Unfunded Mandates & the Constitutional Challenge to Senate Bill 360

1. Unfunded Mandates &the Constitutional Challenge to Senate Bill 360 September 24, 2009

2. SB 360 LAWSUIT City of Weston, et al. vs. The Honorable Governor Charlie Crist, et al. JAMIE ALAN COLE, ESQ. Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.

3. Background of Lawsuit • Filed on July 8, 2009 • Plaintiffs: Coalition of 18 local governments • Defendants: Governor, Speaker of House, President of Senate and Secretary of State • Relief Sought: Declaration that SB360 was enacted in violation of Florida Constitution and injunctive relief

4. Legal Causes of Action • Single Subject Rule • Unfunded Mandate Provision

5. Single Subject Rule • Article III, Section 6, Florida Constitution: “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.”

6. Single Subject Rule • Common provision: as of 2004, at least 43 states had some type of single subject requirement in their Constitutions or Statutes • Been part of Florida Constitution since 1868

7. Purposes of Single Subject Rule • Prevent log-rolling • Prevent surprise or fraud because legislators could overlook additional subjects added to bill • Fairly apprise public of subject of law to be considered

8. Single Subject Rule: Violations • Most common circumstances leading to violation • When bills are amended numerous times • When title changes • When bill is passed near the end of the legislative session

9. Single Subject Rule: Penalty • Effect of violation of Single Subject Rule • Entire law is VOID AND INVALID

10. SB360 Violates Single Subject Rule because it Contains THREE SUBJECTS • Growth mismanagement • Prohibits local government from adopting standards for security cameras at businesses • Affordable housing revisions • tax exemptions, methods of valuation of trust property, sales surtaxes, qualifications of affordable housing developers and amendments to powers of Florida Housing Finance Corporation

11. Circumstances of SB 360 enactment • Circumstances of enactment support claim of violation of single subject rule • Short title: “An Act Relating to Growth Management” – no mention of security cameras or affordable housing • Amended numerous times • Final amendment that added affordable housing was done in final hour of session: combined two bills

12. Unfunded Mandate Provision • History of unfunded mandate provision • Late 1970s: Legislature adopted many bills that imposed costly requirements on local governments without providing funding • 1977: after public outcry, Legislature created Florida Advisory Council on Intergovernmental Relations to examine unfunded mandates • 1978: Legislature passed bill requiring economic impact statement of laws • 1980’s: these measures failed - legislature passed 362 unfunded mandates from 1981-1990 • Mid 1980’s: local governments organized petition drive to put constitutional amendment on ballot to restrict unfunded mandates • Nov 6, 1990: Art. VII, Section 18(a) of the Constitution ratified by voters

13. Three part analysis under Unfunded Mandate Provision • Does the law require local governments to spend funds or take action requiring expenditure of funds? • If so, did Legislature determine that the law “fulfills an important state interest?” • If so, did the general law either: • Include an appropriation of sufficient funds, or • Authorize a new funding source sufficient for the expenditure, or • Obtain approval by 2/3 vote of membership of each house, or • Apply the same to all similarly situated persons (including local governments), or • Comply with a federal requirement?

14. SB 360 requires local governments to spend funds or take actions that require expenditure of funds • Staff analysis:“the bill will have a negative fiscal impact on local governments that are designated TCEAs by requiring updated comprehensive plans” • DCA analysis:SB 360’s requirements “will be a very onerous and expensive task. However, no financial support or new revenue sources have been provided for the local governments to undertake this planning.”

