impacts, certain developments are consuming. considered Developments of Regional the DRI process. are appropriately mitigated, while

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1 WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. ISSUE 4 Weiss Serota Helfman Pastorize Cole & Boniske, P.L. IN THIS ISSUE Update : Challenge to Senate Bill 360 SB 360 and Developments of Regional Impact Transportation Currency Exception Areas (TCEAs) Under SB 360 Municipal Home Rule and the 2009 Community Renewal Act SB 360 Preemption of Security Camera Requirements If you wish to be added to our mailing list or wish to receive Land Use Elements by , please contact Johanna M. Lundgren, Editor c/o Land Use Elements, 200 E. Broward Boulevard Suite 1900 Fort Lauderdale, FL 33301, or jlundgren@wsh-law.com LEGISLATIVE ISSUE 2009 VOL. 2 Status Update: Challenge to Senate Bill 360 As widely reported, on July 8, 2009, a coalition of local governments filed a lawsuit against Gov. Charlie Crist and the leaders of the Florida House and Senate challenging Senate Bill 360, the Community Renewal Act, seeking declaratory and injunctive relief on the basis that the Act included more than one subject and constituted an unfunded mandate in violation of the Florida Constitution. On August 17, 2009, the defendants filed a motion to dismiss the lawsuit alleging that the defendants were not proper parties. Shortly thereafter, on September 21, 2009, a hearing was held on the defendants' motion to dismiss. As of the date of publication of this newsletter, the Court had yet to rule on this motion. The litigation may not be resolved until 2010, and additional changes to the statutes may be considered in the 2010 legislative session. SB 360 and Developments of Regional Impact By Chad Friedman Because of their size, location, and d u p l i c a t i v e, c o s t l y, a n d t i m e The 2009 Florida impacts, certain developments are consuming. Legislature agreed with the latter considered Developments of Regional Impact (DRIs), and must be processed opinion, at least in the Dense Urban and reviewed in accordance with Land Areas of the state, by its adoption Section , Florida Statutes. Over of SB 360, the Community Renewal Act. the years, there has been a diversity of Wi t h a f e w Generally speaking, under the Act, opinions among local e x c eptions, any any development (existing, pending, g o v e r n m e n t or future) that is located within an development (existing, planners, attorneys, a u t o m a t i c T r a n s p o r t a t i o n pending, or future) that is and developers Concurrency Exception Area l o c a t e d w i t h i n a n regarding the established pursuant to Section automatic Transportation necessity of the DRI (5)(b), F.S. is exempt from Concurrency Exception review process. For Area established the DRI process. example, some pursuant to the revised believe that the DRI Section (5)(b), process is beneficial because it F.S. is exempt from the DRI process1. p r o m o t e s i n t e r g o v e r n m e n t a l So what impact will this DRI coordination and ensures that extra- exemption have? The most obvious jurisdictional impacts of development impact is that affected stakeholders will are appropriately mitigated, while Continued on page 5 others believe that the process is ADVERTISEMENT

2 Transportation Concurrency Exception Areas (TCEAs) Under SB 360 By James E. White, AICP Senate Bill 360, the Community Renewal Act, has been referenced as the most significant growth management legislation since the adoption of the 1985 Growth Management Act, in large part because it significantly alters the landscape for transportation planning for half of the municipalities and eight of the counties in the state, and for those local governments adjacent to and sharing roadways with these impacted governments. As a result of several decades of extremely rapid growth and a long-standing failure to provide adequate funding, communities throughout Florida have struggled to provide adequate public facilities and services to support growth and development. Concurrency refers to the regulatory requirement that infrastructure, including transportation facilities, be available concurrent with the impacts of development. In order to implement concurrency, local governments are required to establish concurrency management systems in their comprehensive plans and land development regulations. Concurrency was modified in 2005 to provide for proportionate share mitigation, so that projects could provide needed transportation infrastructure and proceed despite a concurrency failure. Implementation of transportation concurrency requirements by local governments has often been problematic, causing conflicts with other comprehensive planning goals and objectives. In many communities where growth was desired, the revitalization of urban infill and redevelopment areas was hindered because of the strict application of t r a n s p o r t a t i o n c o n c u r r e n c y requirements. Urban sprawl resulted. Developers have also complained of how concurrency creates winners and losers, in that the project that uses the last of the capacity of the existing roadway network is not required to contribute anything to its expansion, while the next project contributing even a single trip to an overloaded roadway could not proceed without providing 1 substantial mitigation. A. DULAs and TCEAs In creating transportation concurrency exception areas (TCEAs) in the early 1990s, the Florida Legislature recognized that in urban centers, transportation cannot be effectively managed solely through the expansion of roadways. Rather, a range of transportation alternatives is essential to address mobility needs. However, adopting a TCEA was a lengthy and detailed planning exercise, and only some local governments were eligible to seek to do so. With the 2009 legislation, the Legislature expanded greatly the types of local governments that could establish TCEAs under Section (5)(f), F.S., by providing for the establishment of TCEAs based on any of the following criteria: (a) a municipality that qualifies as a dense urban 2 land area ; (b) an urban service area under Section , F.S., that has been adopted into the local comprehensive plan and is located within a county that qualifies as a dense urban land area; and (c) a county, including the municipalities located therein, which has a population of at least 900,000 and qualifies as a dense urban land area but does not have an urban service area designated in the local comprehensive plan. Additionally, a municipality or a county that does not qualify as a DULA may designate TCEAs through its local comprehensive plan within the following areas: urban infill, community redevelopment areas, downtown revitalization areas, and redevelopment 3 and urban service areas. After a TCEA becomes effective, DCA no longer has the authority to review comprehensive plan amendments within the TCEA for compliance with state-mandated transportation concurrency r e q u i r e m e n t s, a n d t h e s e amendments will be deemed to meet the statutory requirement to achieve and maintain level of service standards for transportation. 