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) Be in the form specified by this rule;

(b) Be rendered in the manner provided in this rule;

(c) Contain those items required by this rule; and,

(d) Otherwise meet the requirements for a development order provided in this rule.

(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.

(3) As used in this chapter, rendition or rendering means issuance of a written development order and transmittal of the order together with all pertinent attachments by first class U.S. Mail to the local government with jurisdiction, the regional planning agency, and the developer. A certified return receipt shall be prima facie evidence of transmittal.

(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. Consist of a written document which shall be printed, typewritten, or otherwise duplicated in legible form on white paper;

2. Include copies of all exhibits, attachments, and written materials, including portions of ordinances referenced in the text;

3. Include copies of any supplements, development plans, or specifications that are approved with the development order, but that are not in the application for development designation; and,

4. Contain the signature of the Executive Director 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) The copy of any FQD development order rendered by the Department shall contain the following:

1. The name of the development;

2. The authorized agent of the developer;

3. The name of the developer;

4. A statement that the Application for Development Designation is approved and the development is designated as an FQD subject to conditions set forth in the development order;

5. A description of the development approved, specifically including:

a. Acreage of each described land use;

b. Open space and green belts;

c. Areas designated for preservation and recreation;

d. As applicable, the location, square footage, and number of units of the structures or improvements to be placed on the property; and,

e. Other major characteristics or components of the development;

6. Findings of fact addressing whether and the extent to which:

a. The development is consistent with and furthers the goals and policies of the adopted state comprehensive plan;

b. The local government with jurisdiction has reviewed the development, has found the development consistent with the local government comprehensive plan, and has approved the designation of the development as an FQD, specifying the conditions for approval;

c. The Department has reviewed the development, has found it to be consistent with the state comprehensive plan, and has approved the designation of the development as an FQD, specifying the conditions of approval;

d. The development is in an Area of Critical State Concern;

e. The development is above the applicable development of regional impact thresholds, pursuant to section 380.06, F.S., and is thereby a development of regional impact;

f. The development will preserve, in perpetuity, wetlands and water bodies within the jurisdiction of the Department of Environmental Protection which occur on development property, specifying the mechanism to be used for the preservation of those wetlands and water bodies or stating that these lands do not occur on the development property;

g. The development will preserve, in perpetuity, active beaches and primary dunes that occur seaward of the coastal construction control line on development property, specifying the mechanism to be used for the preservation of those areas or stating that no active beaches or primary dunes occur on the development property;

h. The development will preserve, in perpetuity, all archaeological sites determined to be significant by the Department of State, Division of Historical Resources, specifying the mechanism to be used for the preservation of those sites or stating that no such sites occur on the development property;

i. The development will preserve, in perpetuity, areas known to be important to animal species designated as endangered or threatened by the United States Fish and Wildlife Service or the Florida Fish and Wildlife Conservation Commission, specifying the mechanism to be used for the preservation of those areas or stating that such areas do not occur on development property;

j. The development will preserve, in perpetuity, areas known to contain plant species designated as endangered by the Florida Department of Agriculture and Consumer Services, specifying the mechanism to be used for the preservation of those areas or stating that such areas do not occur on the development property;

k. The development will not produce or dispose of any substances designated as hazardous or toxic by the U. S. Environmental Protection Agency, the Florida Department of Environmental Protection, or the Florida Department of Agriculture and Consumer Services;

l. The development will participate in a downtown reuse or redevelopment program to improve and rehabilitate a declining downtown area if located in or adjacent to a redevelopment district;

m. The development will include open space and recreation areas, specifying the type and acreage of those lands;

n. The development will include energy conservation features;

o. The development will minimize impermeable surfaces;

p. The developer has entered into a binding commitment to provide for the construction and maintenance of all onsite facilities and services necessary to support the development;

q. The developer will provide for construction and maintenance of all onsite infrastructure necessary to support the project and enter into a binding commitment with the local government to provide an appropriate fair-share contribution toward offsite impacts that the development will impose on the publicly funded facilities and services; and,

r. For the purposes of offsite transportation impacts, the developer will comply, at a minimum, with the standards of the Department’s development of regional impact transportation rule if in effect, the approved regional strategic plan, and any applicable regional planning council transportation rule, and the approved local government comprehensive plan and land development regulations adopted pursuant to chapter 163, Part II, F.S.; and,

s. The development includes innovative design and quality of life features, or other development features that address the needs of the people as identified in the state comprehensive plan for those who will live and work in and near the development;

