Chapter 380, Florida Statutes, provides for land and water management policies to guide responsible planning, growth, and development within the State of Florida that will be protective of natural resources and the environment and creates the ...

 

DEPARTMENT OF ECONOMIC OPPORTUNITY

Division of Community Development

RULE NOS.:RULE TITLES:

73C-42.006Application Forms

73C-42.010Preapplication Conferences

73C-42.011Filing the Application for Development Designation

73C-42.023Florida Quality Development Orders

73C-42.024Substantial Change

PURPOSE AND EFFECT: Chapter 380, Florida Statutes, provides for land and water management policies to guide responsible planning, growth, and development within the State of Florida that will be protective of natural resources and the environment and creates the Florida Quality Developments program. The Department seeks to combine Rules 73C-42.010 and .011, Fla. Admin. Code (F.A.C.), as both set forth procedures and practices for developers related to filing applications for development designation. The form for making application which is set forth in Rule 73C-42.006, F.A.C., is proposed to be moved into the text of the amended rule and this rule repealed.

To streamline and clarify for developers, the Department seeks to combine Rules 73C-42.023 and .024, F.A.C., as both rules address development orders issued by the Department.

SUMMARY: The proposed changes to Rules 73C-42.010 and .011, F.A.C., address applications for development designation. The proposed changes to Rules 73C-42.023 and .024, F.A.C., address development orders issued by the Department.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The agency has previously performed a review of the statutory requirements and determined that Rules 73C-42.006, .010, .011, .023, and .024, F.A.C., have no adverse impact or regulatory costs which exceed any of the criteria established in Section 120.541(2)(a), Florida Statutes. Specifically, the amended rules will contain the text of the repealed rules such that there is no change impacting regulatory costs. These rules are therefore expected be able to take effect without the need of being ratified by the Legislature.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 189.017 and 189.018, FS.

LAW IMPLEMENTED: 189.018, 189.061, and 189.064, FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: February 21, 2017; 9:30 a.m.

PLACE: Department of Economic Opportunity, Caldwell Building, 107 E. Madison Street, Tallahassee, Florida 32399, Conference Room 110, and by teleconference by calling: 1(888)670-3525; Passcode: 9633615989 then #.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: : M. Linville Atkins, Office of General Counsel, Department of Economic Opportunity, 107 East Madison Street, MSC 110, Tallahassee, Florida 32399, [phone], [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

73C-42.006 Application Forms.

Rulemaking Authority 380.032(2)(a), 380.061(4), (8)(b) FS. Law Implemented 380.061, 380.061(4) FS. History–New 1-23-90, Amended 3-1-01, Formerly 9J-28.006, Repealed __________.

 

73C-42.010 Preapplication and Application Procedures Conferences

(1) Preapplication Conferences.

(a) through (b) No change.

(c) Upon the request of the developer, the regional planning agency, the local government, or the Department, other affected state, regional, or local agencies shall participate in conference proceedings and shall identify the types of permits issued by the agencies, the level of information required, and the permit issuance procedures as applied to the proposed development. Such information shall be provided for initial project planning and coordination and shall not constitute a binding agency commitment to a course of action on an application for development designation or permit review unless so established in an agreement between the agency and the developer, pursuant to Rule 73C-42.007, F.A.C., of this rule.

(d) through (e) No change.

(f)(2) No change.

(2) Filing the Application for Development Designation.

(a) In accordance with subsection 380.061(5), F.S., the developer shall simultaneously file completed copies of an application for development designation with the Department, the regional planning council, and the local government with jurisdiction using DEO-BCP-ADA-1, Development of Regional Impact Application for Development Approval, identified in subsection (3) of this rule.

(b) Pursuant to Sections 380.061(5) and 120.60, F.S., the Department and the local government shall make a determination as to the completeness of the information contained in the application. The regional planning council may provide completeness comments to the Department and the local government.

1. Within 30 days after receipt of an application, the Department and the local government shall notify the applicant of any apparent errors or omissions and request any additional information. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the application unless the reviewing entity timely notified the applicant within this 30-day period.

2. The Department and the local government shall provide copies of their requests for additional information to the applicant, the regional planning council, and each other. The applicant shall submit the additionally requested information to the Department, the local government, and the regional planning council.

