Florida Senate - 2015                        COMMITTEE AMENDMENT
       Bill No. CS for SB 284
       
       
       
       
       
       
                                Ì918134#Î918134                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/14/2015           .                                
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       Appropriations Subcommittee on General Government (Dean)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraphs (b), (c), and (d) of subsection (4)
    6  of section 70.001, Florida Statutes, are redesignated as
    7  paragraphs (c), (d), and (e), respectively, and amended,
    8  paragraphs (f) and (g) of subsection (3) and subsection (10) are
    9  amended, and a new paragraph (b) is added to subsection (4) of
   10  that section, to read:
   11         70.001 Private property rights protection.—
   12         (3) For purposes of this section:
   13         (f) The term “property owner” means the person who holds
   14  legal title to the real property that is the subject of and
   15  directly impacted by the action of a governmental entity at
   16  issue. The term does not include a governmental entity.
   17         (g) The term “real property” means land and includes any
   18  appurtenances and improvements to the land, including any other
   19  relevant real property in which the property owner has had a
   20  relevant interest. The term includes only parcels that are the
   21  subject of and directly impacted by the action of a governmental
   22  entity.
   23         (4)
   24         (b) Upon receipt of a written claim, a governmental entity
   25  may treat the claim as pending litigation for purposes of s.
   26  286.011(8).
   27         (c)(b) The governmental entity shall provide written notice
   28  of the claim to all parties to any administrative action that
   29  gave rise to the claim, and to owners of real property
   30  contiguous to the owner’s property at the addresses listed on
   31  the most recent county tax rolls. Within 15 days after the claim
   32  is being presented, the governmental entity shall report the
   33  claim in writing to the Department of Legal Affairs, and shall
   34  provide the department with the name, address, and telephone
   35  number of the employee of the governmental entity from whom
   36  additional information may be obtained about the claim during
   37  the pendency of the claim and any subsequent judicial action.
   38         (d)(c) During the 90-day-notice period or the 150-day
   39  notice period, unless extended by agreement of the parties, the
   40  governmental entity shall make a written settlement offer to
   41  effectuate:
   42         1. An adjustment of land development or permit standards or
   43  other provisions controlling the development or use of land.
   44         2. Increases or modifications in the density, intensity, or
   45  use of areas of development.
   46         3. The transfer of developmental rights.
   47         4. Land swaps or exchanges.
   48         5. Mitigation, including payments in lieu of onsite
   49  mitigation.
   50         6. Location on the least sensitive portion of the property.
   51         7. Conditioning the amount of development or use permitted.
   52         8. A requirement that issues be addressed on a more
   53  comprehensive basis than a single proposed use or development.
   54         9. Issuance of the development order, a variance, special
   55  exception, or other extraordinary relief.
   56         10. Purchase of the real property, or an interest therein,
   57  by an appropriate governmental entity or payment of
   58  compensation.
   59         11. No changes to the action of the governmental entity.
   60  
   61  If the property owner accepts a the settlement offer, either
   62  before or after filing an action, the governmental entity may
   63  implement the settlement offer by appropriate development
   64  agreement; by issuing a variance, special exception, or other
   65  extraordinary relief; or by other appropriate method, subject to
   66  paragraph (e) (d).
   67         (e)(d)1. When Whenever a governmental entity enters into a
   68  settlement agreement under this section which would have the
   69  effect of a modification, variance, or a special exception to
   70  the application of a rule, regulation, or ordinance as it would
   71  otherwise apply to the subject real property, the relief granted
   72  shall protect the public interest served by the regulations at
   73  issue and be the appropriate relief necessary to prevent the
   74  governmental regulatory effort from inordinately burdening the
   75  real property.
   76         2. When Whenever a governmental entity enters into a
   77  settlement agreement under this section which would have the
   78  effect of contravening the application of a statute as it would
   79  otherwise apply to the subject real property, the governmental
   80  entity and the property owner shall jointly file an action in
   81  the circuit court where the real property is located for
   82  approval of the settlement agreement by the court to ensure that
   83  the relief granted protects the public interest served by the
   84  statute at issue and is the appropriate relief necessary to
   85  prevent the governmental regulatory effort from inordinately
   86  burdening the real property.
   87  
   88  This paragraph applies to any settlement reached between a
   89  property owner and a governmental entity regardless of when the
   90  settlement agreement was entered so long as the agreement fully
   91  resolves all claims asserted under this section.
   92         (10)(a) This section does not apply to any actions taken by
   93  a governmental entity which relate to the operation,
   94  maintenance, or expansion of transportation facilities, and this
   95  section does not affect existing law regarding eminent domain
   96  relating to transportation.
   97         (b) This section does not apply to any actions taken by a
   98  county with respect to the adoption of a Flood Insurance Rate
   99  Map issued by the Federal Emergency Management Agency for the
  100  purpose of participating in the National Flood Insurance
  101  Program, unless such adoption incorrectly applies an aspect of
  102  the Flood Insurance Rate Map to the property, in such a way as
  103  to, but not limited to, incorrectly assess the elevation of the
  104  property.
  105         Section 2. Section 70.45, Florida Statutes, is created to
  106  read:
  107         70.45 Governmental exactions.—
  108         (1) As used in this section, the term:
  109         (a) “Damages” means, in addition to the right to injunctive
  110  relief, the reduction in fair market value of the real property
