FORT MYERS BEACH, FLORIDA – OCTOBER 03: An area that once contained a building is shown swept clear in the wake of Hurricane Ian on October 3, 2022 in Fort Myers Beach, Florida. (Photo by Joe Raedle/Getty Images)
In case you hadn’t noticed the big mushroom cloud rising over Tallahassee, the state Legislature has begun gearing up for its next session in March.
As usual, the legislators have already been dropping bombshells left and right. Mostly right.
You’ve probably read about a few of the wackier bills that were filed by last week’s deadline:
Vouchers to make us taxpayers pay for even rich kids to attend private school – or just stay home and be “taught” by mom and dad. No more concealed weapons permits or gun training required in the state where the Pulse and Parkland massacres occurred. And let’s try to cut the high cost of housing here by banning local rent control rules.
The bill that really got my attention, though, was House Bill 359. It concerns comprehensive plans drawn up by local governments with the goal of snapping a leash on our uncontrolled growth.
In case you hadn’t noticed, Florida is undergoing a tremendous influx of new residents who clearly have no clue what they’ve gotten themselves into. They see the warm weather and no state income tax, and don’t realize how expensive life here can be, especially after a hurricane demolishes their new home. Some then move away again.
With so much new growth going on, a lot of local governments are eager to accommodate the wishes and whims of big-money developers. They don’t mind spreading that destructive sprawl all over an unspoiled landscape — even if it means altering a long-established comprehensive plan designed to protect some places.
Developers are pretty happy about that. They regard those comp plans the way the swashbucklers in the “Pirates of the Caribbean” movies regarded the Pirate Code: “More what you call ‘guidelines’ than actual rules.”
If HB 359 passes, anyone who challenges a local government for changing its comprehensive plan to kowtow to a developer, and then loses that challenge, is liable to wind up paying the legal bills of the winner.
Current law allows the loser to be stuck with court costs only. The price tag for paying for the other side’s high-priced legal counsel could run into the hundreds of thousands of dollars or worse.
Clearly this bill is meant to discourage all the little citizens’ groups fighting to keep sprawl from swamping their community and drowning what’s left of what’s good.
“It’s another means for developers to get a leg up,” said Gil Smart, policy director for Friends of the Everglades, the first person to fill me in on this disaster-in-the-making. His organization sent out a press release warning that the bill would “supercharge sprawl by punishing citizens who dare question it.”
The South Florida Sun Sentinel just did a story on it this week, and quoted a legal expert as saying pretty much the same thing.
“What this statutory scheme does is it prevents an aggrieved party from having their argument heard, because they’ll be fearful that they’ll be paying the municipalities’ legal fees,” Keith Poliakoff told the paper. He said the bill was “created by the development community to thwart appeals of land-use changes.”
The sponsor for HB 359 is a state representative named Wyman Duggan. He has the ideal name for an old-fashioned rhinestone-suited country singer like Porter Wagoner (“Now let’s welcome to the Grand Ol’ Opry Stage, Wyman Duggan and the Fabulous Dugouts!”).
I regret to report that this is not his real profession. Instead, Rep. Duggan earns his living as a Jacksonville developers’ attorney.
His firm brags that his practice areas “include land use, zoning, permitting (and) developments of regional impact.” I guess the part about “paving over wetlands and killing endangered critters” is implied.
He is also continuing a crusade by the state’s builders and developers that has been wrecking this state for decades.
Removing all restraints
Hey kids, remember the groovy decade of the ‘70s? No? Just me? (Dang, I’m old.)
They were all about style. They promoted the idea that being well-dressed and put together was the key to looking and feeling good — and maybe knowing the latest disco dance steps.
In the 1970s, Florida, unlike the stars of those movies, did NOT look good. It was nowhere near put together. Runaway growth was rolling over everything precious like a steamroller crushing a gleaming saxophone.
The style was no style at all, and instead of a smooth disco dance step, the most common move was just flailing around as if ants were attacking your nether regions.
Some counties didn’t even have zoning. You could find a hog pen stinking up a bunch of single family homes and a strip shopping center constructed next to an industrial site. Developers built whatever they wanted, wherever they wanted, and that’s the way they liked it.
The result: congested roads, crowded schools, overloaded sewers and other signs that Florida was being overwhelmed. That hodge-podge approach to development was ruining the state.
That’s why, in 1975, the Legislature passed the state’s first law on comprehensive planning. It required every local government to come up with a plan directing its future growth to the appropriate places and steering it away from where it shouldn’t go.
But there was no penalty for not following the comp plan. And there was no requirement for the plan of, say, Fort Lauderdale to match the plan of Broward County, or even the cities surrounding Fort Lauderdale. It was still every government for itself and the hodge-podge approach persisted.
Florida’s planning didn’t really get serious until lawmakers approved the 1985 Growth Management Act, the most necessary growth law ever passed in a state where around 1,000 new people a day arrive..
The new law required all the comp plans to mesh together with the state’s own plan, and be approved by the state itself. That way the planning made something like sense.
The new law also offered enhanced “citizen standing,” meaning you and I had the right to go to court and challenge any government land-use decisions that seemed off-base.
