The Florida Senate hailed the signing late last week of a wide-ranging bill aimed at bolstering the state’s handling of hurricanes, but a legal battle could lie ahead, as Gov. Ron DeSantis provided his signature over objections that portions will trample on local governments’ authority to regulate land use and development in their own communities.

Senate Bill 180, which carries the title “Emergencies,” implements a multitude of new requirements intended to bring clearer and more streamlined processes in terms of how the state prepares, responds and recovers from the annual scourge of hurricanes.

But critics, including several local governments and advocacy organizations, called for the governor to veto the bill, arguing portions aimed at facilitating rebuilding include vague and overbroad language that would “effectively halt” local governments from pursuing any planning efforts that could be viewed as more restrictive or burdensome.

“It’s not just development regulations related to hurricane recovery. It’s anything. So it just kind of opens the complete door to development,” said Jamie A. Cole, a partner at Weiss Serota Helfman Cole + Bierman PL who has specialized in home rule matters. “It’s an unbelievable intrusion into home rule authority for cities, because cities basically can no longer pass things that they think are in the best interest of their community.”

In a statement issued after the bill’s signing, its sponsor, Sen. Nick DiCeglie, R-Indian Rocks Beach, said lawmakers were fighting to help homeowners and other property owners rebuild without added bureaucratic delay or burdens. The Legislature mandated that counties and municipalities develop plans to expedite post-storm permitting and inspections while preventing them from increasing certain fees during these periods.

But the new law, now enrolled as Section 2525-190 of the Florida Statutes, also went beyond that, stating that for one year after a hurricane makes landfall, certain “impacted local governments” are prohibited from adopting a moratorium on “construction, reconstruction or redevelopment of any property,” as well as new land-use and development regulations that are “more restrictive or burdensome.” It also provides a path for private parties to bring civil suits for alleged violations.

Another section applies similar prohibitions retroactively to Aug. 1, 2024, and through Oct. 1, 2027, for all counties and municipalities within them that were covered by federal emergency declarations related to Hurricanes Debby, Helene or Milton, which struck the state last year.

Since the declarations for those three storms collectively covered every county in the state, that three-year window appears to restrict local land-use planning for every inch of the state for the near future, multiple sources said.

Cole’s fellow Weiss Serota partner Susan Trevarthen said it appears these provisions will result in a “loss of home rule or local government authority over land use and zoning that’s contemplated by the 1968 Florida Constitution.”

And while some parts reference damaged or destroyed properties, others are “completely detached from damage or impact,” Cole said. Given the annual cycle of the hurricane threat, the city of Winter Haven noted in its veto request letter that if storms continue to make landfall each year, that could effect a “rolling ban on local land-use authority.”

Cole and Trevarthen said they are advising clients to review all land-use and development regulations adopted since Aug. 1, 2024, but they also said they have been contacted by several cities about potentially filing lawsuits and are analyzing the situation and considering which legal theories they would use.

“There’s always potential legislative fixes a year from now, but that’s a year from now. That doesn’t really do much good for a year,” Cole said. “Since the governor ignored the veto letters and then signed it, cities are in a tough spot right now. And they’re going to have to decide whether to just abide by it or try to challenge it.”

In their veto request letters, cities and organizations cited a variety of concerns.

Several brought up the threat to measures they spent considerable time and money — including state grants — to develop and enact within the retroactive reach of the new law. Many of these were implemented with broad public support or in response to public demands, they said.

Winter Haven cited a new forestry plan it said it adopted with broad community support in September, and New Smyrna Beach brought up new stormwater master plans aimed at addressing chronic flood risks resulting from the city’s bowl-shaped topography. Lake Alfred in Polk County noted it had made substantive changes to its land development code, mostly including elements aimed at clarifying and streamlining processes but also some compromises that in isolation could be viewed as more burdensome.

“[M]any of these balanced provisions within our code may need to be repealed to revert to an earlier version of the code,” Lake Alfred’s city manager wrote. “This could put pending residential developments that are already in the planning process back into custom zoning processes which on net may be more burdensome to development.”

Cutler Bay, in Miami-Dade County, and the Florida Floodplain Managers Association both expressed concerns that the prohibitions could undermine municipalities’ efforts to implement floodplain management policies that have helped improve their ratings in the federal National Flood Insurance Program’s Community Rating System and saved resident policyholders hundreds of dollars in policy costs each year.

