or historical resources.
  163         c. Changes to minimum lot sizes.
  164         d. Changes in the configuration of internal roads which
  165  that do not affect external access points.
  166         e. Changes to the building design or orientation which that
  167  stay approximately within the approved area designated for such
  168  building and parking lot, and which do not affect historical
  169  buildings designated as significant by the Division of
  170  Historical Resources of the Department of State.
  171         f. Changes to increase the acreage in the development, if
  172  provided that no development is proposed on the acreage to be
  173  added.
  174         g. Changes to eliminate an approved land use, if provided
  175  that there are no additional regional impacts.
  176         h. Changes required to conform to permits approved by any
  177  federal, state, or regional permitting agency, if provided that
  178  these changes do not create additional regional impacts.
  179         i. Any renovation or redevelopment of development within a
  180  previously approved development of regional impact which does
  181  not change land use or increase density or intensity of use.
  182         j. Changes that modify boundaries and configuration of
  183  areas described in subparagraph (b)11. due to science-based
  184  refinement of such areas by survey, by habitat evaluation, by
  185  other recognized assessment methodology, or by an environmental
  186  assessment. In order for changes to qualify under this sub
  187  subparagraph, the survey, habitat evaluation, or assessment must
  188  occur before prior to the time that a conservation easement
  189  protecting such lands is recorded and must not result in any net
  190  decrease in the total acreage of the lands specifically set
  191  aside for permanent preservation in the final development order.
  192         k. Changes that do not increase the number of external peak
  193  hour trips and do not reduce open space and conserved areas
  194  within the project except as otherwise permitted by sub
  195  subparagraph j.
  196         l.k. Any other change that which the state land planning
  197  agency, in consultation with the regional planning council,
  198  agrees in writing is similar in nature, impact, or character to
  199  the changes enumerated in sub-subparagraphs a.-k. a.-j. and that
  200  which does not create the likelihood of any additional regional
  201  impact.
  203  This subsection does not require the filing of a notice of
  204  proposed change but requires shall require an application to the
  205  local government to amend the development order in accordance
  206  with the local government’s procedures for amendment of a
  207  development order. In accordance with the local government’s
  208  procedures, including requirements for notice to the applicant
  209  and the public, the local government shall either deny the
  210  application for amendment or adopt an amendment to the
  211  development order which approves the application with or without
  212  conditions. Following adoption, the local government shall
  213  render to the state land planning agency the amendment to the
  214  development order. The state land planning agency may appeal,
  215  pursuant to s. 380.07(3), the amendment to the development order
  216  if the amendment involves sub-subparagraph g., sub-subparagraph
  217  h., sub-subparagraph j., or sub-subparagraph k., or sub
  218  subparagraph l. and if the agency it believes that the change
  219  creates a reasonable likelihood of new or additional regional
  220  impacts.
  221         3. Except for the change authorized by sub-subparagraph
  222  2.f., any addition of land not previously reviewed or any change
  223  not specified in paragraph (b) or paragraph (c) shall be
  224  presumed to create a substantial deviation. This presumption may
  225  be rebutted by clear and convincing evidence.
  226         4. Any submittal of a proposed change to a previously
  227  approved development must shall include a description of
  228  individual changes previously made to the development, including
  229  changes previously approved by the local government. The local
  230  government shall consider the previous and current proposed
  231  changes in deciding whether such changes cumulatively constitute
  232  a substantial deviation requiring further development-of
  233  regional-impact review.
  234         5. The following changes to an approved development of
  235  regional impact shall be presumed to create a substantial
  236  deviation. Such presumption may be rebutted by clear and
  237  convincing evidence.
  238         a. A change proposed for 15 percent or more of the acreage
  239  to a land use not previously approved in the development order.
  240  Changes of less than 15 percent shall be presumed not to create
  241  a substantial deviation.
  242         b. Notwithstanding any provision of paragraph (b) to the
  243  contrary, a proposed change consisting of simultaneous increases
  244  and decreases of at least two of the uses within an authorized
  245  multiuse development of regional impact which was originally
  246  approved with three or more uses specified in s. 380.0651(3)(c),
  247  (d), and (e) and residential use.
