Chapter 380, F.S., creates the Florida Environmental Land and Water Management Act (“Act”), which provides for the protection of the state’s natural resources and environment and designates the Department as a land planning agency responsible for ...

 

DEPARTMENT OF ECONOMIC OPPORTUNITY

Division of Community Development

RULE NO.: RULE TITLE:

73C-40.001Definitions

73C-40.010 Forms

73C-40.016: Binding Letters of Interpretation

73C-40.0185 Preliminary Development Agreements

73C-40.021 Preapplication Conferences and Conceptual Agency Review Process

73C-40.022 Filing the Application for Development Approval

73C-40.024Regional Report and Recommendations

73C-40.025Local Government Development Orders

73C-40.0251Abandonment of Development Orders

73C-40.0256Hurricane Preparedness Policy Rule

73C-40.0257Special Hurricane Preparedness Districts for Developments of Regional Impact

73C-40.028 Master Development Approval Alternative Review Procedure

73C-40.029Downtown Development of Regional Impact Alternative Review Procedure

PURPOSE AND EFFECT: Chapter 380, F.S., creates the Florida Environmental Land and Water Management Act (“Act”), which provides for the protection of the state’s natural resources and environment and designates the Department as a land planning agency responsible for enforcing and administering the rules and regulations of the Act. Sections 380.032 and .06, F,S, confer rulemaking authority on the Department to adopt rules necessary to administer and implement the various provisions within the Act. The proposed amendments will better organize the information pertaining to development approval, alternative review, and hurricane preparedness. This will also improve ease of use by moving form references into the applicable rule and will delete unnecessary definitions.

SUMMARY: Amend and/or revise existing rules to create a single rule for each of the following subject areas: the processes for obtaining development approval; special district hurricane preparedness; and alternative review procedures. Repeal definitions already set forth in statute and amend and/or revise Chapter 73C-40, F.A.C., to move individual form references to the applicable rule.

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-40.001, .010, .016, .0185, .021, .022, .024, .025, .0256, .0257, .028, and .029, 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. 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: 380.032(2), 380.06(19), (21), (23), (23), (26), 380.0651(4), FS.

LAW IMPLEMENTED: 120.569, 380.031, 380.032,(3), 380.06, 380.06(1), (2), (2)(c), (d), (e), (4), (5)(a)1., (7), (8), (9), (12), (13), (14), (15), (17), (18), (19), (20), (21), (22), (23), (23)(b), (26), 380.0651, (4), 380.07(2,), 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: March 7, 2017; 11:00 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-40.001 Definitions.

Rulemaking Authority 380.032(2)(a), 380.06(23)(a) FS. Law Implemented 380, 380.031, 380.06(1), (23) FS. History–New 4-12-81, Amended 5-4-83, Formerly 27F-1.01, 9B-16.01, Amended 11-20-90, 2-21-01, Formerly 9J-2.001., Repealed _______.

 

73C-40.010 Forms.

Rulemaking Authority 380.032(2)(a), 380.06(15)(c)4., (19)(f)1., (23)(a), (c)2., (26) FS. Law Implemented 380.031(13), 380.06(4)-(10), (15)(c)4., (18), (19), (23)(c)2., (26) FS. History–New 4-12-81, Amended 5-4-83, Formerly 27F-1.31, 9B-16.17, 9J-2.017, Amended 11-20-90, 3-23-94, 2-21-01, 6-1-03, Formerly 9J-2.010., Repealed _______.

 

73C-40.016 Binding Letters of Interpretation.

(1) If any developer is in doubt whether his proposed development is required to undergo DRI review or whether his development rights have vested pursuant to Section 380.06(20), F.S., or whether a proposed substantial change to a development of regional impact previously vested pursuant to Section 380.06(20), F.S., would divest such rights, the developer may file an application for a Binding Letter of Interpretation with the Division. Prior to submitting a formal application, the developer is encouraged to consult with the Division staff to insure that appropriate information is presented. The developer shall submit an application for a binding letter of interpretation by completing and filing with the Division Form DEO-BCP-BLID-1 (development of regional impact status), DEO-BCP-BLIVR-1 (vested rights), or DEO-BCP-BLIM-1 (substantial modification to a previously vested development), as appropriate and as identified in subsection (18) of this rule. These forms may be obtained upon request to any regional planning agency or to the Division of Community Planning Development, whose address is 107 East Madison Street, MSC 160, Caldwell Building, Tallahassee, Florida 32399-6545. The completed form shall be submitted to the Division of Community Development.

