• Implementing Senate Bill 360: On Hold? The Status of Florida's Community Renewal Act
  • August 21, 2009
  • Law Firm: Baker Hostetler - Office
  • Following Governor Crist’s signature of SB 360 into law on June 1, 2009, the Community Renewal Act’s implementation has remained in somewhat of a state of flux.

    One reason for this is the pending litigation filed by the City of Weston and a coalition of various other local governments challenging the validity of SB 360.

    Another is uncertainty regarding the interpretation of certain portions of the bill. As the state agency responsible for the administration of the state’s Growth Management Act, the Department of Community Affairs (“DCA”) has provided some guidance to local governments, Read: DCA’s Position, however, that guidance has not been uniformly clear. The litigation has caused numerous local governments to delay implementing the terms of the legislation pending resolution of the litigation, and while this approach is not authorized, there is little anyone can do at the time of this writing to expedite the process. However, the combination of the economy and the passage of SB 360 has created the impetus for developers to seek refunds of prepaid transportation impact fees and certain local governments have chosen to comply with the requests, as the Orange County Commission voted to do earlier this week.

    The Take-Away: Because the outcome of the litigation remains unclear, developers looking to take advantage of the benefits provided by the bill, particularly the provisions that allow for the extension of permits, should proceed to formalize their request for the extensions before December 31, 2009, in order to ensure that they are in the queue. The Baker Hostetler Development and Land Use Team is actively working with local governments around Florida regarding the implementation of SB 360 within their jurisdictions, and we are currently assisting clients with the filing of permit extension applications. If we can assist you with your project, or if we can answer any questions, please contact any member of the Orlando Development and Land Use Team referenced in the Professionals Tab above.

    Pending Litigation

    On July 7, 2009, the City of Weston and a coalition of various other local governments filed a lawsuit challenging the validity of SB 360. The complaint claims that SB 360 violates the Constitution of the State of Florida on two bases: a violation of the constitutional prohibition on legislation addressing more than one topic (commonly known as the “single-subject rule”); and a violation of the constitutional requirement that the Legislature must not require expenditure of local government funds unless the Legislature also appropriates a funding source for the expenditure (commonly known as the prohibition against “unfunded mandates”).

    The lawsuit seeks expedited consideration by the court and injunctive relief against application of SB 360’s requirements.

    SB 360 In Brief

    The new legislation eliminates state mandated transportation concurrency and DRI requirements in certain areas which have been designated as Transportation Concurrency Exception Areas (“TCEAs”) in Dense Urban Land Areas (“DULAs”). Local governments are no longer required to comply with state-mandated transportation requirements in TCEAs, but state-mandated transportation concurrency requirements still apply in other areas. In order to be designated as a DULA, a county or city must meet certain requirements, and the areas qualifying as DULAs for 2009 have been published by the Department of Community Affairs on its website, and will continue to be updated each July.

    SB 360 also authorizes a two-year extension of development permits which expire between September 1, 2008, and January 1, 2012. Eligible development permits include local government-issued development orders (i.e., site plan approvals, PUDs, DRIs, etc.) or building permits, any permit issued by the Department of Environmental Protection, any permit issued by a water management district and any build-out date extension previously granted under 380.06(19)(c). Additionally, this extension applies to any mitigation that was to be completed during this same timeframe.

    Importantly, this extension is not automatic. The permit holder must notify the authorizing agency in writing no later than DECEMBER 31, 2009, of its intent to take advantage of the two-year permit extension. Other substantive and procedural requirements exist and must be met in order to perfect an extension.

    DCA’s Position

    Under SB 360, local governments in DULAs have the following options regarding transportation concurrency in TCEAs:

    1. Retain and continue to apply the transportation concurrency provisions in existing local comprehensive plans and land development regulations; or
    2. Amend the existing local comprehensive plan and local land development regulations to delete or modify transportation concurrency requirements for a TCEA or adopt alternatives to transportation concurrency.

    This means that local governments are not required to amend their existing regulations, and may continue to apply their existing, previously state-mandated transportation concurrency requirements in TCEAs. If a local government wants to amend its regulations, it must amend its existing comprehensive plan and land development regulations to delete state-mandated transportation concurrency requirements or to adopt alternative requirements. Therefore until such an action is taken by a local government, the existing transportation concurrency requirements will continue to apply.