  111  or the amount of the fee or infrastructure cost that exceeds
  112  what would be permitted under this section.
  113         (b) “Governmental entity” has the same meaning as provided
  114  in s. 70.001(3)(c).
  115         (c) “Prohibited exaction” means any condition imposed by a
  116  governmental entity on a property owner’s proposed use of real
  117  property that lacks an essential nexus to a legitimate public
  118  purpose and is not roughly proportionate to the impacts of the
  119  proposed use that the governmental entity seeks to avoid,
  120  minimize, or mitigate.
  121         (d) “Property owner” has the same meaning as provided in s.
  122  70.001(3)(f).
  123         (e) “Real property” has the same meaning as provided in s.
  124  70.001(3)(g).
  125         (2) In addition to other remedies available in law or
  126  equity, a property owner may bring an action in a court of
  127  competent jurisdiction under this section to recover damages
  128  caused by a prohibited exaction. Such action may not be brought
  129  until a prohibited exaction is actually imposed or required in
  130  writing as a final condition of approval for the requested use
  131  of real property. The right to bring an action under this
  132  section may not be waived. This section does not apply to impact
  133  fees adopted under s. 163.31801 or non-ad valorem assessments as
  134  defined in s. 197.3632.
  135         (3) At least 90 days before filing an action under this
  136  section, but no later than 180 days after imposition of the
  137  prohibited exaction, the property owner shall provide to the
  138  relevant governmental entity written notice of the proposed
  139  action. This written notice shall identify the exaction that the
  140  property owner believes is prohibited, briefly explain why the
  141  property owner believes the exaction is prohibited, and provide
  142  an estimate of the damages. Upon receipt of the property owner’s
  143  written notice, the governmental entity may treat the claim as
  144  pending litigation for purposes of s. 286.011(8). Upon receipt
  145  of the written notice:
  146         (a) The governmental entity shall review the notice of
  147  claim and respond in writing to the property owner by
  148  identifying the basis for the exaction and explaining why the
  149  governmental entity maintains that the exaction is proportionate
  150  to the harm created by the proposed use of real property, or by
  151  proposing to remove all or a portion of the exaction.
  152         (b) The written response may not be used against the
  153  governmental entity in subsequent litigation other than for
  154  purposes of assessing attorney fees and costs under subsection
  155  (5).
  156         (4) For each claim filed under this section, the
  157  governmental entity has the burden of proving that the exaction
  158  has an essential nexus to a legitimate public purpose and is
  159  roughly proportionate to the impacts of the proposed use that
  160  the governmental entity is seeking to avoid, minimize, or
  161  mitigate. The property owner has the burden of proving damages
  162  that result from a prohibited exaction.
  163         (5) The court may award attorney fees and costs to the
  164  prevailing party; however, if the court determines that the
  165  exaction which is the subject of the claim lacks an essential
  166  nexus to a legitimate public purpose and is not roughly
  167  proportionate to the impacts of the proposed use, the court
  168  shall award attorney fees and costs to the property owner.
  169         (6) To ensure that courts may assess damages for claims
  170  filed under this section in accordance with s. 13, Art. X of the
  171  State Constitution, the state, for itself and its agencies or
  172  political subdivisions, waives sovereign immunity for causes of
  173  action based upon the application of this section. Such waiver
  174  is limited only to actions brought under this section.
  175         (7) This section applies to any prohibited exaction imposed
  176  or required in writing on or after October 1, 2015, as a final
  177  condition of approval for the requested use of real property.
  178         Section 3. Section 70.80, Florida Statutes, is amended to
  179  read:
  180         70.80 Construction of ss. 70.001, 70.45, and 70.51.—It is
  181  the express declaration of the Legislature that ss. 70.001,
  182  70.45, and 70.51 have separate and distinct bases, objectives,
  183  applications, and processes. It is therefore the intent of the
  184  Legislature that ss. 70.001, 70.45, and 70.51 are not to be
  185  construed in pari materia.
  186         Section 4. This act shall take effect October 1, 2015.
  187  
  188  ================= T I T L E  A M E N D M E N T ================
  189  And the title is amended as follows:
  190         Delete everything before the enacting clause
  191  and insert:
  192                        A bill to be entitled                      
  193         An act relating to private property rights; amending
  194         s. 70.001, F.S.; revising the terms “property owner”
  195         and “real property”; authorizing a governmental entity
  196         to treat a written claim as pending litigation for
  197         purposes of holding certain meetings privately;
  198         providing that any settlement agreement reached
  199         between an owner and a governmental entity applies so
  200         long as the agreement resolves all issues; providing
  201         exceptions to the applicability of the Bert J. Harris,
  202         Jr., Private Property Rights Protection Act; creating
  203         s. 70.45, F.S.; defining terms; authorizing a property
  204         owner to bring an action to recover damages caused by
  205         a prohibited exaction; requiring a property owner to
  206         provide written notice of such action to the relevant
  207         governmental entity; authorizing the governmental
  208         entity to treat such a claim as pending litigation for
  209         purposes of holding certain meetings privately;
  210         specifying the burden of proof imposed on the
  211         governmental entity and the property owner,
  212         respectively, in such an action; authorizing the award
  213         of reasonable attorney fees and costs under specified
  214         circumstances; waiving the state’s sovereign immunity
  215         for certain causes of action; providing applicability;
  216         amending s. 70.80, F.S.; specifying that an action for
  217         a prohibited exaction is not to be construed in pari
  218         materia with certain other actions; providing an
  219         effective date.