Chapter 2018-158, Laws of Florida (HB 1151), signed by the Governor on April 6, further reduces the scope and significance of Florida’s Development of Regional Impact (DRI) review process. The legislation is effective immediately.
The DRI process was established in 1973, before the enactment of legislation requiring all local governments to adopt and enforce comprehensive land use plans. For the past 45 years, developments meeting certain size and impact thresholds have been reviewed in accordance with procedural and substantive requirements set in State statutes and rules. Although DRI development orders (DOs) and DRI amendments have been approved by the local government, the state land planning agency has had the authority to appeal the DO. Because DRIs take many years to develop, there can be numerous amendments over time, all subject to statutory requirements and requiring extensive recordkeeping.
Over the past several years, the Legislature has made numerous changes to Florida’s growth management laws to reduce state oversight, including as to DRIs. The rationale for these statutory changes has been that Florida’s mandated local comprehensive plan process has matured to the point that state oversight is less critical and the DRI process is no longer needed. In 2015, the Legislature replaced the DRI process for new developments with a requirement that any proposed DRIs be the subject of a comprehensive plan amendment with review coordinated by the state land planning agency. In 2016, the Legislature clarified that proposed DRIs which were otherwise consistent with the local comprehensive plan did not have to obtain a duplicative plan amendment.
Chapter 2018-158 takes the next step in the devolution of the DRI process by removing most state and regional involvement in DRI amendments and cleaning up some of the remnant language in statute. The legislation is lengthy and cannot be fully summarized here; however, key provisions include:
- Amendments to DRI Development Orders. Revises process for DRI DO amendments by eliminating statutory language on “substantial deviations” and “notices of proposed change.” The criteria for reviewing DRI amendments was a convoluted, esoteric set of rules which originally had limited the types of changes which could be made to a DRI without triggering a new review of the entire development, but which had evolved to the point where it was very flexible but confusing to implement. Notwithstanding any provision to the contrary in any DO, agreement, local comprehensive plan or local land development regulation, DO amendments will now be reviewed by the local government based on the standards and procedures of the applicable comprehensive plan and land development regulations. Any new conditions may only address the impacts created by the proposed change. The legislation provides additional criteria regarding such changes.
- Reporting. Removes requirement for annual or biennial reporting, “[n]otwithstanding any condition in a development order unless required to do so by the local government that has jurisdiction over the development.” Consult with your attorney and local government about how this provision should be interpreted.
- Abandonment of DRIs. Requires that the local government having jurisdiction abandon the DO for an existing DRI upon request by the owner, developer or local government and a showing that all required mitigation related to the amount of development existing at the time of abandonment has been completed or will be completed under an enforceable permit or authorization (as has been done for DRI rescissions). If the local government with jurisdiction proposes the abandonment, it must ensure that individual written notice is provided to each DRI owner and developer and no such owner or developer objects in writing before or at the public hearing on the abandonment.
- DRI Thresholds. Retains statewide guidelines and standards for DRI review, which will be used to determine which projects are subject to the state coordinated comprehensive plan review process (s. 163.3184 (4), F.S) if the proposed project is not already consistent with the comprehensive plan, such as if the future land use designation of the subject property is less intense.
- Aggregation of Multiple Developments. Deletes criteria for aggregation of adjacent properties for the purpose of determining whether a project meets thresholds for DRI review.
- Continued DRI Exemptions. Continues to exempt certain types of projects and geographic areas from any DRI-related requirements, including exemptions for Dense Urban Land Areas (DULAs). These exemptions were moved to Section 380.0651, F.S.
- “Florida Quality Development” Program. Repeals the Florida Quality Development (FQD) program and requires that local governments adopt local DOs to replace the ones previously issued by the state.
- Vested Rights. Preserves existing non-expired DRI letters, DOs, agreements and vested rights, including, but not limited to binding letters, essentially built out determinations, previously granted extensions, agreements to reimburse developers for contributions in excess of proportionate share and credits owed to developers pursuant to DO exactions. Also, with limited exceptions, prohibits local governments from amending DOs to advance the previously approved date at which a DRI can be downzoned or have its density or intensity reduced.
- DRI Rules. Repeals the uniform DRI review rules and FQD rules in Chapter 73C-40, as well as Administration Commission rules on DRI aggregation.
- Appeals of DRI Development Orders. Except in Areas of Critical State Concern, removes the Florida Land and Water Adjudicatory Commission role from the DRI process, except for appeals by the owner or developer from local government decisions regarding abandonment of a DRI.
Developers of DRI-level projects should be aware of how the DRI changes may affect their projects and be prepared to provide reviewing staff with information and input regarding the new processes and requirements. In addition, it is likely questions will arise regarding implementation of the legislation, which may require discussions with local, regional and state agencies.