FLORIDA PLANNING A Publication of the Florida Chapter of the American Planning Association
Fall 2013
www.floridaplanning.org
H
ow is Florida going to cope with sea-level rise (SLR) and increasing coastal erosion and coastal flooding? A few voices have begun to talk about the “R” word: Retreat. For those that believe we will eventually need to move people out of some areas vulnerable to coastal hazards and SLR, the word “relocation” might be a better choice of words since it does not carry the negative connotation of “retreat.” Regardless of what we call it, moving out of hazardous areas or back from the beach will likely become a reality as SLR increases. How would we move back from beach or relocate out of coastal areas? Relocation has occurred in some areas in Florida’s
past. What can we learn from this? The Town of Longboat Key offers a case study of relocating back from a moving coast line. BACKGROUND ON THE TOWN OF LONGBOAT KEY The Town of Longboat Key, a southwest Florida coastal barrier island, rests between the Gulf of Mexico to the west and Sarasota Bay to the east. Most of the island spans a width of only half of a mile, although it stretches nearly thirty-five. Ample development near the shoreline coupled with the evermore-pressing issue of sea level rise leaves Longboat Key susceptible to severe coastal erosion. The 7000 affluent residents who live on this slender, naturally shifting island must adapt their homes or lose them. continued on page 4
A CASE STUDY ON ADAPTING TO
(AND SEA-LEVEL RISE) By: Caitlin Pomerance & Thomas Ruppert, Esq.
ALSO IN THIS ISSUE
5
Florida Innovation Hub at Innovation Square
6
Sustainability ‘Collaborative Conversations’
OTHER FEATURES
8 10 12 13 16 Share the Mode
Florida’s Human Services Transportation Network
2013 Leadership Awards Recipients
2013 Project Award Recipients
In My Opinion: Koontz Case
President’s Message - p.3 Planners on the Move - p. 21 In Memoriam - p. 21 Consultants Directory - p. 22 Events - back page
The Florida Chapter of APA provides statewide leadership in the development of sustainable communities by advocating excellence in planning, providing professional development for its members, and working to protect and enhance the natural and built environments.
[APA FLORIDA] KEY CONTACTS - EXECUTIVE COMMITTEE
Name
Phone Fax E-mail
Statewide Officers President
Brian Teeple, AICP
904-279-0880
904-279-0881
President-Elect
Melissa Zornitta, AICP
813- 272-5940
813- 272-6255 zornittam@plancom.org
Immediate Past President
Merle Bishop, FAICP
863-701-8702
863-701-9832
Merle.Bishop@kimley-horn.com
VP-Membership Services
Laura Everitt, AICP
813-224-8862
813-226-2106
leveritt@tindaleoliver.com
VP-Section Affairs
Tony LaColla, AICP
813-273-3774
813-272-6258
lacollaa@plancom.org
VP-Professional Development
Debra Hempel, AICP
813-282-2444
debra.hempel@hdrinc.com
VP-Conference Services
Kathie Ebaugh, AICP
239-533-8313
239-485-8319 KEbaugh@leegov.com
VP-Certification Maintenance
Henry Bittaker, AICP
561-523-0678
hbittaker@aol.com
Secretary
Lorraine Duffy Suarez, AICP 813-272-4685
813-272-4691
Lorraine.Duffy-Suarez@sdhc.k12.fl.us
Treasurer
Andre Anderson, AICP
407-896-0455
407-896-0425
aanderson@pdgfla.com
Section Chairs Atlantic Coast
Dodie Selig, AICP
321-433-8522
flaplanner@att.net
Broward
Dawn Sonneborn, AICP
954-776-1616
dsonneborn@ksfla.com
Capital Area
Terry McKloski, AICP
850-402-6336
terry_mckloski@apafloridacapital.org
Emerald Coast
Christy Johnson, AICP
850-332-7976
850-637-1923
Christy.Johnson@wfrpc.org
First Coast
Tony Robbins, AICP
904-739-3655
904-730-3413
TRobbins@prosserhallock.com
Gold Coast
Karen Hamilton
954-985-4416
954-985-4117
khamilton@sfrpc.com
Heart of Florida
Rick Perez, AICP
863-834-8432
Richard.Perez@lakelandgov.net
Orlando Metro
Barry Wilcox, AICP
407-740-7854
bwilcox@millerlegg.com
Promised Lands
Tony Palermo, AICP
239-533-8325
239-485-8344
apalermo@leegov.com
San Felasco
Dean Mimms, AICP
352-393-8688
mimmsdl@cityofgainesville.org
Sun Coast
James Ratliff, AICP
813-841-8743
plannerjames@gmail.com
Treasure Coast
Josh Long, AICP
541-650-0719
561-671-2417
jlong@gunster.com
University Liaison
Eric Dumbaugh Ph.D
954-762-5030
eric.dumbaugh@fau.edu
Student Representative
Scott Rothberg
scooter8@ufl.edu
Administration/Staff Executive Director
Julia “Alex“ Magee
850-201-3272
850-386-4396
fapa@floridaplanning.org
Ad. Assistant/Bookkeeper
Ricki Dailey
850-201-3272
850-386-4396
adminbk@floridaplanning.org
Legislative Representative
Lester Abberger
850-524-2779
850-222-8199
lesterabberger@nettally.com
Webmaster (Consultant)
John O’Brien
johnobrien123@gmail.com
Newsletter Editor
Summer Taylor
summer@exaktmarketing.com
888-949-5487 x706
bteeple@nefrc.org
All Other Inquiries, contact APA Florida at 1-850-201-3272 or e-mail fapa@floridaplanning.org.
2 Fall 2013 / Florida Planning
PRESIDENT’S MESSAGE Goodbye Paper!
As approved at the annual membership meeting in September, this is the last paper edition of Florida Planning. Your next issue
will be electronic and I, for one, am looking forward to it! Those of you who know me well might be amazed at my embracing technology. I am the guy who reads books with paper pages and picks up the newspaper from his driveway every morning. However, I have to concede that the electronic format is more flexible, easy to use and saves the Chapter money. Money saved by this measure will go toward a long overdue major overhaul of the Chapter’s website and an invigorated membership effort.
As approved at the annual membership meeting in September, this is the last paper edition of Florida Planning. Your next issue will be electronic and I, for one, am looking forward to it!
The 2013 Annual Conference, “Planners Have an App for That…”, is now in the history books. Congratulations to the host section,
the Orlando Metro Section, and the leadership of the host committee chair Andre Anderson for a great event! Special thanks to Kathie Ebaugh, Vice President for Conference Services and the conference volunteers for their dedication and hard work. And finally, a big thank you to Alex Magee, Chapter Executive Director, and Ricki Sexton, our Administrative Assistant/Bookkeeper, for once again shepherding us in producing an outstanding conference. The conference was a big hit with over 650 registrants. Now mark your calendars for the 2014 Conference, “Plan in Motion”, September 3-6, in Jacksonville!
Congratulations to Hollywood and Pensacola for being recognized
by APA’s Great Places in America program. Hollywood’s Broadwalk was recognized in the Great Public Spaces category while Pensacola’s Palafox Street was recognized in the Great Streets category. Learn more about these two amazing places and other winners from around the country by going to APA’s website at www.planning.org.
This edition of Florida Planning’s theme is Evolution and Innovation
in Planning. In the following pages (paper ones – yes I am having a little difficulty letting go) you will learn about car/bike share programs, local government pioneer efforts to relocate out of a moving coast line, innovative efforts to coordinate human services transportation provision, the Koontz Case and other interesting articles.
Now let’s get out there and plan for Florida’s future!
