SB 360 — Designed to help developers, the new law may produce more work for lawyers

BEACON PHOTO/PAT HATFIELD
‘Clear as mud’ — DeLand Assistant City Manager Dale Arrington, left, is one of the development officials working to understand SB 360. She called it “as clear as mud.”

By Pat Hatfield
BEACON STAFF WRITER

posted Jul 14, 2009 - 9:21:58am

A coalition of eight cities and counties led by the City of Weston filed a lawsuit July 8 against Gov. Charlie Crist, Secretary of State Kurt Browning, Florida Senate President Jeff Atwater and Speaker of the Florida House Larry Cretul.

Weston and its partners want Senate Bill 360 declared unconstitutional.

In its lawsuit, the coalition charges that the new law, officially called an “Act Relating to Growth Management,” violates two sections of the state constitution.

First, they say, SB 360 violates the requirement that every law embrace only one subject. Second, it violates the constitutional prohibition against imposing unfunded mandates on local governments without following prescribed procedures.

Along with Weston, Lee County and the cities of Fruitland Park, Deerfield Beach, Miami Gardens, Parkland, Cutler Bay and Key Biscayne joined in the suit, filed in Leon County.

They expect more partners to sign up.

The bill, which Crist signed into law June 1, makes sweeping changes in growth-management laws.

It favors developers, and shifts some of the burdens of development from them to local governments and taxpayers, its critics say.

Weston City Manager John R. Flint said officials in Tallahassee completely disregarded the cities’ and taxpayers’ objections.

“A lot of these amendments were put in literally in the last 30 minutes of the session,” Mayor Flint told The Beacon in a phone interview, “dismantling 30 years of growth-management legislation in 30 minutes.”

Transportation concurrency is one of the coalition’s big concerns, Flint said.

Before Senate Bill 360, developers were required to provide engineering studies showing the effects of their projects on roadways. They were also required to pay for road widening, paving or other improvements needed as a result of development.

The intent was to be able to improve roads and highways “concurrent” with new development.

Under the bill’s provisions, this concurrency requirement will be eliminated in areas called “Dense Urban Land Areas” or DULAs. Developers would no longer have to make the studies or pay for improvements, under the theory that dense areas are already built out, and improvements already made.

DULAs don’t have to be very dense, however. Any county with 1,000 people per square mile, or around one home per acre, is “dense” under SB 360, as is any municipality with the same density and a minimum population of at least 5,000.

The Department of Community Affairs (DCA), which oversees land-use planning around the state, prepared a list of cities and counties that qualify as DULAs.

On that list, which uses April 1, 2008, population estimates, Volusia, as a county, was too low in density to qualify as a dense urban land area.

In West Volusia, DeLand, Orange City, DeBary and Deltona are considered DULAs.

While the list didn’t provide density, DeLand had a population density of 1,317 per square miles, according to the 2000 census, while Orange City had 1,065 people per square mile. Deltona’s population density was 1,844 per square mile.

DeBary’s population density inched into DULA territory from its 2000 census population density of 854 per square mile.

In East Volusia, Daytona Beach, South Daytona, Port Orange, Daytona Beach Shores, Holly Hill and Ormond Beach all made the list.

Another concern is the elimination of a lengthy, costly extra layer of planning for developments of more than 25 acres that could affect an entire region.

The Legislature did all this “under the guise of helping development,” Flint said.

He fears the other shoe will drop in November 2010, when a proposal capping property taxes will appear on the ballot. If passed, local governments will have the burden but not the funds to pay for road improvements.

Local concern

In DeLand, Assistant City Manager Dale Arrington, who has worked for years with land-use planning, has her own problems with SB 360.

“It’s clear as mud,” she said.

The Florida Chamber of Commerce, for example, interprets the language to mean the law’s transportation concurrency provisions are automatic, and localities must adjust their land-use plans to adopt the provisions.

DCA, however, takes the position that none of this is automatic. Localities could choose to replace SB 360’s requirements with their own concurrency plans, DCA Secretary Tom Pelham told municipal leaders.

There’s a lot left undefined, and a lot of confusion, Arrington said.

Even if cities don’t choose to dodge traffic-concurrency requirements within their own borders, Weston Mayor Flint said, those cities could still be affected by large developments next to their jurisdictions that could clog their cities’ roads, because the requirement for a regional review will disappear.

“Senate Bill 360 gutted the ability to deal with traffic impacts on a regional basis,” he said. “It makes it easier for huge developments to come in next door, and the taxpayers have to pay for road improvements.”

Both Arrington and Flint said they believe SB 360 was passed with the intention of helping builders and developers get back to work, to stimulate Florida’s economy.

On his Senate Web page, Sen. Mike Bennett of Bradenton, the bill’s sponsor, lists his occupation as an electrical contractor.

Arrington said local communities and the County of Volusia will need to sit down as a group, look at the bill and work together.

A local land-use expert said the new law may not be all bad.

“I think there is some good intent behind it,” attorney Mark Watts said of SB 360.

It will take time to figure out some of the concurrency provisions, Watts said. In some cases, the bill’s provisions may create concurrency-exception areas, while in another area, a city or county may have its own standards in place.

It will take some time to sort it all out, Watts said.

— pat@beacononlinenews.com

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