This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: CS/CS/HB 359 Local Government Comprehensive Plans
SPONSOR(S): State Affairs Committee and Local Administration, Federal Affairs & Special Districts
Subcommittee, Duggan and others
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 540
FINAL HOUSE FLOOR ACTION: 87 Y’s
30 N’s GOVERNOR’S ACTION: Approved
SUMMARY ANALYSIS
CS/CS/HB 359 passed the House on May 2, 2023, as CS/CS/SB 540.
The Community Planning Act (“Act”) requires each local government to adopt and maintain a comprehensive
plan that must comply with statutory requirements and provide the principles, guidelines, standards, and
strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal
development of the area. Any affected person may challenge whether a comprehensive plan or plan
amendment complies with the Act by petitioning the Division of Administrative Hearings for a formal hearing on
the matter, which hearing must be held in the affected local jurisdiction and conducted under the Administrative
Procedure Act (APA). However, the APA generally prohibits the award of reasonable attorney fees and costs
to a prevailing party in an administrative proceeding involving a disputed issue of material fact, including a
challenge to a comprehensive plan or plan amendment, unless the administrative law judge determines that
the non-prevailing adverse party participated in the proceeding for an improper purpose.
The Act also prohibits public or private development except in conformity with a comprehensive plan prepared
and adopted in conformity with the Act, which plan must govern any local government action on a development
order – that is, an order granting, denying, or granting with conditions an application for a development permit,
such as a building or zoning permit, a variance, or other government action with the effect of permitting land
development. An aggrieved party may generally bring an action for declaratory, injunctive, or other relief
against a local government in circuit court to challenge the local government’s decision regarding, or to prevent
the local government from taking any action on, a development order that materially alters the use or density or
intensity of use on a particular property in a manner inconsistent with the comprehensive plan. However, there
is currently a split between the First and Second District Courts of Appeal about the extent of a permissible
development order challenge.
The bill authorizes the prevailing party in a comprehensive plan or plan amendment challenge to recover
attorney fees and costs, including reasonable appellate attorney fees and costs, without having to show that
the non-prevailing adverse party participated in the proceeding for an improper purpose. It also resolves the
split between the First and Second District Courts of Appeal by clarifying that the scope of the circuit court’s
review in a development order challenge is limited to inconsistencies between the comprehensive plan and the
order’s alteration of the use or density or intensity of use on a property. Finally, the bill provides that land
development regulations, except those relating to the use, or intensity or density of use, do not apply to Florida
College System institutions.
The bill does not appear to have a fiscal impact on state government but may have an indeterminate fiscal
impact on local government.
The bill was approved by the Governor on May 24, 2023, ch. 2023-115, L.O.F., and will become effective on
July 1, 2023.
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I. SUBSTANTIVE INFORMATION
A. EFFECT OF CHANGES:
Present Situation
Comprehensive Plans
The Community Planning Act (Act), codified in Part II of Ch. 163, F.S., promotes the establishment and
implementation of comprehensive planning programs to guide and manage a local government’s
development.
1
Through the comprehensive planning process, the Legislature intended that local
governments:
Preserve, promote, protect, and improve public health, safety, comfort, good order,
appearance, convenience, law enforcement and fire prevention, and general welfare;
Facilitate the adequate and efficient provision of transportation, water, sewerage, schools,
parks, recreational facilities, housing, and other requirements and services; and
Conserve, develop, utilize, and protect natural resources within their jurisdictions.
2
To that end, the Act requires each local government to adopt and maintain a comprehensive plan that
must provide the principles, guidelines, standards, and strategies for the orderly and balanced future
economic, social, physical, environmental, and fiscal development of the area.
3
Specifically, the
comprehensive plan must:
Identify programs and activities for ensuring the comprehensive plan’s implementation;
Establish meaningful and predictable standards for land use and development and meaningful
guidelines for the adoption of detailed land development regulations;
4
and
Consist of elements set out in statute that must be based upon relevant and appropriate data
and an analysis by the local government that may involve surveys, studies, community goals
and vision, and other data available at the plan’s adoption or amendment.
5
Comprehensive Plan Adoption
Each of Florida’s counties and municipalities has a comprehensive plan.
6
However, a newly-
incorporated municipality must follow the state coordinated review process to adopt a comprehensive
plan, which process begins with an initial public hearing during which the municipality’s governing body
decides whether to transmit the plan to the reviewing agencies;
7
such decision must be by an
1
S. 163.3161(2), F.S.
2
S. 163.3161(4), F.S.
3
S. 163.3177(1) and (2), F.S.
4
“Land development regulations” means ordinances enacted to regulate any land development aspect, including zoning,
rezoning, subdivision, building construction, and sign regulation. Within one year after submitting a new or revised
comprehensive plan, a local government must adopt or amend and enforce land development regulations that are
consistent with the plan. S. 163.3164(26), F.S.
