CP - amending, challenging

Question 1

3 CP State Review Processes

Answer 1

3 Processes:
1. Expedited State Review Process (common).
2. State Coordinated Review Process - for critical areas (Keys).
3. Small Scale Review Process

Question 2

CP Review Process, re: Small Scale
4 criteria to qualify.

Answer 2

CP
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A.  For 50 [rural 100] acres or less.
B.  No changes to CP text.
C.  Changes future land use map only.
D.  Not in an area of critical concern.

Question 3

Amending CP - frequency + approval

Answer 3

1. Amend CP as often as desired.
2. Rvw CP every 7 yrs to update w/ statutes. If changes needed, has 1 yr to adopt new.
3. F.S. prohibits approval or change of CP by referendum or initiative.
   Exception: If LG charter provision was in effect on 6/1/11.
4. ## If have military base, send to commanding officer.Don’t get confused w/ Impact Fees @ most 4 yrs.

Question 4

Amending CP - re: Sector Plan

Answer 4

Sector Plan
A. For: 5,000 acres or more
B. Incl: Urban form and region resources.
C. Goes thru: Regional Planning Council Scoping Mtg
D. Use: Long Term Master plan, 2 or more Detail plans

Question 5

Amending CP - Court review standard

Answer 5

FAIRLY DEBATABLE.

Question 6

What is FAIRLY DEBATABLE.

Answer 6

CP
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a. A rule of reasonableness.
b. Limited application. 
Ex. LG denied change. Court applied fairly debatable to reverse only where unrefuted evidence proved existing land use designation was improper under the terms of the land use plan itself. Pinellas v. Richman Group of Florida, Inc, 253 So. 23d 662 (2017)

Question 7

Standard of Review of LG Decisions Under CP

Answer 7

Compliance and project approvals are reviewed on basis of strict scrutiny.

Question 8

LG Decisions Under CP - Support

Answer 8

CP
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fairly debatable + pub purp
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xxx
Courts do not disturb if some use consistent with the plan is allowed and the decision is supported by competent substantial evidence. BOCC Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993).

Question 9

If qualify, what are the lenient mechanics of small scale amendment?

Answer 9

A. Do NOT have to send to SPA, &
B. Reqs only 1 hearing. *but still Legislative

Question 10

9 step CP amendment method/timeline.

Answer 10

PROPOSAL STAGE.
1. Agency or citizen intiative, LPA preps amndmt
2. Transmittal hearing.
3. 10 days transmit to SPA & any requesting agencies.
4. 5 days for SPA to notify LG if deficient.
ADOPTION STAGE
5. DCA, if reviews, has 30 days to issue ORC.
6. LG has 180 days to hold Adoption Hearing.
7. 10 days re-transmit to SPA (may issue sanctions if LG ignored its ORC).
8. 5 days for SPA to notify LG if deficient.
9. 31 days after SPA notified LG complete = effective.

Question 11

Define “Affected Person.”

Answer 11

LG, property owners, residents or business operators w/i LG boundaries, or abutting the FLUM, or adjoining LGs w/ substantial impacts.

Question 12

Affected person’s 2 prerequisites to challenge.

Answer 12

CP

1) Submitted comments aft Transmittal Hrg.
2) Standing, diff in kind (not degree)

Question 13

Small Scale amendment method/timeline.

Answer 13

CP

1. Agency or citizen initiative, LPA preps amndmt
2. Submit to SPA which does not review.
3. Adoption hearing.
4. LG does not re-transmit to SPA unless challenged.
5. 31st day = effective.
6. 30 days for affected person to file DOAH.
7. 30-60 days, DOAH hearing.

Question 14

What notice is required to amend CP?

Answer 14

2 ads wkdays, 1 aft 5 p.m. unless maj + 1 (Marion)
TRANSMITTAL HEARING
On a weekday @ least 7 days after date of 1st ad.
later can have hearing
ADOPTION HEARING
No earlier than 10 days after 1st hearing, on a weekday @ least 5 days after date of 2nd ad.

Question 15

What notice is required for non-land use ordinances?

Answer 15

1 ad 10 days before hearing.

Question 16

What notice is required for small scale CP amendment or zoning map change?

Answer 16

CP
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10 days published
AND
Mailed to Owners @ least 30 days before hearing.
FS 125.66

Question 17

What is standard of proof for DOAH if Affected Person (i.e., non-SPA) seeks determination that an CP amendment is inconsistent w/ CP?

Answer 17

CP/Amend = sustained if fairly debatable.

Question 18

What is standard of proof for DOAH if SPA finds CP or CP amendment non-compliant?

Answer 18

Plan/Amend = Presumed correct & sustained unless inconsistency proven by preponderance of the evidence.

Question 19

What is standard of proof for DOAH if SPA asserts CP elements are not related to or consistent w/ each other?

Answer 19

Plan/Amend = sustained if fairly debatable.

~If ‘c’ritical state resource = ‘c’lear + ‘c’onvincing

Question 20

What is standard of proof for DOAH if SPA asserts that an important state resource or facility will be adversely impacted by the adopted plan or plan amendment?

Answer 20

CP
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Prove by clear and convincing evidence.
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'C'ritical state resource = 'C'lear + 'C'onvincing

Question 21

When is fairly debatable standard applied to CP/Amend appeals?

Answer 21

CP

(1) Affected person &
(2) SPA asserts elements are not related to or consistent w/ each other.

Question 22

BONDS
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Don't get these confused:
1 -   CP Amend notice 
2 -  Bond referendum notice.
3 -  Validation of Bond hearing

Answer 22

1 )   Ad + 7, Ad + 5, Hrg + 10
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2)   Notice of a bond referendum:
A)   30 days prior to the referendum,
B)   2x. 
C)   (1 x 5th wk) + (1 x 3rd wk) before vote.
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1 x 2 wks, first one 20 days before hearing

Question 23

How frequently is Capital Improvement Element reviewed?

Answer 23

Annually.

Question 24

SLA finds amendment doesn’t comply w/ CP. What must it show Admin Judge?
A. Not in compliance by a preponderance of the evidence.
B. It is fairly debatable whether in compliance with Chapter 163.
C. Evidence presented at the hearing was incorrect or misleading.

Answer 24

A.

1. Inconsistent w/ c’P’ - ‘P’reponderance (less)
   - ———-
2. Jeopardizes ‘C’ritical state resource - ‘C’lear + ‘C’onvincing (more).

Question 25

Describe the CP amendment procedure by referendum or initiative.

Answer 25

No such thing. Prohibited.

Question 26

CP
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What are the 2 reasons for SLA to argue to against CP amendment to DOAH?
---
What is std of proof for each?

Answer 26

CP

1. Inconsistent w/ c’P’ - ‘P’reponderance (less)
   - ———-
2. Jeopardizes ‘C’ritical state resource - ‘C’lear + ‘C’onvincing (more).