Brian Teeple, AICP APA Florida President
Fall 2013 / Florida Planning 3
[CASE STUDY] EROSION & SEA-LEVEL RISE
continued from cover page
HISTORICAL ADAPTATION STRATEGY OF THE TOWN OF LONGBOAT KEY Toward the late-middle twentieth century, the Town of Longboat Key altered the flow of sand across the island’s beachs by maintaining and dredging waterways throughout the island. Maintenance of the inlets exacerbated coastal erosion problems at a time when beach renourishment, an adaptation practice that replaces lost sand from outside sources, did not exist. Accordingly, the old 800-1000 square foot cottages on the island had to be moved shoreward or else swept out to sea. In order to move a cottage, homeowners purchased new, vacant lots shoreward of the cottage’s current lot and then transplanted the cottage onto the newly purchased property. About a half dozen of the original cottages still exist, while others have been added onto or combined with other cottages. These cottages have historic exemptions, allowing them not to comply with current elevation codes. When people lived on a much-less-populated Town of Longboat Key thirty to forty years ago, relocating homes shoreward was economically feasible. Today, however, skyrocketing property values effectively halt this once-common practice. Nearly ninety-nine percent of the island has been built on – leaving only 200 vacant lots. Unlike the former less-populated Town of Longboat Key, another lot today will cost millions of dollars. CURRENT ADAPTATION STRATEGY OF THE TOWN OF LONGBOAT KEY One of the Town of Longboat Key’s main current defenses against coastal erosion and sea level rise is beach renourishment. As part of a self-supported beach renourishment project, the homeowners on the island pay taxes that enter a reserve fund. This fund supports renourishment of Longboat Key’s coastline every seven to ten years. This strategy has largely worked over the past 20-30 years since Longboat Key and Sarasota County have not suffered a direct hurricane strike in almost 70 years. Another common adaptation practice is demolishing a susceptible or destroyed cottage and replacing it with a more shoreward, more elevated home. Demolitions occur roughly once to twice a month on the island, and not only are the smaller cottages rebuilt into mansions but even mansions are rebuilt into larger mansions. For instance, a 12,000 square foot, 15 year-old home is currently being demolished and rebuilt further shoreward. Because most of the property value resides in the land rather than the structure, relocating homes to new lots on Longboat Key is economically unfeasible as an adaptation strategy. Thus, homeowners choose to demolish their home rather than purchase new land in order to move their structure shoreward. CAN WE STILL LEARN SOMETHING FROM LONGBOAT KEY’S PAST? This case study demonstrates how today’s economic and development situation no longer allows for relocation on Longboat Key. Rather, buildings are razed and rebuilt higher and stronger.
While this makes great sense to a degree, might it be possible to take a contrary approach? Instead of making coastal construction ever more expensive as we move towards building costly, elevated, enormous cement fortresses along the beach, should we actually consider building smaller, more modest wood-frame structures that would be expected to be lost to storms or surge? Obviously such structures would not be appropriate to shelter in during a severe storm or hurricane. Limiting coastal areas to this type of construction might be one way to move towards greater understanding by the public of the long-term vulnerability of our coastal areas and maybe create a dynamic that would eventually lead to elimination of permanent housing in the most vulnerable coastal areas, thus saving lives. Even if this approach did not fly in the face of current hazard mitigation trends focusing on how we build rather than where we build, it still is likely not feasible. Going back to building small wood-frame houses would decrease investment and building expense, but the homes would pose their own danger as wind and surge could turn the houses—or pieces of them—into moving hazards that could strike other buildings. Also the debris of so many destroyed houses can create an expensive mess after a storm: after Hurricane Ivan hit Perdido Key, Perdido Key State Park was littered with thirty-four thousand cubic yards of remains of homes. It cost over $600,000 to remove the remains of these homes from the park. Picking up our homes and moving them shoreward, as was done in the past, seems too good to be true, and that’s very likely because it is in developed areas of Florida. Even in currently undeveloped areas, building homes adapted to relocation should still include building homes that do not present hazards to neighboring properties if they fail. Caitlin Pomerance is a J.D. Candidate (UF Law 2014) and Thomas Ruppert, Esq., is a Florida Sea Grant Coastal Planning Specialist with Florida Sea Grant. He can be reached at truppert@ufl.edu.
4 Fall 2013 / Florida Planning
I
nnovation Square, incorporates approximately 40 acres, with approximately 12 acres at its core, located between the University of Florida’s main campus and downtown Gainesville. It is a sustainable new live/work community focuing on scientific innovation and technology, along with the commercial oppportunities that follow. Once complete, Innovation Square is envisioned to be several million square feet of flexible office and meeting space, incubator space and supporting retail, restaurant and residential uses. This project has involved partnerships between the University of Florida Development Corporation, the City of Gainesville, Gainesville Regional Utilities, the Community Redevelopment Agency, the various workforce and economic development entities and private industry. Innovation Square has helped spur a new approach to community economic development planning and focused on using traditional local government policy tools in order to reorient the community’s long-term economic prospects through collaboration with various community entities, as well as private industry. It has led to revisions to the city’s regulations regarding appropriate zoning for the affected property and a proactive approach to development of the project over time. Service delivery has been enhanced as this process has made the regulatory environment more conducive to the achievement of the New Innovative Economy outcomes. Development of the square set the foundation in place for the first building erected on-site called the Florida Innovation Hub. The Hub is a 48,000-square-foot facility, located just two blocks from UF’s campus that serves as the cornerstone of Innovation Square by providing an incubator for start-up companies based on technologies emerging from university laboratories. The Hub’s main objective is to enable companies accepted into the program to devote their limited resources to technology and market development, rather than operational infrastructure. To foster interaction amongst tenant companies, the Innovation Hub sponsors seminars that double as training events and networking opportunities. At the Hub’s monthly “lunch-andlearn” series, entrepreneurs hear from accountants, intellectual
property attorneys and other experts with advice on how to succeed. In the first year and half since the Hub opened, startup tenants have generated more than 200 jobs. Shadow Health, which develops interactive health care training programs based on technology licensed from the university, grew from three employees to two dozen within a year after moving into the hub in 2011. Today, the company operates from a renovated hardware store downtown and has more than 40 employees. Together Innovation Square and the Florida Innovation Hub are providing the platform and space for a gradual short term recover of Gainesville’s local economy and repositioning for longer term future successes. Eric Bredfeldt is the Economic Development and Innovation Director for the
City of Gainesville. He can be reached at bredfeldea@cityofgainesville.org. Portions of this article are adapted from a recent Florida Trend article on the Florida Innovation Hub (June, 2013 issue, p. 62-65) and information gleaned from the Innovation Square at UF website, http://innovationsquare.ufl.edu/). 1
FLORIDA INNOVATION HUB AT INNOVATION SQUARE: RECOVERY AND REPOSITIONING OF THE CITY OF GAINESVILLE, FLORIDA’S LOCAL ECONOMY1 by Erik A. Bredfeldt
Fall 2013 / Florida Planning 5
Sustainability ‘Collaborative Conversations’ Conference Panels Held This Summer by Ruth Hamberg, RLA ASLA AICP
Landscape Architects and Planners are concerned about protecting, creating and restoring sustainable environments, natural or man-made.
Our professional organizations have established committees to focus on sustainability. What have these committees been doing and how does that work promote our professions as experts in sustainability? APA Florida and Florida ASLA have initiated a conversation about sustainability to collaborate and share what we are learning. This summer we also invited AIA FL and ULI FL to join us and talk about what they are doing on sustainability. We put together a panel of representatives from each organization for the 2013 FLASLA annual Conference, July 18-20 in St. Petersburg and for the 2013 APA Florida Conference, Sept. 11-13 in Orlando.