2 Under the Act, the Florida Legislature's Office of Economic and Demographic Research transmitted to the Department of Community Affairs (DCA) on July 1, 2009, a list of counties and municipalities qualifying as DULAs. DCA posted this list on its website on July 8, 2009, which became the effective date of the 4 TCEA provisions. As a result of the TCEA designation, these DULA local governments are no longer required to comply with state-mandated transportation requirements, but state-mandated transportation concurrency requirements still apply in areas outside of TCEAs. After a TCEA becomes effective, DCA no longer has the authority to review comprehensive plan amendments within the TCEA for compliance with state-mandated transportation concurrency requirements, and these amendments will be deemed to meet the statutory requirement to achieve and Continued on page 3

3 Transportation Concurrency Exception Areas (TCEAs) Under SB 360 continued from page 2 maintain level of service standards for transportation. However, it is important to note that the Act imposes new state-mandated mobility planning requirements for TCEAs. Within two years after a TCEA becomes effective, the local government must amend its local comprehensive plan to include "land use and transportation strategies to support and fund mobility within the exception area, including alternative modes of 5 transportation." Failure to comply with this mandate may result in the imposition of sanctions against the defaulting local government. To date, no guidelines have been issued or rules developed regarding what constitutes an acceptable mobility plan so, presumably, it can be tailored to any strategy a community chooses to pursue. In creating mobility strategies, local governments and agencies may look to strategies applied under traditional TCEAs and other pre-existing statutory alternatives to concurrency such as Transportation Concurrency Management Areas and Multi-Modal Transportation Districts. One example is the transit concurrency programs developed by Broward County, by which developers mitigate their transportation impacts by contributing toward transit system improvements. Others include the City of Aventura's transit impact fee and Charlotte County's 6 location-sensitive transportation impact fee. B. When do TCEAs Become Effective? DCA, along with many local governments, has asserted that the Act does not prohibit a local government from continuing to apply, pursuant to existing and valid local ordinances, the transportation concurrency provisions of its existing local comprehensive plan and land development regulations in TCEAs, if it desires to do so. DCA's Notice to Local Governments regarding planning options and requirements applicable to TCEAs, available at Legislation/2009/Notice.cfm, provides that local governments desiring to eliminate state-mandated transportation concurrency requirements in TCEAs must amend the existing local comprehensive plan and land development regulations to delete such requirements or to adopt alternative requirements. Until the local government amends its comprehensive plan, existing transportation concurrency requirements continue to 7 apply in TCEAs. Alternatively, the counter argument asserted by the sponsors of the Act and the development community is that the TCEA designation within a DULA is automatic, 3 and does not require a comprehensive plan amendment or any other specific local action to be in effect and override the existing transportation concurrency requirements of local government comprehensive plans. The development community claims that any interpretation to the contrary would thwart the purpose of the Act by failing to lift regulatory burdens relating to transportation concurrency, which would frustrate the Act's purpose, namely stimulation of the economy and job creation. The Act's provisions relating to transportation concurrency and their effect on local governments have been the topic of much concern and debate over the last several months, resulting in conflicting interpretations. As the controversy surrounding implementation of the various provisions of the Act continues, it is evident that either the Florida courts or the Legislature will be required to address and resolve these contested issues. James E. White, AICP is an Associate with the Municipal Land Use and Zoning Law Group. 1.This criticism carried less weight where the local government had implemented a transportation impact fee, because all development shares equally in the costs of an impact fee. However, where such fees were set at a level that represented less than the true cost of growth, existing backlogs were worsened and concurrency failures were more likely. 2. The Act designates TCEAs in local governments qualifying as Dense Urban Land Areas (DULA), which is defined in Sec (b)(1), F.S. to mean: a. A municipality that has an average of at least 1,000 people per square mile of land area and a minimum total population of at least 5,000; b. A county, including the municipalities located therein, which has an average of at least 1,000 people per square mile of land area; or c. A county, including the municipalities located therein, which has a population of at least 1 million. 3. See Section (5)(b)(2), F.S. 4. In each of the eight counties on the list of DULAs, the non-rural area of a county which has adopted into the county charter a rural area designation or areas identified in the comprehensive plan as urban service areas or urban growth boundaries on or before July 1, 2009, are TCEAs under the Act, with two exceptions. The first exception is that TCEAs are not created for designated transportation concurrency districts within a county, such as Broward County, that has a population of at least 1.5 million that uses its transportation concurrency system to support alternative modes of transportation and does not levy transportation impact fees. The second exception is that TCEAs are also not created for a county such as Miami-Dade County that has exempted more than 40 percent of its urban service area from transportation concurrency for purposes of urban infill. 5. See Sec (5)(b)(4), F.S. 6. The Act requires state agencies to provide proposed legislative language on mobility fees by December 1, Further, the Act expressly provides: "The designation of a transportation concurrency exception area does not limit a local government's home rule power to adopt ordinances or impose fees." Sec (5)(f), F.S. (emphasis added).