(2) through (17) No change.

(18) The following forms shall be used in implementing this rule and are available without cost from the regional planning council or from the Department at the following web address:  http://www.floridajobs.org/community-planning-and-development/programs/community-planning-table-of-contents/general-information.

(a) Form Number DEO-BCP-BLID-1, Application for a Binding Letter of Development of Regional Impact Status, effective 11-20-90 (revised 10-1-11), is hereby incorporated by reference;

(b) Form Number DEO-BCP-BLIVR-1, Application for a Binding Letter of Vested Rights, effective 11-20-90 (revised 10-1-11), is hereby incorporated by referenced;

(c) Form Number DEO-BCP-BLIM-1, Application for a Binding Letter of Modification to a Development of Regional Impact with Vested Rights, effective 11-20-90 (revised 10-1-11), is hereby incorporated by reference.

 

Rulemaking Authority 380.032(2)(a), 380.06(23)(a) FS. Law Implemented 120.569, 380.031, 380.032, 380.06(1), (2)(c), (d), (e), (4), (20), 380.0651 FS. History–New 4-12-81, Amended 5-4-83, Formerly 27F-1.16, 9B-16.16, Amended 11-20-90, 2-21-01, 6-1-03, ________, Formerly 9J-2.0016.

 

73C-40.0185 Preliminary Development Agreements.

(1) through (5) No change.

(6)(a) If a developer proposes to abandon a PDA pursuant to Section 380.06(8)(a)11., F.S., notice shall be submitted by the developer to the Division, the local government of jurisdiction, and the regional planning agency indicating intent to abandon the PDA and to no longer pursue the development identified in the PDA as a DRI. Such notice shall be on Form DEO-BCP-ABANDON PDA-1, Notice of Intent to Abandon Preliminary Development Agreement, effective 11-20-90 (revised 10-1-11), and shall include, at a minimum, the following documentation:

1. through 7. No change.

8.  Form DEO-BCP-ABANDON PDA-1, Notice of Intent to Abandon Preliminary Development Agreement, effective 11-20-90 (revised 10-1-11), is hereby incorporated by reference and may be obtained from the regional planning council or from the Department at the following web address:  http://www.floridajobs.org/community-planning-and-development/programs/community-planning-table-of-contents/general-information.

(b) through (d) No change.

Rulemaking Authority 380.032(2)(a), 380.06(23)(a) FS. Law Implemented 380.032(3), 380.06(8), 380.0651(4) FS. History–New 1-29-86, Amended 7-2-86, 11-20-90, 2-21-01, 6-1-03, ____________ , Formerly 9J-2.0185.

 

73C-40.021 Preparation, Filing, and Review of Applications for Development Approval. Preapplication Conferences and Conceptual Agency Review Process.

(1) Preapplication Conferences and Conceptual Agency Review Process.

(a)(1) No change.

(b) through (c) No change.

(d) In order to increase the effectiveness of agency participation and to more closely fulfill the intent of the preapplication conference, the applicant shall provide the participants in the preapplication conference with the information identified in Form DEO-BCP-PREAPP INFO-1 identified in subsection (4) of this rule at least ten (10) working days before the scheduled preapplication conference, or a longer period if so stipulated by the regional planning agency. At a minimum, this information shall include an identification of the project location relative to any existing urban service areas and regional activity centers, whether a local comprehensive plan amendment will be required, the type and magnitude of land uses, preliminary site and environmental information, preliminary phasing and build out dates of the project, and specific methodology proposals. If this information is not made available within the allotted time prior to the preapplication conference, the conference will be rescheduled.

(e) through (g) No change.

(h)(2) No change.

(i)(3) No change.

(2) Filing the Application for Development Approval.

(a) In accordance with Sections 380.06(6), (7), and (10), F.S., the developer shall simultaneously file completed copies of an application for development approval using Form DEO-BCP-ADA-1 identified in subsection (4) below with the local government having jurisdiction, the appropriate regional planning agency, and the Division. Other copies of the application for development approval shall be distributed as agreed upon at the preapplication conference. Copies of the application, Form DEO-BCP-ADA-1, may be obtained from the Division or the regional planning agency. The application should be filed in accordance with the local government’s applicable procedures and as early as possible in its planning or permitting approval processes.

1. If a proposed project includes two or more DRIs, a developer may file a comprehensive DRI application for development approval covering more than one DRI pursuant to Section 380.06(21)(a), F.S.