3. The application for development designation shall be approved or denied by the Department within 90 days after receipt of the original complete application or receipt of the timely requested additional information or correction of errors or omissions which determine the application complete. The 90 day time limitation prescribed by Section 120.60, F.S., for the approval or denial of license applications is subject to waiver by the applicant. The Department shall consider any report and recommendations made by the regional planning council which are received within 50 days after receipt of the complete application. In preparing its report and recommendations, the regional planning council should identify regional issues based on the criteria pursuant to Section 380.06(12), F.S. If the applicant chooses to appeal the completeness review for the FQD, the 90 day period will be tolled by the initiation of proceedings under Section 120.569, F.S., and will resume 10 days after the final order is issued by the Department, with copies provided to the local government, the applicant, and other parties.

4. Upon the effective date of the development order, the developer shall have the right to use for the Development the certification mark registered with the Secretary of the Florida Department of State for Developments designated as FQDs under Section 380.061, F.S. The use of this certification mark shall be restricted to promotional, informational or advertising purposes in order to identify this Development as a development approved and designated under Section 380.061, F.S. A development designated as an FQD shall be exempt from development-of-regional-impact review under Section 380.06, F.S.

(3) Forms.  The following forms shall be used in carrying out the activities required under this rule and may be obtained without cost from the regional planning council or from the Department at the following address:  Department of Economic Opportunity, Division of Community Development, 107 East Madison Street, Tallahassee, FL 32399.

(a) Form Number DEO-BCP-ADA-1, Developments of Regional Impact Application for Development Approval, effective 11-20-90 (revised 10-1-11);

(b) Form Number DEO-BCP-AGENCIES-1, Report of Agency Participation in Development of Regional Impact Preapplication Conferences, effective 11-20-90 (revised 10-1-11);

(c) Form Number DEO-BCP-PREAPP INFO-1, specifying the minimum information to be supplied by the applicant at the preapplication conference, effective 11-20-90 (revised 10-1-11);

(d) Form Number DEO-BCP-EFFECTIVE RULES-1, Notification to be Bound By Rules Adopted Pursuant to Chapters 403 and 373, F.S., In Effect When the Development Order Is Issued, effective 11-20-90 (revised 10-1-11).

Rulemaking Authority 380.032(2)(a), 380.061(5) and (8)(b) FS. Law Implemented 380.031, 380.061(5)(b), (6) FS. History–New 1-23-90, Formerly 9J-28.010, Amended____.

 

73C-42.011 Filing the Application for Development Designation.

Rulemaking Authority 380.032(2)(a), 380.061, 380.061(8)(b) FS. Law Implemented 380.061, 380.061(5)(b), (6) FS. History–New 1-23-90, Amended 3-1-01, Formerly 9J-28.011, Repealed ________.

 

73C-42.023 Florida Quality Development Orders.

(1) This rule provides the form, manner of rendition, and contents for Chapter 380, F.S., development orders issued by the Department of Economic Opportunity for developments designated as an FQD and review of substantial deviations to an FQD development order under Section 380.061, F.S. An FQD development order shall:

(a) through (d) No change.

(2) Without an effective Chapter 380, F.S., FQD development order, the developer shall not have authorization to commence development on any portion of the development covered by the application for development designation unless the developer has entered into a preliminary development agreement with the Department of Economic Opportunity pursuant to Section 380.06(8), F.S., and Rule 73C-42.007, F.A.C.

(3) No change.

(4) Requirements for an FQD development order:

(a) The copy of any FQD development order rendered to the local government with jurisdiction, the regional planning agency, and the developer shall:

1. through 3. No change

4. Contain the signature of the Executive Director Secretary of the Department or his or her designee and shall be certified by the agency clerk as being a complete and accurate copy of the development order.

(b) No change.

(5) Complete copies of any development orders issued pursuant to Section 380.061, F.S., including any amendments to a previously issued development order, shall be transmitted by the Secretary of the Department to the local government with jurisdiction, to the appropriate regional planning council, and to the owner or developer of the property subject to such order within 30 days of the Secretary’s issuance. A development order shall take effect upon transmittal to the above parties unless a later effective date is specified in the order. The effectiveness of a development order shall be stayed by the filing of a notice of appeal pursuant to Section 380.07(5) 380.061(7)(b), F.S.

(6) The development order shall specify the requirements for an annual report. The annual report shall be submitted by the developer to the Department, the regional planning agency, the local government, and any other entity so identified in the development order, on Department of Economic Opportunity form Number DEO-BCP-BIENNIAL REPORT-1, Biennial Status Report, effective 6-1-03 (revised 10-1-11), which is incorporated herein by reference and available without cost from the Department by making a written request to:  Division of Community Development, 107 East Madison Street, MSC 160, Caldwell Building, Tallahassee, FL 32399. the form specified by the Department of Economic Opportunity. Every development order shall require the annual report to include the following:

(a) through (d) No change.

