Aerial Showing Areas Added and Removed from UDB

The concurrent applications earned favorable recommendations and/or no objections from all state, regional and local agencies, including the Florida Department of Community Affairs, South Florida Regional Planning Council, South Florida Water Management District, Miami-Dade County, Homestead Air Reserve Base, and the City of Homestead.

These approvals culminate three years of efforts by the Homestead-Miami Speedway to permit the expansion of the Speedway onto 120 acres to improve the fan experience by consolidating overflow parking and temporary concessions east of S.W. 137 Avenue and adding grandstand seats at Turn One and Turn Four of the Speedway.

These improvements will help to enhance the Speedway’s standing as an internationally acclaimed sports and entertainment attraction.  Homestead-Miami Speedway, LLC is a subsidiary of International Speedway Corporation, the owner/operator of 13 race tracks in North America and headquartered in Daytona Beach, Florida.

View of BRF Sponsored Home

BRF Attorney Matt Amster recently represented the firm at the dedication of the firm’s first sponsored home for Habitat for Humanity of Greater Miami.  The three bedroom single family home will soon be ready for its new family.

Firm members and staff were proud to assist the first time homeowner by installing dry wall and roofing during the firm’s recent work day at the home.

BRF has also been very involved in securing the zoning approvals necessary to allow Habitat for Humanity to build nearly seventy (70) new homes in northwest Miami-Dade.  Many of the “infill” lots owned by Habitat for Humanity are small, thus requiring variances of the Miami-Dade County zoning code to permit development of modern homes. BRF’s pro bono efforts have been spearheaded by Matt Amster, who has processed a record number of zoning hearing applications on behalf of needy families.

While the City’s TDR program offers a lot of promise to property owners within the MiMo/Biscayne Boulevard Historic District, the regulatory process remains complicated.  See here for the City’s current regulations. We are available to assist property owners in navigating this complex process.

Melissa serves as the Committee’s chairwoman and spearheaded the Committee’s efforts to designate the area between NW 82 Avenue to NW 77 Court and NW 25 Street to NW 41 Street, known as Phase I of the Doral Design District Master Plan, as a brownfield.  On May 13, 2011, the Doral City Council unanimously adopted Resolution 11-56 designating Phase I of the Doral Design District Master Plan as a brownfield. Brownfield designations are a helpful tool recognized by Florida law that can assisted local governments in encouraging the redevelopment and voluntary clean up of areas that are impacted by actual, or perceived, environmental contamination.

This step will allow the City to start a process to encourage the remediation of decades old contamination in this area, while at the same time encouraging economic activity in this area of the City.  Melissa and the rest of the BRF team are excited to be a part of the City’s efforts.  

The County has a valuable but little-used tool that can help many people avoid this situation — the Pre-Purchase Zoning Inspection. For under $250, potential homebuyers can obtain a determination of properties’ zoning status before they purchase the home. That inspection will identify zoning violations that could cost significant time and money to resolve if recognized later. We recommend that all homebuyers in Miami-Dade County seek a Pre-Purchase inspection to avoid significant problems later on.

Here is a link to the County’s inspection application forms. Keep in mind that a recent survey should be provided to ensure that the analysis is accurate.

The theme of the approved legislation is that local governments should be empowered to make their own planning decisions, with only minimal review or influence by the state. The following is a summary of the major changes.  For the sake of clarity, we will refer to the legislation as the “Community Planning Act,” which is the replacement title for the Growth Management Act.

Executive Summary. The Community Planning Act is a complex piece of legislation, covering many aspects of growth management.  The following is an executive summary of the many of the major changes.  Additional detail is provided on subsequent pages.

• Concurrency for roads, schools, and parks is optional.
• Roadway concurrency programs must allow for a proportionate share mitigation program to overcome a lack of capacity.
• State review of local comprehensive plan amendments is reduced significantly.
• Chapter 9J-5 of the Florida Administrative Code, which contained regulations promulgated by the Department of Community Affairs is abolished, with some, but not all, of the former provisions included in the law.
• Referenda are barred for all comprehensive plan amendment applications.
• Challenges to local government comprehensive plan amendments by third parties such as neighbors will be more likely to fail.
• The Evaluation and Appraisal Report (EAR) process will be significantly simplified.
• Local governments must provide adequate land supply to accommodate anticipated future full time and seasonal residents and must base this analysis on the need to have functioning real estate markets.
• Urban sprawl is defined, along with new mechanisms to prove that a proposed development is not sprawl.
• Local comprehensive plans must contain policies governing and directing mixed use development.
• Industrial, hotel/motel, and movie theater development will no be subject to Developments of Regional Impact review.
• Existing Developments of Regional Impact will be eligible for a four (4) year extension of all deadlines.
• “Dense Urban Land Areas” remain exempt from the Development of Regional Impact process.
• All permits that were extended under Senate Bill 360 or Senate Bill 1752 may be eligible for additional extensions.