2. If a proposed development is planned for development over an extended period of time, the developer may file an application for master development approval of the project pursuant to Sections 380.06(21)(b) and (c), F.S., and Rule 73C-40.028, F.A.C.

3. A downtown development authority as defined in Section 380.031, F.S., may submit a downtown DRI application for development approval pursuant to Section 380.06(22), F.S., and Rule 73C-.40.028, F.A.C.

4. Any person may submit a petition to a local government requesting that he be approved as a developer of an areawide DRI. If approved by the local government with jurisdiction over the area concerned in the petition, that person, or any general purpose local government, may submit an areawide DRI application for development approval pursuant to Section 380.06(25), F.S., and Chapter 9J-3, F.A.C.

5. A developer may submit an application for development designation as a Florida Quality Development pursuant to Section 380.061, F.S., and Chapter 73C-42, F.A.C.

6. If a developer has elected to proceed in a conceptual agency review process, then he must submit copies of the application for development approval to all state or regional agencies which are to participate in the review process. The application shall include additional information identified by state or regional permitting agencies as provided for in Sections 380.06(9)(c)1. and 2., F.S.

(b) If requested by the applicant, the regional planning agency may contract with the applicant to provide responses to certain questions in the application for development approval for which the regional planning agency has specific data, knowledge, or staff expertise.

(c) Pursuant to Section 380.06(10), F.S., the regional planning agency shall make a determination as to the sufficiency of the information contained in the application. The regional planning agency may solicit comments from other state, regional, and local agencies and governments regarding sufficiency of application information.

1. Information should be considered sufficient when it has been presented in a manner which allows the reviewing agencies to assess the impacts of the proposed development. A determination of sufficiency does not necessarily indicate that the regional planning agency or other reviewing agencies agree with the information and conclusions presented in the application.

2. Reviewing agencies should submit sufficiency comments to the applicant at the same time the comments are submitted to the regional planning agency so that the applicant can begin to prepare a response to the concerns before receipt of the formal sufficiency determination. The regional planning agency shall provide copies of agency requests for additional information and the applicant’s responses to the Division, the local government and all reviewing agencies to expedite review and enhance coordination within the review process.

3. If the regional planning agency determines that the application is insufficient to begin review, the regional planning agency shall provide written notice by regular mail or hand delivery to the appropriate local government and the applicant within 30 days of receipt of the application stating that the application contains insufficient information for the regional planning agency to discharge its responsibilities under Section 380.06(12), F.S., and requesting additional information. Comments and questions not referenced or included within the written notice and rendered to the applicant after the regional planning agency’s 30-day review period has expired may not be used as the basis for additional sufficiency questions and may be answered at the applicant’s discretion. Within five working days of the receipt of the statement the applicant shall provide written notice to the local government and the regional planning agency that the requested information will be supplied, or will not be supplied, in whole or in part. Within 30 days after receipt of the requested information, the regional planning agency shall review it and may only request any additional information needed to clarify the information received or to answer new questions raised by, or directly related to, the information received. The regional planning agency may request additional information no more than twice, unless the developer waiver this limitation. If the applicant does not provide information requested by the regional planning agency within 120 days of the regional planning agency’s request, or within a time agreed upon by the applicant and the regional planning agency, the application shall be considered withdrawn. The applicant may request that the regional planning agency arrange a conference with the appropriate reviewing agencies after the applicant has received the second request for additional information from the regional planning agency and prior to the submission by the applicant of information in response to that request. The purpose of such a conference is to resolve any reviewing agency’s informational needs.

4. When the regional planning agency determines that the application is sufficient to begin review or receives notification from the applicant that additional information requested will not be supplied, the regional planning agency shall provide written notice within ten (10) days to the appropriate local government pursuant to Section 380.06(10)(c), F.S., stating that the application contains sufficient information for the regional planning agency to being review pursuant to the criteria of Section 380.06(12), F.S., or that no additional information will be provided by the applicant, and that a public hearing date may be set. Notice of such determination shall also be provided to all reviewing agencies.

5. The regional planning agency shall keep all affected agencies informed of the progress of the DRI review process and otherwise coordinate reviews of DRIs.

a. To further effectuate these review processes, the regional planning agency may encourage additional conferences, the development of permit processing schedules with other agencies, concurrent processing of applications, the use of the DRI application for development approval as a substitute for permit data requirements or plans, and other appropriate techniques.

b.  No later than May 15 of each year beginning in 1984, each regional planning agency shall forward a report of state, regional and local agency participation in the DRI review process within the region for the preceding year to the Division. This report shall include Form DEO-BCP-AGENCIES-1 identified in subsection (4) of this rule and shall contain data about requests for, and the incidence and extent of, agency participation in DRI and optional conceptual reviews.