The APA Florida Sustainability Committee was created in March 2012. The chair of our committee is Brian Smith, FAICP (retired and former Planning Director for Pinellas County). Members include: Brian Smith, FAICP – Chair; Merle Bishop FAICP, Brent Lacey AICP, Cary Hayo AICP, Henry Bittaker AICP, Rosanna Cordova P.E. AICP LEED AP, Bob Massarelli, AICP, Rebecca Brightbill and Tim Center. The mission of the APA Florida Sustainability Committee is to promote the integration of sustainability principles into planning policy and practice through relevant education and outreach. One of their projects is to put together a website clearinghouse on sustainability issues and resources. This is a web-based resource on sustainability for planners practicing in Florida that highlights sustainable practices and provides a “tool-kit” of best practices. The web site is now “up” with a link from the APA Florida Home Page but it is still under construction. Here is the link: www.apaflorida.com. Check it out. The FLASLA Committee on Sustainable Environments, or “CoSE”, is a chapter committee initiated in 2006. CoSE’s mission is to promote the profession of Landscape Architecture as an integral partner in promoting and executing sustainable policy and development practices throughout Florida. Members include (all ASLA members): Ruth Hamberg PLA AICP & Christina Lathrop PLA Co-Chairs; Eddie Browder PLA, Lauren Colunga PLA CNU-A, Tammy Cook PLA, Mark Johnson PLA, Tom Levin PLA CEP, Joel Mieses, Robin Pelensky PLA and Ken Sussman PLA. Also in the fall of 2012, the FLASLA Committee on Sustainable Environments (CoSE) reached out to APA Florida sustainability committee members to initiate a meeting. Merle Bishop, FAICP, past president of APA Florida, first reported on our cooperative initiatives in the Winter 2013 issue of Florida Planning. At that meeting we decided to put together a multiparty panel for the conferences for summer 2013. All together, CoSE put together three conference sessions for this year’s FLASLA conference in St. Petersburg. • The Low Impact Development Tour- The continues next page
6 Fall 2013 / Florida Planning
[SUSTAINABILITY] CONVERSATIONS
continued from page 6
bus was full of eager participants who were shown three new low impact development projects where stormwater was captured and treated on site. The participants heard from the three expert landscape architects who designed the projects: Tom Levin ASLA AICP, Bill Waddill ASLA AICP and David Conner ASLA. This tour turned out to be a conference highlight. • The Sustainable Sites 2013 (http://www.sustainablesites.org/) update with David Yocca, a speaker provided with assistance from National ASLA. • The Sustainability Roundtable with APA Florida, AIA FL, ULI FL and FLASLA: This session included excellent panelists Carey Hayo of ULI, Merle Bishop FAICP of APA Florida, David Hugglestone AIA of AIA FL and Ruth Hamberg RLA ASLA AICP of FLASLA. The session gave a great overview of what each group is doing in regards to Sustainability. We repeated the Sustainability Roundtable at the APA Florida Conference in Orlando on Sept 12. The Executive Director of national APA, Paul Farmer FAICP, joined our panel and it was a real treat to hear his perspective. He mentioned that APA (40,000 members) has been partnering with ASLA (15,000) and AIA (83,000) at the national level on a number of initiatives and advocacy efforts. Individually, our organizations are small when going up against giants such as the Petroleum Institute or the Home Builders Association about reducing green house gasses or sprawl. He noted that if our organizations could connect nationally, we might be able to make a real difference to shape policy. He encouraged our groups in Florida to create coalitions that might be replicated in other states. Our esteemed panelists also included Brian Smith FAICP of APA Florida Sustainability Committee, David Heap AIA of AIA FL, Cecelia Bonifay Esq. of ULI FL and Ruth Hamberg of FLASLA. If you missed the 2013 APA Florida Conference you can see highlights from your mobile smart phone device or on the APA Florida website. Download the APA Florida mobile app from the App Store or Google Play to access all the conference schedule, speakers bios and the PowerPoint presentations. These panel discussions are just the starting point of efforts to collaborate with our sister organizations to promote sustainability at the state level. Feedback from the audiences indicated this is a good thing and there is interest in assisting. The session participants and audiences expressed interest in calling a meeting or “summit” of chapter presidents of all the organizations - and president elects and maybe sustainability committee chairs – at the beginning of the year (each year) to discuss ideas in regards to collaborating on sustainability – promoting it to the public and advocating for it. We determined that each state organization should come up with their top 5 sustainability issues or topics and bring it to the summit so we can compare the lists, see if and what we agree on and build consensus. Our professional organizations are doing wonderful things, providing us with terrific tools to assist in our work to create sustainable cities and environments. Each group’s sustainability projects are described in more detail in the power point presentations from the conferences.
by Ruth Hamberg, RLA ASLA AICP
Photo from the 2013 APA FL Conference in Orlando: from L to R: Cecelia Bonifay, Jedd Heap (behind the podium), Brian Smith, Paul Farmer, Ruth Hamberg
Photo from the 2013 FLASLA Conference in St. Petersburg: From Left to Right: Carey Hayo, Ruth Hamberg, Merle Bishop, David Hugglestone.
Ruth Hamberg, AICP is the Co-Chair, FLASLA Committee on Sustainable Environments (CoSE). She can be reached at rhamberg@bellsouth.net.
Fall 2013 / Florida Planning 7
BIKE AND CAR SHARING OPTIONS BY YVETTE L. BRANDT, AICP
Several of Florida’s metropolitan areas are quickly following the national trend of using bike sharing and car sharing to enhance multimodal transportation options. Miami was the first to establish bike and car sharing, and Tampa and Orlando are not far behind. Their experiences offer tips and tools for other Florida communities evaluating or implementing these systems to facilitate redevelopment, mixed-use development, and multimodal transportation. A bike sharing program makes bicycles available for short-term public use or rental and typically consists of docking stations at fixed site locations where users can retrieve a bicycle for a fee and return it when the trip is finished to any station in the network. Bike sharing can extend existing transit systems by providing the missing link to an origin or destination. There were approximately 20 bike sharing programs in place nationwide in March 2012, and the number is now 34 and counting. Notable systems are found in Minneapolis, New York, Washington, D.C., Chicago, and Denver. Recent innovations in docking technology have enabled smaller cities to implement their own bike sharing programs through public-private partnerships. Car sharing is a similar program which gives people access to cars on demand without the cost of ownership and maintenance. Members are typically allowed to reserve a vehicle for an hourly rate, which includes gas, maintenance, parking, and insurance. The recent acquisition of the car sharing organization Zipcar, Inc., by the Avis car rental company may provide expanded availability for the service in new markets, based on Avis’ substantial fleet and logistics experience and expertise. Here are a few points to consider:
small city can start a low-cost bike or car share system without the need for a large corporate sponsor. College towns like Chattanooga and Boulder have used successful bike share programs as a tool for economic development. DETERMINE IF EXISTING SYSTEMS CAN BE ADAPTED FOR YOUR AREA. In cities without a formal car sharing or bike sharing system, national-level peerto-peer sharing systems, like RelayRides (relayrides.com/) and Spinlister (www. spinlister.com/), let individuals offer temporary rentals of their car or bike. Other systems offer ride sharing services through smart phones that connect passengers to drivers. California recently became the first state to approve regulations for ride sharing companies, including compliance with basic safety and insurance requirements and licensing, which have been concerns for these systems. Yvette Brandt. AICP, is a Planner II with the Orange County Transportation Planning Division and can be reached at Yvette.Brandt@ocfl.net.
REVIEW RECENTLY-ISSUED SHARING “TOOLKITS” FOR GETTING STARTED. Several guides have been published that can help communities develop their local system. “Bike Sharing in the United States” provides advice on selecting a service area, station siting, funding, and maintenance using profiles of systems nationwide (www.bicyclinginfo.org). Expertise is also available from firms like Alta Planning + Design (www.altaplanning.com) and others that have experience in bike sharing. KNOW THAT SMALLER COMMUNITIES ALSO HAVE OPTIONS. Smaller communities in the U.S. have successfully created tailored programs, even with limited resources. In Buffalo, New York, a non-profit organization started a car sharing services through grant funding that is more affordable for members than a corporate provider. Grassroots bike sharing organizations in both Buffalo and Hoboken, New Jersey are utilizing new smart GPS technology to lower bike sharing operating costs and allow funding through private companies and sponsorship. LOOK TO COLLEGES AND UNIVERSITIES FOR PARTNERSHIPS. College campuses provide an established service area and a responsive student population. Through partnerships with educational institutions, a
8 Fall 2013 / Florida Planning
continues next page
[SHARE] THE MODE
continued from previous page
These Florida cities, provide us with innovative options for mode choice in our own communities that reduce the financial burden on local governments and transit agencies. TAMPA The City of Tampa is set to launch Tampa Bay Bike Share (www.tampabikeshare.com) in 2014 with 500 bikes equipped with smart-lock technology provided by Social Bicycles. These are designed with a GPS locator to secure bikes without the need for a docking station. The program will be funded through sponsorship. MIAMI Miami has led the way in Florida as one of the first cities to do bike sharing and car sharing. In 2011, Miami started their DECOBIKE system (www.decobike.com/miamibeach) as a partnership between the City and DECOBIKE, LLC, with approximately 1,000 bikes and 100 stations. Their service area of approximately 6 square miles includes the historic South Beach Art Deco District and other popular destinations. Car sharing is offered in downtown Miami and the surrounding areas, such as the Wynwood Arts District, through a fleet of over 200 vehicles provided by car2go (www.car2go.com/en/miami). Users pay $0.38 plus tax per minute and can begin and end a trip with a vehicle parked anywhere in the service area, often in on-street parking. ORLANDO MetroPlan Orlando is coordinating a bike sharing working group to explore options along the SunRail corridor, especially in Winter Park and other compact urban communities. International Drive and University of Central Florida (UCF) may also be identified as pilot locations. Since 2011, UCF has offered Zipcar car sharing services on the main campus, which feature hybrid vehicles. UCF also uses Zimride to promote ridesharing options to and around UCF. Zimride operates like a “Facebook for commuters� to combine commuting trips and share costs. Hertz recently contracted with the Florida Department of Transportation to launch the first car sharing program within the City of Orlando. Six locations are planned in the downtown area, including Orlando City Hall and Florida Hospital Orlando campus.
