Florida’s Local Government Sustainable Development Code Provisions

Florida’s growth management legislative landscape experienced a tectonic shift in 2011. Since the passage of the 1985 Local Government Comprehensive Planning and Land Development Regulation Act, Florida has experienced top-down environmental leadership from the state executive and legislative branches. In 2011, Florida legislators and Governor Scott fundamentally transformed Florida’s land use and growth management structure by effectively decentralizing growth management oversight and shifting the responsibility to local governments.

Specifically, 2011 growth management and government reorganization legislation terminated the Department of Community Affairs (“DCA”) and transferred the surviving growth management functions to the newly created Division of Community Development within the new Department of Economic Opportunity (“DEO”).  As of October 1st, 2011, DEO instead of DCA will operate as the State Land Planning Agency to administer Florida’s local government comprehensive planning, DRI and other growth management programs.  While the same kinds of state oversight of local planning are still mandated in select areas, most comprehensive plan amendments only receive comments and can be challenged by the new division when proposed plan amendments have adverse impacts to important state resources and facilities.  Additionally, the burden of proof has changed in most plan amendment cases so that third party challengers must prevail over a fairly debatable test which means if the issue is subject to fair debate, the decision of the local government is upheld.  The legislation also repeals state mandates for transportation, education and parks and recreation concurrency and makes these optional with local governments.  Most local governments have indicated a desire to continue utilizing some form of concurrency, while others have indicated a desire to abandon concurrency. However any analysis at this point is premature and speculative since it is unknown how local governments will really act in the future.

Ultimately, the 2011 Legislative Session was marked by a shift away from top-down state regulation of growth and sustainability issues and toward empowering local governments to make their own decisions.  In fact, local governments – particularly the League of Cities – testified that the existing process stifled their creativity in dealing with issues such as sustainable development.  Hopefully, the legacy of the 2011 Florida legislative session will be local government empowerment to regulate growth management more comprehensively by directly incorporating sustainable development. Such an empowerment would only be an acceleration of a longer-term trend. Nationwide, between 2003 and 2007, there has been a 418 percent increase in the number of county-level green building programs.[iii] Since 2009, local municipalities in Florida have increasingly enacted a number of green development initiatives throughout this state. As of the 2011 update to this index, 81 out of the 324 (25%) Florida local governments surveyed have enacted some form of sustainable development legislation. To encourage green development, these municipalities offer varying types of incentives to developers constructing new buildings or retrofitting existing buildings to make them more sustainable. The most commonly utilized programs take the form of tax incentives (credits, deductions, and exemptions), permitting fee waivers, density bonuses, and expedited approval processes. The most innovative programs integrate other low-cost inducements such as marketing and publicity incentives to encourage adoption.

This index contains excerpts from Florida municipal codes and ordinances that address sustainable development through green building initiatives, low impact development, and renewable energy programs. The purpose of this index is to assemble these provisions in one place to allow for comparison of the numerous approaches being implemented around the state, and to monitor trends in the industry. This index was originally compiled in 2009, and updated mid-year in 2010 and 2011.  It was constructed using the most accurate information available but is intended for informational purposes only. For the most current and accurate information, please verify the provisions with the applicable local government. Even where such incentives have not yet been codified, increasing emphasis on such values is apparent. Some local governments have incorporated definitions of green building terms in preparation of future legislation. Additionally, numerous local governments have appointed “green task forces” or promised green initiatives in their comprehensive plans. Optimistically, we hope this trend will continue as local governments step in to fill the vacuum.

 Definitions

Sustainable Development

The most often-quoted definition of sustainable development characterizes it as development that “meets the needs of the present without compromising the ability of future generations to meet their own needs.” Three principles are found at the core of sustainable development:

  1. Developing in a targeted, compact, and balanced manner;
  2. Promoting energy and resource-efficient development and operations; and
  3. Preserving and protecting natural resources.

Green Building

Fla. Stat. § 255.253(6) defines a “sustainable building” as “a building that is healthy and comfortable for its occupants and is economical to operate while conserving resources, including energy, water, and raw materials and land, and minimizing the generation and use of toxic materials and waste in its design, construction, landscaping, and operation.”

The Environmental Protection Agency defines “green building” as “the practice of creating structures and using processes that are environmentally responsible and resource-efficient throughout a building’s life-cycle.”[iv] Accordingly, such “green buildings” are designed, built, operated, renovated, and disposed of using ecological principles promoting occupant health and resource efficiency while minimizing any harmful effects upon the natural environment.[v]

Green buildings are resource efficient and consume far less energy and water than their predecessors. They are respectful of the site where they are placed, minimizing impacts on land and to the ecosystems in which they reside. There is an emphasis on promoting alternative means of transportation such as bicycling, high efficiency automobiles, and rapid transit by addressing where the buildings are built. Renewable energy, recyclable materials, restoration of existing buildings, and the impact of the building on the health of its occupants are themes common to green buildings.

Low Impact Development (LID)

A site design strategy to enhance community stormwater management and water quality by allowing stormwater to percolate in place using biophysical characteristics of a property.[vi] The use of LID practices offers both economical and environmental benefits.

The appropriate LID technique for a specific community will depend upon the site-specific characteristics of the community and any special ecological needs. Since most local governments and applicable regulatory agencies adopted their stormwater guidelines long ago and have not undertaken action to update their requirements, LID is often not permitted without a variance from traditional stormwater requirements. Nevertheless, as the index demonstrates, an increasing number of local governments have implemented low-impact requirements into their current building codes.

Renewable Energy

Fla. Stat. § 377.803 provides that “renewable energy” means electrical, mechanical, or thermal energy produced from a method that uses one or more of the following fuels or energy sources: hydrogen, biomass, as defined in § 366.91, solar energy, geothermal energy, wind energy, ocean energy, waste heat, or hydroelectric power.

Invitation to Collaborate

Do you know of a Florida local government with an applicable code provisions not listed here?  Please email pertinent information to Nicole Kibert at nkibert@carltonfields.com.

***
Many thanks to Nicole Kibert at Carlton Fields for this post!

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