(3) Regional Report and Recommendations.

(a) Upon receipt of the notice of public hearing issued pursuant to Section 380.06(11), F.S., the appropriate regional planning agency shall prepare a report and recommendations on the regional impact of the proposed development in accordance with the criteria identified in Section 380.06(12), F.S. In preparing the regional report, the regional planning agency shall identify and make recommendations on regional issues. Regional issues to be used in reviewing DRI applications are included in the applicable local government comprehensive plans, the Development of Regional Impact Uniform Standards Rule, the State Comprehensive Plan, and Sections 380.06(12)(a)1., 2., and 3., F.S. In addition, Strategic Regional Policy Plans adopted by regional planning councils pursuant to Sections 186.507 and .508, F.S, are a long-range policy guide for the development of the region and shall be used as the basis for regional review of DRIs. The regional planning agency may also identify and make recommendations on other local issues. However, local issues shall not be grounds for or be included as issues in a regional planning agency recommendation for appeal of a local government development order.

(b) The regional planning agency may request other agencies to prepare reports and recommendations on issues that are clearly within their jurisdiction. If any other agency reports and recommendations are received, they shall be included in the regional planning agency report pursuant to Section 380.06(12)(b), F.S. The regional planning agency may then attach dissenting views.

(c) The regional planning agency shall afford any substantially affected party the opportunity to present evidence to the regional planning agency head related to the proposed regional report and recommendations.

(d) As part of the regional report and recommendations, the regional planning agency may prepare a short summary of conclusions and recommendations for the purpose of providing easy-to-read public information about the DRI. The regional planning agency may also address the consistency of the development with the State Comprehensive Plan, the State Land Development Plan, and the local government comprehensive plan.

(e) Copies of the completed report and recommendations shall be submitted by the regional planning agency to the local government, the Division, and the developer within 50 days after receipt by the regional planning agency of notice of public hearing.

(f)1. When the proposed DRI lies within the review jurisdiction of two or more regional planning agencies, the state land planning agency shall designate a lead regional planning council. The lead regional planning council shall prepare the regional report.

2.  Upon completion of the staff report and recommendations, copies should be transmitted to the respective regional planning agencies for formal action.

3.  The regional report and recommendations adopted by formal action of the respective regional planning agencies where possible should be coordinated and consistent. Upon concurrence by each regional planning agency, the report and recommendations should be submitted to the appropriate local governments pursuant to Section 380.06(12), F.S. When the reviewing regional planning agencies are unable to concur in the adoption of a joint report and recommendations, each agency shall prepare and submit to the local government within its jurisdiction and the other regional planning agencies and local governments with jurisdiction involved in the DRI review a separate report and recommendations.

(4) The following forms shall be used to implement the requirements in this rule and are available without cost from the regional planning council or from the Department at the following web address:  http://www.floridajobs.org/community-planning-and-development/programs/community-planning-table-of-contents/general-information. 

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

(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), is hereby incorporated by reference; and

(b) 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), is hereby incorporated by reference.

 

Rulemaking Authority 380.032(2)(a), 380.06(23)(a),(b) FS. Law Implemented 380.06(5)-(7), (9),(10), (12), (21)-(23), (25), 380.061, FS. History–New 7-7-76 and 5-4-83, Amended 5-4-83 Formerly 9B-16.21, Amended 11-20-90, 2-21-01, 6-1-03, _________, Formerly 9J-2.021.

 

73C-40.022 Filing the Application for Development Approval.

Rulemaking Authority 380.032(2)(a), 380.06(23)(a) FS. Law Implemented 380.06(5)-(7), (9), (10), (21), (22), (25), 380.061 FS. History–New 7-7-76, Amended 5-4-83, Formerly 27F-1.20, 9B-16.22, Amended 11-20-90, 2-21-01, Formerly 9J-2.022., Repealed ________.

 

73C-40.024 Regional Report and Recommendations.

Rulemaking Authority 380.032(2)(a), 380.06(23)(a), (b) FS. Law Implemented 380.06(12) FS. History–New 7-7-76, Amended 5-4-83, Formerly 27F-1.22, 9B-16.24, Amended 11-20-90, 2-21-01, 6-1-03, Formerly 9J-2.024., Repealed ________.