Dockless technology for Tampa Bay Bike Share Photo Courtesy of bikeshare.com
DECOBIKE station kiosk in Miami Photo by Alissa Barber Torres
Car2go parked in Miami Photo by Alissa Barber Torres
Fall 2013 / Florida Planning 9
Fiscal Constraint and Demographic Trends Challenge
Florida’s Human Services Transportation Network By Whit Blanton, FAICP
Want to know the real future of transportation for many Floridians? It will entail relying on family, friends or a sponsored van or taxi to get to a medical appointment, a pharmacy, the grocery or a job. Human services transportation is an increasingly essential form of transportation mobility for a rapidly growing number of people in this state.
The disconnect between many Florida residents and their destinations, along with an aging population, are two factors in what could be exploding demand for door-to-door paratransit services. Until land use patterns sufficiently respond to changing housing and travel needs, many more Floridians will depend on the urban and rural human service transportation network for their transportation needs. Consider this one aspect of Florida’s demographics: Today, 17 percent of Florida’s population is 65 or older. In 2020 that climbs to 18 percent and by 2030 it is 27 percent – an additional 4.3 million people. Roughly one in five of that age group does not drive; meaning an additional 870,000 people will be seeking sufficient transportation options in the next 20 years. It is an expensive endeavor: costs can be anywhere from $10-$20 per trip. Most transit agencies lack the funding to expand services to meet those needs. It takes a well-coordinated network. Working together under the umbrella of the Florida Commission for the Transportation Disadvantaged, Florida’s system consists of the state’s metropolitan planning organizations, the Florida Department of Transportation, regional planning councils, local governments, human service agencies and public transportation providers that comprise Community Transportation Coordinators (CTCs) in each of Florida’s 67 counties. It is one of the more challenging and often overlooked parts of Florida’s transportation network, providing access to destinations for the state’s elderly, veterans, low income residents and people with disabilities. Florida’s system is a nationally lauded model, with a return of $8 for every dollar invested and a dedicated funding source. However, there remains a large unmet need. In 2010, more than one million trips were denied due to lack of funding, lack of vehicle availability or other reasons. Budget cutbacks at the state and local levels, plus changes in the new health care law, will continue to strain a system at a crucial time when it is experiencing rapidly rising demand from an aging population, returning veterans and economic hardship.
A Summit of Shared Interests
For those reasons, the Florida Department of Transportation District Four, along with its local partner agencies, hosted the Southeast Florida Human Services and Veterans Transportation Summit at Florida Atlantic University in Boca Raton on December 14, 2012. Over 120 participants attended the day-long Summit, representing the seven counties of southeast Florida: Broward, Indian River, Martin, Miami-Dade, Monroe, Palm Beach and St. Lucie. The Summit brought together local government officials, paratransit providers, their clients, non-profit organizations, local coordinating board members, and other government representatives to focus on discussing emerging issues and developing a shared set of objectives for the coming year. Similar gatherings are occurring elsewhere in the state. StarMetro, Tallahassee’s public transportation provider, also hosted a full day workshop in 2012 as part of its work to create a Capital Region Human Services Mobility Coalition. Its work on improved regional coordination led to recognition last year by the Commission for the Transportation Disadvantaged as Florida’s Urban Community Transportation continues next page
10 Fall 2013 / Florida Planning
[HUMAN SERVICES] TRANSPORTATION NETWORK
continued from previous page
Coordinator of the Year
At the Boca Raton Summit, representatives of the Federal Transit Administration, the Community Transportation Association of America and the Atlanta Regional Commission addressed the topics of program and funding changes, and highlighted key benefits and best practices for regional coordination. The day entailed break-out sessions to tackle the emerging issues of veterans, aging & diversity, funding and technology.
Changing Laws and Trends Demand Effective Partnerships
MAP-21 presents a changing tableau for human services providers and coordinators. The new federal law repealed and consolidated several human services transportation programs, such as Jobs Access/Reverse Commute (JARC) and New Freedom, and shifted dollars into formula programs to ensure steady funding. Against a backdrop of a more competitive funding process and higher expectations for accountability in MAP-21’s performance-driven, outcome-based focus, Florida’s coordinated human services transportation system will need to strengthen partnerships both regionally and locally. With fiscal constraint and a more diverse, aging population, it is becoming increasingly important to leverage funding from multiple sources and partner with public and non-profit agencies on competitive funding opportunities. CTCs and the designated planning agency in each county will need to work with the state, MPOs and public transportation providers to establish relevant performance measures and set targets for achieving desired service outcomes to demonstrate a high level of accountability.
Summit Key Themes
That was the central message at the Boca Raton Summit, where participants developed ideas, potential strategies and actions for continuing planning of Florida’s regional coordinated Tim Garling of Broward County Transit makes a point at the transportation network. Veterans and Human Services Summit in Boca Raton. Integration of veterans’ transportation into the Transportation Disadvantaged network requires mutual support over segmentation of transportation services. Determining needs and identifying regional emerging issues ensure systems don‘t become overburdened and no one is denied vital transportation. Shrinking and changing funding makes it difficult to plan, encourages competition for scarce resources, and makes work and life more difficult and stressful. Lack of transportation funding shifts costs to health care and other sectors people become more isolated and ill. Equity is critical, so efforts need to focus on finding ways to make transportation grants more applicable, available and more efficient for human service and veterans’ transportation. Whit Blanton, FAICP, of Winter Park, FL is vice president of Renaissance Planning Group and a board member of the American Planning Association.
Fall 2013 / Florida Planning 11
Congratulations to the
2013 LEADERSHIP AWARDS RECIPIENTS! During the 2013 Annual Conference, APA Florida acknowledged three individuals and one citizen group as the recipients of the 2013 APA Florida Leadership Awards. The Honorable Kristin Jacobs, Mayor of Broward County, was recognized as Outstanding Local Public Official. Since being elected to the County Commission in 1998, Broward County Mayor Kristin Jacobs has championed issues to improve and protect Broward County’s quality of life. Her work has earned her recognition as an expert in sustainable growth, clean water and smart public transit. Over the years she has created several task forces focused on sustainability including the Climate Change Task Force, Water Advisory Board and the Coastal Ocean Task Force, which she currently chairs. In 2011, Mayor Jacobs was selected to serve as Chair of the White House National Ocean Council’s Governance Coordinating Committee, which advises President Obama on local government perspectives on ocean policy. She was also instrumental in the passage of Broward Complete Streets Program and the Broward County WAVE project, both of which support sustainable public transportation.
Ron Cunningham was awarded the Media Award for Outstanding Coverage of Comprehensive Planning Issues. Until his retirement in December 31, 2012, Ron Cunningham was the editorial page editor of the Gainesville Sun. and has taken the position as Executive Director of Bike Florida. Throughout his tenure at the Gainesville Sun he continually advocated for openness in government, citizen participation in the planning process, smart growth, inter-governmental cooperation, and multimodal transportation planning. Since then he continues to write occasional columns. A review of his commentaries over the past six months included titles such as the following: “National Model for Safe Walking Experience (May 26, 2013)”, “Connecting Trails as an Ecotourism Investment.”