5
A comprehensive plan may also consist of optional elements. S. 163.3177(1), F.S.
6
For the purposes of the Act, a county’s authority extends to the total unincorporated area under its jurisdiction and to
such unincorporated areas not included in a joint agreement with a municipality. A municipality’s authority extends to the
total area under its jurisdiction and adjacent unincorporated areas included in a joint agreement with the county. S.
163.3171(1) and (2), F.S.; Fla. Dept. of Environmental Protection, Comprehensive Plan,
https://floridadep.gov/oip/oip/content/comprehensive-plan (last visited March 9, 2023).
7
“Reviewing agencies” means the state land planning agency; the appropriate regional planning council and water
management district; the Florida Departments of Environmental Protection, State, and Transportation; the Florida
Department of Education, if the plan amendment relates to public schools; the commanding officer of any affected military
installation; the Florida Fish and Wildlife Conservation Commission and Department of Agriculture and Consumer
Services, in the case of county plans and plan amendments; and the county in which the municipality is located, in the
case of municipal plans or plan amendments. S. 163.3184(1), F.S.
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affirmative vote of at least a majority of the governing body’s members present at the hearing.
8
The
municipality must then, within 10 working days of the hearing, transmit the proposed comprehensive
plan to:
The reviewing agencies for comment or, if the reviewing agency is the state land planning
agency, for the production of the state land planning agency’s statutorily-required report;
9
and
Any other local government or government agency that filed a written request for a copy of the
plan with the municipality.
10
Within 180 days after receipt of the state land planning agency’s report, the municipality must hold a
second public hearing to determine whether to adopt the comprehensive plan; such determination must
be by an affirmative vote of at least a majority of the governing body’s members present at the
hearing.
11
An adopted comprehensive plan, along with the supporting data and analyses, must be
transmitted within 10 working days of the adoption hearing to the state land planning agency and any
other agency or local government that provided timely comments.
12
The state land planning agency
then reviews the package for completeness and publishes a notice of intent to find that the plan
complies or does not comply with the Act.
13
A comprehensive plan takes effect pursuant to the notice of
intent.
14
Comprehensive Plan Amendment
Comprehensive plan amendments are generally governed by the state expedited review process,
which process typically begins with an initial public hearing during which the local government’s
governing body decides whether to transmit the proposed amendment to the reviewing agencies; such
decision must be by an affirmative vote of at least a majority of the governing body’s members present
at the hearing.
15
Within 10 working days of such hearing, the local government must transmit the plan
amendment and appropriate supporting data and analyses to the reviewing agencies for expedited
comment
16
and to any other local government or governmental agency that filed a written request for
such transmittal with the local government.
17
Interested persons may also provide the local government
with written or oral comments, recommendations, or objections to the plan amendment.
18
Within 180 days after receipt of agency comments, the local government must generally hold a second
public hearing to determine whether to adopt the plan amendment.
19
However, where the proposed
plan amendment is a small-scale development amendment,
20
the local government must hold only the
public adoption hearing; an initial public hearing is not required.
21
In either case, plan amendment
8
S. 163.3184(2), (4), and (11), F.S.
9
If the state land planning agency reviews a proposed comprehensive plan, it must issue a report stating its objections,
recommendations, and comments about the plan within 60 days of the plan’s transmission to the agency. The state land
planning agency is the Department of Economic Opportunity. S. 163.3184(4), F.S.; Fla. Dept. of Economic Opportunity,
Community Planning, Development, and Services, https://floridajobs.org/community-planning-and-development (last
visited March 9, 2023).
10
S. 163.3184(4), F.S.
11
S. 163.3184(4) and (11), F.S.
12
S. 163.3184(4), F.S.
13
Id.
14
Id.
15
The state coordinated review process applies to plan amendments that are in an area of critical state concern; propose
a rural land stewardship area; propose a sector plan or an amendment to an adopted sector plan; or update a
comprehensive plan based on an evaluation and appraisal. S. 163.3184(4) and (11), F.S.
16
The expedited review process is set out in s. 163.3184(3), F.S.
17
S. 163.3184(3), F.S.
18
Id.
19
Id.
20
A “small-scale development amendment” involves a use of 50 acres or fewer; only proposes a land use change to the
future land use map for a site-specific small-scale development activity; and applies to property not located within an area
of critical state concern, absent an exception related to affordable housing development. Id.