7. Conclusions of law, addressing:

a. The development complies with the provisions of section 380.061, F.S.; and,

b. The development as a development of regional impact designated as an FQD under chapter 380, F.S., development order, is exempt from development of regional impact review, pursuant to section 380.06, F.S., subject to the terms and conditions of the development order;

c. The designation of the development as an FQD and its authorization to commence development under a chapter 380, F.S., development order does not entitle the developer to any other necessary approvals or permits from any other authority or in any other jurisdiction;

8. A legal description of the property including the acreage;

9. The monitoring procedures for assuring development compliance with the development order and the assignment of monitoring responsibilities, as appropriate, to officials in the local government, regional planning council, and the Department;

10. Specification of the types of changes that will constitute a substantial change to the development order;

11. Development order conditions based on the recommendations submitted by the local government and the regional planning council. In the event of conflicting recommended development order conditions, the Department shall, after consultation with the local government and the regional planning council, resolve such conflicts in the development order;

12. Incorporation by reference, or by attachment, of the Application for Development Designation, the approval document of the local government with jurisdiction, including conditions for approval, and other relevant written documents;

13. Establishment of expiration dates for the development order, including a deadline for commencing physical development, for compliance with conditions of approval or phasing requirements, and for termination.

(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 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 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(4), 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, http://www.flrules.org/Gateway/reference.asp?No=Ref-08412; revised date: April 2017; effective date: July 2017, which is hereby incorporated 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. Every development order shall require the annual report to include the following:

(a) A statement regarding the status of private and publicly funded facilities and services needed to meet the needs of the proposed development for the upcoming year;

(b) Any changes in the plan of development or in the representations contained in the application for development designation or in the phasing for the reporting year and for the next year;

(c) A summary comparison of development activity proposed and actually conducted for the year;

(d) Undeveloped tracts of land, other than individual single family lots, that have been sold to a separate entity or developer;

(e) Identification and intended use of any lands purchased, leased, or optioned to purchase by the developer which are physically proximate to the FQD site since the development order was issued;

(f) An assessment of the developer’s compliance with the conditions of approval contained in the development order and the commitments which are contained in the application for development designation and which have been identified by the local government, the regional planning council, or the Department as being significant;

(g) An indication of a change, if any, in local government jurisdiction for any portion of the development since the development order was issued;

(h) A list of significant local, state, and federal permits that have been obtained or that are pending by agency, type of permit, permit number and purpose of each;

(i) A statement that all persons have been sent copies of the Annual Report; and,

(j) A statement confirming maintenance of conservation easements and maintenance and continuance of the restrictive covenants, if appropriate.

(7) After issuance of the FQD development order, subsequent requests for local development permits shall not require further FQD review by the Department or the local government unless otherwise stipulated in the development order. Factors requiring further FQD review shall include, but not be limited to:

(a) A substantial change from the terms or conditions in the development order or a departure from the approved plan of development which significantly decreases the positive aspects of the plan;

(b) Expiration of the period of effectiveness of the development order, or

(c) Conditions in the development order which specify circumstances in which the development will be required to undergo additional FQD review.

(8)(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-42.010, 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 (8), within this rule section, the developer may not proceed with such development.

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

(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

(10) 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.

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

(12) 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 FS. History–New 1-23-90, Amended 3-1-01, Formerly 9J-28.023, Amended 7-3-17.