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/CS/HB 439 Land Use and Development Regulations
SPONSOR(S): State Affairs Committee and Commerce Committee and Local Administration, Federal Affairs
& Special Districts Subcommittee, McClain
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 1604
FINAL HOUSE FLOOR ACTION: 75 Y’s
34 N’s GOVERNOR’S ACTION: Approved
SUMMARY ANALYSIS
CS/CS/CS/HB 439 passed the House on May 3, 2023, as CS/CS/SB 1604 as amended. The Senate
concurred in the House amendment to the Senate bill and subsequently passed the bill as amended on May 4,
2023.
The Community Planning Act provides counties and municipalities with the power to plan for future
development by adopting comprehensive plans. Each county and municipality must maintain a comprehensive
plan to guide future development. Local governments may enter into development agreements with
developers. A local government may establish by ordinance procedures and requirements for considering and
entering into a development agreement with any person having a legal or equitable interest in real property
located within its jurisdiction.
The bill revises local comprehensive planning requirements by increasing the required planning periods and
prohibiting local governments that fail to update their comprehensive plans in accordance with the seven-year
evaluation and appraisal process from initiating and adopting any publicly-initiated plan amendments. The bill
prescribes certain procedures for the Department of Economic Opportunity to apply when local governments
remain out of compliance with comprehensive planning updates.
The bill prohibits local governments from requiring certain building design elements for single-family or two-
family dwellings located in planned unit developments and master planned communities approved on or after
July 1, 2023, and limits the application of those elements in communities with a design review board or
architectural review board to those who had such a board before January 1, 2020.
The bill precludes an independent special district from complying with the terms of a development agreement,
or any other agreements connected to the development agreement, adopted within three months preceding a
law changing the selection method of the members of the governing body , and requires the new governing
body to vote on whether to seek readoption of such development agreement within four months of taking
office. These provisions expire on July 1, 2028, unless reviewed and reenacted by the Legislature.
The bill revises the existing process for the approval of new electric distribution substations to apply to all new
and existing substations.
The bill does not appear to have a fiscal impact on state or local governments.
The bill was approved by the Governor on May 5, 2023, ch. 2023-31, L.O.F., and will become effective on July
1, 2023, except as otherwise provided.
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I. SUBSTANTIVE INFORMATION
A. EFFECT OF CHANGES:
Present Situation
Comprehensive Plans
The Community Planning Act
1
provides counties and municipalities with the power to plan for future
development by adopting comprehensive plans.
2
Each county and municipality must maintain a
comprehensive plan to guide future development.
3
All development, both public and private, and all development orders approved by local governments
must be consistent with the local government’s comprehensive plan.
4
A comprehensive plan is
intended to provide for the future use of land, which contemplates a gradual and ordered growth, and
establishes a long-range maximum limit on the possible intensity of land use.
A locality’s comprehensive plan lays out the locations for future public facilities, including roads, water
and sewer facilities, neighborhoods, parks, schools, and commercial and industrial developments. A
comprehensive plan is made up of 10 required elements, each laying out regulations for a different
facet of development.
5
The 10 required elements include capital improvements; future land use plan; transportation; general
sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge;
conservation; recreation and open space; housing; coastal management; intergovernmental
coordination; and property rights..
6
At least once every seven years, each local government must evaluate its comprehensive plan to
determine if plan amendments are necessary to reflect changes in state requirements since the last
update of the comprehensive plan and notify the state land planning agency as to its determination.
7
If
the local government determines amendments to its comprehensive plan are necessary, the local
government must prepare and send to the state land planning agency within one year such plan
amendment or amendments for review.
8
Local governments are encouraged to evaluate and update
their comprehensive plans to reflect changes in local conditions.
9
If a local government fails to submit
an evaluation of its comprehensive plan at least once in seven years to the state land planning agency
or update its plan as necessary in order to reflect changes in state requirements, the local government
may not amend its comprehensive plan until such time the evaluation is submitted.
10
Comprehensive plans must include at least two planning periods, one covering the first five-year period
occurring after the plan’s adoption and one covering a period of at least 10 years.
11
Additional planning
periods are permissible and accepted as part of the planning process.
