Florida's 2009 growth management bill may have another chance. On May 2, Florida's First District Court of Appeals reversed a decision that had declared SB 360 (2009) unconstitutional. Atwater v. Weston, 2011 WL 1634234, Case No. 1D10-5094 (Fla. 1st DCA 2011). The Florida Legislature passed the bill in 2009, intending to correct problems with Florida's growth management laws. The bill extended all local development orders by two years. It moved to away from requiring developers to pay for road improvements, known as transportation concurrency. It instituted a mobility fee instead to finance transportation infrastructure. SB 360 also gave cities and counties the option to exempt other areas from transportation concurrency. Finally, it exempted "Dense Urban Land Areas" from undergoing Development of Regional Impact review, Florida's process for reviewing large developments.
Within a month of Governor Crist signing the bill, a coalition of local governments filed suit. They claimed it violated the Florida Constitution's mandate in against laws with more than a single subject. They also claimed it violated the Florida Constitution by imposing an unfunded mandate on counties and municipalities. The circuit court in Leon County agreed and entered summary judgment on grounds the bill imposed an unfunded mandate.
The First District Court of Appeals reversed and remanded the case for dismissal. It did not reach these constitutional questions. Instead, it found that the group of governmental plaintiffs did not sue the proper defendants. They sued the Governor, individual legislators, and others because they were improper plaintiffs. They might have been proper, had the action involved "a broad constitutional duty of the State implicating specific responsibilities." Instead, it held the proper party was the secretary of the Department of Community Affairs because the secretary would have enforced the law.
The decision may not mean much, however, for growth management in Florida. With the proposals moving through the Legislature that intend to scale back state oversight of growth management, it may become a moot point. The bill that looks set to pass would eliminate "concurrency," a requirement that was intended to make development and growth pay for itself, but which has been widely criticized lately.
