The Environment Land and Water Management Act of 1972

1. The Environment Land and Water Management Act of 1972 Chapter 380, Florida Statutes

2. The ALI Code • As many states and localities began to exercise more control over development, a thought developed that there should be some type of model for them to follow. • There was the SSZEA • Standard State Zoning Enabling Act • The Uniform Commercial Code • Etc. • Why not something about land development?

3. The American Law Institute (ALI) of the American Bar Association (ABA) created a committee to draft a • Uniform land development code • This is commonly referred to as the ALI Code. • Florida adopted its variation of the ALI Code as the Environmental Land and Water Management Act (ELMS Act).

4. The ALI Code had two main components • Areas of State Concern Those areas of the state where development was not sufficiently regulated by the local government to protect societal resources. • Developments of State Concern Developments that by their very nature presented potential threats to jurisdictions other than the host jurisdiction.

5. Moving toward 380 • In the midst of a severe drought • Governor Rubin Askew established the Commission on Land and Water Management in 1971. • This group considered several models of state planning; • Hawaii – with a primary role for the state • Vermont – with a primary role for the state • Oregon – with a directive role for the state • California – also with a directive role for the state.

6. The conclusion of this inquiry was that the proper role for the state was secondary, with local governments retaining their primacy. • Like Oregon and California, the state would identify matters of state concern and then require/request/ask local governments to “consider” those matters.

7. The ALI Code was ideally sited for Florida’s purposes and was used as the basis for 380. • Florida was the last state to adopt the SSZEA in 1969 and the first to adopt the ALI Code in 1972. • A whole lot happened between 1969 and 1972. • A new constitution in 1968, which implemented the “one man, one vote” ruling of the Supreme Court.

8. 380 established • The Area of Critical State Concern and • The Development of Regional Impact • But it did more than just that.

9. 380.04 Definition of development. • Section 380.04 provide the exhaustive definition of development that is referred to by other statutes. • “(1) The term ‘development’ means the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.” • The statute then proceeds to flesh out, in great detail, what this means.

10. Areas of Critical State Concern Chapter 380.05, F.S.

11. Area of Critical State Concern. • This first essential component of the ALI-ABA code allows the state to identify certain areas of the state that are of state concern and appear to be insufficiently guided. • When Florida looked at state planning models • The decision was made for “planning” to remain a local government function. • State concerns would be addressed thru Areas of Critical State Concern and Developments of Regional Impact.

12. AREA OF CRITICAL STATE CONCERN • An area containing, or having a significant impact upon, environmental or natural resources of regional or statewide importance, including, but not limited to, • state or federal parks, forests, wildlife refuges, wilderness areas, aquatic preserves, major rivers and estuaries, state environmentally endangered lands, Outstanding Florida Waters, and aquifer recharge areas, • the uncontrolled private or public development of which would cause substantial deterioration of such resources.

13. Only four areas have been designated Areas of Critical State Concern: • The Big Cypress Swamp (1973), An area running northwest from Everglades National Park. Over 570,000 acres are included in the designated area. • The Green Swamp (1974), An aquifer recharge area north east of Tampa and north west of Orlando, in Polk, Lake and Pasco counties. • The Florida Keys (1976), The 100 mile long archipelago running from the southern tip of mainland Florida to Key West. The City of Key West was included in the original designation but was deleted in 1982 when it City adopted a plan that was consistent with the principles for guiding development. The City of Key West is the only critical area that has been de-designated and • Apalachicola Bay (1979). A bay of the Gulf of Mexico in Florida’s “Big Bend,” roughly due south of Tallahassee. This area is noted for abundant shell fish beds that were being threatened by mainland run-off, in Franklin County.

14. The DCA recommends to the Administration Commission (the Governor & Cabinet) that an area be designated as an ACSC. • In its recommendation, the DCA must • Identify the dangers that would result from uncontrolled or inadequate development of the area and • the advantages that would be achieved from the development of the area in a coordinated manner; • an inventory of publicly owned lands within the proposed area

15. The agency shall recommend actions which the local government and state and regional agencies must accomplish in order to implement the principles for guiding development. • These actions may include, • revisions of the local comprehensive plan • land development regulations, • density requirements, and • special permitting requirements.

16. Principles for Guiding Development • The interim guiding regulations, adopted by the Administration Commission, that must be adhered to in planning for and approving developments including • Comprehensive plan • Land development regulations • Development permitting (including building permits) • These regulations exist in addition to the local governments regulations and will be repealed when the local government's regulations are “in compliance.”

17. Local governments HATE the ACSC program. • They see it as contrary to Home Rule • Insulting to them • Intrusive by “Tallahassee” • Meaning that local governments reject the idea that their regulations fail to protect important resources.

