SB 360 growth management bill declared unconstitutional
By Lee Logan and Steve Bousquet
August 27, 2010
TALLAHASSEE - A circuit judge on Thursday tossed out last year's controversial growth management law that relaxes building rules in an effort to spur economic development.
The decision by Tallahassee Circuit Judge Charles Francis says the law is an "unfunded mandate" that would force cities and counties to spend at least $3.7 million to rewrite their land-use plans.
"The court finds this amount is not 'fiscally insignificant,' " Francis wrote in his ruling, noting that 264 communities would have to pay at least $15,000 to change their plans.
The state Constitution generally prohibits the Legislature from passing laws that force localities to spend more than 10 cents per Floridian, which works out to $1.8 million.
The ruling could disrupt Florida's construction industry, which continues to lag during the nationwide struggling economy. It's unclear if the ruling will be appealed, and a key lawmaker said he would prefer to simply rework the law next spring.
Senate Bill 360 was among the most contentious pieces of legislation of 2009, pitting business and development groups against cities, counties and environmentalists. Faced with heavy lobbying on both sides, Gov. Charlie Crist signed the bill into law, saying its positive impacts outweighed its negatives.
The bill rewrote Florida's 1986 growth management guidelines. It allowed developers in the most urban counties to build more houses without expanding roads and allowed counties and cities to designate new urban areas that would also be exempt from certain road-building requirements.
Within a month of Crist signing the bill, a cluster of cities filed a lawsuit claiming the new law illegally forced local governments to pay more for transportation needs because it repealed key sections of the earlier law for large and medium-sized areas.
Under a provision in the old growth laws known as ''transportation concurrency,'' many of those costs were the responsibility of developers.
Jamie Cole, a lawyer who challenged the new law on behalf of several cities in Broward County, said the ruling will have far-reaching implications.
"Now developers might need to build more roads than they otherwise might have built," Cole said.
State Sen. Mike Bennett, the law's main sponsor, said lawmakers will likely revisit the law during the next legislative session.
"It'll be interesting to go back and rework it and make sure we don't have any disagreements," he said.
Bennett said he would prefer to simply fix the law next year instead of appealing Thursday's decision.
Eric Draper of Audubon Florida called SB 360 "part of the war the Legislature has been waging on local governments."
He said the ruling, coupled with Hometown Democracy's Amendment 4 on the November ballot, would send a message to lawmakers to "stop messing with" Florida's growth management laws.
Passage of Amendment 4 would require changes to local comprehensive plans to be placed on the ballot. The effort is fiercely opposed by business groups such as the Chamber of Commerce, Realtors and builders.
Ron Weaver, a Tampa land-use lawyer who often represents builders, called the decision "unfortunate," but he said that even if the judge's decision is upheld on appeal, its effects are muted somewhat by a decision legislators made last spring.
Anticipating Thursday's decision, lawmakers included a provision in this year's economic development bill (SB 1752) that "blesses" large-scale projects as being in good faith if they were filed under SB 360.
Even though the ruling's effects might be muted, it still shocked many in the development industry.
"It's a surprise," said Al Zichella, incoming president of the Florida Home Builders Association. "I don't know how the judge could call it an unfunded mandate. The Legislature has a role to play in making sure that local governments don't overstep their boundaries. The state has a legitimate role to play in growth management."
Lee Logan can be reached at email@example.com or (850) 224-7263.