Winter Haven’s city leaders said the lack of definition of the terms “more restrictive” and “burdensome,” coupled with a one-way attorney fee provision for plaintiffs filing legal challenges to local government regulations, could lead to more speculative lawsuits. And they suggested the prohibition on any development moratorium is “short-sighted” and “irresponsible” for not considering critical situations such as a local water supply being at risk after a storm.

They also pointed out that given the annual cycle of hurricane season, the law may be “essentially creating a rolling ban on local land-use authority,” as any storm that passes within 100 miles of a county could trigger a year-long prohibition even if the community experiences no actual damage.

Making a similar point, Weiss Serota’s Trevarthen noted these kinds of regulations take time to go through the process of identifying an issue in the community, writing legislation, publishing notices, and holding public hearings and multiple readings at government meetings.

“So what that creates is a perpetual situation where it’s chaotic and unpredictable when local governments will ever have the local land-use powers again,” she said. “It just doesn’t work to try to use your government when it’s like some kind of child’s game where you’re running for a minute, and then you have to stop, and then you run.”

How this will play out and what the exact impact of the law will be on development across the state remains to be seen, several attorneys said. Several of the objecting cities did not immediately respond to requests for comment, nor did the governor’s office or the bill sponsor DiCeglie.

As Trevarthen noted, the cities and counties that already have tighter regulatory regimes will have fewer reasons to adopt more restrictive or burdensome policies, so the law is likely to have a more dramatic impact on areas that have not been as affected by hurricanes in the past and with local governments that are still learning what they need to do to mitigate risk and better protect their communities.

Barbara Blake Boy, executive director of the Broward County Planning Council, said that because of S.B. 180, the council paused meetings for the summer to review updates being drafted for the county’s land-use plan, which they revise every seven years, to see what might potentially be more restrictive or burdensome and need modifying.

She said most of the proposals so far are incentive-based and, she thinks, should not run afoul of those provisions. The council’s review of everything adopted since Aug. 1, 2024, reached similar conclusions, she said, while adding there’s always a chance an attorney might claim any provision is more burdensome.

Rebecca Wilson, co-chair of the land-use, zoning and environmental group at Lowndes, said how various local governments choose to handle the situation could depend on their particular regulations or processes.

“For those local governments which adopted moratoriums after the hurricanes, it is clear those are void,” she said. “For other regulations, such as changes to a land development code, there may be some argument about the definition of ‘burdensome.’ It may also be the case that a new regulation as applied to one property is not more burdensome, but when the same regulation is applied to another property, it is more burdensome. In that instance, the property may be able to claim that while the entire regulation is not void, it is void as applied to their parcel.”

Keith Poliakoff of the Government Law Group said he thinks the legislation — similar to the comparable Senate Bill 250 that was passed in 2023 in the wake of Hurricane Ian — is aimed more at the actions of a few governments along the state’s west coast, which has suffered the most severe damage from hurricanes over the past several years.

Poliakoff said he disagrees with statements made by the Florida Chapter of the American Planning Association and others that the law eliminates the ability of the state and its communities to learn from storms and make changes to protect against future ones.

While several critics pointed to the example of how the Florida Building Code and several local building regulations were revamped after the devastation of 1992’s Hurricane Andrew — changes that have been credited for the strong performance of newer buildings in recent storms — Poliakoff said those codes are regularly reviewed and considered among the strongest in the country.

He also suggested this new law is in line with a clear priority the Florida Legislature has set to protect private property rights, adding he thinks it will hold up in court.

“This is not the first time in the modern era that the Florida Legislature has imposed mandates and has clawed power from local governments who they believe to be overreaching,” he said. “So while a local government could attempt to challenge the law based on constitutional grounds, after practicing for nearly 30 years, I believe the law as written has merit in that the Florida Legislature’s bill, as written, will prevail.”

But Poliakoff also acknowledged the language in the law is “written incredibly broad[ly]” and said that while everything is written under the guise of hurricane recovery, local governments may be founded in their concerns that the language and retroactive application can apply to properties that have not been impacted by storms and “a whole slew of redevelopment, which, quite honestly, is probably what the Florida Legislature wanted.”

With fundamental issues and real life impacts at stake, these issues bear watching, Weiss Serota’s Trevarthen suggested.

“You don’t have power if you can only use it to say yes,” she said. “So it’s that fundamental — it’s that big of an impact on local government power and on the power of communities to decide for themselves the kinds of communities they want to be.”

Article Link: Local Restrictions In New Fla. Hurricane Law Cause Friction
Author: Nathan Hale