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HomeMy WebLinkAbout2010 09 27 Informational 103 The City of Weston v. Crist SB 360 "Community Renewal Act" COMMISSION AGENDA Consent ITEM i Q3 Informational X Public Hearing Regular \\ September 27, 2010 MGR. /DEPT. ...AA" Regular Meeting Au horization f REQUEST: The Community Development Department is advising the City Commission of the status and possible ramifications of the August 26 First Circuit Court final judgment order in The City of Weston v. Crist, declaring SB 360 (Chapter 2009 -96, Laws of Florida; a.k.a. "Community Renewal Act ") unconstitutional. SYNOPSIS: One of the most significant statutory changes to Florida growth management in recent years was the promulgation of SB 360 in 2009. The stated goal of the Community Renewal Act was "stimulating economic development, promoting development in urban areas, and providing for affordable housing." On June 1, 2009, Governor Crist signed the legislation into law as Chapter 2009 -96, Laws of Florida. It became legally effective immediately. Subsequently, a group of local governments filed an action in the Circuit Court of the Second Judicial Circuit in Leon County, Florida, challenging the new law's constitutionality. Throughout the process, additional local governments decided to directly participate in the case. On August 26, 2010, Leon County Circuit Judge Charles Francis issued a final judgment order, declaring SB 360 unconstitutional in its entirety and ordering the Secretary of State to expunge it from the records. CONSIDERATIONS: SB 360: The most salient points of SB 360 are listed below: 1. "Dense urban land areas" ( "DULAs ") were defined as municipalities with 1,000 people per square mile with a minimum population of 5,000 and counties (including the municipalities within them) as those with 1,000 people per square mile or with a population of 1 million. Nearly 250 local governments qualified as DULAs. The City of Winter Springs meets the DULA criteria. 2. Urban service areas ( "USAs ") were redefined as areas where public facilities (including roads, water, and sewer) are existing or committed within 3 years on the capital improvements schedule. 3. The bill delayed updates to demonstrate financial feasible comprehensive plans until December 1, 2011. 4. The bill allowed for relief from school concurrency requirements under certain conditions. REGULAR MEETING — September 27, 2010 AGENDA ITEM 103 PAGE 2 OF 4 5. The bill created statutory Transportation Concurrency Exception Areas ( "TCEAs ") for all municipal DULAs, all county DULAs in areas of qualifying counties with an adopted USA meeting the new USA definition, and all counties with a population of at least 900,000 but without an adopted USA (statutory exemptions were created for Dade and Broward counties). Projects within TCEAs were not required by the state to meet transportation concurrency on local roads or state Strategic Intermodal Systems ( "SISs "; see Sec. 339.63, FS) facilities. Local governments which were statutory TCEAs were provided two (2) years to adopt plan amendments for strategies to support and fund mobility within the TCEA. In addition, Future Land Use map amendments were not required to ensure transportation level -of- service could be achieved and maintained. Local governments which qualified as DULAs could maintain transportation concurrency if they desired, but it was no longer a statutory mandate. 6. In non - TCEAs, local governments could provide a project - specific waiver for transportation concurrency on SIS roads for new projects certified by the Office of Tourism, Trade, and Economic Development ( "OTTED ") if they created employment under existing statutory programs. 7. The bill exempted projects that would have otherwise qualified as developments of regional impact ( "DRIs ") from DRI review within the same areas where statutory TCEAs were established. Existing DRIs could elect to withdraw or rescind the DRI order in qualifying areas and proceed as a non -DRI. Projects exceeding 120 percent of the DRI threshold were still provided minor review by the Department of Community Affairs ( "DCA "). 8. The bill provided for a two (2) year extension of various permits expiring between September 1, 2008 and January 1, 2012. Commencement and completion dates for mitigation were also extended corresponding with the pertinent permits. 9. Local governments were required to consider rezoning concurrently with land use map amendments if the applicant requested. 10. The alternative state review process could be used to designate USAs. Amendments to designate USAs as TCEAs were exempted from the twice - yearly plan amendment limitation. 11. The DCA and Florida Department of Transportation ( "FDOT ") were directed to submit a joint report to the legislature no later than December 1, 2009, addressing the feasibility of implementing a mobility fee system in lieu of the previously existing transportation concurrency system. 12. Interlocal disputes were mandated to be submitted for mediation. 13. The bill revised state affordable housing statutes, including eligibility requirements for ad valorem tax exemptions. 