4 Municipal Home Rule and the 2009 Community Renewal Act By Susan L. Trevarthen, AICP Municipal home rule was created in 1968 in Florida, through the adoption of Article VII, Section 2(b) of the Florida Constitution: Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law. Prior to 1968, Florida municipalities could only act with authority granted by the Florida Legislature; after 1968, they could act for any municipal purpose that was not inconsistent with or preempted by general law. The stated intent of the Community Renewal Act is to encourage economic development. However, it can be interpreted to infringe upon a municipality's ability to adopt and implement local land use policies. It creates Transportation Concurrency Exception Areas (TCEAs) for Dense Urban Land Areas (DULAs). Regardless of whether it is interpreted to be self-executing or to require local action to implement these new TCEAs, the Act requires DULAs to support and fund mobility within two years -- without providing any funding. The Act also contains several other unfunded mandates, and clearly preempts local governments from using their home rule powers to adopt ordinances requiring businesses to install security cameras. For example, unfunded mandates or other limits on home rule authority in the Act include the requirement to concurrently process rezoning applications with related plan amendments; the extension of certain local development orders and building permits for two years; the requirement to maintain the existing density of unincorporated residential properties or recreational vehicle parks; the inability to appeal or refuse a designation as a DULA; and the potential loss of the ability to continue enforcing valid local laws creating transportation concurrency as discussed further elsewhere in this newsletter. Yet the Act also purports to preserve home rule, at least with regard to transportation concurrency. Section (5)(b)6., F.S., states [t]he designation of a transportation concurrency exception area does not limit a local government's home rule power to adopt ordinances or impose fees. The meaning of this language is in dispute. Representatives of the development industry and certain legislators have argued that, if a local government chooses to retain existing transportation concurrency policies and refuses to accept the TCEA, it is inconsistent with general law because the The stated intent of the Community Renewal Act is to e n c o u r a g e e c o n o m i c development. However, it can be interpreted to infringe upon a municipality's ability to adopt and implement local land use policies. 4 automatically applicable. The countervailing argument is that such action is not inconsistent because the Act only removes the state mandate for concurrency but does not explicitly preempt local concurrency regulation. As such, the issue will ultimately have to be resolved through litigation or clarified by further amendment of the statute. Even if this sentence is ultimately determined to have preserved home rule authority, it does not address the other mandates and preemptions of the Act outside of the transportation concurrency context. The Act also requires the Florida Department of Transportation and the Florida Department of Community Affairs to complete their current mobility fee studies, develop a mobility fee methodology study, and provide recommendations for legislation and a plan to implement the mobility fee as a r e p l a c e m e n t f o r e x i s t i n g transportation concurrency. DULA municipalities will need to watch this effort carefully, in relation to the mandate to support and fund mobility within two years. Non- DULA municipalities should also monitor this effort closely, because a uniform mobility fee methodology for the state might preclude local adoption of different tools and methodologies to address transportation impacts, or at least might provide a floor and only allow local governments to adopt stricter regulations. At a minimum, the mobility fee concept will be the subject of legislative debate in 2010, and it may also be that a glitch bill or other modification to the Act will be advanced. Local governments should meet with their legislators to inform them of the impacts of additional unfunded mandates and preemptions, including the potential costs associated with supporting and funding mobility and with revising local plans and regulations to meet new requirements. Assuming that the Legislature does not prevent them from doing so, local governments may also want to update or revisit their impact fees as a source of funds to address these new state requirements. The Act erodes municipal home rule authority. Its ability to renew communities is as yet unknown. The one sure thing is that it presents substantial additional challenges to local governments in a time of major revenue shortfalls. Susan L. Trevarthen, AICP, is Chair of the Municipal Land Use and Zoning Law Group.