The 2012 Student Planner of the Year was presented to Marta Viciedo. Marta Viciedo recently earned her master’s at Florida Atlantic University. In his letter of recommendation, Dr. Eric Dumbaugh wrote “Over the last two years, Marta has distinguished herself as not only a superior student and a scholar, but as a community leader and activist. While her work as a student has been stellar – she is easily among the top 5 students I have ever had – what distinguishes Marta is her ability to not only envision alternate futures, but to organize the public to translate these visions into practice.” Beyond her academic achievements, Marta has been involved in a number of tactical urbanism efforts, a movement that seeks to empower local stakeholders to shape and transform their built environment, as well as volunteering with several urban-related grassroots projects. While at the very beginning of her career, Marta has proved herself to be a community leader, and her enthusiasm and commitment to the greater good embodies the planning profession’s highest principles and aspirations.
RealizeBradenton, formed in 2009 to improve the Bradenton community through the city’s physical, cultural, and social resources, was presented with the award for Outstanding Public Interest Group. The organization works to improve the social and physical design of the community through a variety of placemaking programs including: community events, promotions, community building, and special projects aimed at building capacity for success. Additionally, the organization partners with the USF School of Architecture and Community Design to organize and implement community charrettes, community development workshops, and community input surveys. As a result of these efforts, RealizeBradenton has established a community placemaking strategy for the Bradenton’s Riverwalk area and is currently working to develop a similar community placemaking strategy for the Village of the Arts neighborhood.
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Congratulations to the
2013 PROJECT AWARDS RECIPIENTS! AWARD OF EXCELLENCE Nathan Benderson Park Project l CATEGORY: Planning Project Nathan Benderson Park was a former unimproved borrow pit lake that is being transformed into a 600-acre regional park with a world-class rowing venue. The project is a partnership of the county, state, private developer, recreation experts, rowing clubs, and local citizenry. A sports tourism opportunity was
Pictured from left to right: Allison Megrath, Paul Blackketter (Benderson Development), Brian Teeple, Thomas Polk (Sarasota County Planning Director)
identified in the park design, in which the rowing element plays an important role in attracting international attention for world-class competitive events. The park’s events bring in economic, quality of life and health benefits that far exceed the financial investments.
AWARD OF EXCELLENCE Envision Alachua l CATEGORY: Best Practices In response to a request from Alachua County to prepare a master plan for the 65,000 acres it owns in the county, Plum Creek, one of the largest land-owners in the nation, chose a pro-active approach that emphasized a robust stakeholder and community engagement process known as Envision Alachua. Plum Creek convened a Task Force representing economic development, business, local government, education, faith-based, environmental, and conservation
Pictured from left to right: Brian Teeple, Rose Fagler (Plum Creek Community Relations Manager), Scott Koons (NCFRPC Executive Director), Allison Megrath
communities. To maintain transparency, the Envision Alachua meetings, workshops and events were open to the public and professionally videotaped. The videos, along with meeting agendas, summaries, presentations and other materials are posted on the project website. The resulting product was a document that articulates a long-term vision for Plum Creek’s lands in Alachua County and the goals and guiding principles to support implementation.
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Congratulations to the
2013 PROJECT AWARDS RECIPIENTS! AWARD OF MERIT NE 6th St/Sistrunk Corridor Neighborhood Enhancement and Revitalization Project l CATEGORY: Planning Project The NE 6th St./Sistrunk Corridor Neighborhood Enhancement and Revitalization Project is a comprehensive revitalization of the area of Fort Lauderdale that was home to its original African American community and business district. The widening of Sistrunk Boulevard resulted in both the loss of the business corridor and deterioration of the surrounding neighborhood areas. A sustainable, community driven Implementation Plan and investment in this 1,300 acre area by the Fort Lauderdale CRA, starting with a $15 million enhancement of NW 6th Street (Sistrunk Blvd) and NE 6th Street, changed the street into a distinctive, walkable destination.
Pictured from left to right: Brian Teeple, Alfred Battle (Fort Lauderdale Economic & Community Reinvestment Manager), Allison Megrath
AWARD OF MERIT Thornby Park and Playground l CATEGORY: Grassroots Initiative The historic Thornby property is 40 acres of Old Florida-style woods and huge native trees on the St. Johns River – Florida’s only American Heritage River. The property is home to wetlands, historic artifacts and an old railroad trestle. Thirteen years ago, a proposed land use change would have put hundreds of condominiums on the property. A nine-year grassroots struggle to maintain the existing density of one per acre led to public purchase in 2009 and development of park facilities over the next four years. Today, Thornby Park is a City of Deltona public park and a “boundless” (completely handicapped-accessible) playground.
Pictured from left to right: Brian Teeple, Roy Walters (Friends of Thornby), Janet Deyette (Friends of Thornby), Jack Holt (Friends of Thornby), Sandra Walters (Friends of Thornby), Allison Megrath
AWARD OF MERIT Volunteer Beach Stewardship Program l CATEGORY: Grassroots Initiative The City of Marco Island Volunteer Beach Stewardship Program, which commenced its mission in May 2012, strives to educate and inform the beach going public of proper beach etiquette and stewardship of its 6-miles of white sand coastline. Like many other Florida communities, the City recognized that its citizens and visitors needed to understand the importance of these resources but, given budgetary constraints, needed to rely on volunteers to help with this education. The program was comprehensive and took a friendly, educational tactic instead of a regulatory one. Beyond just being prepared with information regarding stewardship of the natural resources, the Beach Stewardship volunteers are also trained as local economic ambassadors, prepared to provide information about local sites, events, and directions.
Pictured from left to right: Brian Teeple, Joseph Irving ( Marco Island Zoning Administrator), Allison Megrath
AWARD OF MERIT Planning for Climate Change: Broward County Climate Change Element l CATEGORY: Comprehensive Plan-Large The Climate Change Element of the Broward County Comprehensive Plan adopted in 2013 provides a framework for integrating the economic, environmental, and social factors of climate change. A county-wide strategy, based on local vulnerability and consistent with regional efforts, the Element aims to mitigate the causes and address the local implications of global climate change to build a sustainable, climate resilient community. The Element builds on existing planning initiatives, such as the Broward Climate Change Action Plan, takes a comprehensive view of the challenges of climate change, and may act as a template for consideration by other jurisdictions.
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Pictured from left to right: Brian Teeple, Glenn Amoruso (Broward County Principal Planner), Allison Megrath
Congratulations to the
2013 PROJECT AWARDS RECIPIENTS! AWARD OF MERIT InVision Tampa l CATEGORY: Best Practices The City of Tampa, with the benefit of significant community input, provided a view toward its future as a successful and competitive waterfront city through its InVision Tampa Center City Plan. The Plan places downtown and the close-in neighborhoods on a path toward a 21st century model of livability, sustainability, and economic vitality based on five Building Blocks: a re-imagined and refocused waterfront; livable connections where streets are neighborhood-focused, connected, and calm; an urban pattern that is built to support transit; strong and livable Center City neighborhoods that are vibrant, diverse, safe, sustainable, and unique local places; and a mixed-use, walkable downtown core repositioned as a desirable local place for people to live.
Pictured from left to right: Brian Teeple, Randy Goers (Tampa Urban Planning Coordinator), Allison Megrath
AWARD OF MERIT Florida TOD Guidebook l CATEGORY: Best Practices The Florida TOD Guidebook provides statewide guidance and research designed to advance transit-oriented development (TOD) in Florida. The Guidebook includes a review of literature, best practices, and case studies; original research to develop and match up the variety of TOD “place types” with the many different transit types and scenarios found in Florida; model comprehensive plan policies and land development regulations (LDRs); and implementation guidance. The Guidebook provides a resource base for local governments, agencies, the private sector, and the public to better understand how to produce land use conditions to better correspond to and reinforce transportation investments, particularly transit.