21
Ss. 163.3184(2) and 163.3187(2), F.S.
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adoption must be by an affirmative vote of at least a majority of the governing body’s members present
at the hearing, and failure to hold a timely adoption hearings causes the amendment to be deemed
withdrawn unless the timeframe is extended by agreement with specified notice to the state land
planning agency and other parties.
22
Within 10 working days of the adoption hearing, the local government must transmit the plan
amendment to the state land planning agency and any affected person who provided timely comments
on the amendment.
23
The state land planning agency must review the amendment package for any
deficiencies and send notice of such deficiencies to the local government within five working days of
receipt of the amendment package.
24
If no deficiencies are found, the amendment takes effect 31 days
after the state land planning agency notifies the local government that the amendment package is
complete.
25
Challenges to Comprehensive Plans or Plan Amendments
Any affected person
26
may challenge whether a comprehensive plan or plan amendment, including a
small-scale development amendment, complies with the Act by petitioning the Division of Administrative
Hearings (DOAH) for a formal hearing on the matter,
27
which hearing must be held in the affected local
jurisdiction and conducted under the Administrative Procedure Act (APA) codified in ch. 120, F.S..
28
A
challenged comprehensive plan or plan amendment does not take effect until entry of a final order
determining that the plan or plan amendment complies with the Act, and such a plan or plan
amendment must be determined compliant if the local government’s determination of compliance is
fairly debatable.
29
The APA prohibits the award of reasonable attorney fees and costs to a prevailing
party in an administrative proceeding involving a disputed issue of material fact, including a challenge
to a comprehensive plan or plan amendment, unless the administrative law judge determines that the
non-prevailing adverse party participated in the proceeding for an “improper purpose.”
30
Land Development Regulations
Comprehensive plans are implemented via land development regulations. Each county and municipality
must adopt and enforce land development regulations, such as zoning or other housing-related
ordinances, that are consistent with and implement their adopted comprehensive plan.
31
Local
governments are encouraged to use innovative land development regulations
32
and may adopt
measures for the purpose of increasing affordable housing using land-use mechanisms.
33
22
S. 163.3184(3), (4), and (11), F.S.
23
Id.
24
Id.
25
Id.
26
“Affected persons” means the affected local government; persons owing property, residing, or owning or operating a
business within the boundaries of the local government whose plan is the subject of the review; owners of real property
abutting real property that is the subject of a proposed change to a future land use map; and adjoining local governments
that can show that the plan or plan amendment will produce substantial impacts on the need for publicly funded
infrastructure or on areas designated for protection or special treatment within their jurisdictions. However, to qualify as an
affected person, such persons or entities must also have submitted oral or written comments, recommendations, or
objections to the local government during the time between the initial public hearing and the relevant plan’s or plan
amendment’s adoption. S. 163.3184(1), F.S.
27
The petition must be filed within 30 days of the plan’s or plan amendment’s adoption. S. 163.3184(5), F.S.
28
The state land planning agency may also challenge whether a plan or plan amendment complies with the act by
petitioning DOAH for a formal hearing on the matter. Florida law provides additional requirements and limitations for such
challenges. Ss. 163.3184(5) and 163.3187(5), F.S.
29
S. 163.3184(3)-(5), F.S.
30
S. 120.595(1), F.S.
31
S. 163.3202, F.S.
32
S. 163.3202(3), F.S.
33
Ss. 125.01055 and 166.04151, F.S.
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All local government land development regulations must be consistent with the local comprehensive
plan.
34
Additionally, all public and private development, including special district projects, must be
consistent with the local comprehensive plan.
35
However, plans cannot require any special district to
undertake a public facility project that would impair the district’s bond covenants or agreements.
36
Development Orders
The Act prohibits public or private development except in conformity with a comprehensive plan
prepared and adopted in conformity with the Act,
,
which comprehensive plan governs the local
government’s actions on a development order.
37
A development order is an order that grants, denies, or
grants with conditions an application for a development permit.
38
Under the Act, a development order is
consistent with the comprehensive plan if the:
Land uses and densities or intensities and other aspects of development authorized by the
order are compatible with and further the comprehensive plan’s objectives, policies, land uses,
and densities or intensities; and
Order meets all other criteria enumerated by the local government.
39
Actions on Development Orders
Within 30 days of receiving a development permit application, a local government must review the
application for completeness and issue a letter indicating that all required information is submitted or
specifying any deficiencies.
40
If the application is deficient, the applicant has 30 days to address the
deficiencies by submitting additional requested information.