15. SB 360 EXPENDITURES • Specific expenditures: • Cost to adopt amendments to comprehensive plans • Potential cost shift from developers to taxpayers for roadway improvement • Cost to implement and administer 2 year permit extensions • Cost to participate in mandatory mediation process for intergovernmental disputes • Cost to mitigate impacts across jurisdictional boundaries that used to be addressed in DRI process • Cost to comply with notice and hearing requirements for automatic increases in impact fees • Cost to fund additional police services that could have been avoided by security camera regulations

16. IMPORTANT STATE INTEREST? • Legislative finding that bill fulfills “important state interest” • SB360 does include such a finding, although it does not specify the purportedly important state interest

17. None of the additional five criteria are met • Appropriation of funds – no funds were appropriated • New funding source – no new funding source was created • Two-thirds vote in each house – only received 78 out of 120 in House of Representatives • Applicability to all similarly situated persons - only applies to local governments • Compliance with federal requirements – no such federal requirement exists

18. Status of Lawsuit • Motion to dismiss filed by each of the four defendants • Each claimed that they were not the right person to defend the Constutionality of the enactment of SB 360 • Court ruling on motion • Next steps in litigation

19. Practical Impacts on Local Government JOHN R. FLINT City Manager - City of Weston

20. Elimination of state-mandated DRI process Assumption that transportation concurrency exists when a land use plan amendment is adopted Disenfranchisement of surrounding local governments’ ability to participate in the planning process Creation of unfunded mandates Amendment of local comprehensive plans Funding of transportation mitigation

21. Weston Case Model Proposed development located in adjacent community sharing a common boundary with the City of Weston Proposed development is on 152 acres with a current land use designation of agricultural Proposed development consists 2.1 million square feet development generating 32,000 trips per day 1.2 million square feet of commercial 880,000 square feet of office 350 hotel rooms

22. Weston Case Model Adjacent community mandates NO local vehicular access to development from community’s local roads The ONLY local vehicular access to the development is through the City of Weston

23. SB 360’S COST TO THE CITY OF WESTON Amendment to the City’s Comprehensive Plan (one-time cost) Funding of construction of roadway improvements to manage additional daily trips (one-time cost) Degradation of quality of life for some residents – expansion of 4 lane divided to 6 lane divided (ongoing impact) Additional police required to manage additional daily trips – (ongoing cost) Use of city’s EMS & fire as closest units to respond – development has only emergency access to the adjacent community – (ongoing cost)

24. WHY SHOULD YOU BE CONCERNED? Can happen to any local government where an adjacent local government is going to permit a development of regional impact

25. BENEFITS OF DEFEATING SB 360 Preserve almost 30 years of good and proven growth management legislation Preserve local government’s ability to participate in the planning of developments of regional impact outside of their jurisdiction Keep those responsible for and benefiting from the impacts of development responsible for funding those impacts Protect the region from legislative bodies making parochial and selfish development decisions

26. Policy Implications & LEGISLATIVE INCURSIONs INTO HOME RULE POWER SUSAN L. TREVARTHEN, AICP, ESQ. Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.

27. Policy Implications of the Challenge • Should local governments implement the Bill? • If the challenge is successful, actions taken under the Bill may be of dubious validity: • DULA TCEAs • Permit Extensions • Rescission of DRIs • Supporting and Funding Mobility • Intergovernmental Coordination

28. Policy Implications of the Challenge • DULA TCEAs: Is the Bill self-executing in creating Transportation Concurrency Exception Areas (TCEAs) for Dense Urban Land Areas (DULAs)? • If not, DULAs that want to implement the DULA TCEAs may want to amend their comprehensive plans. • If those plan amendments are not final before the Bill is invalidated, they may become moot. • Alternatively, the amendments may need to be revised to qualify under the traditional path to approval for TCEAs.

29. Policy Implications of the Challenge • Permit Extensions: Should local governments recognize permit extensions under the Bill, or steer them through locally adopted procedures? • Extensions pursuant to local law will be valid; extensions under the Bill may become invalid along with the Bill. • Rescission of DRIs: Should local governments allow a Development of Regional Impact (DRI) to rescind the DRI Development Order pursuant to the Bill? • Potential effect: loss of a specific development order condition important to the local government, such as a prohibited use or limit on use or intensity that is not mirrored in other approvals?

