Judges: Jim Smith Attorney General
Filed Date: 2/14/1986
Status: Precedential
Modified Date: 7/5/2016
Ms. Debra L. Romanello Attorney for the Hillsborough County City-County Planning Commission 401 South Florida Avenue Tampa, Florida 33602
Dear Ms. Romanello:
This is in response to your request for an opinion on substantially the following questions:
1. WHETHER SPECIFIC AMENDMENTS TO COMPREHENSIVE PLANS IN HILLSBOROUGH COUNTY MUST BE SUBMITTED FOR REVIEW TO THE DEPARTMENT OF COMMUNITY AFFAIRS.
2. WHETHER THE HILLSBOROUGH COUNTY CITY-COUNTY PLANNING COMMISSION IS REQUIRED TO HOLD A HEARING ON SPECIFIC AMENDMENTS TO COMPREHENSIVE PLANS.
3. WHETHER SPECIFIC AMENDMENTS TO COMPREHENSIVE PLANS IN HILLSBOROUGH COUNTY STILL REQUIRE THE CONCURRENCE OF A FOUR-FIFTHS MAJORITY OF THE GOVERNING BODY.
Your questions all involve the interpretation and application of provisions of the Hillsborough County Local Government Comprehensive Planning Act of 1975, Ch. 75-390, Laws of Florida, as amended by Ch. 77-564, Laws of Florida, in light of the enactment of the Local Government Comprehensive Planning and Land Development Regulation Act, Ch. 85-55, Laws of Florida, making substantial revisions to ss.
The Hillsborough County City-County Planning Commission was created by Ch. 78-523, Laws of Florida, and charged with the responsibility for preparing comprehensive plans and recommending any changes to adopted comprehensive plans for Hillsborough County and the municipalities therein, subject to the procedural requirements of Ch. 75-390, Laws of Florida, as amended by Ch. 77-564, Laws of Florida. The commission is the local land planning agency for purposes of, inter alia, public hearings to be held as part of the adoption process for a comprehensive plan or amendments thereto. Sections 6 and 11, Ch. 75-390, supra. See, Ch. 78-523, supra. Section 12 of Ch. 75-390, supra, provides that the procedure for amendment of an adopted comprehensive plan shall be as for the original adoption of the plan "unless a four-fifths majority of the governing body adopts a specific amendment to an adopted land use element of a comprehensive plan other than a comprehensive amendment to the land use element of a comprehensive plan." Section 12 further defines a specific amendment as "one which proposes to change a use in the land use element of the adopted comprehensive plan or proposes to change residential density on a parcel or parcels of land . . . provided that either the change in land use or residential density comprise less than 5 percent of the land area of the jurisdiction involved," and further deems all other amendments to the land use element to be comprehensive amendments. Thus, Ch. 75-390, supra, provides for a bifurcated plan amendment process requiring the adoption of comprehensive amendments by the same procedure as for adoption of the original plan, while specific amendments may be adopted by an abbreviated procedure as long as a super-majority of the governing body votes in favor of the amendment.
As originally enacted by Ch. 75-257, Laws of Florida, the Local Government Comprehensive Planning Act of 1975 also included a distinction as to procedures for comprehensive and specific plan amendments. As subsequently amended and codified at s.
Thus, the Local Government Comprehensive Planning Act of 1975, as amended, provided for a bifurcated procedure for amendments to an adopted comprehensive plan in a manner which paralleled that of Ch. 75-390, Laws of Florida, distinguishing between comprehensive and specific amendments. It required submission of amendments to a future land use element involving 5 percent or more of the total land area of the local governmental unit to the state land planning agency and further required public hearings by local governing bodies for both types of amendments. However, your letter of inquiry informs me that both the Hillsborough County City-County Planning Commission and the Department of Community Affairs have interpreted the super-majority requirement of s. 12 of Ch. 75-390, supra, for adoption of specific amendments by affected local governing bodies "as obviating the need for submission of specific plan amendments to the state and regional planning agencies, and for the conduct of a public hearing by the [Commission], so long as a four-fifths majority of the governing body agrees to the proposed amendment." See, s. 17, Ch. 75-257, supra, codified at s.
The enactment of Ch. 85-55, Laws of Florida, substantially revising ss.
Ordinarily, the rule in Florida is that a special act prevails over a general law to the extent of any conflict. Rowe v. Pinellas Sports Authority,
While Ch. 75-390, Laws of Florida, as amended, is presumptively valid unless and until judicially determined otherwise, I am unable to conclude that such provisions of that act as purport to authorize local governing bodies within Hillsborough County to adopt specific amendments to the land use element of an adopted comprehensive plan without submission to the state land planning agency and without determining that the local planning agency has held a public hearing on such amendments meet or exceed the provisions of Ch. 85-55, Laws of Florida, requiring submission of amendments generally to the state land planning agency and requiring the local governing body to determine that the local planning agency has held a public hearing on such amendments. Accordingly, I am of the view that all amendments to comprehensive plans or elements or portions thereof in Hillsborough County must be submitted for review to the Department of Community Affairs as the state land planning agency and that local governing bodies must determine that the Hillsborough County City-County Planning Commission as the local planning agency has held a public hearing on any such amendment prior to adoption thereof.
Finally, with respect to your third question, I am unable to conclude that a four-fifths majority vote of a governing body has ever been required for the adoption of an amendment to a comprehensive plan or element or portion thereof, pursuant to s. 12 of Ch. 75-390, Laws of Florida. By its terms, that section is not applicable "unless" a distinction is made between types of amendments for purposes of abbreviated procedures. Subsection (8) of s. 11 of Ch. 75-390, supra, has always required a vote of "not less than a majority of the total membership of the governing body" to adopt a comprehensive plan "or adopt it with changes or amendments." Thus, the four-fifths majority is not a requirement for adoption of an amendment which is subject to the same procedure as for the original adoption of the comprehensive plan. As I have concluded that the manifest legislative intent evidenced by Ch. 85-55, Laws of Florida, is that there is no longer any distinction between types of amendments, all amendments are thus subject to the same procedural requirements and thus may be adopted by "not less than a majority of the total membership of the governing body." Accordingly, no amendments to comprehensive plans in Hillsborough County require the concurrence of a four-fifths majority of the governing body.
In sum, then, and unless and until legislatively or judicially determined otherwise, it is my opinion that all amendments to comprehensive plans in Hillsborough County must be submitted for review to the Department of Community Affairs, that local governing bodies must determine that the Hillsborough County City-County Planning Commission has held a public hearing on any such amendment prior to adoption thereof, and that no amendments to comprehensive plans in Hillsborough County require the concurrence of a four-fifths majority of the governing body.
Sincerely,
Jim Smith Attorney General
Prepared by:
Kent L. Weissinger Assistant Attorney General
State v. Dunmann , 427 So. 2d 166 ( 1983 )
Rowe v. Pinellas Sports Authority , 461 So. 2d 72 ( 1984 )
State Ex Rel. Johnson v. Vizzini , 227 So. 2d 205 ( 1969 )
Oldham v. Rooks , 361 So. 2d 140 ( 1978 )
DEPT. OF LEGAL AFF. v. Sanford-Orlando Kennel Club, Inc. , 434 So. 2d 879 ( 1983 )
Parker v. State , 406 So. 2d 1089 ( 1981 )
City of Miami v. Kichinko , 156 Fla. 128 ( 1945 )