The Act limits the scope of the state land planning agency’s (now the Department of Community Affairs (DCA) but, as of October, to become the Department of Economic Opportunity) ability to object to or challenge local comprehensive plan amendments. Under the Act, the state land planning agency can only challenge those amendments which will “adversely impact important state resources and facilities.” What is important? What is an adverse impact? The Act doesn’t say.
Reportedly, this phrase was deliberately left undefined because of the lack of agreement on what is of state importance. Moreover, DCA was banned from rulemaking on this and other aspects of the Act, which might have provided a better indication of the limits of this authority. DCA’s Frequently Asked Questions page does not address the issue.
So, what kinds of comprehensive plan amendments may be subject to state objection or challenge? In presentations across the state, a DCA representative has suggested that the following kinds of things might be considered important state interests, but emphasized that DCA has not taken an official position on the question to date:
Major wetland systems, such as the Everglades, aquatic preserves, outstanding Florida waters, first magnitude springs, Class I and II waters, and major groundwater systemsNational and state forests, major listed species habitat, and major coastal resourcesMilitary basesEvacuation routesStrategic Intermodal System transportation facilities, and major airports and seaports
In similar presentations, a Department of Education representative has proposed that public school facilities might be determined to be important state facilities, citing the fact that the Florida Constitution creates a “paramount duty of the state to make adequate provision for the education of all children,” and sets class size requirements. Also noted were the total state investment in K-12 school facilities over the past ten years of $6.3 billion, the total equivalent local investment of $29.5 billion, and the state commitment for K-20 school facilities debt service of $24.1 billion.
This is by no means an exhaustive list of what might ultimately be determined to be important state resources and facilities by reviewing courts, future legislative action or future agency guidance. Also unclear is the relationship between compliance review as traditionally implemented and continued by the Act on the one hand, and this new “importance” test on the other. If there is not a statutory compliance issue, does it matter if there is an adverse impact to an important state interest? And if there is no adverse impact to an important state interest, will failures to comply with the Act be given a free pass from challenge?
Local governments, applicants, planners and other stakeholders will have to wait and see what emerges in the implementation of this Act, before reaching a definitive understanding of the new rules.
Author(s): Susan L. Trevarthen