  248         6. If a local government agrees to a proposed change, a
  249  change in the transportation proportionate share calculation and
  250  mitigation plan in an adopted development order as a result of
  251  recalculation of the proportionate share contribution meeting
  252  the requirements of s. 163.3180(5)(h) in effect as of the date
  253  of such change shall be presumed not to create a substantial
  254  deviation. For purposes of this subsection, the proposed change
  255  in the proportionate share calculation or mitigation plan may
  256  shall not be considered an additional regional transportation
  257  impact.
  258         (24) STATUTORY EXEMPTIONS.—
  259         (x) Any proposed development that is located in a local
  260  government jurisdiction that does not qualify for an exemption
  261  based on the population and density criteria in s.
  262  380.06(29)(a), that is approved as a comprehensive plan
  263  amendment adopted pursuant to s. 163.3184(4), that qualifies for
  264  an incentive program pursuant to chapter 288, and for which the
  265  developer, the local government, and the Department of Economic
  266  Opportunity agree in writing that the development-of-regional
  267  impact review process does not apply is exempt from this
  268  section. This exemption does not apply to areas within the
  269  boundary of any area of critical state concern designated
  270  pursuant to s. 380.05, within the boundary of the Wekiva Study
  271  Area as described in s. 369.316, or within 2 miles of the
  272  boundary of the Everglades Protection Area as defined in s.
  273  373.4592(2).
  275  If a use is exempt from review as a development of regional
  276  impact under paragraphs (a)-(u), but will be part of a larger
  277  project that is subject to review as a development of regional
  278  impact, the impact of the exempt use must be included in the
  279  review of the larger project, unless such exempt use involves a
  280  development of regional impact that includes a landowner,
  281  tenant, or user that has entered into a funding agreement with
  282  the Department of Economic Opportunity under the Innovation
  283  Incentive Program and the agreement contemplates a state award
  284  of at least $50 million.
  285         Section 3. Subsection (1) of section 380.115, Florida
  286  Statutes, is amended to read:
  287         380.115 Vested rights and duties; effect of size reduction,
  288  changes in guidelines and standards.—
  289         (1) A change in a development-of-regional-impact guideline
  290  and standard does not abridge or modify any vested or other
  291  right or any duty or obligation pursuant to any development
  292  order or agreement that is applicable to a development of
  293  regional impact. A development that has received a development
  294  of-regional-impact development order pursuant to s. 380.06, but
  295  is no longer required to undergo development-of-regional-impact
  296  review by operation of a change in the guidelines and standards
  297  or has reduced its size below the thresholds in s. 380.0651, or
  298  a development that is exempt pursuant to s. 380.06(24) or (29)
  299  380.06(29) shall be governed by the following procedures:
  300         (a) The development shall continue to be governed by the
  301  development-of-regional-impact development order and may be
  302  completed in reliance upon and pursuant to the development order
  303  unless the developer or landowner has followed the procedures
  304  for rescission in paragraph (b). Any proposed changes to those
  305  developments which continue to be governed by a development
  306  order shall be approved pursuant to s. 380.06(19) as it existed
  307  before prior to a change in the development-of-regional-impact
  308  guidelines and standards, except that all percentage criteria
  309  shall be doubled and all other criteria shall be increased by 10
  310  percent. The development-of-regional-impact development order
  311  may be enforced by the local government as provided by ss.
  312  380.06(17) and 380.11.
  313         (b) If requested by the developer or landowner, the
  314  development-of-regional-impact development order shall be
  315  rescinded by the local government having jurisdiction upon a
  316  showing that all required mitigation related to the amount of
  317  development that existed on the date of rescission has been
  318  completed or will be completed under an existing permit or
  319  equivalent authorization issued by a governmental agency as
  320  defined in s. 380.031(6), provided such permit or authorization
  321  is subject to enforcement through administrative or judicial
  322  remedies.
  323         Section 4. Section 163.3165, Florida Statutes, is created
  324  to read:
  325         163.3165 Agricultural lands surrounded by other land uses.—
  326         (1) Notwithstanding any provision of ss. 163.3162 and
  327  163.3164 to the contrary, the owner of a parcel of land that
  328  qualifies under this section may apply for an amendment to the
  329  local government comprehensive plan pursuant to s. 163.3184. The
  330  amendment is presumed not to be urban sprawl as defined in
  331  s.163.3164 if it proposes land uses and intensities of use which
  332  are consistent with the existing uses and intensities of use of,
  333  or consistent with the uses and intensities of use authorized
  334  for, the industrial, commercial, or residential areas that
  335  surround the parcel. If the parcel of land that is the subject
  336  of an application for an amendment under this section is abutted
  337  by land having only one land use designation, the same land use
  338  designation shall be presumed by the county to be appropriate
  339  for the parcel and the county shall grant the parcel the same
  340  land use designation as the surrounding parcel that abuts the
  341  parcel.