Pictured from left to right: Brian Teeple, Diane Quigley (FDOT Transit Planning Administrator), Michael Busha (TCRPC Executive Director), Allison Megrath
AWARD OF MERIT The Lake Alfred Downtown Master Plan l CATEGORY: Neighborhood Planning The City of Lake Alfred’s downtown was recently bisected by a realignment of US Highway 17/92. The Lake Alfred Downtown Master Plan is a cross between a long-term vision document and an immediate change through short-term and long-term action projects, with potential revenue streams identified. Residents, business owners, and even school children participated in the crafting of the Plan through an extensive outreach program. Ultimately, the Lake Alfred Community chose a unique pedestrian boulevard experience with a walkable mixed-use future development so that their City will achieve their vision to be a vibrant place where people feel welcomed.
Pictured from left to right: Brian Teeple, Jay McLeod (CFRPC), Marisa Barmby (CFRPC), Valerie Way (Lake Alfred Community Development Director), Jeff Schmucker (CFRPC), Pat Steed (CFRPC Executive Director), Allison Megrath. Project team leader not pictured is Jennifer Codo-Salisbury, CFRPC Planning Director.
OUTSTANDING STUDENT PROJECT College Park District Action Plan l CATEGORY: Student Project The College Park District Action Plan is the work of eleven graduate students in the Florida State University (FSU) Department of Urban and Regional Planning. It envisions the transformation of the area between FSU and Downtown Tallahassee into a vibrant, urban place where Town and Gown meet to live, work, and play. The Plan achieves this through four strategies for redevelopment of the District: Enhancing Comfort and Image, Upgrading Infrastructure, Improving Transportation Facilities, and Encouraging Infill Development. With numerous site-specific recommendations, the implementation of this plan will hopefully lead to an exciting destination in Tallahassee with a unique sense of place.
Pictured from left to right: Brian Teeple, Dr. Lindsay Stevens (FSU), David Harrison (FSU), Allison Megrath
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v. St. z t n o o K ater W r e iv R Johns trict is D t n e m Manage
Local Government Development Decisions After Koontz: Time to Get Back to Basics
Is Koontz2 a sea change in the law of local government exactions and conditions imposed By: Susan L. Trevarthen, J.D., AICP on development applications? It is still early to say for sure, but the case may raise as many questions as it answers. Many local actions already satisfy its requirements. Some excesses of the past, especially in boom times and boom locations, were already legally problematic under prior cases or other legal theories. Complying with the holdings of Koontz is, in many ways, no more than a return to the basics of good planning practices and ethics. Local governments should not overreact to Koontz or allow it to chill the exercise of their broad home rule powers to mitigate the impacts of development on the community.
What does Koontz decide? To better understand any case, focus on what it actually decides. Let’s look at what we know for sure from Koontz. First, the Court restates a number of principles set by earlier cases and reaffirms their validity: • Nollan and Dollan3 apply the unconstitutional conditions doctrine to conditions in the development permitting process that affect interests in land. They state that applicants are vulnerable to coercion in this process, and may agree to conditions if the cost of doing so is less than receiving the benefit of the permit. Nollan requires such conditions to have a rational nexus with the effects of the proposed development. Dolan requires that the condition bear a rough proportionality to the effects of the proposed development. Koontz says “…so long as a permitting authority offers the landowner at least one alternative that would satisfy Nollan and Dolan, the landowner has not been subjected to an unconstitutional condition.” (Slip opinion, pg. 14) • Citing to Euclid4, Koontz states that “[i]nsisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land use policy, and we have long sustained such regulations against constitutional attack.” Supreme Court precedents “enable permitting authorities to insist that applicants bear the full costs of their proposals while still forbidding the government from engaging in ‘out and out. . . extortion’ that would thwart the Fifth Amendment right to just compensation.” Under Nollan and Dolan, “the government may choose whether and how a permit is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts.” (Slip opinion, pg. 8) • The government may not deny a benefit to a person merely because he or she exercises a constitutional right. (Slip opinion, pg. 6) • “It is beyond dispute that ‘taxes and user fees . . . are not ‘takings’” and Koontz “does not affect the ability of governments to impose Koontz v. St. Johns River Water Management District, ___ U.S. ___, 2013 U.S. Lexis 4918 (2013). Nollan v. California Coastal Commission, 483 U.S. 825 (1987),and Dolan v. City of Tigard, 512 U.S. 374 (1994). 4 Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926). 2
3
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property taxes, user fees, and similar laws and regulations that may impose financial burdens on property owners.” (Slip opinion, pg.18) State law provides an independent check on excessive land use permitting fees. (Slip opinion, pg. 21) The above rules were true before Koontz, and remain true after Koontz. The Court also clearly announces two holdings that go beyond the scope of its prior decisions: • The rules that apply to approvals also apply to denials dependent on conditions, regardless of whether the condition has to be fulfilled before approval or after approval (Slip opinion, pg. 8-9). While this sounds self-evident when stated simply, it may not be so easy to apply in practice. The better interpretation is that an incomplete condition should only be actionable where it is clearly documented in the record as the basis for denial. But there will no doubt be challengers who push the envelope on this point.5 • The Nollan/Dolan principles described above apply to monetary conditions on development approvals, not just conditions that affect an interest in land. (Slip opinion, pg. 15-17). While this was not clearly established as the law of the land before Koontz, it was the law in many states and was a principle followed by many planners and local government attorneys. Legislatively imposed impact fees developed in compliance with the Florida law of rational nexus clearly meet the Nollan/Dolan standard. What does Koontz leave unclear? Here are a couple of issues that are not so clear in Koontz: • Is the Koontz damages discussion not even applicable to local development decisions because they are outside the context of wetland mitigation? A statutory right to damages for a potential taking when no taking has occurred is unusual, but is part of Chapter 373, Florida Statutes, the statutory basis of Koontz. Koontz specifically does not decide whether there is any federal basis for damages. There are no similar statutory rights to damages in the portions of Chapters 163 or 166 typically related to development decisions, and there are usually no such rights under local codes of ordinances or charters. Local governments should definitely raise this defense when local development decisions are challenged under Koontz. • When exactly does liability attach to a denial? How formal or concrete must the governmental demand for a condition be before it is actionable? Can the suggested condition of approval be challenged even when there are independent and valid reasons for denial? The Court says that there can be liability for impermissibly burdening the right to be free from takings, and that it does not matter that the government could have denied the approval outright without liability in the absence of the disputed condition. (Slip opinion, pg. 10) It also says that the greater authority to deny does not imply the lesser power to condition, if the condition requires 5 When liability only flows from approvals, the moment of concern is when the vote is taken and the approval becomes effective. If an applicant objects to a proposed condition and the government removes it prior to approval? No harm, no foul. As Sonny in the 2011 movie “The Best Exotic Marigold Hotel” put it: “Everything will be all right in the end, and if it’s not all right, then it’s not yet the end.” Following Koontz, local governments hope that the new rule is not: “Everything must be all right every step of the way, or it won’t be all right in the end.”