Oh man, did Florida’s growth machine HATE that. They hated any attempt to slam on the brakes or steer them away from sensitive parcels.
The builders also hated the state agency in charge of enforcing the growth management law, the Department of Community Affairs. As a result, they hung a target on it, and worked tirelessly to put in office people who would remove their unwanted restraints.
By 2011, they had succeeded in electing (barely) an awkward, anti-government governor named Rick “I Was Never Criminally Charged” Scott. Shortly after he took office, he claimed the state’s growth agency was, as one news story put it, “a red-tape-crazy job-killer standing in the way of economic recovery.”
With the backing of a developer-financed, staunchly pro-growth Legislature, he got rid of it. Reporters later discovered that the law deep-sixing the agency was actually written by a pair of development attorneys not unlike Rep. Duggan.
The sheer number of massive traffic jams and sewage spills we’ve experienced in just the past couple of years should tell you how well that’s worked out. See also the rampant damage of over-developed beach areas hit by Hurricane Ian.
Tanks in the square
Despite the obvious consequences, ever since 2011 builders and developers have been chipping away at the remaining vestiges of the growth management system. Every year they knock off another piece.
For instance, their Navy-capped pet governor, Scott, repeatedly vetoed any state funding for the state’s regional planning councils, requiring them to lay off employees and ignore some of their duties.
Meanwhile the developers got legislators to restrict local governments’ use of impact fees to pay for the consequences of new growth.
Incidentally, in case you’re concerned about our current crisis of affordable housing, there’s one of the causes. Because new growth isn’t being made to pay for the roads, sewers, water plants, schools and other infrastructure that the new residents need, all the taxpayers get stuck with the bill.
Our current governor, Ron “I Love the Smell of Asphalt in the Morning” DeSantis, has been as eager as Scott to accommodate the developers’ every desire.
For instance, in 2019, he signed into law a bill that said anyone who challenged a local government’s development order and then loses that challenge could be forced to pay the other side’s attorney fees.
Sound like a familiar strategy?
By making those brave souls who would challenge any changes pay for the lawyers who defeated them, the developers hoped to discourage anyone from filing a challenge. Now they’re doing it again, but with comp plans.
It’s as if they were driving all the tanks that rolled into Tiananmen Square in 1989 and they’re aiming straight at that one little guy standing in the way.
Throwing a wet blanket
To get more information about all this, I called up Charles Gauthier, who was chief of the Bureau of Local Planning for the now-demolished state agency.
His job involved reviewing all of the comp plans submitted by local governments. He once testified that he and the 47 planners he supervised reviewed 500 local government comp plan amendments a year.
Now he roves the state, testifying on behalf of those who are battling to keep their comp plans intact. When I asked him about HB 359, he gave it a big thumbs-down. The motive for it is obvious, he said.
“I think it’s designed to throw a wet blanket on anyone who’d challenge a comp plan change,” he said.
Everything about state and local government growth management has gone downhill since the 2011 dismantling of the Department of Community Affairs, he said. Now the last line of defense tends to be those outraged neighbors trying to save their community from destruction.
He named off several places around the state – Lee County, for one – where the conflict at the local government level has grown hotter than a New College board of trustees meeting.
Frequently local governments, frightened by the prospect of a punitive Bert Harris Act lawsuit, are bending over backward to cater to a developer. The only people with the gumption to fight back are the feisty citizen’s groups, he said.
Being ordered to pay the other side’s legal bills in even one such case would crush them. Imagine if they lost more than once. They’d have to take out a bank loan just to turn the lights on.
And to make things even more intimidating, Gaulthier pointed out, the appeals of such cases tend to wind up in front of the governor and Cabinet. That bunch has proven to be downright eager to rule in favor of developers, no matter what a judge decided.
“There’s a big sprawl push occurring right now,” he told me, “and this will kick the gate right open… We’re all going to suffer the consequences.”
The honorary chair
Being a big believer in trying to tell you both sides of a story, I tried repeatedly to contact Rep. Duggan this week.
I figured that, being a skilled attorney, he could easily explain why he filed a bill so despised by pro-planning, pro-environment groups. Surely there must be an upside to this bill for his Jacksonville constituents, not just for his developer clients.
But even though I left messages at both of his legislative offices and his law office, he never called me back. Perhaps he was too busy counting up all the billable hours he planned to charge to the builders.
He did send a terse response to an email, though, saying that his bill merely “mirrors the change made in 2019.”
That’s one mirror I’d like to break, or I think we’ll see more than seven years of bad luck for the future of Florida.
The good news is that there’s no Senate companion bill to HB 359 – at least, not yet. That means Duggan’s bill is not a slam-dunk the way most of those other weird and mean ideas that popped out last week appear to be.
But if HB 359 does wind up passing this pro-industry, anti-citizen Legislature, I have a suggestion. I think in the future, anyone who wants to combat any destructive comp plan change should form a new citizen’s group to take up the cause. The new group should list Rep. Duggan as both its honorary chairman and finance coordinator.
Then, if the challenge should fail, the members of the citizen’s group can just tell the winners, “Hey, send HIM the bill.”
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