Comprehensive plans and police power
Land in Florida is not a free-for-all. Before anyone builds, the county or city has already decided, in a written plan, what the area should look like in the future. As a licensee you do not need to draft these plans, but you do need to know how they control what a buyer can do with a property.
Police power vs eminent domain
Government controls private land through two very different powers.
| Police power | Eminent domain | |
|---|---|---|
| What it does | Regulates how owners use land | Takes ownership of private property |
| Purpose | Public health, safety, morals, and general welfare | A public use or purpose |
| Payment to owner | Normally none | Just compensation (usually fair market value) |
| Examples | Zoning, building codes, subdivision rules, environmental rules | Land for roads, schools, utilities |
Police power is the states' broad authority to pass laws for the public good, and states share it with counties and cities. Courts have recognized that it includes control over land use. Zoning, building codes, and subdivision rules are all police power.
Eminent domain is the power to take private property for public use. The Fifth Amendment requires the government to pay just compensation, generally measured by fair market value. The legal process for taking property this way is commonly called condemnation.
One overlap is worth knowing. If a regulation restricts use so severely that it amounts to a taking, the owner may be owed compensation even though nothing was physically seized.
The Community Planning Act
Florida's planning law is Part II of Chapter 163, which section 163.3161(1) says "may be cited as the Community Planning Act." Under 163.3167(2), every county and municipality must maintain a comprehensive plan. Once a plan is adopted, development and development orders must be consistent with it (163.3194(1)(a)).
The plan provides the principles, guidelines, standards, and strategies for the community's orderly future growth (163.3177(1)).
Required elements
Section 163.3177 lists what every plan must contain:
- A capital improvements element (163.3177(3)(a)), covering how needed public facilities will be paid for and built.
- Future land use (6)(a), which shows where each type of use, and how much density and intensity, is planned.
- Transportation (6)(b).
- A general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element (6)(c).
- Conservation (6)(d).
- Recreation and open space (6)(e).
- Housing (6)(f).
- Coastal management (6)(g), only for the coastal local governments the statute identifies.
- Intergovernmental coordination (6)(h).
- Property rights (6)(i).
Land development regulations
The plan is a policy document. The detailed, enforceable rules come from land development regulations: zoning, subdivision, sign, drainage, and similar ordinances. Section 163.3202(1) requires every county and city to adopt and enforce land development regulations that are consistent with and implement the plan. So if a rezoning request conflicts with the future land use map, the plan usually has to be amended first.
Concurrency
Concurrency is a simple idea: public facilities must be available when the new development that needs them arrives.
- Statewide, only sanitary sewer, solid waste, drainage, and potable water are subject to concurrency (163.3180(1)).
- A local government may choose to extend concurrency to other facilities, such as transportation or schools.
- Covered facilities must be in place and available to serve new development no later than the issuance of a certificate of occupancy or its functional equivalent (163.3180(2)).
Exam tip: Zoning, building codes, and planning are all police power, and no compensation is paid. If the question says the government is taking ownership, think eminent domain and just compensation.