18. Remember . . . • ACSC and DRI were elected by the state as means to leave primary authority/responsibility with local governments while still addressing broader regional or state issues. • If the locals through such matters were important, there would be no need for ACSC. • The ACSC would come into play only of the locals didn’t think it was important.

19. No area has been designated an ACSC since 1979, now 24 years ago. • There have been several resource planning and management committees (RPMC). • A RPMC is a preliminary step toward designation as an ACSC. • Since ACSC is so hated, the threat of designation has been used, with the creation of the RPMC being the means.

20. This alternative process was used to develop mutually acceptable development regulations for: • Charlotte Harbor, A river estuary in southwest Florida, flowing into the Gulf of Mexico. • Hutchison Island A barrier island along the Atlantic coast in Martin & St Lucie counties, north of Palm Beach. and • The Suwannee River. In north central Florida, the river flows into the Gulf of Mexico.

21. The last RPMC issued its report on the Suwannee River in 1982. • The existing ACSC continue on, but no new areas have been included, either formally or informally. • Many conclude that Florida’s effort was a failure. • Those that do probably have not visited the areas.

22. The Development of Regional Impact Chapter 380.06, F.S.

23. Developments of Regional Impact. • This second essential component of the ALI-ABA code allows the state to identify certain types of developments as Developments of Regional Impact (DRI) and • require a special review by Regional Planning Councils (RPC) pursuant to criteria promulgated by the state. • The state land planning agency (DCA) could participate in the process or not, as it saw fit.

24. a development that “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.” 380.06(1).

25. The DRI developer must • file an “Application for Development Approval” (ADA) with the • local government of jurisdiction and • the Regional Planning Council (RPC). • The RPC will circulate the ADA to a number of local, regional and state agencies; • Water management district • Neighboring jurisdictions • Department of Transportation

26. The RPC will gather comments from the various agencies and conduct its own review of the ADA. • Most significant areas of review, comment and controversy are; • Roads • Schools • Drainage/water management.

27. The RPC must submit a report to the local government addressing whether and the extent to which: • The development will have a favorable or unfavorable impact on state or regional resources or facilities . . . ; • The development will significantly impact adjacent jurisdictions; • The development will favorably or adversely effect the ability of the people to find adequate housing reasonably accessible to their places of employment

28. The DRI Process See Chapter 28.24, Fl Administrative Code for what is a DRI • Largely determined by magnitude of the development • Over so many dwelling units • Over so many square feet of floor area • Etc • Criteria vary with the population of the host jurisdiction • Larger counties have larger DRI triggers. • 1,000 units would be a DRI in Alachua County • 3,000 units would be a DRI in Dade County

29. Developer notifies Local Government & Regional Planning Council of intent RPC hosts a “pre-application” meeting to discuss scope of review Insufficient? RPC notifies within 30 days Developer submits Application for Development Approval to LG & RPC Sufficient? Begin 60 day review

30. Water Mgt, DOT, other LGs, etc. RPC refers ADA to appropriate agencies Comments RPC staff prepares draft report with recommendations for LG: Approve Deny Approve with conditions RPC Board adopts report with recommendation for approval, denial or approve with conditions

31. RPC Report sent to Local Government LPA review Comments Local Government prepares a Development Order and conducts a hearing on the DO. DO transmitted to; RPC, DCA & others

32. RPC staff review DO sent to RPC Comments RPC Broad acts to: Not appeal DO – end of process Appeal DO Notice of appeal sent to: Local Government Applicant Fl Land & Water Adjucatory Comm. (FLWAC Div. of Admin. Hearings (DOAH)

33. A de novo hearing conducted by an administrative law judge ALJ prepares a recommended order FLWAC Aides review Final Order by vote of FLWAC

34. Final Order by vote of FLWAC No appeal – end of process Appeal Review by certiorari by First District Court of Appeals No appeal – end of process Appeal Review by Florida Supreme Court

35. Outcome of the DRI process • Approved: • Without conditions 9% • With conditions 84% • Denial 7%

36. Why is the DRI controversial? • It is a lengthily process • Commonly a year or longer • It is an expensive process • $1 million will get you through the door but not much else • Cities and counties see it as an infringement of their authority • It is bureaucratic, legalistic and relatively non-political

37. The significant statistic is that 84% of DRI applications are approved with conditions. • Most developers argue that the DRI process is really a process of negotiation, with the upper hand being held by the public agencies. • The items “agreed” are memorialized in the conditions recommended by the RPC and then incorporated into the DO.

38. 31 years later, the DRI process still exists and is still used. • The statute has been amended MANY times in attempts to lessen the burdens of the process on developers and to increase the rewards. • Numerous study groups have recommended its repeal, but its still here. • And probably will be here for some time to come.