UNFUNDED MANDATES &

THE CONSTITUTIONAL CHALLENGE TO SENATE BILL 360

  

September 24, 2009

City of Weston, et al. vs.

The Honorable Governor Charlie Crist, et al.

SB 360 LAWSUIT

JAMIE ALAN COLE, ESQ.Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.

Background of Lawsuit

Filed on July 8, 2009

Plaintiffs: Coalition of 18 local governments

Defendants: Governor, Speaker of House,

President of Senate and Secretary of State

Relief Sought: Declaration that SB360 was enacted in

violation of Florida Constitution and injunctive relief

Legal Causes of Action

Single Subject Rule

Unfunded Mandate Provision

Single Subject RuleArticle III, Section 6, Florida Constitution:

“Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.”

Single Subject Rule

Common provision: as of 2004, at least 43

states had some type of single subject

requirement in their Constitutions or

Statutes

Been part of Florida Constitution since

1868

Purposes of Single Subject Rule

Prevent log-rolling

Prevent surprise or fraud because legislators

could overlook additional subjects added to

bill

Fairly apprise public of subject of law to be

considered

Single Subject Rule: Violations

Most common circumstances leading to violation

When bills are amended numerous times

When title changes

When bill is passed near the end of the

legislative session

Single Subject Rule: Penalty

Effect of violation of Single Subject Rule

Entire law is VOID AND INVALID

SB360 Violates Single Subject Rule because it Contains THREE SUBJECTS

1. Growth mismanagement

2. Prohibits local government from adopting

standards for security cameras at

businesses

3. Affordable housing revisions

tax exemptions, methods of valuation of trust property, sales surtaxes, qualifications of affordable housing developers and amendments to powers of Florida Housing Finance Corporation

Circumstances of SB 360 enactment

Circumstances of enactment support claim of

violation of single subject rule

Short title: “An Act Relating to Growth

Management” – no mention of security cameras or

affordable housing

Amended numerous times

Final amendment that added affordable housing was

done in final hour of session: combined two bills

Unfunded Mandate Provision History of unfunded mandate provision

Late 1970s: Legislature adopted many bills that imposed costly

requirements on local governments without providing funding

1977: after public outcry, Legislature created Florida Advisory Council

on Intergovernmental Relations to examine unfunded mandates

1978: Legislature passed bill requiring economic impact statement of

laws

1980’s: these measures failed - legislature passed 362 unfunded

mandates from 1981-1990

Mid 1980’s: local governments organized petition drive to put

constitutional amendment on ballot to restrict unfunded mandates

Nov 6, 1990: Art. VII, Section 18(a) of the Constitution ratified by

voters

Three part analysis under Unfunded Mandate Provision

1. Does the law require local governments to spend funds or take

action requiring expenditure of funds?

2. If so, did Legislature determine that the law “fulfills an

important state interest?”

3. If so, did the general law either:

a. Include an appropriation of sufficient funds, or

b. Authorize a new funding source sufficient for the expenditure, or

c. Obtain approval by 2/3 vote of membership of each house, or

d. Apply the same to all similarly situated persons (including local

governments), or

e. Comply with a federal requirement?

SB 360 requires local governments to spend funds or take actions that require expenditure of funds

Staff analysis: “the bill will have a negative fiscal

impact on local governments that are designated

TCEAs by requiring updated comprehensive plans”

DCA analysis: SB 360’s requirements “will be a very

onerous and expensive task. However, no financial

support or new revenue sources have been provided

for the local governments to undertake this planning.”

• Specific expenditures: Cost to adopt amendments to comprehensive

plans Potential cost shift from developers to taxpayers

for roadway improvement Cost to implement and administer 2 year permit

extensions Cost to participate in mandatory mediation

process for intergovernmental disputes Cost to mitigate impacts across jurisdictional

boundaries that used to be addressed in DRI process

Cost to comply with notice and hearing requirements for automatic increases in impact fees

Cost to fund additional police services that could have been avoided by security camera regulations

SB 360 EXPENDITURES

IMPORTANT STATE INTEREST?