 

73C-40.025 Local Government Development Orders.

(1) through (6) No change.

(7) The development order shall specify the requirements for the biennial report as required in Sections 380.06(15) and (18), F.S. The biennial report shall be submitted to the Division of Community Development, the appropriate regional planning council and local government on Form DEO-BCP-BIENNIAL REPORT-1 identified in subsection (12) below. Every development order shall require the biennial report to include the following:

(a) through (k) No change.

(l) The biennial report for an Areawide or a Downtown DRI shall only be required to include the information required in paragraphs (a), (b), (e), (f), (g), (i), (j) and (k) of this subsection, and any information requirements specified for biennial reports in paragraph 73C-40.028(2)(b) 4.-5., F.A.C.

(8) through (10) No change.

(11)(a) For a substantial deviation determination, a notice of a proposed change to a previously approved DRI shall be submitted, simultaneously, to the local government, the appropriate regional planning agency, and the Division using Form DEO-BCP-PROPCHANGE-1 identified in subsection (12) below and must include the precise development order language which the developer proposes to add, delete, or modify. If such proposed language is not included as required pursuant to Section 380.06(19)(f)1., F.S., the notice of a proposed change will not be considered to have been officially submitted.

(b) through (f) No change.

(12) The following forms shall be used to implement this rule.  Copies are available from the regional planning council or from the Department at the following web address:  http://www.floridajobs.org/community-planning-and-development/programs/community-planning-table-of-contents/general-information.

(a) Form Number DEO-BCP-BIENNIAL REPORT-1, Biennial Status Report, effective 6-1-03 (revised 10-1-11), is hereby incoporated by reference; and

(b) Form Number DEO-BCP-PROPCHANGE-1, Notification of a Proposed Change to a Previously Approved Development of Regional Impact, effective 11-20-90 (revised 10-1-11), is hereby incorporated by reference.

Rulemaking Authority 380.032(2)(a), 380.06(19)(f)1., (23)(a) FS. Law Implemented 380.06(5)(a)1., (13), (14), (15), (17), (18), (19), 380.07(2) FS. History–New 7-7-76, Amended 5-4-83, 7-7-85, Formerly 22F-1.23, 27F-1.23, 9B-16.25, 9J-2.25, Amended 11-20-90, 2-21-01, 6-1-03, ______, Formerly 9J-2.025.

 

73C-40.0251 Abandonment of Development Orders.

(1) No change.

(2) Procedures and Requirements for Abandonment. The following procedures and requirements shall be followed when seeking the abandonment of an approved DRI:

(a) Pursuant to Section 380.06(26), F.S., the developer shall submit a completed copy of an Application for Abandonment of a Development of Regional Impact to the local government(s) having jurisdiction. Copies of the application shall be simultaneously filed with the appropriate regional planning agency and the Division. The regional planning agency will distribute copies of the completed application to the appropriate commenting agencies normally involved in the DRI review. Copies of the Application for Abandonment of a Development of Regional Impact, FORM DEO-BCP-ABANDON-DRI-1, incorporated herein by reference, effective 3/91, (renumbered 10-01-11), may be obtained from either the appropriate regional planning agency or the Division at the following web address:  http://www.floridajobs.org/community-planning-and-development/programs/community-planning-table-of-contents/general-information or the appropriate regional planning agency.

(b) through (e) No change.

(3) through (5) No change.

Rulemaking Authority 380.032(2)(a), 380.06(23)(a), (26) FS. Law Implemented 380.06(2), (26) FS. History–New 3-10-91, Amended 2-21-01, 6-1-03, ___________,Formerly 9J-2.0251.

 

73C-40.0256 Hurricane Preparedness Policy Rule; Special Hurricane Preparedness Districts

(1) Purposes.

(a) This rule establishes how the Department will evaluate the impacts of proposed development on hurricane preparedness in the review of applications for a binding letter of interpretation of development of regional impact (DRI) status, in the review of proposed DRI development agreements, in the review of conditions in DRI development orders, and in the review of applications for development approval (ADA).

(b) A county or region may be designated a “special hurricane preparedness district” based on unique regional hurricane preparedness considerations. Such a designation may allow a county or region to implement hurricane preparedness mitigation strategies for developments of regional impact which may not be deemed appropriate as identified in subsection (5) below.  Additionally, vertical evacuation may be employed by developments of regional impact within a special hurricane preparedness district if such a strategy has been identified as an acceptable mitigation alternative in a petition to the Department for designation. It is the intent of this rule that a special hurricane preparedness district shall not be designated on an individual project or municipal government basis.