(e) Identification and intended use of any lands purchased, leased, or optioned to purchase by the developer which are physically proximate, as defined under paragraph 73C-42.0275(2)(a), F.A.C., to the FQD site since the development order was issued;

(f) No change.

(7) No change.

(8) Any proposed change to a previously designated FQD which creates a reasonable likelihood of any additional regional impacts not previously reviewed by the Department, the local government and the regional planning council or a change involving any of the FQD designation criteria pursuant to the provisions of Section 380.061(3), F.S., shall constitute a substantial change and shall cause the development to be subject to further FQD review.

(9)(a) Whenever the developer of a designated FQD proposes a change in its plan of development or to conditions of the FQD development order, it shall submit its proposed change to the Department, the local government, and the regional planning council. Within 30 days of receipt of the proposed change, the Department shall notify the developer whether or not the change is a substantial change and, if the change is determined to be nonsubstantial, whether a modification of the FQD development order is needed.

(b) If the Department and the local government, in consultation with the regional planning council, determine that the proposed change is not a substantial change and does not require a modification of the development order, the developer may proceed with the change, subject to applicable regulatory requirements.

(c) If the Department and the local government, in consultation with the regional planning council, determine that the proposed change is not a substantial change, but may require a modification of the development order, the Department shall, subject to the approval of the local government modify the development order within 60 days of the receipt of the proposed change to the Department or shall notify the developer in writing that it will not modify the development order.

(d) If the Department or the local government, in consultation with the regional planning council, determines that the proposed change is a substantial change, the change shall require the review and approval of the reviewing entities prior to commencing such development activity. This review and approval shall follow the procedures and timetables used for the designation of a development as an FQD as set forth in Section 380.061, F.S., and Rule 73C-42.011, F.A.C., with such review commencing on the date the decision is made that a proposed change needs to undergo further FQD review. Following approval of a substantial change by the reviewing entities, the Department shall modify the development order to incorporate that approved substantial change.

(e) If the Department or the local government, in consultation with the regional planning council, determines that the developer has made or is making an alteration to the plan of development which they believe may be a change, they shall require the developer to submit information on that alteration for review under this rule section.

(f) Prior to the determination by the Department and the local government, in consultation with the regional planning council, of whether a proposed change is a substantial change, whether the proposed change requires an amendment of the FQD development order, or whether the agencies approve of the change under provisions of subsection (9) within this rule section, the developer may not proceed with such development.

(10) A “substantial change” shall mean either:

(a) Any deviation in the carrying out of a condition, commitment, or agreement set forth and recited in the FQD development order which so alters the condition, commitment, or agreement that it can be fairly said to change the intent or result of the condition, commitment, or agreement.

(b) Other similar deviations in the construction of the Development or the alignment of roads which alter significantly the commitments or agreements of the developer or which represent a significant departure from the plan of development or the conditions of the FQD development order.

(c) Any proposed change that meets or exceeds 150 percent of the criteria specified in Section 380.06(19)(b), F.S., shall be presumed to be a substantial change. However, the developer may rebut this presumption by demonstrating that the proposed change is not substantial under the criteria pursuant to paragraphs (10)(a) and (10)(b) of this rule.

(d) Any proposed change that meets or is less than 200 percent of the criteria in Section 380.06(19)(b)9., F.S., shall be presumed not to be a substantial change; provided that the change involves the addition of residential units and that the developer guarantees that 25 percent of the units will be affordable to very low- or low-income households.

(11) A “substantial change” shall not include proposed alterations that do not affect the plan of development or the conditions or commitments expressed in the FQD development order. “Substantial change” shall not include such modifications as the following:

(a) Architectural or landscape architectural changes necessitated by the soil, topography, or other onsite conditions;

(b) Reduction of the amount of impervious surface area; and,

(c) Reduction in open space due to governmental requirements for transportation improvements.

(12) The amended development order will be submitted to the local government and the regional planning council pursuant to subsection (5) of this rule.

(13) Development within a previously approved FQD may continue, as approved, during the review of a substantial change as decided under paragraph (9)(d) of this rule. Also, those portions of the FQD which are not affected by the proposed substantial change may continue to be developed.

Rulemaking Authority 380.032(2)(a), 380.061(8)(b) FS. Law Implemented 380.061, 380.061(5)(d) FS. History–New 1-23-90, Amended 3-1-01, Formerly 9J-28.023, Amended_____.

 

73C-42.024 Substantial Change.

Rulemaking Authority 380.061(8)(b) FS. Law Implemented 380.061 FS. History–New 1-23-90, Formerly 9J-28.024, Repealed _______.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: M. Linville Atkins

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Cissy Proctor

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 1/3/17

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 1/23/17