This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0359.LFS
DATE: 2/15/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 359 Local Government Comprehensive Plans
SPONSOR(S): Duggan
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Local Administration, Federal Affairs & Special
Districts Subcommittee
Roy Darden
2) Civil Justice Subcommittee
3) State Affairs Committee
SUMMARY ANALYSIS
The Community Planning Act (Act) governs community and land development in Florida by providing how local
governments create, adopt, maintain, and amend their comprehensive plans, which in turn impact property
rights and land uses within their respective jurisdictions. The Act requires each local government to adopt a
comprehensive plan to provide for orderly and balanced future economic, social, physical, environmental, and
fiscal development while taking into account projected population growth, public facility needs, development
over a five-year and 10-year period, comprehensive plans of adjacent local governments, and future land use.
A comprehensive plan amendment may be classified as a small-scale amendment if the amendment involves
less than 50 acres of land, does not impact land located in an area of critical state concern, preserves the
internal consistency of the overall local comprehensive plan, and does not require substantive changes to the
text of the plan.
Every comprehensive plan must provide a capital improvements element on the need and location of public
facilities, including a five-year schedule of necessary capital improvements. This element must be reviewed
annually by the local government. Modifications updating the five-year capital improvement schedule may be
done by ordinance and are not deemed to be amendments to the local comprehensive plan.
Any affected person may challenge whether the plan or plan amendments, including small scale plan
amendments, comply with the Act, by petitioning the Division of Administrative Hearings (DOAH) for a hearing.
Attorney fees are awarded in proceedings before DOAH only if the non-prevailing adverse party participated in
the proceedings for an improper purpose. A local government decision on a development order that materially
alters the use, density or intensity of particular real property as inconsistent with the plan may be challenged in
court, but if the local government adopted an ordinance establishing certain statutory requirements, the
decision may only be challenged by a petition for certiorari in the circuit court.
The bill revises the process for modifying the five-year capital improvement schedule, allowing the schedule to
be updated administratively if all the projects have been adopted by the appropriate project board. The bill
provides that for challenges to the comprehensive plan and plan amendments, including small scale plan
amendments, the prevailing party is entitled to recover attorney fees and costs. Lastly, the bill revises the
standing to seek review of a local government decision to grant or deny a development order by removing the
requirement that the decision must be inconsistent with the comprehensive plan.
The bill may have a positive fiscal impact both on local governments and private parties to the extent they may
recover attorney fees and costs as prevailing parties in certain challenges to comprehensive plans and plan
amendments. The bill may also have a negative fiscal impact on the same parties to the extent they are found
responsible and must pay such fees and costs.
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DATE: 2/15/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
As required by the Community Planning Act (Act),
1
a comprehensive plan is a set of principles,
guidelines, standards, and strategies for the orderly and balanced future economic, social, physical,
environmental, and fiscal development of the area that reflects community commitments to implement
the plan and its elements.
2
These principles and strategies must guide future decisions in a consistent
manner and must contain programs and activities to ensure comprehensive plans are implemented.
The plan must establish meaningful and predictable standards for the use and development of land and
provide meaningful guidelines for the content of more detailed land development and use regulations.
3
A comprehensive plan contains mandatory and optional elements, all based upon relevant and
appropriate data and an analysis by the local government that may include, but not be limited to,
surveys, studies, community goals and vision, and other data available at the time of adoption of the
comprehensive plan or plan amendment.
4
The comprehensive plan must contain a capital improvements element designed to consider the need
for and the location of public facilities in order to encourage the efficient use of such facilities.
5
The
capital improvements element must include:
A component outlining principles for construction, extension or increase in capacity, as well as a
component outlining principles for correcting existing facility deficiencies, both of which must
cover a five-year period;
Estimated public facility costs, including a delineation of when facilities will be needed, the
general location of the facilities, and projected revenue sources to fund the facilities;
Standards to ensure the availability of public facilities and the adequacy of those facilities to
meet established acceptable levels of service;
A schedule of capital improvements which includes any publicly funded projects of federal,
state, or local government, and which may include privately funded projects for which the local
government has no fiscal responsibility. Projects necessary to ensure that any adopted level-of-
service standards are achieved and maintained for the five-year period must be identified as
either funded or unfunded and given a level of priority for funding; and
The schedule must include transportation improvements included in the applicable metropolitan
planning organization’s transportation improvement program to the extent that such
improvements are relied upon to ensure concurrency and financial feasibility. The schedule
must be coordinated with the applicable metropolitan planning organization’s long-range
transportation plan.
The capital improvements element must be reviewed by the local government on an annual basis.