(2) Definitions. As used in this rule:through

(a) through (c) No change.

(d) “Hurricane evacuation routes” means the routes designated by county emergency management officials that have been identified with standardized statewide directional signs by the Florida Department of Transportation, or are identified in the regional hurricane evacuation study for the movement of persons to safety in the event of a hurricane.  The Pursuant to paragraph 73C-40.0255(4)(d), F.A.C. the Department considers hurricane evacuation routes to be regionally significant roadways.

(e) through (j) No change.

(k) “Local Comprehensive Emergency Management Plan” means those plans developed by a county according to the provisions of Chapter 9G-6, F.A.C., under the authority provided in Section 252.38, F.S.

(l) through (q) No change.

(3) through (4) No change.

(5) Mitigation of Hurricane Preparedness Impacts. Due to the extreme vulnerability of the State of Florida to the impacts of hurricanes, the Department considers public hurricane shelters and hurricane evacuation routes as important public facilities that are required to insure the health, safety, and welfare of the residents of the state. In order to implement this policy, it is the intent of the Department to set forth in this rule hurricane preparedness conditions which, if included in a DRI development order and which ensure that the development’s anticipated regional hurricane preparedness impacts are mitigated in a timely manner, would be deemed by the Department to comply with the requirements of Section 380.06(15)(e)2., F.S.. Such conditions would therefore not be the basis for the appeal of the development order by the Department on issues related to hurricane preparedness. The Department will review mitigative measures for all ADA proposals and DRI development orders that are determined to have a substantial impact on regional hurricane preparedness based on the criteria identified in subsection (4) above. Pursuant to Section 380.06(15)(e)2., F.S., a DRI development order issued by a local government must make adequate provisions for the public facilities needed to accommodate the impacts of the proposed development. Any single or combination of mitigative techniques detailed in paragraphs (a) and (b) below must provide for mitigation equivalent to the proposed development’s anticipated hurricane preparedness impacts. However, nothing contained herein shall preclude the local government from including hurricane preparedness conditions in a development order that are more stringent than those detailed in paragraphs (a) and (b) below.

(a) No change.

(b) Techniques which shall be used singly or in concert pursuant to the provisions of subsection (5) above to mitigate the anticipated impact of a proposed development on hurricane evacuation are:

1 through 2. No change.

3. Provision of roadway capacity improvements committed to by the developer above and beyond the improvements otherwise required by Rule 73C-40.045, F.A.C., when those regional roadways anticipated to be impacted by the proposed development are also identified hurricane evacuation routes. Such provisions shall be consistent with adopted state, regional, and local infrastructure policies.

4. through 5. No change.

(c) No change.

(6) Vertical Evacuation. Vertical Evacuation is not an acceptable mitigation alternative unless it has been deemed an appropriate mitigation alternative in a designated special hurricane preparedness district pursuant to subsection (8) below. Rule 73C-40.0257, F.A.C. Any development order which requires utilization of vertical evacuation in order to mitigate a development’s identified hurricane preparedness impacts may be subject to appeal by the Department.

(7) No change.

(8) Designation of Special Hurricane Preparedness Districts. A county or region must petition the Department in writing in order to be considered for designation as a special hurricane preparedness district. Such a request shall identify why the county or region should be designated and establish what types of hurricane preparedness mitigation measures will be applied to developments of regional impact within the district. The request shall be based on unique regional hurricane preparedness considerations which have been identified as a major regional issue and addressed with appropriate policies in an adopted comprehensive regional policy plan, in an adopted comprehensive plan or adopted hurricane preparedness ordinance, or in the adopted management plans or principles for guiding development for those areas designated by the Legislature at the recommendation of the Department pursuant to Sections 380.045 and 380.05, F.S., respectively. In addition, the request for designation should be based on, but not limited to, the following types of generalized regional or county considerations:

(a) The overall land elevation and the amount of area anticipated to flood during a hurricane event;

(b) The transportation system and its ability to transport residents to safe areas within a reasonable time;

(c) Less than twenty percent of a county’s or region’s hurricane shelters are available to the population during a 100-year or category three hurricane event; and

(d) The percentage of the total population anticipated to evacuate.

