September 16, 2014

Green Light To Developers

John D. McKinnon | 11/1/1995
When Gov. Chiles appointed Jim Murley, then the executive director of a private environmental protection group, to head the state agency that enforces Florida's growth-management program, you might have expected homebuilders to go through the roof.

After all, Murley's old outfit, 1000 Friends of Florida, acts as the lawyer for citizen challenges to pro-developer land-use decisions. And his new agency, the state Department of Community Affairs, has struck fear in developers for years by using growth management to pursue its own land-use challenges. On paper at least, naming Murley as head of DCA was like putting Ralph Nader in charge of the Consumer Product Safety Commission.

But thanks to the shift in political winds, Florida's once-fearsome growth-management program no longer threatens developers the way it once did.

Over the last two years, state officials have relinquished some of their power over land-use. They've become more hesitant to exercise the power they still have. In some circumstances, they've even given landowners the right to compensation when government land-use action reduces property values.

Recalling the late 1980s and early '90s, when state growth-management officials angered landowners by forcing reductions in development densities and property values, state Rep. Ken Pruitt, R-Port St. Lucie, proclaims flatly: "Those days are gone."

Murley, a 49-year-old lawyer and former DCA official who helped develop the 1985 Growth Management Act, isn't as fearsome as he used to be either. Like many longtime growth-management proponents, he admits he's no longer so enamored of the program - and especially its heavy-handed bureaucratic aspect. The 1985 act for the first time gave DCA the power to challenge local comprehensive plans where cities and counties couldn't show that they could handle the growth they were allowing. If a local government refused to correct problems, the act allowed Tallahassee to cut off its funds. But DCA's exercise of its authority spurred deep resentment among landowners, as well as their allies in local government.

Murley, an amiable man known for his jaunty Panama hats (they shield his balding pate from the sun), insists the Growth Management Act has achieved notable successes, particularly in educating developers and local officials about the costs of growth. But the act had a basic flaw, he and other advocates now realize: Because of all the bureaucracy it entailed, it failed to fire the passions and loyalties of ordinary people.

"We're still not dealing enough with the fact that people in the large counties and cities really want an idea that they share as a community - a vision of where they're going," Murley said in a recent interview.

Such a shared vision, he tells Florida Trend, "can't be translated simply as concurrency requirements, or levels of service, or capital improvements elements" or other legalistic concepts from growth management's dense jargon. "We missed that completely in 1985."

Linda Loomis Shelley, Murley's predecessor as DCA secretary and now Chiles' chief of staff, served as DCA general counsel in the mid-1980s alongside Murley when the program was being developed. She agrees that the act failed to win a large constituency at the local level. Rules and rule enforcement, she learned, "are an ineffective remedy in many of these cases because you want to have an ending where people are able to live together in harmony. One problem I had with this confrontational aspect was that I felt that they [local governments] are our partner, and if you kill them, they won't be your partner, and they won't talk to you, and they won't like you."

As a partial solution to growth management's popularity problems, Murley has begun to advocate trendy new planning approaches such as "visioning," a process where officials, developers and ordinary citizens get together to agree on what they want their community to look like. "Visioning" isn't a euphemism. Often in such sessions, participants simply are shown pairs of slides - two versions of a downtown street, say - and asked which one they prefer, like a patient being fitted for glasses. Whatever it lacks in precision, supporters say, at least people like it.

But in recent weeks it's become apparent that Murley also is willing to consider a more significant measure to win local support for growth controls: a dramatic scaling-back of remaining state land-use oversight, in exchange for a voluntary strengthening of local policies. In a potentially big shift in policy, a Chiles-appointed panel that includes Murley is recommending broad exemptions from growth management for local governments, provided that local officials can muster the political will to adopt stronger limitations of their own - especially in the all-important area of urban sprawl. That's the term for the way modern cities tend to grow in linear fashion along highways. Urban sprawl appeals to many home buyers and builders. But it's crushingly expensive for local governments and people living in established neighborhoods, who subsidize the process ("The High Cost of Sprawl" FT, Dec. 1994). Unfortunately, growth management has done little to control it.

The new incentive plan is being floated currently in a report from the Governor's Commission for a Sustainable South Florida. The commission calls on Chiles to seek a "Sustainable Communities" bill during the 1996 legislative session that would outline the new restrictions and incentives. Among the anti-sprawl measures a local government would have to adopt: an urban development boundary, as well as other measures to accelerate development of remaining empty spaces in urban areas, known as infill.

