• SB 360 Ruled Unconstitutional
  • September 9, 2010 | Author: Linda Loomis Shelley
  • Law Firms: Fowler White Boggs P.A. - Tampa Office ; Fowler White Boggs P.A. - Tallahassee Office ; Fowler White Boggs P.A. - Tampa Office
  • On August 26, 2010, Leon County Circuit Judge Charles Francis issued an Order of Final Summary Judgment in the case of City of Weston v. Crist, declaring that SB 360 was unconstitutional, and ordering the Secretary of State to expunge it from the records. It is anticipated that rehearing will be sought and if unsuccessful, the ruling will be appealed. This would delay the effect of the ruling until the appellate proceeding is resolved.

    As background, in 2009, the Florida Legislature adopted Senate Bill 360 (the “Community Renewal Act”). The Act included numerous provisions, including two-year permit extensions for certain environmental permits, local government development orders or building permits, and for Development of Regional Impact (“DRI”) expiration and build out dates that expire between September 1, 2008 and January 1, 2012. It also defined several counties and cities in Florida, including Hillsborough and Pinellas, as “Dense Urban Land Areas” (DULAs), and provided that urban areas in DULAs are designated as “Transportation Concurrency Exception Areas” (TCEAs) - i.e., exempt from state-mandated transportation concurrency requirements. In addition, SB360 exempted from the DRI process projects located within a DULA; and allowed developers of previously approved DRIs the option to rescind their DRI if located in a DULA.

    On August 26, 2010, Judge Francis ruled in favor of those local governments that had challenged SB 360, finding that the requirement that local governments with TCEAs adopt into their comprehensive plan land use and transportation strategies to support and fund mobility within the exception area, was an unfunded mandate in violation of Art. VII, §18 of the Florida Constitution. As a result, the Judge ordered the Secretary of State to expunge the law from the records of the State.

    Because the 2010 legislature, aware of the lawsuit, passed a “Bridge Bill” known as SB 1752 which reauthorized several key provisions in SB 360, the Order will not have any effect on: Permits and development orders extended pursuant to SB 360, DRI exemptions (in DULAs) for which an application has been approved, filed, or is pending, DRI rescission requests (in DULAs) for which an application has been approved or is pending, or TCEA plan amendments already in effect.

    However, numerous other provisions could be lost as a result of the Order. For example, local governments would no longer be able to wait until December 1, 2011 to insure that their CIE is financially feasible, and risk being prohibited from amending their comprehensive plans until they are able to demonstrate financial feasibility. There are also a number of jurisdictions, such as Hillsborough County and Pasco County, that are in the process of developing mobility fee programs designed to replace concurrency requirements. If the Order remains in effect, the only option available to them would be to qualify as a TCEA under the existing statutes, which is more difficult and time-consuming.

    Again, it is anticipated a motion for rehearing or appeal of the Judge’s Order will be filed within the next few weeks, which would stay the impact of the Order until the appeal is resolved.