the forfeiture of rights. (Slip opinion, pg. 11). The traditional view was that, if denial was not legal, the applicant could sue to have the government to issue the permit without the condition or obtain damages under state law. The takings clause did not apply to such challenges, and just compensation was not the remedy. A takings challenge could only be brought if the applicant first accepted the benefit of the decision and allowed the proposed condition to become effective. Koontz itself sheds little light on this issue, but is clear that denials will not result in liability if one valid alternative is offered. That safe harbor may mean that these difficult questions are rarely, if ever, going to be addressed. Where does all this leave local government planners and officials? A few lessons are suggested below: • Continue (or begin) to require that applicants mitigate their full impact on the community. The unanimous Court agreed in clear language that applicants should “internalize the negative externalities of their conduct” and “bear the full cost of their proposals.” In many communities, particularly in the wake of the Great Recession, this is far from the case. Many development impact fee ordinances in Florida intentionally fall far short of charging the full amount that can be justified under Nollan, Dolan, and the Florida law of rational nexus, and place the remaining burden on local ad valorem taxpayers. In these days of tight budgets, if planners can no longer count on negotiating the improvements the community needs on an ad hoc basis following Koontz, it becomes more important than ever that communities consider collecting the full, legally justifiable amount. • Increase the use of development agreements. Are development agreements qualitatively different from conditions of approval, such that Koontz does not apply? Some commentators such as Professor David Callies have taken this position, and it has merit. • Always consider whether a range of options exists. For most applications, there is more than one way to address the impact. Koontz protects the right of governments to suggest a range of options as long as one option meets Nollan and Dolan, and thus rewards creativity in developing a range of options. • Minimize freestyle negotiations over conditions of approval involving improvements or payments in lieu of improvements. Sometimes, a planner or board member will casually suggest improvements be offered by an applicant, and a free form negotiation takes place over what is to be required. Often, an agreement results and is never challenged. However, it is advisable for local governments to attempt to bring more rigor to this process following Koontz. For example, if you have not first done the work to determine the relationship and proportionality of a potential improvement to the proposed development or are not qualified to make that judgment, perhaps you should not be suggesting particular transportation improvements off the cuff. More preparation is advisable. If the expertise is lacking in house, involve consulting experts to continues next page
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provide the analysis and information necessary to assure that at least one of the proposed conditions meet the tests of Nollan and Dolan. • Increase use of pre-application conferences. It is difficult for an applicant to protest that it provided an improvement under duress if it was proposed as part of its initial application. This suggests that local governments should institute or broaden requirements for pre-application conferences and be ready to discuss foreseeable conditions of approval. They should also assure that the persons who attend these conferences are knowledgeable enough about the community and its potential needs that the conferences can be effective and meaningful. Susan L. Trevarthen, J.D., A.I.C.P., is a Member of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L. in Fort Lauderdale, www.wsh-law.com. She runs the firm’s Public Land Use and Zoning Group, and serves as a city attorney in Broward County. She can be reached at STrevarthen@wsh-law.com
Courts have long recognized the “centrality of negotiation” in the Bargaining Florida’s modern system of land Table Ever use regulation. Gen. Dev. Corp. v. Div. of State Planning, Dep’t of so Slightly Admin., 353 So. 2d 1199, 1206 By: Mohammad O. Jazil (Fla. 1st DCA 1978). But these negotiations happen over a tilted bargaining table. Governments are afforded deference on the law, the facts, and the application of the law to the facts. The U.S. Supreme Court’s recent decision in Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2856 (2013) tilts the bargaining table ever so slightly in favor of property owners, making negotiations fairer and more meaningful. Specifically, in Koontz, the U.S. Supreme Court extended its decisions in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994) to provide further protections for property owners. Nollan and Dolan require a land use condition to have an “essential nexus” and a “rough proportionality” to the harm the government expects to avoid, minimize, or mitigate. Koontz now extends these protections to instances where the government denies a permit, or imposes a monetary condition like an impact fee. Stated differently, because of Koontz, government must now explain that a land use condition has an “essential nexus” and a “rough proportionality” regardless of the timing or type of condition. Koontz was the culmination of decades of litigation over the development of 3.7 acres of an approximately 15 acre parcel in central Florida. There, a property owner challenged permit conditions proposed by the St. Johns River Water Management District. The trial court and intermediate appellate court held that the conditions violated the requirements of Nollan and Dolan. The Florida Supreme Court disagreed, concluding instead that Nollan and Dolan do not apply when government denies a permit (thus failing to impose the questionable conditions), and when the conditions are unrelated to a
Koontz: Tilting
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specific interest in real property. The U.S. Supreme Court reversed. All 9 members of the U.S. Supreme Court agreed that Nollan and Dolan apply regardless of whether the applicant accepts, and the government issues, a permit with questionable conditions. And a 5-4 majority of the U.S. Supreme Court held that Nollan and Dolan apply to monetary conditions with a “direct link” between the government’s demand for relinquishment of funds, and a “specific, identifiable property interest such as a bank account or a parcel of property.” Because of Koontz, government must do its homework before negotiating with property owners over conditions for a proposed land use. The government must be able to explain why it believes that a condition it is proposing has an “essential nexus” and a “rough proportionality” to some harm the government hopes to avoid, minimize, or mitigate. Of course, the government would provide this explanation with the caveat that its conditions are based on a certain understanding of the facts, assumptions, models, or whatever else might be relevant. As part of the negotiations, the property owner would then have an opportunity to test and correct the government’s understanding of the relevant facts, assumptions, and models. But if the government is clearly overreaching, where its understanding of the relevant facts, assumptions, and models is correct but the conditions clearly fail the nexus and proportionality requirement, then the property owner could simply walk away from the negotiations and file a Koontz claim. In the past, the property owner would have had to sit through these one-sided negotiations, knowing that if the government proposed a condition with which a project could go ahead, then it was better to accept the condition than litigate with the deck stacked in favor of the government. Koontz thus serves as a deterrent to government overreaching, making government more mindful of its actions because of the threat of a Koontz claim. While Koontz serves as a deterrent to government overreaching, it does not serve as a deterrent to negotiation between government and property owners. Negotiation was, is, and will always remain central to land use planning in Florida. The reason is simple: the interests of local governments and property owners run parallel. Local governments depend on development to increase their tax base so that they can raise the revenues needed to govern. Property owners see development as the source of profit. If one stops negotiating with the other, then land development would indeed come to a halt, harming both. Conceptually then, Koontz sets the outer bounds of the negotiations that government and property owners must have. It gives property owners a chip with which to bargain: the credible threat of a lawsuit. By doing this, in instances where the government hopes to impose a land use condition, Koontz tilts the bargaining table ever so slightly in favor of the property owner by forcing government to negotiate with sincerity, to think before it acts, to explain why it has acted, to give and not just take. Mohammad Jazil is an attorney with Hopping Green & Sams. His practice focuses on litigation in state and federal courts and he can be reached at MohammadJ@hgslaw.com.
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Earlier this year the United States Supreme Court decided Koontz v. St. Johns River Water Management District. This has caused some concern. It should not. This ruling does not stop governments from By: Brian M. Seymour, Esq. offsetting impacts of development, nor for staff to explore various options for doing so. It provides guidance in doing so. It has long been the law of the United States that requests for an exaction – something given up to obtain a development permit – must bear a nexus and rough rationally to the actual impact of a proposed development. Simply because someone comes to the government to seek development approval does not, and has not, given the government the right to ask for anything in return, including fixing existing problems. The constitutional limitation has long required that the government only seek that which will offset the actual impacts of the development. Planners are on the front lines of dealing with exactions. Whether preparing a plan and considering the impacts or reviewing a plan for a governmental agency and making sure that any adverse impacts are dealt with, planners need to understand the real limitations of what conditions are reasonable to place on developments. The issue in Koontz was not whether this rule of law applied in general, but whether (1) the rule applied when the request was for money, and (2) if the request made in that case met the constitutional requirements, particularly where the permit was denied because Mr. Kootz did not accept the unconstitutional demand. A government cannot avoid constitutional requirements by substituting money for other conditions. In Koontz, the District told Mr. Koontz that he could buy his way out of mitigation requirements; but those mitigation requirements did not bear a rational relationship to the impacts of his project. The District argued that money is not property and therefore not subject to constitutional property rights scrutiny. The Supreme Court found that where the request for the payment related to the use of property, such a request would need to meet the constitutional exaction requirements. Any condition of approval, whether a request for land, money, or the obligation to construct improvements at the land owner’s expense, must meet the “rational nexus” and “rough proportionality” requirements of the U.S. Supreme Court’s Nollan and Dolan decisions. This is not new. Monetary exactions exist in the form of impact fees. Florida law has long required that impact fees meet the “dual rational nexus” test, equivalent to the Nollan and Dolan requirements. The Koontz decision is consistent with the way Florida law already treats these monetary exactions; it should not cause concern for any government that wants to treat owners and developers fairly. The other important ruling in Koontz is that a government cannot avoid constitutional scrutiny by denying a request because an owner or developer will not concede to an otherwise improper exaction. In Koontz, the District denied the permit request when Mr. Koontz did not give in to the demanded exaction. The denial, the court found, did not allow the District to avoid judicial review. The requested exaction/condition must meet constitutional muster to support the denial. A governmental entity must fairly evaluate the impact of development based on sound scientific/planning principles, determine based on study what is required to offset those impacts, and request only what
Koontz v. St. Johns River Water Mgmt. District: Fear Not, Be Fair
is required to offset the actual impacts of the development. No planner, whether working in the public or private sector, wants an overreaching government exaction. What we all want is to provide for quality development that will offset detrimental impacts. Holding an applicant hostage by threatening a denial does not lead to good planning, and it is clear now that it is also unconstitutional. The dissent in Koontz argued that the application of the law to monetary exactions would create a situation that would prohibit government from taking that which it wants. Others have suggested that the requirement would overburden government by forcing the government to study impacts to determine how they should reasonably be offset. This requirement, however, already exists. Planners, every day, look at impacts, study, and determine how those impacts may be offset. Working together, a private sector planner and public sector planner, along with quality legal counsel, can determine true impacts and what rationally may be needed to offset these impacts, including the potential for a monetary payment. When everyone works together, fairly, there is nothing to fear – development can be approved and appropriate conditions allowed. The lesson of Koontz is simple – treat applicants fairly, look only at the actual impacts of development and what is required to offset any negative impacts, and ask only for those required offsets. Good planners will have no problem making this happen. Brian M. Seymour is an environmental and land use lawyer and property rights litigator with Gunster, where he chairs the firm’s statewide Environmental, Land Use & Property Rights practice. He handles development approvals and property rights litigation matters throughout Florida and can be reached at BSeymour@gunster.com.