1
Part II, ch. 163, F.S.
2
S. 163.3167(1), F.S.
3
S. 163.3167(2), F.S.
4
S. 163.3194(3), F.S
5
S. 163.3177(6), F.S.
6
Id.
7
S. 163.3191(1), F.S. The state land planning agency is the Department of Economic Opportunity pursuant to s. 163.3164(44), F.S.
8
S. 163.3191(2), F.S.
9
S. 163.3191(3), F.S.
10
S. 163.3191(4), F.S.
11
S. 163.3177(5)(a), F.S.
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Future Land Use Element
Comprehensive plans must contain an element regarding future land use that designates proposed
future general distribution, location, and extent of the uses of land for a number of uses and categories
of public and private uses of land.
12
Each future land use category must be defined in terms of uses
included, and must include standards to be followed in the control and distribution of population
densities and building and structure intensities.
13
The proposed distribution, location, and extent of the
various categories of land use must be shown on a land use map or map series. Future land use plans
and plan amendments are based on surveys, studies, and data regarding the area
14
and the future land
use element must include a future land use map or map series.
15
Land Development Regulations
Comprehensive plans are implemented via land development regulations. Land development
regulations are ordinances enacted by governing bodies for the regulation of any aspect of
development and includes any local government zoning, rezoning, subdivision, building construction, or
sign regulations or any other regulations controlling the development of land.
16
Each county and municipality must adopt and enforce land development regulations consistent with
and that implements its adopted comprehensive plan.
17
Local governments are encouraged to use
innovative land development regulations
18
and may adopt measures for the purpose of increasing
affordable housing using land-use mechanisms.
19
Development that does not conform to the comprehensive plan may not be approved by a local
government unless the local government amends its comprehensive plan first. State law requires a
proposed comprehensive plan amendment to receive two public hearings, the first held by the local
planning board, and subsequently by the governing board.
20
Additionally, land development regulations
relating to all public and private development, including special district projects, must be consistent with
the local comprehensive plan.
21
Amendments to comprehensive plans may be initiated by any interested party, including private land
owners and public parties.
22
Building Design Elements for Single-family or Two-family Dwellings
Local governments are generally prohibited from adopting land development regulations relating to
building design elements for single-family or two-family dwellings.
23
This prohibition does not apply to:
24
Dwellings listed in, or located in a historic district listed in, the National Register of Historic
Places;
12
S. 163.3177(6)(a), F.S. Applicable uses and categories of public and private uses of land include, but are not limited to, residential,
commercial, industrial, agricultural, recreational, conservation, educational, and public facilities. S. 163.3177(6)(a)10., F.S.
13
S. 163.3177(6)(a)1., F.S.
14
S. 163.3177(6)(a)2., F.S.
15
S. 163.3177(6)(a)10., F.S.
16
Id.
17
S. 163.3202, F.S.
18
S. 163.3202(3), F.S.
19
S. 125.01055 and 166.04151, F.S.
20
S. 163.3174(4)(a) and 163.3184, F.S.
21
See Sections 163.3161(6) and 163.3194(1)(a), F.S.
22
See e.g., Osceola County, Amending the Comprehensive Plan, available at https://www.osceola.org/agencies-
departments/community-development/offices/planning-office/comprehensive-plan/amending-comprehensive-plan.stml (last visited April
3, 2023).
23
S. 163.3202(5)(a), F.S. “Building design elements” include the external building color; the type or style of exterior cladding material;
the style or material of roof structures or porches; the exterior nonstructural architectural ornamentation; the location or architectural
styling of windows or doors; the location or orientation of the garage; the number and type of rooms; and the interior layout of rooms
24
S. 163.3202(5)(a)1.-7., F.S.
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Dwellings listed as a historic property or located in a historic district as determined by a local
preservation ordinance;
Regulations adopted in order to implement the National Flood Insurance Program;
Regulations adopted in accordance and compliance with procedures established for the
adoption of local amendments to the Florida Building Code;
Dwellings located in a community redevelopment area;
Regulations that are required to ensure protection of coastal wildlife in compliance with the
Dennis L. Jones Beach and Shore Preservation Act or the Florida Water Resources Act of
1972;
Dwellings located in a planned unit development or a master planned community created by a
local governing body
25
; or
Dwellings located within the jurisdiction of a local government that has a design review board or
architectural review board.
