Tuesday, December 15, 2009

Florida Land Use Lawsuit Moves Forward...

In several recent conversations, I've discussed with other colleagues how the current economic crisis has, among other things, changed the balance of power among developers and municipalities.  It used to be that, if City X did not accede to a developer's demands, then a neighboring or nearby jurisdiction likely would.

These days, however, most jurisdictions have very little left in the coffers to provide developer incentives.  Meaning that, developers are more likely to be stuck with the jurisdiction which their internal demographic research shows has the most viable demand.

(Note:  in the past, developers could sometimes justify locating a project in a somewhat less desirable demographic area if the incentives offered by that jurisdiction leveled the financial cost/risk playing field to a large degree).

The upside in this shift in power is that municipalities, if they are going to make politically tough land use decisions, probably have the best political environment in front of them in a long time.  After all, developer threats of moving or not building a project ring somewhat hollow when they aren't proposing one in the first place.

Which leads to this interesting lawsuit in Florida related to the new state law from earlier this year that significantly modifies Florida's regional development requirements:

Senate Bill 360 – known as the Community Renewal Act – went into effect in July. It ends a 37-year-old regional planning process for major projects known as a development of regional impact.

It also removes standing state requirements that developers help pay to upgrade roads, and requires that local governments conduct mobility fee studies that look at mass-transit solutions. It also extends the shelf life of a building permit for two years. The idea behind relaxing development regulations is to encourage more development in urban cores, thus stimulating the economy. But, critics say it could result in a development free-for-all and stick local taxpayers with the bill for road improvements once paid for by developers.

The lawsuit, filed by a host of municipalities, seeks to overturn the new law as unconstitutional along both substantive and procedural lines. The cities are essentially arguing that the state is imposing unfunded land use requirements on them--at a time when revenue is low but they actually have more leverage over developers than before.

If that lawsuit alone weren't interesting enough, the effect it may have on an upcoming 2010 Florida ballot initiative adds to the intrigue:

In an unintended consequence, the flap over the Community Renewal Act could bolster support for a separate ballot push to return authority over local comprehensive plans to the people. The Florida Hometown Democracy constitutional amendment, which will appear on the November 2010 ballot, seeks to require all changes to local comprehensive land use plans be approved through voter referendum.

“People are beginning to realize that our political leadership really doesn’t have the stomach for growth management, and that is the way it has always been in Florida,” said Lesley Blackner, a West Palm Beach lawyer and key organizer of Hometown Democracy. She said local governments too frequently amend comprehensive plans to accommodate specific developments, which defeats prudent long-term planning.

The growth watchdog group 1000 Friends of Florida had originally come out against Hometown Democracy, but its board may reconsider, due in part to dismay over the Community Renewal Act, President Charles Pattison said. He said the Community Renewal Act’s intent to push development to urban cores by making it easier and less costly to build there was good, but the Legislature went too far, removing oversight for projects in rural areas near urban area such as on farmland in western Palm Beach County.

--Chad Emerson, Faulkner U.

http://lawprofessors.typepad.com/land_use/2009/12/florida-land-use-lawsuit-moves-forward.html

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