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Florida Scales Back Statewide Planning: Lessons For Oregon

Oregon has a unique planning program in which the state sets land use policies and regional and local governments must implement those policies through their comprehensive plans, zoning regulations and land use actions.  While unique, the Oregon system is not the only one in which state governments participate.

  Hawai’i, Washington, California and a few other states have moved beyond the model of the 1920s in which all land use power is delegated by state legislatures to local governments without further state participation, except for zoning appeals to the courts. 

Another state in which the state government was a major participant was Florida, which adopted its land use system in 1972, a year before Oregon’s Senate Bill 100.  That system evolved from the Environmental Land and Water Management Act of 1972, which created two programs: one providing for Areas of Critical State Concern (ACSC), and another which dealt with Developments of Regional Impact (DRI).  The first program paralleled Oregon’s Areas of Critical Concern legislation (which was unused until 2009, when it was applied to the Metolius River) and allowed for direct state regulation in those areas and the second allowed for state direction over larger projects affecting multiple jurisdictions.  The Florida State Comprehensive Planning Act was passed that same year, the result of a recent drought and a perceived need to deal with the surging growth of the state in the face of inadequate local resources.  As further amended in 1985, this Act required the Division of State Planning of the Florida Department of Administration to prepare a state comprehensive plan designed to "provide long-range guidance for the orderly social, economic, and physical growth of the state,” setting forth goals, objectives, and policies. 

Since 1985, Florida has required each of its cities and counties to formulate a comprehensive plan, land use regulations and actions that are consistent with the state plan.  The program had strains – the budget was usually inadequate for public expectations; many property rights groups disliked state intervention generally and in their local projects in particular, and local governments were often pressured to restrict development more than the law allowed.  But it was the 2010 elections that did in the Florida program, the tide that brought the Tea Party to power in that state. 

Last month, the 2011 Florida legislature voted to greatly reduce the state’s role in the planning process.  In many cases, the state’s role is now advisory with fewer opportunities to challenge plan amendments or actions.  It may only appeal those actions that affect as-yet undefined “important state resources and facilities.”  For periodic review and a limited number of plan amendments, the state still issues a compliance determination and can challenge the amendment on any compliance criterion, not just state impacts.   But the Department of Community Affairs, which ran the state’s program for many years, is now relegated to a division of the Department of Economic Opportunity where it will provide primarily local planning grants. 

Responding to the mantra “Let cities be cities,” the legislature repealed the limits on the number of plan amendments that could be heard each year by local governments and the “concurrency” requirement for roads, schools and recreation (i.e., that infrastructure must be installed or firmly available within a certain time of development approval), though water and sewer concurrency requirements have yielded to give local governments free reign to impose their own requirements. 

The state’s real estate industry was not an idle participant.  The legislation included a prohibition on local referrals of comprehensive plans or amendments to such plans, replaying a struggle in which that industry defeated a similar statewide referendum last year which would have required such a vote on all plans and plan amendments.  Florida’s planning structure now effectively returns to that which existed in the early 1970s, although in some circumstances, the state may intervene.

No such “near death” experience has occurred in Oregon this legislative session, although some such bills were proposed.  Nevertheless, the lessons of Florida are apparent.  For all its warts, state land use policymaking does assure that the state will have a hand in those decisions that cross local boundaries.  Florida will likely rue the day when development is attracted to those places with the least economic restrictions, where the cost of funding infrastructure may differ based on local boundaries, and both environment and quality of life suffer because of ideology.  Oregon must remain vigilant to assure that it does not happen here.

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We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.
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