5 SB 360 Preemption of Security Camera Requirements By Johanna M. Lundgren, AICP Senate Bill 360, the Community Renewal Act, included an amendment adding Section , Florida Statutes, which prohibits local government adoption of standards for security cameras that require lawful businesses to expend money to enhance local police services. This provision departs from the general subject of the Act amendments to Chapters 163 and 380, Florida Statutes, intended to streamline growth management review processes that might be barriers to development and redevelopment. This provision was adopted in response to efforts by local governments to require security cameras in connection with approval of commercial development. Recent local efforts to require installation of security cameras include regulations proposed by Broward County, the Town of Cutler Bay, and the City of St. Petersburg, among others. The statutory language expressly provides that the preemption shall not affect security requirements for publicly operated facilities, including any private businesses operating within those facilities. The exemption for public facilities was the result of an amendment obtained by Broward County to ensure the preemption does not impact Broward County's ability to implement security camera requirements at County facilities such as the airport or seaport. A number of local governments have adopted or have begun considering security camera requirements in connection with conditional land development approvals and business licensing standards such as extended hours licenses for nightclubs and bars. Security camera requirements have been found to be effective in deterring criminal activity and providing essential evidence to aid in solving crimes. In these lean budgetary times, local government law enforcement agencies struggle to maintain preventative patrols in the face of personnel reductions. The Act will hamper the ability of counties and municipalities to partner with businesses to improve local crime prevention efforts. Notably, the Act provides that the local government shall not maintain in effect an ordinance or rule that establishes security camera requirements for businesses, preempting the enforcement of security camera requirements in existing ordinances. However, the language of the legislation leaves it unclear whether a local government may impose a security camera requirement as a staff-recommended condition of development approval, through approval of a conditional use, special exception, or similar local approval. Johanna M. Lundgren, AICP is an Associate with the Municipal Land Use and Zoning Law Group. SB 360 and Developments of Regional Impact continued from page 1 stakeholders will have fewer opportunities to comment and voice their concerns about the proposed development. Most DRIs go through several rounds of sufficiency review, which are valuable forums that afford affected stakeholders an opportunity to gather in one room and work through the various issues with the development. As a means to compensate for the removal of the DRI review process, the Act includes a provision that mandates mediation through the applicable regional planning council when disputes arise. However, it is unclear whether mediation will have the same success that the DRI process has had in resolving issues and providing for mitigation. Another less obvious impact of the DRI exemption in DULAS is that the class of persons who have standing to challenge these developments that would have otherwise qualified as a DRI has been broadened. Under Florida law, standing to challenge a DRI development order is limited to the owner, the developer, or the Department of Community Affairs. However, because these developments no longer qualify as DRIs, third parties will now have the opportunity to challenge such large scale developments. This article includes a discussion of just two of the impacts of the DRI exemption made effective by the Act. Clearly, as the Act is implemented, more implications will be revealed, and it will be interesting to see if the Legislature will obtain their desired result in eliminating the DRI process for the majority of the populated areas within the state. Chad S. Friedman is an associate with the Municipal Land Use and Zoning Law Group. 1. See Section (29), F.S. 5

6 THE MUNICIPAL LAND USE AND ZONING LAW GROUP With decades of collective experience, the attorneys of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., practice in the constantly evolving area of land use and zoning law. Chaired by Susan L. Trevarthen, AICP, who is board certified in City, County, and Local Government Law by the Florida Bar, the Municipal Land Use and Zoning Law Group is comprised of attorneys representing local governments in planning and zoning matters within the context of the complex legal environment created by Florida's Growth Management Act. As counsel to local government entities, these attorneys possess knowledge of the local government planning and zoning process. Their work includes the drafting and preparation of statemandated comprehensive land use plans and land development regulations, as well as the representation of boards and commissions Weiss Serota Helfman Pastorize Cole & Boniske, P.L. considering development decisions within a wide variety of local government environments. In addition to their legal credentials, several of the attorneys within the Municipal Land Use and Zoning Law Group have worked in the planning field, attained masters degrees in Urban and Regional Planning, and are accredited by the American Institute of Certified Planners (AICP). The attorneys of the Municipal Land Use and Zoning Law Group speak widely at numerous planning and legal conferences, and are published on critical and timely topics in the area of land use law. The Firm also has a Private Land Use Law Group which is similarly committed to providing guidance and assistance to developers in attaining land use permits and approvals for their projects. 6 LAND USE ELEMENTS Weiss Serota Helfman Pastoriza Cole & Boniske, P.L. 200 E. Broward Boulevard Suite 1900 Fort Lauderdale, FL PRESORTED STANDARD U.S. POSTAGE PAID FT LAUD, FL PERMIT NO ADVERTISEMENT