Monday, August 13, 2007

1st DCA: Agreements that Require CIP Amendments are Legislative

In DR Horton v. City of Jacksonville, the First District got past the procedural complications of a mayoral veto (see the Payne II case in Miami as well), to give us a clear rule: the approval by a local government of a a fair share concurrency agreement under s. 163.3180(11), and presumably a development agreement under 163.3220, is a legislative act if implementing it will require the local government to amend its comprehensive plan's CIP or transportation element's list of improvements.

The question was whether approving an ad hoc "fair share" agreement under 163.3180(11) was a legislative act subject to veto by the Mayor (which happened), or a quasi-judicial act not subject to veto. The whole thing got bogged down in the "functional analysis" of Snyder, but the courts got through it looking at the substantive effect. Because the agreement required amendments to the CIP for new road improvements, the court found that under Coastal Development and Yusem the act had to be legislative.

Note 1 - the events in this case occurred before the Legislature gave us the "proportionate share methodology" provisions of 163.3180(12). Instead, the City/County was proceeding under 163.3211, which provides that

In order to limit the liability of local governments, a local government may allow a landowner to proceed with development of a specific parcel of land
notwithstanding a failure of the development to satisfy transportation concurrency, when all the following factors are shown to exist:
(a) The local government with jurisdiction over the property has adopted a local comprehensive plan that is in compliance.
(b) The proposed development would be consistent with the future land use designation for the specific property and with pertinent portions of the adopted local plan, as determined by the local government.
(c) The local plan includes a financially feasible capital improvements element that provides for transportation facilities adequate to serve the proposed development, and the local government has not implemented that element.
(d) The local government has provided a means by which the landowner will be assessed a fair share of the cost of providing the transportation facilities to serve the proposed development.
(e) The landowner has made a binding commitment to the local government to pay the fair share of the cost of providing the transportation facilities to serve the proposed development.

This provision preceded the "proportionate share" provisions of 163.3180(12). Jacksonville's "means" was a fair share ordinance that provided for calculating a fair share of improvements.

Note 2 -- Four functional problems dotted this case. First, there were no programmed improvements to the most directly affected roadway. The developer proposed fair share improvements to other roads to address traffic impacts (which is permitted now under 163.3180(12)). The City accepted that list. The second problem was that the affected road would fail and the improvements would not change that. The third problem was that Jacksonville doesn't have impact fees or other assessments that apply to new development absent a concurrency failure, so there's no long term funding to address long term development impacts and the need to meet concurrency. Finally, the City did not propose any way to address the concurrency failure over the long term, or even to demonstrate how or when the proffered fair share payments would be applied to the other improvements.

Most of these deficiencies would be addressed under 163.3180(12) save the existence of the impact fees and other means to make the plan financially feasible.

But the functional and procedural aspects aside, the court's decision provides some clarity as to how development agreements should be treated. I have been of the opinion that they are generally legislative (since they establish vesting for regulatory purposes), but there have been many different opinions. We now know that at least one class of such agreements will always be legislative.

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