(9) Upon receiving a petition requesting designation as a special hurricane preparedness district from a county or region, the Department shall have thirty (30) days to notify the petitioner whether sufficient information regarding the need for designation and the acceptability of proposed mitigative measures has been submitted in the petition or if additional information is required. A petition for a special hurricane preparedness district designation is complete when the Department determines that all documentation and information it finds necessary to evaluate the request has been provided. The Department shall determine if the special hurricane preparedness district designation is appropriate within 45 days after receipt of a complete petition. If the request for designation is deemed inappropriate by the Department, a written response shall be sent to the petitioner identifying why designation was found to be inappropriate. If the petition for designation is deemed appropriate by the Department, a written notification shall be sent to the petitioner indicating the Department’s intention of amending this rule to incorporate the special designation. The designation shall not become effective until the rule has been amended. The Department’s designation shall also identify the hurricane preparedness mitigation alternatives that are deemed appropriate for developments of regional impact within the special hurricane preparedness district based on the unique regional considerations which were identified in the petition. In counties or regions that have been designated as special hurricane preparedness districts, the developer of a development of regional impact shall have the option to mitigate regional hurricane preparedness impacts as detailed in subsections (4) through (6) of this rule. However, if the developer of a development of regional impact chooses to mitigate regional hurricane preparedness impacts by using the alternatives identified in the special hurricane preparedness district designation, the DRI development order must include a provision that requires that all deeds to property located within the proposed development be accompanied by a disclosure statement. The disclosure statement must be in the form of a covenant stating that the property is located in a hurricane vulnerability zone and that the hurricane evacuation clearance time for the county or region is high and/or hurricane shelter spaces are limited.

(10) Designation of Southwest Florida as a Special Hurricane Preparedness District for Developments of Regional Impact. Based on a written request supported by data and information received from the Southwest Florida Regional Planning Council, the Department designates the area contained within the category three hurricane flood zone as identified in the Hurricane Evacuation Study Update, 1995 Southwest Florida Regional Planning Council within the counties of Sarasota, Charlotte, Lee, and Collier as a special hurricane preparedness district for developments of regional impact. More specifically, the area that is designated as a special hurricane preparedness district for developments of regional impact is that portion of Southwest Florida that lies outside of areas subject to the impacts of a category two storm but within the area anticipated to be impacted by a category three hurricane as identified in the Hurricane Evacuation Study Update, 1995 Southwest Florida Regional Planning Council. The Department’s designation is based on the following facts regarding the coastal counties of Southwest Florida:

(a) Large portions of the land area are anticipated to flood during a category three hurricane event;

(b) More than 70 percent of the region’s population is vulnerable to a category three hurricane event;

(c) A large percentage of the region’s population is aged or infirmed;

(d) Regional evacuation times are extremely high and major interregional evacuation routes are limited and/or prone to flooding during a hurricane event;

(e) Less than 20 percent of the region’s public hurricane shelter spaces are available to the population during a category three hurricane event;

(f) Adjacent inland county public shelter space is limited; and

(g) Large portions of the region are vested for development through Chapters 163 and 380, F.S., development orders and vested rights determinations.

(11) Mitigation of Hurricane Preparedness Impacts Within the Designated Special Hurricane Preparedness District of Southwest Florida. Mitigation of regional hurricane preparedness impacts within the designated Special Hurricane Preparedness District of Southwest Florida may be mitigated consistent with subsections (4) through (6) of this rule. If a DRI developer within the designated special hurricane preparedness district chooses not to mitigate a development’s regional hurricane preparedness impacts consistent with subsections (4) through (6) of this rule, the following mitigative criteria must be met:

(a) The DRI development order must incorporate those requirements identified in this rule.

(b) The first finished floor of all residential units shall be elevated above the anticipated category three flood level as identified by the regional hurricane evacuation study or all residential development with finished first floor levels below the anticipated category three flood level shall provide onsite shelter facilities where it is determined that the necessary evacuation roadway or public hurricane shelter capacity is unavailable or inadequate according to the regional hurricane evacuation study.

(c) All residential development shall provide shelter space at a ratio consistent with Rule 73C-40.0256, F.A.C., in common areas or other shelter areas.

(d) Mobile home developments shall have onsite storm evacuation centers with sufficient structural characteristics, warning systems, and evacuation procedures consistent with the requirements identified in subparagraph (5)(b)1. above for the resident population in the event of a hurricane.

(e) All onsite shelters within the category three hurricane evacuation zone shall be elevated to the anticipated category three flood level, be constructed to withstand winds of at least 120 miles per hour, be equipped with emergency power and potable water supplies, be constructed with a minimum of exterior glass, while providing adequate protection by shutters or boards for any glass used, and, have adequate ventilation, sanitary facilities, and first-aid equipment.