14. The bill prohibited local governments from requiring private businesses to install and monitor security cameras. Controversies: SB 360 was signed into law by Governor Crist on June 1, 2009 and was controversial from the start. Disagreement between the individual legislators and DCA Secretary Pelham surfaced over interpretation. Opponents labeled it the "Attorney's Employment Preservation Act." Proponents argued that the legislation made infill development less difficult and discouraged sprawl while opponents argued that it could do the exact opposite. Various local governments expressed concerns that included but were not limited to the following: (1) that they would be forced to help underwrite development in nearby TCEAs in other jurisdictions, (2) that these are unfunded mandates (in violation of Article VII, Sec. 18 (a), Fla. Const.) for all of the comprehensive plan amendments and mobility plans that the legislation REGULAR MEETING — September 27, 2010 AGENDA ITEM 103 PAGE 3 OF 4 required, (3) that the DULA designation was inappropriate to areas with the prescribed density threshold (not dense enough), (4) that the FDOT would dominate the mobility fee process (use the money exclusively or largely for state roads and projects) and force local governments to fund transportation through ad valorem taxes, without benefit of transportation impact fees or having the developer construct improvements, (5) that the legislation contained more than a single subject (in violation of Article III, Sec. 6, Fla. Const.), and (6) that the legislation was as a catalyst for Amendment 4 (a.k.a. Hometown Democracy Amendment). City of Weston v. Crist: On July 7, 2009, the cities of Weston, Deerfield Beach, Miami Gardens, Fruitland Park, and Parkland, the Village of Key Biscayne, the Town of Cutler Bay, and Lee County filed a complaint for declaratory and injunctive relief in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, alleging that the legislation was unconstitutional on two grounds. The coalition of local governments alleged that the legislation was (1) an unfunded mandate, in violation of Article VII, Sec. 18 (a) of the Florida Constitution and (2) that the legislation violated the single subject provision of Article III, Sec. 6 of the Florida Constitution. Other local governments joined the challenge (one report stated that 16 cities and 3 counties challenged the law). 2010 Legislation: Mindful of the potential outcome of the lawsuit, the legislature adopted SB 1752 (a.k.a. the "Bridge Bill ") during the 2010 legislative session to reauthorize several key provisions of SB 360. Some of the permit extension language in SB 1752 is obviously vague and open to liberal interpretation, as noted by Secretary Pelham and others. Section 46 of SB 1752 provided for permit extensions. Section 47 of SB 1752 reauthorized (1) the DRI review exemption within DULAs for those who had already filed for development approval or for rescission of an existing DRI order, (2) the SB 360 permit extension for those who had timely notified the pertinent authority prior to December 1, 2009, and (3) any local plan amendment adopted and in effect which authorized and implemented a statutory or DULA -based TCEA. It does not appear that the legislature preserved any other action taken in reliance on SB 360 through passage and adoption of SB 1752. Judicial Action: On August 26, 2010, Leon County Circuit Judge Charles Francis issued an Order of Final Summary Judgment in the City of Weston v. Crist, declaring SB 360 unconstitutional in its entirety and ordering the Secretary of State to expunge it from the records, on the grounds that it was an unfunded mandate (Article VII, Sec. 18 of the Florida Constitution). Petition for Rehearing: On September 7, 2010, former (state house) Speaker Larry Cretul and (state) Senate President Jeff Atwater petitioned the Court for a rehearing (Gov. Crist did not join in the petition). Under Florida rules of procedure, a motion for a rehearing is not an appeal nor does it stay the ruling, however, the appeal period does not begin until the Court disposes of the motion. While the Court's order is still in effect absent its own stay order or a stay by the court of appeals, the law will not be deemed expunged until the appeal period expires without the filing of an appeal (at the time of this writing, no stay by either the Court or an appellate court has been granted). Winter Springs: Winter Springs and Seminole County meet the DULA criteria. The City updated its comprehensive plan as part of the seven (7) year Evaluation and Appraisal Report (EAR) based amendments in September 2009 (Ordinance No. 2009 -08, adopted September 28, 2009). These amendments were made consistent with state law, which included (but not limited REGULAR MEETING — September 27, 2010 AGENDA ITEM 103 PAGE 4 OF 4 to) SB 360 and two (2) important energy conservation bills from the 2008 legislature: HB 697 and HB 7135. Many of the energy - conservation and smart growth provisions of the 2008 legislation relate closely with the mobility provisions of SB 360. Approximately four (4) projects applied for the two (2) year extension during December of 2009, pursuant to SB 360. The City has transmitted to the DCA Ordinance 2010 -18 (LPA hearing on July 14, 2010; Commission transmittal hearing July 26, 2010) establishing a city -wide TCEA with mobility strategies. The Objections, Recommendations, Comments (ORC) report is due back to the City on October 8, 2010. Ordinance 2010 -18 is scheduled for adoption on October 25, 2010 (just prior to the general election and potential passage of Amendment 4). FISCAL IMPACT: There is no fiscal impact associated with this informational agenda item. COMMUNICATION EFFORTS: This Commission Agenda has been posted on the bulletin board outside City Hall, on the City's electronic sign; and is electronically posted in accordance with the City Clerk's procedures. RECOMMENDATIONS: The City Commission is being asked to review and accept the information in this agenda item. Staff will provide timely updates of any actions of a substantive nature. ATTACHMENTS: (None)