This legislative session continued an eight-year process of giving local governments more authority to manage their own growth and land development. The
Community Planning Act streamlined the growth management process in 2011.
SB 1216 eliminated DRI review for new DRI-scale developments in 2015 in favor of comprehensive planning strategies to address intergovernmental coordination. Following the 2015 session, the Legislature has struggled to decide how to address existing DRIs. In some cases, existing and ongoing developments were being placed at a competitive disadvantage compared to new developments that were able to avoid DRI requirements.
On April 6, Governor Scott signed
HB 1151, which continues the trend toward local control. All responsibilities are shifted to local governments for review of amendments to existing and vested DRIs/FDQs and for administering other requirements of Chapter 380, Florida Statutes. It also levels the playing field for existing DRIs, FQDs and vested DRIs with binding letters by no longer requiring that amendments to those projects undergo regional review to identify and mitigate regional impacts. In effect, amendments to existing DRIs, FQDs and vested DRIs with binding letters will be subject to the same local government development review standards as other local government development orders. HB 1151 also enacts many other procedural changes to simplify the administration of existing DRIs.
Historical Perspective
Before providing a "laundry list" of major changes to Chapter 380, we ask for your indulgence while we briefly offer some historical perspective on the DRI program. After all, Florida has just terminated a major, controversial program that has been in place since 1972.
The
Florida Land and Water Management Act established the DRI program as part of the environmental reforms of the early 1970s, well before Florida adopted mandatory comprehensive planning in 1985. It defined DRI as "any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county." To implement that definition, the state adopted thresholds for residential, commercial, industrial and other types of development, and standards for identifying and mitigating regional impacts to transportation, affordable housing, wetlands and wildlife habitats and many other facilities and resources. To administer the program, the State Land Planning Agency (formerly DCA and later DEO) and regional planning councils were involved in implementing what became a very complex interagency review process.
Touted by growth management advocates as innovative and criticized by large scale developers as onerous and unfair, the DRI program was controversial. Yet, hundreds of DRIs were adopted throughout the state over the past 45 years. Ultimately, the DRI program was viewed by many as unnecessarily duplicative of environmental permitting programs, ineffective in addressing affordable housing needs, and inequitable in charging larger projects higher mitigation per unit to account for regional transportation impacts. Critics viewed the DRI process as antiquated as a result of comprehensive planning, regional mitigation banks and other transportation funding mechanisms, such as impact fees and mobility fees. In short, the Florida Legislature and Governor concluded the benefits of the DRI program did not justify its complexity, which led to increasing costs and delays for projects.
Now, the laundry list of major changes to Chapter 380:
Changes to Existing DRIs/FQDs
- DRI Development Order amendments will be reviewed and approved by local governments based on consistency with the local government comprehensive plan and land development regulations, including procedural requirements.
- Vested rights are maintained pursuant to s. 163.3167(5), F.S., and the amendment review must honor any previous agreements regarding vested rights.
- Any new conditions imposed by the local government apply only to the proposed change and must be consistent with s. 163.3180(5), F.S., regarding concurrency.
- Eliminates all substantial deviation criteria including land use thresholds and extension thresholds, but retains concept that any extensions to buildout dates, phase dates or termination dates shall extend mitigation by the same timeframe.
- Existing agreements, binding letters and clearance letters remain valid, unless they expired before the effective date of the Act, April 6, 2018.
- Eliminates "essentially built out process" and related statutory thresholds, but existing essentially built out agreements and determinations are unaffected.
- DRI developers retain the right to rescind the DRI DO, subject to certain limitations and procedures.
- Requires the local government to issue a development order to abandon a DRI if requested by an owner, developer or local government, provided that all mitigation due through the date of the abandonment has been completed or otherwise secured by an enforceable instrument.
- Retains requirements to credit DRI mitigation/contributions against impact fees, mobility fees and other exactions.
- Eliminates requirement for Annual Reports and Biennial Reports even if already required by the DRI Development Order, unless a local government takes new action to impose monitoring requirements.
- Eliminates appeals of DRI/FQD Development Orders to the Florida Land and Water Adjudicatory Commission (FLAWAC).
- All of the above apply to Areawide DRI Development Orders and Incremental DRIs.
- Repeals Rule 28-24, Florida Administrative Code (F.A.C.) and Rule 73C-40, F.A.C.
- Following notice to the State Land Planning Agency and the Regional Planning Council, a local government with an existing FQD in its jurisdiction must schedule a public hearing and adopt a development order to replace the FQD Development Order previously issued by the State Land Planning Agency. The project will thereafter be regulated as a DRI.
Changes to Vested DRIs
Vested DRIs are developments that received local government authorization prior to July 1, 1973. The State Land Planning Agency previously issued "Binding Letters of Interpretation of Vested Rights" (BLIVRs) and "Binding Letters of Interpretation of Modification of Vested Rights" (BLIMs) to formally recognize vested DRIs and approve modifications to vested development plans, respectively.
- Local governments are now responsible for approving BLIMs.
- Substantial deviation thresholds were repealed and are no longer considered in the review of BLIMs.
- DEO and regional planning councils are no longer involved in the BLIM process.
Changes to New DRI-Scale Projects
- Retains DRI thresholds in s. 380.0651 and requires that any development exceeding a threshold must be approved by a local government pursuant to s. 163.3184(4), F.S., unless the development is consistent with the Comprehensive Plan.
- Moves DRI exemptions and partial exemptions to s. 380.0651, F.S. These would apply in determining whether a new development is exempt from the 163.3184(4) approval process above.
The above list identifies the most significant changes and is not intended to show each and every change in HB 1151.
DRI developers are now positioned to reassess their existing mitigation conditions. While existing DRI Development Orders are saddled with significant obligations, many of these conditions are based on regional mitigation standards that have been repealed and would not apply to the same development if it were approved today. Stearns Weaver Miller's attorneys and planners have collectively worked on hundreds of DRIs and can assist you in evaluating your options to reduce or eliminate your DRI obligations. For a briefing on other significant legislation, please
click here. Stay tuned for more Stearns Weaver Miller updates as bills are signed into law.
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