In 2009, the Florida Legislature passed Senate Bill 360 (“SB 360”), “The Community Renewal Act.” Shortly thereafter, several municipalities and counties, primarily in south Florida, filed suit challenging that law. In a somewhat confusing final summary judgment rendered August 26, 2010, the trial court in Tallahassee, declared SB 360 unconstitutional as a violation of Article VII, § 18(a) of the Florida Constitution, also known as the “unfunded mandate” provision. The court also declared that the “single subject” challenge pursuant to Article III, § 6, of the Florida Constitution was moot by virtue of the enactment of SB 1762 (Ch. 2010-3), and dismissed that claim.
SB 360 exempted developments located in specifically designated areas from transportation concurrency and from the development-of-regional-impact (“DRI”) program. It extended the expiration date of certain development orders and permits for a period of two years, and it contained provisions relating to impact fees, security camera regulation, mediation of intergovernmental disputes, and the elimination of the DRI process..
The final summary judgment appears to be internally inconsistent. The court ordered and adjudged that SB 360 is unconstitutional as a violation of the “unfunded mandate” provisions, even though the court’s reasoning only found that SB 360’s mandated adoption of comprehensive plan amendments and transportation strategies “to support and fund mobility” were impermissible unfunded mandates. The court concluded that the remaining portions of SB 360, including the above-referenced two-year permit extensions, involve genuine issues of material fact which would preclude the granting of summary judgment as to those items. The conclusion that one section of SB 360 is an impermissible “unfunded mandate” is inconsistent with the declaration that the entire statute is unconstitutional on this basis. This appears to violate the well-established principle that a statute will be declared unconstitutional only to the extent necessary, and since the court has not yet determined that the other sections of SB 360 constitute themselves “unfunded mandates,” it would appear that the final summary judgment is only “final” as to the provisions relating to mandated adoption of comprehensive plan amendments and transportation strategies “to support and fund mobility,” and not final as to the other sections. Hopefully, this inconsistency will be raised and addressed in a motion for rehearing and/or clarification of the court’s final summary judgment.
Even if SB 360 is declared unconstitutional as a whole, there still may be hope for those struggling with keeping their projects alive. The 2010 Florida Legislature adopted, and Governor Crist signed into law, Senate Bill 1752, which essentially restated and recodified the provisions of SB 360 regarding the two-year extension of certain development orders or permits. Standing alone SB 1752 does not appear to be vulnerable to the same analysis or argument that was applied by the court in its rulings on SB 360, even if the court subsequently determines (we would suggest incorrectly) that the unconstitutional provisions of SB 360 cannot be severed from the remaining provisions and that the statute, as a whole, is unconstitutional; or if the state allows the ruling to stand.
For more information about Wiliam Hyde, click here, or for more information about Brian Seymour, click here.