  342         (2) In order to qualify as an agricultural enclave under
  343  this section, the parcel of land must be a parcel that:
  344         (a) Is owned by a single person or entity;
  345         (b) Has been in continuous use for bona fide agricultural
  346  purposes, as defined by s. 193.461, for a period of 5 years
  347  before the date of any comprehensive plan amendment application;
  348         (c) Is either:
  349         1. Surrounded on at least 90 percent of its perimeter by
  350  property that the local government has designated as land that
  351  may be developed for industrial, commercial, or residential
  352  purposes; or
  353         2. Surrounded within a 1-mile radius by existing or
  354  authorized residential development that will result in a density
  355  at build out of at least 1,000 residents per square mile; and
  356         (d) Does not exceed 640 acres.
  357         Section 5. (1)Except as provided in subsection (4), and in
  358  recognition of 2012 real estate market conditions, any building
  359  permit, and any permit issued by the Department of Environmental
  360  Protection or by a water management district pursuant to part IV
  361  of chapter 373, Florida Statutes, which has an expiration date
  362  from January 1, 2012, through January 1, 2014, is extended and
  363  renewed for a period of 2 years after its previously scheduled
  364  date of expiration. This extension includes any local
  365  government-issued development order or building permit,
  366  including certificates of levels of service. This section does
  367  not prohibit conversion from the construction phase to the
  368  operation phase upon completion of construction. This extension
  369  is in addition to any existing permit extension. Extensions
  370  granted pursuant to this section; section 14 of chapter 2009-96,
  371  Laws of Florida, as reauthorized by section 47 of chapter 2010
  372  147, Laws of Florida; section 46 of chapter 2010-147, Laws of
  373  Florida; section 74 of chapter 2011-139, Laws of Florida; or
  374  section 79 of chapter 2011-139, Laws of Florida, may not exceed
  375  4 years in total. Further, specific development order extensions
  376  granted pursuant to s. 380.06(19)(c)2., Florida Statutes, may
  377  not be further extended by this section.
  378         (2)The commencement and completion dates for any required
  379  mitigation associated with a phased construction project are
  380  extended so that mitigation takes place in the same timeframe
  381  relative to the phase as originally permitted.
  382         (3)The holder of a valid permit or other authorization
  383  that is eligible for the 2-year extension must notify the
  384  authorizing agency in writing by December 31, 2012, identifying
  385  the specific authorization for which the holder intends to use
  386  the extension and the anticipated timeframe for acting on the
  387  authorization.
  388         (4)The extension provided for in subsection (1) does not
  389  apply to:
  390         (a)A permit or other authorization under any programmatic
  391  or regional general permit issued by the Army Corps of
  392  Engineers.
  393         (b)A permit or other authorization held by an owner or
  394  operator determined to be in significant noncompliance with the
  395  conditions of the permit or authorization as established through
  396  the issuance of a warning letter or notice of violation, the
  397  initiation of formal enforcement, or other equivalent action by
  398  the authorizing agency.
  399         (c)A permit or other authorization that, if granted an
  400  extension, would delay or prevent compliance with a court order.
  401         (5) Permits extended under this section shall continue to
  402  be governed by the rules in effect at the time the permit was
  403  issued, except if it is demonstrated that the rules in effect at
  404  the time the permit was issued would create an immediate threat
  405  to public safety or health. This provision applies to any
  406  modification of the plans, terms, and conditions of the permit
  407  which lessens the environmental impact, except that any such
  408  modification does not extend the time limit beyond 2 additional
  409  years.
  410         (6) This section does not impair the authority of a county
  411  or municipality to require the owner of a property that has
  412  notified the county or municipality of the owner’s intent to
  413  receive the extension of time granted pursuant to this section
  414  to maintain and secure the property in a safe and sanitary
  415  condition in compliance with applicable laws and ordinances.
  416         Section 6. This act shall take effect July 1, 2012.