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When it comes to growth management, the only thing constant is change

by Bob Rhodes

Guest Columnist

There’s an elephant in the growth management policy room. It’s Amendment 4, artfully packaged as “Hometown Democracy.”

The proposed legislation would require that all local government Comprehensive Plans and plan amendments be approved by voter referendum before becoming effective. It’s on the statewide ballot in November, 2010. Every significant state legislative growth management proposal will undergo a “Hometown Impact Assessment” during the 2010 legislative session.

Although a constitutionally mandated referendum for all plan amendments is a flawed, much too broad approach to enhance meaningful public participation in land use decision making, there is growing sentiment that the public concern driving the direct democracy movement merits state legislative consideration.

The State Department of Community Affairs previously proposed a citizen’s planning “Bill of Rights” which, among other aims, would expand citizens’ opportunities to participate in local land use decisions and restrict the frequency of plan amendments. DCA’s proposal was not accepted by the legislature. Some DCA concepts track Jacksonville’s “Neighborhood Bill of Rights” which established Citizen Planning Advisory Committees (CPACs) to provide community focal points for information and reaction on all new development proposals.

We can expect a version of DCA’s prior proposal to be promoted by certain interest groups and possibly considered next legislative session. Jacksonville’s CPAC experience will inform the discussion.

The legislature is currently reviewing DCA’s mission, organization and program management. This “Sunset review” is slated to be completed in 2010. There are periodic calls to terminate or merge DCA with other state agencies and such action may be considered next legislative session. Although it is unlikely DCA will be terminated or merged, legislative review may prompt proposals to amend or reorient DCA programs.

Integral to the state growth management program is DCA’s role in overseeing review of local plan amendments and Developments of Regional Impact (DRIs). The Northeast Florida Regional Council may request legislation to establish a state-funded pilot project that would delegate to the regional council responsibility in Northeast Florida to review and approve plan amendments and to review and appeal DRIs. The pilot project would last for five years and then be assessed for extension, modification ot termination.

The Florida Department of Transportation and DCA recently produced a report to the legislature analyzing mobility fees, a traffic mobility impact exaction that might replace the state’s traffic concurrency policy. The report offers three implementation options: require mobility fees statewide by a date certain, require fees in dense urban land area counties (which would include Duval) and authorize the fees in all other counties, and authorize mobility fee pilot projects.

In light of the state’s failed traffic concurrency policy which produced unexpected and unintended consequences, pilot projects are preferred by many interest groups. If pilot projects are authorized, Duval county would be a prime candidate for such a project.

Senate Bill 360, enacted in 2009, eliminated the state mandate for transportation concurrency in dense urban areas including Duval County. Questions have been raised about the legislature’s intent regarding this provision and legislation clarifying legislative intent is expected. This “glitch” legislation may address issues raised by a group of cities that have judicially challenged enactment of S.B. 360. It also may include a “safe harbor” provision to validate and preserve traffic concurrency and DRI exemptions provided in S.B. 360 if the act is invalidated.

A senate committee has produced a report on DCA’s population need criterion which DCA applies in reviewing local plan amendments. “Need” is a component of DCA’s Urban Sprawl Policy. The agency has initiated rule making that may clarify its policy. The policy is controversial and may be the subject of 2010 legislative action.

Water quality, quantity and availability is inseparably linked to managing growth. The state’s Water Resources Law has not been comprehensively reviewed by the legislature since it was enacted in 1972. The legislature is expected to initiate an extensive review of water policy and issues. All water issues are on the table including organization, authority and decision making processes of the regional water management districts, water quality and quantity policies, creating a state Water Resources Board to oversee the water resources program and the regional districts, additional protection for freshwater springs and watershed restoration.

Also on line for review is current policy allowing transfer of water between water management districts and the “local sources first” policy which requires local government to exhaust its own water resources before crossing county boundaries for additional water supply.

Any changes to these policies could significantly affect future requests from counties to withdraw additional surface water from the St. Johns River.

Expect 2010 to be another interesting year for Florida’s growth management policy. If the past is any prologue, the one constant with growth management policy is that it will change.

Bob Rhodes is of Counsel to Foley & Lardner LLP. He chaired the Mayor’s 2006 Growth Management Task Force and is a past chair of the Florida Bar Environmental and Land Use Law Section and the Jacksonville Economic Development Commission. He currently chairs the Northeast Florida Regional Council’s Regional Community Institute. Rhodes can be contacted at rrhodes@foley.com

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