26
Electric Substation Approval Process
The construction of new distribution electrical substations is a permitted use in future land use
categories and zoning districts, except for those designated for preservation, conservation, or historic
preservation.
27
However, local governments may adopt reasonable land development regulations
concerning setback, landscaping, buffering, screening, lighting, and other aesthetic compatibility-based
standards.
28
If the local government has not adopted land development regulations concerning
substations, the following standards apply:
In non-residential areas, the substation must comply with setback and landscaped buffer area
criteria applicable to other similar uses in that district.
In residential areas, a setback of up to 100 feet between the substation property boundary and
permanent equipment structures must be maintained.
29
If the application for development of a distribution substation demonstrates the substation design is
consistent with the local government’s standards, the local government must approve the application.
30
Prior to submitting an application for a substation in a residential area, the utility must consult the local
government regarding site selection.
31
The utility provides information on the proposed site and up to
three alternative sites, upon which the local government must make a determination on the proposed
sites within 90 days. If the local government and the utility are unable to agree upon a site, the site
selection is submitted to mediation.
If a local government has adopted standards for siting an electrical substation, it must grant or deny an
application to locate an electrical substation within 90 days after the date the properly completed
application is declared complete.
32
If the local government does not take action on the application
within the specified timeframe, the application is deemed automatically approved. Issuance of a permit
does not relieve the applicant from complying with applicable federal or state laws or rules or applicable
local land development or building rules.
25
“Planned unit development” or “master planned community” means an area of land that is planned and developed as a single entity
or in approved stages with uses and structures substantially related to the character of the entire development, or a self-contained
development in which the subdivision and zoning controls are applied to the project as a whole rather than to individual lots. Section
163.3202 F.S.
26
See e.g., City of Wellington Architectural Review Board, available at https://www.wellingtonfl.gov/303/Architectural-Review-Board and
City of St. Petersburg Design Review Board, available at
https://www.stpete.org/government/boards___committees/development_review_commission.php (last visited April 3, 2023.)
27
S. 163.3208(4), F.S.
28
S. 163.3208(3), F.S.
29
S. 163.3208(4), F.S.
30
S. 163.3208(5), F.S.
31
S. 163.3208(6)(a), F.S.
32
S. 163.3208(8)(a), F.S.
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Development Agreements
Local governments may enter into development agreements with developers.
33
A development
agreement is a “contract between a local government and a property owner/developer, which provides
the developer with vested rights by freezing the existing zoning regulations applicable to a property in
exchange for public benefits.”
34
A local government may establish, by ordinance, procedures and requirements for considering and
entering into a development agreement with any person having a legal or equitable interest in real
property located within its jurisdiction.
35
A development agreement may provide that the entire
agreement, or any phase thereof, must be commenced or completed within a specific time and must
include:
36
A legal description of the land subject to the agreement and the names of its legal and equitable
owners;
The duration of the agreement;
37
The development uses permitted on the land, including population densities, and building
intensities and height;
A description of public facilities that will service the development, including who will provide
such facilities, the date any new facilities, if needed, will be constructed, and a schedule to
assure public facilities are available concurrent with the impacts of the development;
A description of any reservation or dedication of land for public purposes;
A description of all local development permits approved or needed to be approved for the
development of the land;
A finding that the development permitted or proposed is consistent with the local government's
comprehensive plan and land development regulations;
A description of any conditions, terms, restrictions, or other requirements determined to be
necessary by the local government for the public health, safety, or welfare of its citizens; and
A statement indicating that the failure of the agreement to address a particular permit, condition,
term, or restriction does not relieve the developer of the necessity of complying with the law
governing said permitting requirements, conditions, terms, or restrictions.
A local government must conduct two public hearings before entering into, amending, or revoking a
development agreement.
38
The local government must publish a notice of intent to consider the
agreement at least seven days before each public hearing in a newspaper of general circulation in the
county where the local government is located and provide notice by mail to all affected property owners
before the first public meeting.