Rulemaking Authority 380.032(2)(a), 380.06(23)(a), (b), (c)1. FS. Law Implemented 380.06(23)(b) FS. History–New 11-30-88, Amended 7-11-90, 2-21-01, __________, Formerly 9J-2.0256.

 

73C-40.0257 Special Hurricane Preparedness Districts for Developments of Regional Impact.

 

Rulemaking Authority 380.032(2)(a), 380.06(23)(a), (b), (c)1. FS. Law Implemented 380.06, 380.06(23)(b) FS. History–New 11-30-88, Amended 7-11-90, 2-21-01, Formerly 9J-2.0257., , Repealed __________.

 

73C-40.028 Alternative Review Procedures. Master Development Approval Alternative Review Procedure.

(1) Master Development Approval Alternative Review Procedure.

(a)(1)  No change.

(b)(2) No change.

(c)(3) No change.

1.(a) No change.

2.(b) No change.

3.(c) No change.

4.(d) No change.

5.(e) No change.

(d)(4) No change.

(e)(5) No change.

(2) Downtown Development of Regional Impact Alternative Review Procedure.

(a) A downtown development authority may submit a downtown DRI application for development approval pursuant to Section 380.06(22), F.S and paragraph 73C-40.021, F.A.C.

(b) In addition to the requirements specified in Section 380.06(22), F.S., the following shall apply:

1. Upon request of the downtown development authority, the regional planning agency shall request that representatives of local government with jurisdiction over the land area participate in the preapplication conference arranged pursuant to Section 380.06(7), F.S., and Rule 73C-40.021, F.A.C.;

2. Questions in the application for development approval that are not appropriate for a downtown development area may be eliminated from the application by agreement between the regional planning agency and the downtown development authority pursuant to Section 380.06(7), F.S., and adopted rules of the regional planning agency.

3. In addition to the requirements for a development order specified in Sections 380.06(15) and (22), F.S., and Rule 73C-40.025, F.A.C., the development order shall specify a procedure for monitoring:

a. The amount of land use development occurring in each land use category pursuant to Section 380.06(22)(b), F.S.

b. The remaining capacities in public facilities and services and the condition of natural resources or archaeological or historical resources that are impacted by, or are pertinent to, the approved downtown development application and development order.

4. In addition to the requirements for the biennial report pursuant to Section 380.06(15)(c), F.S., and subsection 73C-40.025(7), F.A.C., the biennial report for an approved downtown DRI shall include:

a. A comparison of the amount of development approved in each land use category and the amount of land use actually developed as of the end of the year; and

b. A comparison of the remaining capacities in public facilities and services and the conditions of natural resources or archaeological or historical resources with the projected needs and impacts of the yet undeveloped land uses approved in the downtown development application and development order.

5. By written agreement the Division, the local government with jurisdiction, the downtown development authority and the regional planning agency may agree to eliminate or modify the requirements for the biennial report established in subsection 73C-40.025(7), F.A.C., which are not appropriate for a downtown DRI application.

(3) Forms.

The following forms shall be used to implement this rule and are available from the regional planning agency or from the Department at the following web address: http://www.floridajobs.org/community-planning-and-development/programs/community-planning-table-of-contents/general-information. 

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

(b) Form Number DEO-BCP-ADA-2, Development of Regional Impact Short Form Application for Development Approval, effective 3-23-94 (revised 10-1-11), is hereby incorporated by reference;

(c) 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), is hereby incorporated by reference;

(d) 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), is hereby incorporated by reference;

(e) Form Number DEO-BCP-BIENNIAL REPORT-1, Biennial Status Report, effective 6-1-03 (revised 10-1-11), is hereby incorporated by reference; and

(f) 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), is hereby incorporated by reference.

Rulemaking Authority 380.032(2)(a), 380.06(21)(c) and (23)(a)) FS. Law Implemented 380.06(21) and (22) FS. History–New 7-7-76 and Amended 5-4-83, Formerly 27F-1.24, 9B-16.28, Amended 11-20-90, 6-1-03, _________, Formerly 9J-2.028.

 

73C-40.029 Downtown Development of Regional Impact Alternative Review Procedure.

 Rulemaking Authority 380.032(2), 380.06(23) FS. Law Implemented 380.06(22) FS. History–New 5-4-83, Formerly 9B-16.29, Amended 11-20-90, 6-1-03, Formerly 9J-2.029. , 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: 1/3/2017

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 1/23/2017