Concurrency. The Community Planning Act makes it optional for local governments to apply concurrency regulations to roadways, parks, and schools.  As you know, all South Florida jurisdictions recently adopted school concurrency.  The change in the law would allow the countywide school concurrency systems to be abandoned.  The same would hold for long-existing road and park concurrency systems.  The law does not mandate the dismantling of these systems, but no longer makes the imposition of concurrency a state mandate.

The Community Planning Act also changes the way that roadway concurrency can be reviewed and applied.  The statute requires local governments enforcing roadway concurrency to permit an applicant to pay a proportionate share contribution in the event that capacity is not available to serve a project.  Applicants are expressly not obligated to pay for existing deficiencies.  Roadways that are below capacity before a new development is factored cannot be part of the proportionate share calculation.  This new approach is very different to that applied in many parts of South Florida, most notably unincorporated Miami-Dade County.

Local Comprehensive Plan Requirements and Processes. The Community Planning Act removes many of the state requirements for optional elements of local comprehensive plans.  However, local governments can still incorporate these optional elements, just with less state oversight.

As for the comprehensive plan amendment process, the Community Planning Act creates three categories of amendments: (1) standard amendments (generally for parcels exceeding ten (10) acres); (2) small scale amendments (for parcels under 10 acres and any related text amendments); and (3) amendments for parcels in areas of critical state concern, propose a rural land stewardship program, propose a “sector” plan, update a comprehensive plan based on an evaluation and appraisal report, or are new plans for a newly incorporated municipality.  The third category of amendment, which are unusual, will be treated in the same manner as all current standard amendments – requiring more intensive state oversight.  The sum of the changes is to limit the number of comprehensive plan changes that review in depth state scrutiny.

Expedited Review. Standard amendments, which under the former law, required significant state and regional review, will now be processed under an expedited system.  Under the Community Planning Act, a local government will hold an initial public hearing on the application.  Following that hearing, the application materials will be transmitted to state and regional agencies for comment.  Each agency must provide comments within thirty (30) days of receiving the materials and must limit comments to the important state or regional resource or facility that would be adversely impacted by the amendment.  Regional planning councils are also empowered to comment on adverse impacts that would be inconsistent with the comprehensive plan of another affected local government.

Once these comments are received, the local government may proceed to approve the amendment.  Upon approval, the application package is again transmitted to the state.  Unlike the former law, the Department of Community Affairs[1] is not empowered to determine whether a proposed amendment is consistent with a local comprehensive plan or state law.  Under the Community Planning Act, the Department will only be able to file an administrative challenge to an amendment based on a claim that the proposal would adversely impact an important state resource.

Another important change is that local governments can now process as many standard amendments as they wish, unlike the previous law that limited amendments to two cycles a year.

Small Scale Amendments. The process for small scale amendments will remain the same, with essentially no state or regional review.  The Community Planning Act loosens the limits on small scale amendments, removing the former residential density cap and allowing related text amendments to be processed as part of a small scale amendment.

Capital Improvements Element. An important portion of any local comprehensive plan is the Capital Improvements Element, in which the government lists the capital projects that are necessary to retain adopted levels of service.  The Community Planning Act removes the state review of the annual updates to a Capital Improvements Elements.  The statute further removes the requirement that a local government demonstrate that any given improvement is “financially feasible.”

Incorporation of 9J-5 Rules. The Community Planning Act abolishes Chapter 9J-5 of the Florida Administrative Code, while at the same time incorporating some of the more important elements of 9J-5 into the statute.  For example, the Community Planning Act now includes a definition of “urban sprawl,” which heretofore had been left to the Florida Administrative Code.

Other portions of 9J-5, such as the process for submitting comprehensive plan amendments, has been reduced to the level of guidance.

Referenda for Comprehensive Plan Provisions. Previous to the enactment of the Community Planning Act, the statute had prohibited local government referenda on any comprehensive plan amendment affecting five (5) or fewer parcels.  The Community Planning Act expands this bar to all comprehensive plan amendments.

Change to Standard of Review for Third Party Challenges. While third parties, such as neighborhood groups or other property owners, remain empowered to bring legal challenges to comprehensive plan amendments, the Community Planning Act has made it more difficult for such challenges to succeed.  The standard of review applied by the administrative law judge hearing the case will now be “fairly debatable.”  Under that standard, an amendment will be deemed to be in compliance as long as it is “fairly debatable” that the local government’s determination was consistent with the law.

Evaluation and Appraisal Report Process. The Evaluation and Appraisal Report (EAR) process is a tool for a local government to review periodically (every seven (7) years) the terms of its comprehensive plan, determine whether the current plan is meeting the needs of the local government, and propose any necessary amendments to a plan. The former EAR process was highly managed by the state, with the Department of Community Affairs guiding both the scope of the review and having the ultimate control over the approval of a EAR report and related comprehensive plan amendments.  Under the Community Planning Act, the state role will be significantly reduced.  The EAR process, while still a requirement, will be conducted by local governments with essentially no state oversight.  Local governments will provide the state with a letter summarizing their findings and thereafter have twelve (12) months to enact any amendments deemed necessary.  This change should significantly simplify the EAR process for many local governments.