Among the local government incentives the report recommends: elimination of state review of comprehensive plan amendments within the new urban development boundaries, except for those that expand the boundaries; delegation of environmental permitting; and preferential treatment in school construction funds, transportation funds and land acquisition funds, as well as a new pot of money for infill development.

Murley says he generally supports the report, although administration officials haven't decided on a 1996 legislative package. "There are communities that want to do more than growth management requires, and we need to be able to find a way to be able to respond to them."

But even if the proposed legislation doesn't fly, the erosion of the program's regulatory aspect appears likely to continue. The most important area to watch: a new round of local-government land-use planning that just got underway and will continue for the next few years. With the failure to curb sprawl in the first round of plans, growth management supporters doubt that the DCA will have the political ability to tighten up in the second round. It might even have to allow local governments more concessions than ever.

As one private-sector development lawyer explains: "My own judgment is that growth management in the form we know it will not remain politically viable if we go through another set of controversies like the ones we experienced in the late 1980s and early 1990s. I don't think the program can survive that."

The changes in growth management began in earnest three years ago, with a report by a blue-ribbon panel, the Environmental Land Management Study (ELMS) committee, which recommended relaxation of a variety of the state's controls, particularly in the areas of traffic standards and review of small-scale plan amendments. Many of the ELMS panel's recommendations were enacted by the 1993 Legislature.

But the seeds of change were sown even earlier, in the anger sparked by the comprehensive planning effort. The recession of the early 1990s added to that grassroots dissatisfaction.

At the same time, Chiles was showing that he was no growth-management zealot. He pushed local control as a central theme of his 1990 gubernatorial campaign. In 1992 his appointees injected that theme into the ELMS committee's work. And in late 1993, Chiles prompted an even bigger shift at DCA when he and several Cabinet members rejected a routine challenge to a subdivision in St. Lucie County. In a well-publicized upbraiding, the governor told Shelley in essence that the state had no business micro-managing local development. Since then, DCA has been noticeably less enthusiastic about pursuing growth-management violations, critics say.

Finally, growth management suffered a potential blow in the 1995 Legislature, Lawmakers adopted a property rights measure that will extend broader protections to landowners who suffer inordinate losses due to future regulation. Faced with the threat of a constitutional initiative that would hit government even harder, Chiles signed it. Observers say Murley, then head of 1000 Friends of Florida, displayed his own ability to compromise during the debate. "He didn't agree with all the provisions, and yet as someone who was trying to build common ground he was as important a player as anyone outside government," says Robert M. Rhodes, a Tallahassee lawyer.

Local officials seem to interpret the state's new attitude as an excuse to keep hands off. Already, Palm Beach County officials have cited the property rights law in declining to extend development restrictions into an agricultural reserve area. Other local officials also might be reluctant to adopt tighter urban development boundaries if they think they might be incurring property rights liability. Justified or not, that skittishness is likely to continue at least until an expected court interpretation of the new law.

Meanwhile, there's an alternative to all these regulatory lines in the sand - pricing new, sprawl-related services such as water and sewer according to their actual marginal cost. But that alternative continues to be ignored by local and state officials alike because of the added cost to the price of new construction.

Tampa development lawyer Ron Weaver figures the new property rights law will be good for $25 million in cash awards to landowners a year, plus another $475 million in development concessions each year - in all, a cool half billion dollars. And some pro-development types like Weaver want more, through a constitutional initiative that would expand property rights further. But the cost to state and local government for continued urban sprawl is likely to be considerably higher.

Tallahassee Talk

As 1995 winds down, it's worth looking back on Gov. Chiles' promise to reduce state rules by 50% in two years. With a bit more than a year to go, here are the standings: As of early fall, only two agencies had reduced their rules by more than 50% - the Department of Agriculture, headed by Commissioner Bob Crawford (58%), and the Department of State, headed by Secretary Sandy Mortham (57%). The Department of Legal Affairs, headed by Attorney General Bob Butterworth, had only a 43% reduction. The Office of the Governor hadn't repealed a single rule. Among the governor's agencies, the Department of Commerce cut rules by 30%, the Department of Community Affairs by 29%.

Tags: Florida Small Business, Politics & Law, Business Florida

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