41
Within 120 days after the local
government has deemed the application complete, or 180 days after the completeness determination
for applications requiring final action through a quasi-judicial or public hearing, the local government
must approve, approve with conditions, or deny the application and include in the approval or denial
written findings supporting its decision.
42
Where the local government denies an application, the local
government must give written notice of the denial to the applicant, which notice must include a citation
to the applicable portions of the ordinance, rule, statute, or other legal authority forming the basis for
the denial.
43
In addition to the procedures described above, a local government may adopt by ordinance the
following procedures applicable to actions on development orders:
Notice of a development permit application that, if approved, would materially alter the use or
density or intensity of use on a particular property, which notice:
o Is published or mailed in a specified manner and posted prominently on the job site;
o Clearly delineates that an aggrieved person has the right to request a quasi-judicial
hearing before an impartial special master;
44
o Explains the conditions precedent to the appeal of any development order ultimately
rendered upon the application; and
34
S. 163.3194(1)(b), F.S.
35
See ss. 163.3161(6) and 163.3194(1)(a), F.S.
36
S. 189.081(1), F.S.
37
S. 163.3161(6), F.S.
38
A development permit includes any building permit, zoning permit, subdivision approval, rezoning approval, certification,
special exception, variance, or any other official local government act having the effect of permitting land development. S.
163.3164(15) and (16), F.S.
39
S. 163.3194(3), F.S.
40
Ss. 125.022(1) and 166.033(1), F.S.
41
Additional timelines and procedures apply if the local government makes a second or third request for additional
information. Ss. 125.022(1) and (2), and 166.033(1) and (2), F.S.
42
Ss. 125.022(1) and 166.033(1), F.S.
43
Ss. 125.022(1) and 166.033(3), F.S.
44
The special master must be an attorney with at least five years’ experience. S. 163.3215(4), F.S.
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o Specifies the location where written procedures can be obtained that describe the
approval process, the applicable timeframes, and the hearing’s location.
45
A written preliminary decision, with the time to request a quasi-judicial hearing running from the
issuance of such decision.
46
An opportunity for:
o Witnesses and exhibit disclosure and depositions before the quasi-judicial hearing; and
o All aggrieved parties to present evidence and argument on all issues involved, conduct
cross-examination, and submit rebuttal evidence at the quasi-judicial hearing, with or
without legal representation.
47
A duly-noticed public hearing before the local government at which public testimony is
allowed.
48
A final decision in writing, which decision includes findings of fact and conclusions of law.
49
Development Order Challenges
An aggrieved party
50
may generally bring an action for declaratory, injunctive, or other relief in circuit
court against a local government to challenge the local government’s decision to grant or deny an
application for, or to prevent such local government from taking any action on, a development order that
materially alters the use or density or intensity of use on a particular property in a manner inconsistent
with the comprehensive plan.
51
Such an action must be filed in the county where the development order
was issued within the later of 30 days after the development order’s rendition or when all local
administrative appeals, if any, are exhausted.
52
However, where the local government adopted by
ordinance the additional procedures for actions on development orders discussed above, the sole
method by which an aggrieved party may challenge the local government’s decision is by a petition for
writ of certiorari
53
filed in circuit court, to which an action for an injunction may be joined.
54
In any event,
the prevailing party in such a challenge may recover reasonable attorney fees and costs incurred in
challenging or defending the order, including reasonable appellate attorney fees and costs.
55
There is currently a split between the First and Second District Courts of Appeal about the extent of a
permissible development order challenge, which may only be brought if the order materially alters the
use or density or intensity of use on a particular property.
The Second District Court of Appeal has held that the circuit court’s review in such a challenge
is limited in scope to inconsistencies between the comprehensive plan and the use and density
or intensity of use alterations.
56
45
Id.
46
Id.
47
Id.
48
Id.
49
The special master must issue a written report at the hearing’s conclusion, which report must recommend findings of
fact and conclusions of law; the local government is bound by the special master’s findings of fact unless they are
unsupported by competent substantial evidence and may modify the conclusions of law only if it finds that the special
master’s application or interpretation of the law is erroneous. Id.
50
An “aggrieved party” means any person or local government that will suffer an adverse effect to an interest protected or
furthered by the comprehensive plan, such as an interest relating to health and safety, densities or intensities of
development, and environmental or natural resources. Such interest may be shared in common with other community
members but must exceed in degree the general interest in community good shared by all persons. S. 163.3215(2), F.S.
