Judges: Joslyn Wilson Assistant Attorney General
Filed Date: 4/9/1979
Status: Precedential
Modified Date: 7/5/2016
Neal D. Bowen City Attorney Sanibel
QUESTION:
Must development on property owned by a district school board, situated within the municipal limits and used for school purposes, comply with a municipal comprehensive land-use plan and development regulations thereto and obtain development permits thereunder, as adopted pursuant to the Florida Logal Government Comprehensive Planning Act (s.
SUMMARY:
Development on real property owned by a district school board situated within a municipality must comply with that municipality's comprehensive land-use plan as adopted pursuant to the Florida Local Government Comprehensive Planning Act, provided the local land-use plan or the development permits required by it do not relate to or regulate the same subject as the State Uniform Building Code for Public Educational Facilities Construction.
The Florida Local Government Comprehensive Planning Act, ss.
According to the materials enclosed with your letter of inquiry, the City of Sanibel on July 19, 1976, adopted a comprehensive land-use plan in accordance with the provisions of the Florida Local Government Comprehensive Planning Act of 1975; the city's plan sets forth substantive standards and procedural guidelines for all development on Sanibel and generally requires that an entity, building or making any material change in the use or appearance of any structure or land, obtain a development permit from the city. During one conversation with this office, you stated that the city's land-use plan does not regulate the same subject as the State Uniform Building Code for Public Educational Facilities Construction, see s. 235.26, F. S.; rather, as you stated in a subsequent letter, Sanibel's land-use plan, adopted pursuant to ss.
Such a distinction between the city's land-use plan and its building code must be observed with respect to school facilities. Section 235.26(1), F. S., clearly provides that all educational facilities constructed by a school board shall incorporate the State Uniform Building Code for Public Educational Facilities Construction and `shall be exempt from all state, county, district, municipal, or local building codes, interpretations, building permits and assessments of fees for building permits, and ordinances. . . .' This subsection was added to s. 235.26 in 1977 by Ch. 77-458, Laws of Florida, subsequent to the adoption of the Florida Local Government Comprehensive Planning Act in 1975 and would clearly prevail over any inconsistencies that might exist under ss.
The State Uniform Building Code for Public Educational Facilities Construction shall have the force and effect of law and shall supersede any other code adopted by a board or any other building code or ordinance for the construction of educational facilities, whether at the local, county, or state level, and whether adopted by rule or legislative enactment. All special acts or general laws of local application are hereby repealed to the extent that they conflict with [s. 235.26, F. S.].
See also s. 235.26(10), which, pursuant to s. 11(a)(21) of Art. III of the State Constitution, prohibits the enactment after July 1, 1974, of any special or general law of local application which proposes to amend, alter, or contravene any provisions of the State Building Code adopted under the authority of s. 235.26. Cf. AGO 075-98. It is therefore assumed for the purposes of this opinion that the city's land-use plan and development permits required thereunder adopted pursuant to the Comprehensive Planning Act do not apply to or regulate the same subject as the State Uniform Building Code for Public Educational Facilities Construction.
Section
After a comprehensive plan or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted. All land development regulations enacted or amended shall be consistent with the adopted comprehensive plan or element or portion thereof. (Emphasis supplied.)
Governmental agency, as used in this act, is defined in pertinent part to include `[a]ny school board or other special district, authority, or governmental entity.' (Emphasis supplied.) Section
In village of North Palm Beach v. School Board of Palm Beach County,
In cases of governmental disputes as to whether zoning requirements of one governmental body applies [sic] to another governmental body when seeking to use land contrary to applicable zoning regulations, the balancing-of-public-interests test (sometimes referred to as the balancing-of-competing-public-interest test), in the absence of statutory authority, allows for the greatest flexibility and fairness in determining the issue. Therefore, we adopt the balancing-of-public-interests test for resolving zoning conflicts between different governmental bodies . . . . (Emphasis supplied.)
The court applied the balancing-of-public-interest test in the absence of statutory authority. See also City of Temple Terrace v. Hillsborough Association for Retarded Citizens,
Therefore, I am of the opinion that, until and unless judicially determined to the contrary, development on property owned by a district school board which is situated within a municipality must comply with the municipality's comprehensive land-use plan adopted pursuant to the Florida Local Government Comprehensive Planning Act, provided that the local land-use plan or the development permits required thereunder do not relate to or regulate the same subject as the State Uniform Building Code for Public Educational Facilities Construction.
Prepared by:
Joslyn Wilson Assistant Attorney General
State v. Egan , 287 So. 2d 1 ( 1973 )
Reino v. State , 352 So. 2d 853 ( 1977 )
HILLSBOROUGH ASS'N ETC. v. City of Temple Terrace , 332 So. 2d 610 ( 1976 )
Albury v. City of Jacksonville Beach , 295 So. 2d 297 ( 1974 )
Ross v. Gore , 48 So. 2d 412 ( 1950 )
Ervin v. Capital Weekly Post , 97 So. 2d 464 ( 1957 )
Village of North Palm Beach v. School Bd. , 349 So. 2d 683 ( 1977 )
Richard Bertram & Co. v. Green , 132 So. 2d 24 ( 1961 )
City of Temple Terrace v. HILLSBOROUGH ASS'N, ETC. , 322 So. 2d 571 ( 1975 )