30. Policy Implications of the Challenge • Supporting and Funding Mobility: Should Dense Urban Land Areas start figuring out how to support and fund mobility? • The clock is ticking on the two-year deadline. But if the Bill is invalidated or if this obligation is substantially revised in 2010, those efforts may have been wasted. • Should all agencies affected by transportation issues be negotiating a new complementary approach to mobility, as encouraged by the Bill? • Intergovernmental Coordination: Should DULA local governments start to develop homegrown alternative methods for dealing with conflicts over large scale development, as a substitute for DRI review? Role of interlocal agreements?

31. Legislative Incursions into Home Rule Power • The erosion of home rule powers makes it more difficult for local governments to address local issues. “One size fits all” approaches do not address the substantial diversity of circumstance among Florida’s nearly 500 local governments. Even “two sizes fit all” is insufficient: look at the diversity of governments grouped together as DULAs and non-DULAs. • The Bill preempts local governments from adoption of regulations related to security cameras. See Section 163.31802, F.S. • There is also an argument that the DULA TCEAs are self-executing, and that local governments are preempted from continuing to enforce transportation concurrency as it existed before the Bill was enacted. • See the Florida Senate Bill Analysis and Fiscal Impact Statement, dated March 19, 2009, which provides: “Local governments that qualify as dense urban land areas and FDOT will lose the ability to collect proportionate fair share (other transportation concurrency costs) contributions and may lose the ability to collect proportionate share (DRI transportation costs) contributions from new development within dense urban land areas.”

32. Legislative Incursions into Home Rule Power • However, the Bill also specifically protects home rule, as follows: Section 163.3180(5)(f): “The designation of a transportation concurrency exception area does not limit a local government’s home rule power to adopt ordinances or impose fees. This subsection does not affect any contract or agreement entered into or development order rendered before the creation of the transportation concurrency exception area except as provided in s. 380.06(29)(e).”

33. Legislative Incursions into Home Rule Power • What is home rule? Local governments were granted home rule powers by the adoption of the 1968 Florida Constitution. Article VIII, Section 2(b) of the Florida Constitution provides: “Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise power for municipal purposes except as otherwise provided by law.” [For Counties, see Article VIII, Section 1(f) & (g) of the Florida Constitution.]

34. Legislative Incursions into Home Rule Power • These home rule powers have also been further codified in Sections 166.021 (Municipality) & 125.01 (County), Florida Statutes. • Home rule powers allow local governments to govern themselves and adopt legislation freely, unless such actions are: 1) clearly preempted by state law or 2) in conflict with state law. • The Bill contains both express preemptions (security camera regulation) and requirements that have been argued to be implied preemptions (continued enforcement of concurrency in DULAs).

35. Legislative Incursions into Home Rule Power • Implied preemption of home rule powers is rarely found by the courts. Bryan A. Exile and Elliott M. Bloom v. Miami-Dade County, Case No. 09-51205 CA 13, Order Granting Judgment on the Pleadings (11th Jud. Circ. Ct., Sept. 23, 2009) (sex offender residency ordinance was not impliedly preempted; court’s analysis concluded that preemption has been found only once at the appellate level, and was rejected 18 times). • Test for implied preemption: Is the legislative scheme so pervasive as to evidence an intent to preempt the particular area? And do strong public policy reasons exist for finding a preemption? Both factors must exist, and the preemption must be clear and express. City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006) and Tribune Co. v. Cannella, 458 So. 2d 1075, 1077 (Fla. 1984). • After all, “if the [L]egislature can easily create express preemption by including clear language in a statute, there is little justification for the courts to insert such words in a statute.” Tallahassee Memorial Regional Medical Center, Inc. v. Tallahassee Medical Center, Inc., 681 So. 2d 826, 831 (Fla. 1st DCA 1996)

36. Conclusion Questions and Answers • The Bill creates major issues for intergovernmental coordination over cross-jurisdictional impacts. • The Bill violates the single subject rule, and fails to satisfy the test for a constitutional unfunded mandate. • Local governments face difficult choices as they consider whether and how to implement the Bill while the challenge is pending, especially in this time of constrained budgets and tax reform. • Look for glitch legislation to attempt to moot the challenge and for potential additional unfunded mandates related to mobility fees in the 2010 Legislative Session.