Population Projections and Need. The Community Planning Act includes several changes related to how “need” for additional land capacity to serve residential demand should be calculated.  The statute will require a local government to include sufficient capacity to accommodate “at least the minimum amount of land required to accommodate the medium projections” of the University of Florida’s Bureau of Economic and Business Research for at least a ten (10) year planning period.

The statute requires that a local government “allow the operation of real estate markets to provide adequate choice for permanent and seasonal residents and may not be limited solely by the projected population.”  This language contemplates a review of the “need” for additional capacity that is based on “real world” considerations, in contrast to the more mechanical review typically undertaken by local governments.

“Sprawl” Rule. As noted above, the Community Planning Act codifies, in modified form, many of the provisions that had been included in Chapter 9-J5 of the Florida Administrative Code.  One of those provisions is the so-called “sprawl rule,” which discourages development or comprehensive plan amendments that could be deemed to encourage sprawl.  The relevant text of the revised rule includes new important exceptions.

The statute now incorporates the thirteen separate sprawl factors that had been included in the Florida Administrative Code, with a few minor changes.  A proposed comprehensive plan amendment that exhibits the listed characteristics will violate the statute. The Community Planning Act also provides a list of what kind of development is definitively not urban sprawl. A comprehensive plan amendment would be deemed not to be sprawl if it meets four or more of the following criteria:

(I) Directs or locates economic growth and associated land development to geographic areas of the community in a manner that does not have an adverse impact on and protects natural resources and ecosystems.

(II) Promotes the efficient and cost-effective provision or extension of public infrastructure and services.

(III) Promotes walkable and connected communities and provides for compact development and a mix of uses at densities and intensities that will support a

range of housing choices and a multimodal transportation system, including pedestrian, bicycle, and transit, if available.

(IV) Promotes conservation of water and energy.

(V) Preserves agricultural areas and activities, including silviculture, and dormant, unique, and prime farmlands and soils.

(VI) Preserves open space and natural lands and provides for public open space and recreation needs.

(VII) Creates a balance of land uses based upon demands of residential population for the nonresidential needs of an area.

(VIII) Provides uses, densities, and intensities of use and urban form that would remediate an existing or planned development pattern in the vicinity that constitutes sprawl or if it provides for an innovative development pattern such as transit-oriented developments or new towns as defined in s. 163.3164.

As you will note, the Community Planning Act lists the creation of a “new town” as one of the options to demonstrate consistency with the new sprawl rule.  A “new town” is defined by the statute as “an urban activity center and community designated on the future land use map of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban area designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services that demonstrate internal trip capture. A new town shall be based on a master development plan.”

Wetland Impacts. The Community Planning Act includes multiple provisions intended to require local governments to protect wetlands and other sensitive areas.  The statute does note, however, that a local government can permit “incompatible land uses” in wetland areas if adequately mitigated.

Mixed Use. The Community Planning Act requires all local comprehensive plans to include guidelines for the implementation of mixed use development, including the types of uses permitted, density and intensity allowed, and the distribution of such uses.

Waterfront Development. The Community Planning Act requires local governments to include policies in their comprehensive plans that encourage the preservation of recreational and commercial working waterfronts in coastal communities.

Developments of Regional Impact. The Community Planning Act also includes several major changes to the state law regarding Developments of Regional Impact (DRIs).  First, the statute exempts mining, industrial, hotel/motel and movie theater developments from DRI review.  Second, the Act doubles the amount of development that can be unbuilt while a DRI is deemed to be “essentially built out” – from twenty (20) to forty (40) percent of the relevant DRI threshold.

Third, for existing DRIs, the Community Planning Act provides for an automatic four (4) year extension of any deadlines (commencement through expiration) for all currently valid DRI projects.  The sole requirement for an applicant will be to notify a local government of the intent to take advantage of the extension.  The extension will apply to any mitigation payments or construction unless a local government has entered into a contract to construct a facility with the promised mitigation funds.

Finally, the Community Planning Act retains the statutory exemptions for DRIs within “dense urban land areas.”  One of the possible categories of a “dense urban land area” is a county with a population exceeding one million.  The exemption would extend to the municipalities within the county.

Permit Extensions. The Community Planning Act also provides for an additional extension of permits and approvals similar to those provided in 2009’s Senate Bill 360 and 2010’s Senate Bill 1752. [2] The Community Planning Act provides for another two (2) year extension for permits, with the only limiting factor that the total extension provided cannot exceed four (4) years (counting extensions granted in 2009 and 2010).  Unlike the previous statutes, which both set January 1, 2012 as the limit of permits eligible for the extension, the Community Planning Act does not set a maximum date for the extension.  Therefore, many permits may qualify for an additional extension under the Community Planning Act.  A permit holder can take advantage of the extension by notifying the responsible local government by December 31, 2011.

Conclusion. The Community Planning Act represents the single most important piece of growth management legislation in more than twenty (20) years. In largely dismantling the state-managed growth management system, the Community Planning Act has created both opportunities and potential challenges for developers.  As of today, the Governor has not signed the bill, but it appears unlikely that it will be subject to a veto. If you have any questions about the Community Planning Act or this memo, please do not hesitate to give us a call at (305) 374-5300.