Legislative finding that bill fulfills

“important state interest”

SB360 does include such a finding, although it does not specify the purportedly important state interest

None of the additional five criteria are met

Appropriation of funds – no funds were appropriated

New funding source – no new funding source was

created

Two-thirds vote in each house – only received 78 out

of 120 in House of Representatives

Applicability to all similarly situated persons - only

applies to local governments

Compliance with federal requirements – no such

federal requirement exists

Status of Lawsuit

Motion to dismiss filed by each of the four defendantsEach claimed that they were not the right

person to defend the Constutionality of the enactment of SB 360

Court ruling on motion

Next steps in litigation

PRACTICAL IMPACTS ON LOCAL GOVERNMENT

JOHN R. FLINTCity Manager - City of Weston

Elimination of state-mandated DRI process

Assumption that transportation concurrency exists when a land use plan amendment is adopted

Disenfranchisement of surrounding local governments’ ability to participate in the planning process

Creation of unfunded mandatesAmendment of local comprehensive plansFunding of transportation mitigation

Weston Case ModelProposed development located in adjacent

community sharing a common boundary with the City of Weston

Proposed development is on 152 acres with a current land use designation of agricultural

Proposed development consists 2.1 million square feet development generating 32,000 trips per day

1.2 million square feet of commercial880,000 square feet of office350 hotel rooms

Weston Case Model

Adjacent community mandates NO local vehicular access to development from community’s local roads

The ONLY local vehicular access to the development is through the City of Weston

SB 360’S COST TO THE CITY OF WESTON

1. Amendment to the City’s Comprehensive Plan (one-time cost)

2. Funding of construction of roadway improvements to manage additional daily trips (one-time cost)

3. Degradation of quality of life for some residents – expansion of 4 lane divided to 6 lane divided (ongoing impact)

4. Additional police required to manage additional daily trips – (ongoing cost)

5. Use of city’s EMS & fire as closest units to respond – development has only emergency access to the adjacent community – (ongoing cost)

WHY SHOULD YOU BE CONCERNED?

Can happen to any local government where an adjacent local government is going to permit a development of regional impact

BENEFITS OF DEFEATING SB 360

Preserve almost 30 years of good and proven growth management legislation

Preserve local government’s ability to participate in the planning of developments of regional impact outside of their jurisdiction

Keep those responsible for and benefiting from the impacts of development responsible for funding those impacts

Protect the region from legislative bodies making parochial and selfish development decisions

POLICY IMPLICATIONS & LEGISLATIVE INCURSIONS INTO HOME RULE POWER

SUSAN L. TREVARTHEN, AICP, ESQ.Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.

Policy Implications of the Challenge

Should local governments implement the Bill?

If the challenge is successful, actions taken under the Bill may be of dubious validity:

DULA TCEAs

Permit Extensions

Rescission of DRIs

Supporting and Funding Mobility

Intergovernmental Coordination

Policy Implications of the Challenge DULA TCEAs: Is the Bill self-executing in creating

Transportation Concurrency Exception Areas (TCEAs) for Dense Urban Land Areas (DULAs)?

If not, DULAs that want to implement the DULA TCEAs

may want to amend their comprehensive plans.

If those plan amendments are not final before the Bill is

invalidated, they may become moot.

Alternatively, the amendments may need to be revised

to qualify under the traditional path to approval for

TCEAs.

Policy Implications of the Challenge

Permit Extensions: Should local governments

recognize permit extensions under the Bill, or steer

them through locally adopted procedures? Extensions pursuant to local law will be valid; extensions

under the Bill may become invalid along with the Bill.

Rescission of DRIs: Should local governments allow a

Development of Regional Impact (DRI) to rescind the

DRI Development Order pursuant to the Bill? Potential effect: loss of a specific development order

condition important to the local government, such as a prohibited use or limit on use or intensity that is not mirrored in other approvals?

Policy Implications of the ChallengeSupporting and Funding Mobility: Should Dense

Urban Land Areas start figuring out how to support and fund mobility? The clock is ticking on the two-year deadline. But if the

Bill is invalidated or if this obligation is substantially revised in 2010, those efforts may have been wasted.