51
S. 163.3215(3), F.S.
52
S. 163.3215(3) and (5), F.S.
53
A “writ of certiorari” is a petition asking a higher court to review the decision of a lower court or quasi-judicial body.
Legal Information Institute, Certiorari,
https://www.law.cornell.edu/wex/certiorari#:~:text=Certiorari%20simply%20defined%20is%20a,decision%20to%20a%20hi
gher%20court (last visited March 9, 2023).
54
S. 163.3215(4), F.S.
55
S. 163.3215(8), F.S.
56
Heine v. Lee County, 221 So. 3d 1254 (Fla. 2d DCA 2017).
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The First District Court of Appeal has held that the circuit court may, once the challenge “makes
it through the courthouse doors,” review other elements of the order for consistency with the
comprehensive plan.
57
Effect of the Bill
Comprehensive Plans
The bill authorizes the prevailing party in a comprehensive plan or plan amendment challenge,
including a small-scale plan amendment challenge, to recover attorney fees and costs, including
reasonable appellate attorney fees and costs, without having to show that the non-prevailing adverse
party participated in the proceeding for an “improper purpose.” This conforms the attorney fee provision
applicable to such challenges to the attorney fee provision applicable to development order challenges.
Development Orders
The bill resolves the split between the First and Second District Courts of Appeal by specifying that the
scope of the circuit court’s review in a development order challenge is limited to inconsistencies
between the comprehensive plan and the order’s alteration of the use or density or intensity of use on a
property. In other words, the bill clarifies that the circuit court may not review other elements of the
order for consistency with the plan.
Land Development Regulations
The bill provides that land development regulations relating to any characteristic of development other
than use, or intensity or density of use, may not be applied to Florida College System institutions.
58
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
57
Imhof v. Walton County, 328 So. 3d 32 (Fla. 1st DCA 2021).
58
The term “Florida College System institution” includes all of the following public postsecondary educational institutions
in the Florida College System and any branch campuses, centers, or other affiliates of the institution (except as otherwise
specifically provided): Eastern Florida State College, which serves Brevard County; Broward College, which serves
Broward County; College of Central Florida, which serves Citrus, Levy, and Marion Counties; Chipola College, which
serves Calhoun, Holmes, Jackson, Liberty, and Washington Counties; Daytona State College, which serves Flagler and
Volusia Counties; Florida SouthWestern State College, which serves Charlotte, Collier, Glades, Hendry, and Lee
Counties; Florida State College at Jacksonville, which serves Duval and Nassau Counties; The College of the Florida
Keys, which serves Monroe County; Gulf Coast State College, which serves Bay, Franklin, and Gulf Counties;
Hillsborough Community College, which serves Hillsborough County; Indian River State College, which serves Indian
River, Martin, Okeechobee, and St. Lucie Counties; Florida Gateway College, which serves Baker, Columbia, Dixie,
Gilchrist, and Union Counties; Lake-Sumter State College, which serves Lake and Sumter Counties; State College of
Florida, Manatee-Sarasota, which serves Manatee and Sarasota Counties; Miami Dade College, which serves Miami-
Dade County; North Florida College, which serves Hamilton, Jefferson, Lafayette, Madison, Suwannee, and Taylor
Counties; Northwest Florida State College, which serves Okaloosa and Walton Counties; Palm Beach State College,
which serves Palm Beach County; Pasco-Hernando State College, which serves Hernando and Pasco Counties;
Pensacola State College, which serves Escambia and Santa Rosa Counties; Polk State College, which serves Polk
County; St. Johns River State College, which serves Clay, Putnam, and St. Johns Counties; St. Petersburg College,
which serves Pinellas County; Santa Fe College, which serves Alachua and Bradford Counties; Seminole State College of
Florida, which serves Seminole County; South Florida State College, which serves DeSoto, Hardee, and Highlands
Counties; Tallahassee Community College, which serves Gadsden, Leon, and Wakulla Counties; and Valencia College,
which serves Orange and Osceola Counties. S. 1000.21(3), F.S.
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2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERN MENTS:
1. Revenues:
None. See Fiscal Comments.
2. Expenditures:
None. See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have an economic impact on the private sector by allowing a prevailing private party in a
comprehensive plan or plan amendment to recover his or her reasonable attorney fees and costs
without having to show that the local government participated in the hearing for an improper purpose.
D. FISCAL COMMENTS:
The bill may have an indeterminate positive fiscal impact on local governments to the extent a local
government is awarded attorney fees and costs in a comprehensive plan or plan amendment
challenge. The bill may also reduce a local government’s litigation costs in a development order
challenge by limiting the scope of the court’s review in such a challenge.