2018 Florida Legislative Session Update

HB 1151 – DEVELOPMENTS OF REGIONAL IMPACT

The 2018 Florida Legislature has enacted sweeping changes to the state’s Developments of Regional Impact (“DRI”) law. Gov. Rick Scott signed the legislation on Friday, April 6, 2018. Generally, the bill eliminates many DRI statutory requirements governing the application and approval of DRIs. Proposed changes to an existing DRI development order (“DO”) will be the responsibility of the local government in which the development is located.

Specifically, the bill:

— Eliminates state and regional review of existing DRIs.

— Deletes the substantial deviation criteria for DO changes, and transfers the responsibility for amendments to DRI DOs to the local government.

— Preserves existing DRI letters, development orders, agreements, and vested rights.

— Eliminates the Florida Quality Development (FQD) program and transfers the responsibility for enforcement of, and amendments to, DRI and FQD development orders to the local governments in which the developments are located.

— Deletes the aggregation criteria for determining when two or more developments constitute a DRI.

— Ends all DRI appeals to the Florida Land and Water Adjudicatory Commission (FLAWAC) except for decisions by local governments to abandon an approved DRI.

— Transfers the DRI exemptions and partial exemptions currently found in s. 380.06, F.S., to s. 380.0651, F.S.

— Repeals Department of Economic Opportunity (DEO) DRI and FQD rules in Chapter 73C-40, F.A.C., and Administration Commission rules related to DRI aggregation.

We have highlighted below some of the major changes of the legislation, but it is not intended to be a comprehensive summary.

Background

The DRI program was created in 1972 as an interim program intended to be replaced by comprehensive planning and permitting programs. In 2015, the Florida Legislature eliminated the requirement that new large-scale developments be reviewed pursuant to the DRI process, and directed that proposed developments only need to comply with the requirements of the State Coordinated Review Process for the review of local government comprehensive plan amendments. 

DRI Application and Review

Previous:         Currently, existing DRIs that received local government DOs prior to July 1, 2015 are subject to the provisions of s. 380.06, F.S. including the application and pre-application processes for reviewing proposed DRIs, binding letters, and clearance letters. Other DRI-sized projects must be reviewed and approved by the local government pursuant to a comprehensive plan amendment processed under the state coordinated review process.

HB 1151:         State and regional review of existing DRIs is eliminated and the responsibility for implementation of, and amendments to, development orders is transferred to the local governments.

Existing letters, development orders, and agreements are preserved.

Upon request by the developer, local governments may amend a binding letter of vested rights based on standards and procedures in the adopted local comprehensive plan or local land development code.

Notwithstanding any comprehensive plan or land development regulation, an amendment to a DRI development order may not alter the date until which the local government agrees that the DRI will not be subject to downsizing or density or intensity reductions.

Developers may record a notice of rescission if a local government rescinds a development order for a DRI.

Notwithstanding any comprehensive plan or land development regulation, the adoption of an amendment to a DRI development order does not diminish or otherwise alter any credits for a development order exaction or fee against impact fees, mobility fees, or exactions when based upon the developer’s contribution of land or a public facility.

Removes requirement to submit a report on the DRI to the local government, the regional planning agency, the state land planning agency, and all affected permit agencies unless required to do so by the local government that has jurisdiction over the development.

Substantial Deviation / DRI DO Amendments:

Previous:         Proposed changes to an approved DRI DO that creates a reasonable likelihood of additional regional impact constitutes a “substantial deviation” and requires such proposed change to be subject to further DRI review.

To determine whether a proposed change requires further DRI review, Florida law establishes the following:

1. Certain threshold criteria beyond which a change constitutes a substantial deviation;
2. Certain changes in development that do not amount to a substantial deviation;
3. Scenarios in which a substantial deviation is presumed; and
4. Scenarios in which a change is presumed not to create a substantial deviation.

Florida law directs DEO to establish by rule standard forms for submittal of proposed changes to a previously approved DRI DO. The developer must submit the form to the local government, the regional planning agency, and DEO. Applicable review and notice deadlines are outlined in statute for regional planning agencies, DEO, and public hearings to consider the change.

The statute outlined procedures for the public hearing, and guidelines for filing an administrative challenge to the adopted DO or a DO amendment with the FLAWAC (essentially, the Governor and Cabinet).

HB 1151:         Substantial deviation criteria for development order changes are deleted and replaced with the authorization for local governments to review proposed changes based on the standards and procedures in its adopted local comprehensive plan and local land development regulations including procedures for notice to the applicant and the public.

Abandonment of a DRI will be deemed to have occurred when the required notice is filed by the local government with the county clerk. If requested by the owner, developer, or local government, the DRI development order must be abandoned by the local government if all required mitigation related to the amount of development which existed on the date of abandonment has been or will be completed under an existing permit or authorization enforceable through an administrative or judicial remedy.

The bill amends the DRI appeals process to FLAWAC to only include appeals for decisions by local governments to abandon an approved DRI, but preserves FLAWAC’s authority to review DOs in areas of critical state concern.

Exemptions and Partial Exemptions: 

Previous:         The DRI statute includes a number of exemptions and partial exemptions of projects from DRI review.

HB 1151:         The bill transfers the DRI exemptions and partial exemptions currently found in s. 380.06, F.S., to s. 380.0651, F.S., which contains the statewide guidelines and standards for determining whether a proposed development is a DRI-sized development subject to state coordinated review.

Aggregation of Developments

Previous:         Section 380.0651, F.S., directs the Administration Commission to adopt statewide guidelines and standards for developments to undergo DRI review. As part of such guidelines and standards, the law addresses when two or more developments must be “aggregated” and treated as a single development.

Specifically, two or more developments must be aggregated when they are determined to be part of a unified plan of development, and are physically proximate to one other. There are four criteria to consider for a “unified plan of development;” if 3 out of the 4 are present then a unified plan of development is deemed to exist.

HB 1151:         The bill deletes the criteria for determining when two or more developments must be “aggregated” and treated as a single development for the purposes of DRI review.

Florida Quality Development Program

Previous:         The legislature created the Florida Quality Development (FQD) program to encourage development which has been thoughtfully planned to take into consideration protection of Florida’s natural amenities, the cost to local government of providing services to a growing community, and the high quality of life Floridians desire. The law intended for the developer to be provided, through a cooperative and coordinated effort, an expeditious and timely review by all agencies with jurisdiction over the proposed development.

HB 1151:         The Florida Quality Developments program of s. 380.061, F.S., is amended by ending the program and requiring local governments with a currently approved Florida Quality Development within its jurisdiction to set a public hearing and a adopt a local development order to replace and supersede the development order adopted by the state land planning agency. Thereafter, the Florida Quality Development must follow the same procedures established for DRI-sized development projects.

Administrative Rules

HB 1151 repeals DEO’s DRI and FQD rules in Chapter 73C-40, F.A.C., and the  Administration Commission rules related to DRI aggregation.