39
Within 14 days after a local government enters into a development agreement, the local government
must record the agreement with the clerk of the circuit court in the county where the local government
is located, and such an agreement is not effective until it is properly recorded.
40
A development
agreement binds any person who obtains ownership of a property already subject to an agreement
(successor in interest).
41
33
S. 163.3220(4), F.S.; See ss. 163.3220-163.3143, F.S., known as the “Florida Local Government Development Agreement Act.” For
purposes of the act, a “local government” means any county, municipality, special district, or local government entity established
pursuant to law that exercises regulatory authority over, and grants development permit for, land development. S. 163.3221(10), F.S.
34
Morgran Co., Inc. v. Orange County, 818 So. 2d 640 (Fla. 5th DCA 2002); 7 Fla. Jur 2d Building, Zoning, and Land Controls § 168
(2019).
35
S. 163.3223, F.S; 7 Fla. Jur 2d Building, Zoning, and Land Controls § 168 (2019).
36
S. 163.3227(1) and (2), F.S.; 7 Fla. Jur 2d Building, Zoning, and Land Controls § 168 (2019).
37
The maximum length for a development agreement is 30 years, unless it is extended by mutual consent of the local government and
the developer. S. 163.3229, F.S.
38
S. 163.3225(1), F.S.
39
S. 163.3225(2)(a), F.S.
40
S. 163.3239, F.S.; 7 Fla. Jur 2d Building, Zoning, and Land Controls § 168 (2019).
41
A successor in interest is one who follows another in ownership or control of property. A successor in interest retains the same rights
as the original owner, with no change in substance. Black’s Law Dictionary 1473 (8th ed. 2004); s. 163.3239, F.S.
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A development agreement may be amended or canceled by mutual consent of the parties to the
agreement or by their successors in interest.
42
An agreement may also be modified or revoked if a
change in state or federal law after the execution of the agreement precludes either party from
complying with the terms of the agreement.
43
Effect of the Bill
The bill revises the two required planning periods included in a comprehensive plan from five years to
10 years and from 10 years to 20 years, but still allows local governments to adopt additional planning
periods for specific components, elements, land use amendments, and projects.
The bill requires the chair of the governing body of the county or mayor of the municipality to sign an
affidavit as part of seven-year evaluation and appraisal process attesting all elements of the
comprehensive plan comply with statutory requirements. If a local government fails to submit such
evaluation and affidavit to the state land planning agency as statutorily required, the local government
may not initiate or adopt any publicly initiated plan amendment to its comprehensive plan until the local
government complies with the submission requirements. This prohibition does not apply to privately
initiated plan amendments.
If a local government fails to update its comprehensive plan, the bill requires the state land planning
agency to provide population projections to the local government, which must be utilized in updating the
plan. If the state land planning agency finds the update was not in compliance, the bill requires the
state land planning agency to establish a timeline of up to 12 months for the local government to
address the deficiencies. The bill allows a local government to provide alternative population
projections based on professionally accepted methodologies, but only if those projections exceed the
population projections provided by the state land planning agency.
The bill removes the ability of local governments to require certain building design elements to single-
family or two-family dwellings located in a planned unit development or master planned community
created on or after July 1, 2023, and limits the application of those elements in communities with a
design review board or architectural review board to those who had such a board before January 1,
2020.
The bill precludes an independent special district from complying with the terms of a development
agreement, or any other agreement for which the development agreement serves in whole or part as
consideration, if the agreement was executed within three months before the effective date of a law
modifying the selection manner of the governing body from election to appointment or vice versa. The
new governing body of the special district must review any affected agreement within four months of
taking office and, after such review, must vote on whether to seek re-adoption of the agreement. This
requirement applies to any development agreement in effect on, or executed after, the effective date of
this bill. This requirement expires on July 1, 2028, unless saved from repeal by the Legislature.
The bill expands the definition of “electric substation” to include accessory administration or
maintenance buildings and related accessory uses and structures, and makes the existing process for
approval of new electric distribution substations applicable to all new and existing substations.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
42
S. 163.3237, F.S.
43
S. 163.3241, F.S.
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None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The prohibition on the application of building design standards to certain types of residential
development may decrease the cost of constructing those developments.
D. FISCAL COMMENTS:
None.