Should all agencies affected by transportation issues be negotiating a new complementary approach to mobility, as encouraged by the Bill?

Intergovernmental Coordination: Should DULA local governments start to develop homegrown alternative methods for dealing with conflicts over large scale development, as a substitute for DRI review? Role of interlocal agreements?

Legislative Incursions into Home Rule Power The erosion of home rule powers makes it more difficult for local

governments to address local issues. “One size fits all” approaches do not address the substantial diversity of circumstance among Florida’s nearly 500 local governments. Even “two sizes fit all” is insufficient: look at the diversity of governments grouped together as DULAs and non-DULAs.

The Bill preempts local governments from adoption of regulations related to security cameras. See Section 163.31802, F.S.

There is also an argument that the DULA TCEAs are self-executing, and that local governments are preempted from continuing to enforce transportation concurrency as it existed before the Bill was enacted. See the Florida Senate Bill Analysis and Fiscal Impact Statement, dated March

19, 2009, which provides:

“Local governments that qualify as dense urban land areas and FDOT will lose the ability to collect proportionate fair share (other transportation concurrency costs) contributions and may lose the ability to collect proportionate share (DRI transportation costs) contributions from new development within dense urban land areas.”

However, the Bill also specifically protects home rule, as follows:

Section 163.3180(5)(f): “The designation of a transportation concurrency exception area does not limit a local government’s home rule power to adopt ordinances or impose fees. This subsection does not affect any contract or agreement entered into or development order rendered before the creation of the transportation concurrency exception area except as provided in s. 380.06(29)(e).”

Legislative Incursions into Home Rule Power

What is home rule? Local governments were granted home rule powers by the adoption of the 1968 Florida Constitution. Article VIII, Section 2(b) of the Florida Constitution provides: “Municipalities shall have governmental,

corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise power for municipal purposes except as otherwise provided by law.” [For Counties, see Article VIII, Section 1(f) & (g) of the Florida Constitution.]

Legislative Incursions into Home Rule Power

These home rule powers have also been further codified in Sections 166.021 (Municipality) & 125.01 (County), Florida Statutes.

Home rule powers allow local governments to govern themselves and adopt legislation freely, unless such actions are: 1) clearly preempted by state law or 2) in conflict with state law.

The Bill contains both express preemptions (security camera regulation) and requirements that have been argued to be implied preemptions (continued enforcement of concurrency in DULAs).

Legislative Incursions into Home Rule Power

Implied preemption of home rule powers is rarely found by the courts. Bryan A. Exile and Elliott M. Bloom v. Miami-Dade County, Case No. 09-51205 CA 13, Order Granting Judgment on the Pleadings (11th Jud. Circ. Ct., Sept. 23, 2009) (sex offender residency ordinance was not impliedly preempted; court’s analysis concluded that preemption has been found only once at the appellate level, and was rejected 18 times).

Test for implied preemption: Is the legislative scheme so pervasive as to evidence an intent to preempt the particular area? And do strong public policy reasons exist for finding a preemption? Both factors must exist, and the preemption must be clear and express. City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006) and Tribune Co. v. Cannella, 458 So. 2d 1075, 1077 (Fla. 1984). After all, “if the [L]egislature can easily create express preemption by including

clear language in a statute, there is little justification for the courts to insert such words in a statute.” Tallahassee Memorial Regional Medical Center, Inc. v. Tallahassee Medical Center, Inc., 681 So. 2d 826, 831 (Fla. 1st DCA 1996)

Legislative Incursions into Home Rule Power

Questions and Answers

The Bill creates major issues for intergovernmental coordination over cross-jurisdictional impacts.

The Bill violates the single subject rule, and fails to satisfy the test for a constitutional unfunded mandate.

Local governments face difficult choices as they consider whether and how to implement the Bill while the challenge is pending, especially in this time of constrained budgets and tax reform.

Look for glitch legislation to attempt to moot the challenge and for potential additional unfunded mandates related to mobility fees in the 2010 Legislative Session.

Conclusion