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PLANNERS ON THE MOVE Allara Mills Gutcher, AICP, recently became the Planning and Community Development Director for Gadsden County. She brings over 15 years of advanced planning experience at both the local and private sector level to this position. Prior to this, Allara was a Principal in The Planning Collaborative, and the Manager of Planning Services for Panama City for five years before that. She spent 2 ½ years in the private sector, and three years in the Bay County Planning and Zoning Division. Allara has been very active in APA Florida, serving two terms as Treasurer and five years on the APA Florida Emerald Coast Section Executive Committee. She was also a member of the APA Florida Legislative Policy Committee for two years. In addition to serving on numerous local citizen committees in the Bay County area, Allara has also been an adjunct professor, teaching planning courses, at the FSU Panama City Campus. Ed Mierzejewski brings over 40 years of diverse transportation planning experience to Renaissance and will expand Renaissance’s capabilities in transportation planning, research and policy. Ed joins the Tampa office as a senior project manager and will be instrumental in developing new growth opportunities for the company. A well-respected transportation planning expert both in Florida and nationally, Ed worked for over 20 years as a transportation planning services director with major national consulting firms, and spent several years as the chief transportation planner with a large metropolitan planning organization. He also spent over twenty years growing the University of South Florida Center for Urban Transportation Research, where he served as Director. He has been very active in professional activities of the Institute of Transportation Engineers, the Transportation Research Board and the American Society of Civil Engineers. He has been an invited speaker at state legislative committee meetings, chambers of commerce, and transportation advocacy organizations. Congratulations to all and best of luck in your new positions!
Florida Planning Going Green!
By: Lorraine Duffy Suarez, AICP Maybe you haven’t heard yet, but your quarterly Florida Planning newsletter is going digital beginning in 2014. Not only is this good for the planet by reducing paper, but it’s also a big cost savings for the Chapter. We are taking those savings and reinventing our web page to make it a much more useful and powerful resource for our members. Maybe, you’re like I used to be, shying away from digital reading. I needed a hard copy in my hands so I could read. But in the past couple of years I’ve slowly come around to the convenience of digital written material. I can’t count the number of times I had misplaced or recycled a newspaper, magazine or periodical I wanted to save for later reference. Not a problem with digital media, you can save it digitally or just log in and find it again. Though I subscribe to the daily paper, I find that on most days I’ve read most of it via the app and never even open up the paper. It goes right into the recycle bin still inside the plastic bag. Same with some magazines, I save them digitally and delete them when I know I’m really done, but no problem if I want it again, I just go back and download it again. Nothing is ever really lost. You’ll be able to access the newsletter from a wide range of digital devices. So if you’re a newcomer to digital reading give it time and you will likely be convinced that the convenience is worth it. If you’re of the “digital age” well, maybe you think it’s been a long time coming. Either way, I think you’ll enjoy the experience with the added benefit of the updated web site. You will get a notice via email when each issue of the newsletter is available. The interface is currently under construction. When it’s complete we encourage you to go online to check it out and give us some feedback. Lorraine Duffy Suarez, AICP is the APA Florida Secretary and Chair of
the Editorial Committee. She can be reached at Lorraine.Duffy-Suarez@ sdhc.k12.fl.us .
Bylaw Amendments Pass
Thank you to all the members who voted over the summer on the proposed Bylaw amendments. The amendments passed. The APA Florida Executive Committee also thanks Lorraine Duffy-Suarez, Allara Gutcher, Andre Anderson, Johanna Lundgren, Dodie Selig, and Jane Tompkins for serving as the Bylaws Committee.
IN MEMORIAM - Donald Wayne Kelly, AICP By: Christy Godwin-Johnson, AICP - APA Florida Emerald Coast Section Chair
APA Florida and the Emerald Coast Section lost a dedicated member and Legislative Policy Committee representative, Donald Wayne Kelly, earlier this year. After a hard-fought battle with cancer, Don Kelly, 54, retired senior urban planner with the City of Pensacola, died at his home in Pensacola on June 25, 2013. One of Don’s last accomplishments for the City of Pensacola was his submission of Palafox Street to APA Great Places in America. Palafox Street being named one of the 2013 Great Places in America is now a wonderful tribute to Don and his dedication to planning. He was born in Memphis, TN, September 10, 1958. Don lived his life with honor, remaining steadfast to the highest of principles; he was an Eagle Scout, officer in the United States Marine Corps, Little League coach, Scout leader, elementary school mentor, music lover and dedicated volunteer for Evenings in Olde Seville Square, steward of the environment, and strong advocate for historic preservation.
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[CONSULTANTS] DIRECTORY Advertise in the Consultants Directory The Consultant Directory is a fitting place to showcase your firm. $250 buys space for a year in the newsletter (five issues) plus inclusion in our web-based consultant directory. Display ads to promote your business, conference, projects and more are available. Contact the Chapter office at 850-201-3272 for rates and details.
22 Fall 2013 / Florida Planning
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[UPCOMING] EVENTS NOVEMBER 13 - 15, 2013: INTERNATIONAL SUSTAINABILITY CONFERENCE Sarasota. Get the latest information on sustainable communities, sustainable tourism, sustainable business innovation, solar energy and sustainable aquaculture. The cost of the conference is only $75.00 and free for students. Go to www.floridaplanning.org/for more details. NOVEMBER 14, 2013: STAYING FINANCIALLY RESILIENT IN THE FACE OF DISASTER Webinar. In order to remain economically competitive, counties must be able to anticipate and adapt to all types of physical, social and economic changes. To stay resilient to future natural disasters, counties must identify their financial vulnerability and available assets to respond to such events. Join NACo to learn about research and lessons learned for how counties can increase financial capacity to be more resilient to future disasters. Go to www.floridaplanning.org/for more details. DECEMBER 4, 2013: “LEHIGH ACRE MIXED-USE CENTERS: NEEDS FOR TRANSPORTATION & STORMWATER WORKSHOP” Fort Myers. Alachua County Transportation Planner Jeff Hayes and Pasco County Planning and Development Administrator Richard Gehring and Chief Assistant County Attorney David Goldstein will discuss the legal foundation and planning principles for mobility planning and fees to promote more sustainable patterns of development and finance multi-modal transportation systems in Florida. Go to www.floridaplanning.org/for more details. DECEMBER 11, 2013: FLORIDA GREENWAYS AND TRAILS SYSTEM PLANNING Webinar. Office of Greenways and Trails (OGT) Assistant Bureau Chief Doug Alderson will discuss the Florida Greenways and Trails System (FGTS) Plan for 2013-2017. Florida Greenways and Trails Foundation President Dale Allen will focus on the “First Coast Connectors” and the East Coast Greenway, intended to provide a continuous greenway from Maine to Key West. 1000 Friends has applied for free AICP CM and CLE credits for this event. Go to www.floridaplanning.org/for more details. For more information on these and other APA Florida events, please visit http://www.floridaplanning.org/