Modifications to update the five-year capital improvement schedule may be accomplished by ordinance
and may not be deemed to be amendments to the local comprehensive plan.
6
Any affected person may challenge whether a plan or plan amendment complies with the Act by
petitioning the Division of Administrative Hearings (DOAH) for a formal hearing. An administrative law
judge must hold a hearing in the affected local jurisdiction on whether the plan or plan amendment is in
compliance.
7
1
Ss. 163.3161-163.3253, F.S.
2
S. 163.3177, F.S.
3
Id.
4
S. 163.3177(1)(f), F.S.
5
S. 163.3177(3)(a), F.S.
6
S. 163.3177(3)(b), F.S.
7
S. 163.3184(5)(c), F.S. STORAGE NAME: h0359.LFS PAGE: 3
DATE: 2/15/2023
A comprehensive plan amendment may be classified as a small-scale amendment if the amendment
involves less than 50 acres of land, does not impact land located in an area of critical state concern,
preserves the internal consistency of the overall local comprehensive plan, and does not require
substantive changes to the text of the plan.
8
Any affected person may challenge a small scale plan
amendment by petitioning DOAH for a hearing. An administrative law judge must hold a hearing in the
affected jurisdiction.
9
Attorney fees and costs are awarded in administrative proceedings before DOAH
only if the non-prevailing adverse party participated in the proceedings for an improper purpose.
10
An aggrieved or adversely affected party
11
may bring an action for declaratory, injunctive, or other relief
against a local government to challenge a decision granting or denying an application for, or to prevent
such local government from taking any action on, a development order, which materially alters the use
or density or intensity of use on a particular piece of property which is not consistent with the
comprehensive plan. However, if a local government adopts an ordinance establishing certain statutory
requirements, the sole method by which a decision granting or denying an application for a
development order, which materially alters the use or density or intensity of use on a particular piece of
property, on the basis that it is not consistent with the comprehensive plan, is by an appeal filed by a
petition for writ of certiorari filed in circuit court. An action for injunctive or other relief may be joined with
the petition for certiorari.
12
Effects of Proposed Changes
The bill amends the process for modifying the five-year capital improvement schedule. The schedule
may be updated either by ordinance or administratively if all the projects have been adopted by the
project’s appropriate board.
In proceedings before DOAH challenging a plan or plan amendments, including small scale plan
amendments, the bill allows the prevailing party to recover attorney fees and costs, including
reasonable appellate attorney fees and costs.
The bill removes the requirement that a challenge by petition of certiorari to a local government
decision on a development order that materially alters the use or density or intensity of use on a
particular piece of property must show the decision was inconsistent with the comprehensive plan. The
bill also makes technical changes to the language regarding standing to enforce local comprehensive
plans through development orders.
B. SECTION DIRECTORY:
Section 1: Amends s. 163.3177, F.S., to authorize administrative approval of modifications to
update the capital improvements component of a plan if all projects are adopted by
appropriate board.
Section 2: Amends s. 163.3184, F.S., to permit the prevailing party in administrative challenges to a
comprehensive plan or plan amendment to recover attorney fees and costs including
reasonable appellate attorney fees and costs.
8
S. 163.3187(1), F.S. If the amendment involves a site within an area of rural opportunity, the proposed small scale amendment may
involve up to 100 acres. S. 163.3187(3), F.S.
9
S. 163.3187(5)(a), F.S.
10
S. 120.595(1)(b), F.S. “Improper purpose” is defined as participating “in a proceeding pursuant to s. 120.57(1) primarily to harass or
to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of
an activity.” S. 120.595(1)(e)1., F.S.
11
Defined as any person or local government that will suffer an adverse effect to an interest protected or furthered by the local
government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or
intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources.
The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the
general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development
order. S. 163.3215(2), F.S.
12
S. 163.3215(4), F.S. STORAGE NAME: h0359.LFS PAGE: 4
DATE: 2/15/2023
Section 3: Amends s. 163.3187, F.S., to permit the prevailing party in small scale plan amendment
claims to recover attorney fees and costs including reasonable appellate attorney fees
and costs.
Section 4: Amends s. 163.3215, F.S., to revise a requirement for petitioning for certiorari review of
a local government decision on a development order and makes other technical
changes.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have an indeterminate fiscal impact on county and municipal governments to the extent
those governments are engaged in litigation concerning their comprehensive plan and whether those
governments are the prevailing party in those actions.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None
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DATE: 2/15/2023
B. RULE-MAKING AUTHORITY:
The bill neither provides authority for nor requires rulemaking by executive branch agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES