The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: SB 540
INTRODUCER: Senator DiCeglie
SUBJECT: Local Government Comprehensive Plans
DATE: March 28, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Hunter Ryon CA Favorable
2. Collazo Cibula JU Pre-meeting
3. RC
I. Summary:
SB 540 revises the process for modifying the five-year capital improvement schedule of a local
government’s comprehensive plan, allowing the schedule to be updated administratively if all the
projects have been adopted by the appropriate project board.
The bill provides that in challenges to the comprehensive plan and plan amendments, including
small scale plan amendments, the prevailing party is entitled to recover attorney fees and costs,
including reasonable appellate attorney fees and costs.
Lastly, the bill clarifies the scope of review for a local government decision to grant or deny a
development order by providing that the order may only be challenged if it would materially
alter the use, density, or intensity of the property in a manner not consistent with the
comprehensive plan.
The bill takes effect on July 1, 2023.
II. Present Situation:
Comprehensive Plans
The Community Planning Act provides counties and municipalities with the power to plan for
future development by adopting comprehensive plans.
1
Each county and municipality must
maintain a comprehensive plan to guide future development.
2
1
Section 163.3167(1), F.S.
2
Section 163.3167(2), F.S.
REVISED: BILL: SB 540 Page 2
All development, both public and private, and all development orders approved by local
governments must be consistent with the local government’s comprehensive plan.
3
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.
4
The 10 required elements consider and address 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. Other plans and programs
may be added as optional elements to a comprehensive plan.
5
A comprehensive plan is implemented through the adoption of land development regulations
6
that are consistent with the plan, and which contain specific and detailed provisions necessary to
implement the plan.
7
Such regulations must, among other prescriptions, regulate the subdivision
of land and the use of land for the land use categories in the land use element of the
comprehensive plan.
8
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.
9
An
administrative law judge must hold a hearing in the affected local jurisdiction on whether the
plan or plan amendment is in compliance.
10
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.
11
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.
12
Attorney fees and costs are awarded in
3
Section 163.3194(3), F.S
4
Section 163.3177(3) and (6), F.S.
5
Id.
6
“Land development regulations” means 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, except that this definition does not apply in s. 163.3213, F.S.
(governing the administrative review of land development regulations). See s. 163.3164(26), F.S.
7
Section 163.3202(2), F.S.
8
Id.
9
Section 163.3184(5)(a), F.S.
10
Section 163.3184(5)(c), F.S.
11
Section. 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. Section 163.3187(3), F.S.
12
Section 163.3187(5)(a), F.S. BILL: SB 540 Page 3
administrative proceedings before DOAH only if the non-prevailing adverse party participated in
the proceedings for an improper purpose.
13
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.
14
Capital Improvements Element
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.
15
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; and
A schedule of capital improvements including certain transportation improvements from the
applicable metropolitan improvement organization transportation improvement program.
Development Permits and Orders
The Community Planning Act defines “development” as “the carrying out of any building
activity or mining operation, the making of any material change in the use or appearance of any
structure or land, or the dividing of land into three or more parcels.”
16
When a party wishes to
engage in development activity, the party must seek a development permit from the appropriate
local government having jurisdiction. Under the Community Planning Act, a development permit
includes “any building permit, zoning permit, subdivision approval, rezoning, certification,
special exception, variance, or any other official action of local government having the effect of
permitting the development of land.”
17
Once a local government has officially granted or denied
a development permit, the official action constitutes a development order.
18
A development order
vests certain rights related to the land.
19
13
Section 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.” Section 120.595(1)(e)1., F.S.
14
Sections 163.3174(4)(a) and 163.3184, F.S.
15
Section 163.3177(3)(a), F.S.
16
Section 163.3164(14), F.S. (incorporating by reference the definition in s. 380.04(1), F.S.).
17
Section 163.3164 (16), F.S.
18
Section 163.3164 (15), F.S.
19
Section 163.3167(3), F.S. BILL: SB 540 Page 4
An aggrieved or adversely affected party
20
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 in a
manner not consistent with the comprehensive plan.
21
There is currently a split among Florida
district courts of appeal concerning the application of this provision to “other aspects of
development.”
22
III. Effect 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 the Division of Administrative Hearings challenging a comprehensive 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 seeks to resolve a split among Florida district courts of appeal by clarifying that the
scope of review for a challenge to a local government decision to grant or deny a development
order is limited to whether the development order would materially alter the use, density, or
intensity of a property in a manner not consistent with the comprehensive plan.
The bill takes effect on July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
20
An “aggrieved or adversely affected party” means 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. Section 163.3215(2),
F.S.
21
Section 163.3215(3), F.S.
22
Compare Heine v. Lee County, 221 So. 3d 1254 (Fla. 2d
DCA 2017) (scope of claims limited to use, density, and intensity
challenges only) with Imhof v. Walton County, 328 So. 3d 32 (Fla. 1st DCA 2021) (scope of claims includes other aspects of
development that render the development order inconsistent with comprehensive plan). BILL: SB 540 Page 5
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill may have a positive fiscal impact on 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 such private parties to the extent they are found responsible and must pay such
fees and costs.
C. Government Sector Impact:
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.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 163.3177, 163.3184,
163.3187, 163.3215.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None. BILL: SB 540 Page 6
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.