Florida Senate - 2015              PROPOSED COMMITTEE SUBSTITUTE
       Bill No. CS for SB 284
       
       
       
       
       
                               Ì3187345Î318734                          
       
       576-04110-15                                                    
       Proposed Committee Substitute by the Committee on Appropriations
       (Appropriations Subcommittee on General Government)
    1                        A bill to be entitled                      
    2         An act relating to private property rights; amending
    3         s. 70.001, F.S.; revising the terms “property owner”
    4         and “real property”; authorizing a governmental entity
    5         to treat a written claim as pending litigation for
    6         purposes of holding certain meetings privately;
    7         providing that any settlement agreement reached
    8         between an owner and a governmental entity applies so
    9         long as the agreement resolves all issues; providing
   10         exceptions to the applicability of the Bert J. Harris,
   11         Jr., Private Property Rights Protection Act; creating
   12         s. 70.45, F.S.; defining terms; authorizing a property
   13         owner to bring an action to recover damages caused by
   14         a prohibited exaction; requiring a property owner to
   15         provide written notice of such action to the relevant
   16         governmental entity; authorizing the governmental
   17         entity to treat such a claim as pending litigation for
   18         purposes of holding certain meetings privately;
   19         specifying the burden of proof imposed on the
   20         governmental entity and the property owner,
   21         respectively, in such an action; authorizing the award
   22         of reasonable attorney fees and costs under specified
   23         circumstances; waiving the state’s sovereign immunity
   24         for certain causes of action; providing applicability;
   25         amending s. 70.80, F.S.; specifying that an action for
   26         a prohibited exaction is not to be construed in pari
   27         materia with certain other actions; providing an
   28         effective date.
   29          
   30  Be It Enacted by the Legislature of the State of Florida:
   31  
   32         Section 1. Paragraphs (b), (c), and (d) of subsection (4)
   33  of section 70.001, Florida Statutes, are redesignated as
   34  paragraphs (c), (d), and (e), respectively, and amended,
   35  paragraphs (f) and (g) of subsection (3) and subsection (10) are
   36  amended, and a new paragraph (b) is added to subsection (4) of
   37  that section, to read:
   38         70.001 Private property rights protection.—
   39         (3) For purposes of this section:
   40         (f) The term “property owner” means the person who holds
   41  legal title to the real property that is the subject of and
   42  directly impacted by the action of a governmental entity at
   43  issue. The term does not include a governmental entity.
   44         (g) The term “real property” means land and includes any
   45  appurtenances and improvements to the land, including any other
   46  relevant real property in which the property owner has had a
   47  relevant interest. The term includes only parcels that are the
   48  subject of and directly impacted by the action of a governmental
   49  entity.
   50         (4)
   51         (b) Upon receipt of a written claim, a governmental entity
   52  may treat the claim as pending litigation for purposes of s.
   53  286.011(8).
   54         (c)(b) The governmental entity shall provide written notice
   55  of the claim to all parties to any administrative action that
   56  gave rise to the claim, and to owners of real property
   57  contiguous to the owner’s property at the addresses listed on
   58  the most recent county tax rolls. Within 15 days after the claim
   59  is being presented, the governmental entity shall report the
   60  claim in writing to the Department of Legal Affairs, and shall
   61  provide the department with the name, address, and telephone
   62  number of the employee of the governmental entity from whom
   63  additional information may be obtained about the claim during
   64  the pendency of the claim and any subsequent judicial action.
   65         (d)(c) During the 90-day-notice period or the 150-day
   66  notice period, unless extended by agreement of the parties, the
   67  governmental entity shall make a written settlement offer to
   68  effectuate:
   69         1. An adjustment of land development or permit standards or
   70  other provisions controlling the development or use of land.
   71         2. Increases or modifications in the density, intensity, or
   72  use of areas of development.
   73         3. The transfer of developmental rights.
   74         4. Land swaps or exchanges.
   75         5. Mitigation, including payments in lieu of onsite
   76  mitigation.
   77         6. Location on the least sensitive portion of the property.
   78         7. Conditioning the amount of development or use permitted.
   79         8. A requirement that issues be addressed on a more
   80  comprehensive basis than a single proposed use or development.
   81         9. Issuance of the development order, a variance, special
   82  exception, or other extraordinary relief.
   83         10. Purchase of the real property, or an interest therein,
   84  by an appropriate governmental entity or payment of
   85  compensation.
   86         11. No changes to the action of the governmental entity.
   87  
   88  If the property owner accepts a the settlement offer, either
   89  before or after filing an action, the governmental entity may
   90  implement the settlement offer by appropriate development
   91  agreement; by issuing a variance, special exception, or other
   92  extraordinary relief; or by other appropriate method, subject to
   93  paragraph (e) (d).
   94         (e)(d)1. When Whenever a governmental entity enters into a
   95  settlement agreement under this section which would have the
   96  effect of a modification, variance, or a special exception to
   97  the application of a rule, regulation, or ordinance as it would
   98  otherwise apply to the subject real property, the relief granted
   99  shall protect the public interest served by the regulations at
  100  issue and be the appropriate relief necessary to prevent the
  101  governmental regulatory effort from inordinately burdening the
  102  real property.
  103         2. When Whenever a governmental entity enters into a
  104  settlement agreement under this section which would have the
  105  effect of contravening the application of a statute as it would
  106  otherwise apply to the subject real property, the governmental
  107  entity and the property owner shall jointly file an action in
  108  the circuit court where the real property is located for
  109  approval of the settlement agreement by the court to ensure that
  110  the relief granted protects the public interest served by the
  111  statute at issue and is the appropriate relief necessary to
  112  prevent the governmental regulatory effort from inordinately
  113  burdening the real property.
  114  
  115  This paragraph applies to any settlement reached between a
  116  property owner and a governmental entity regardless of when the
  117  settlement agreement was entered so long as the agreement fully
  118  resolves all claims asserted under this section.
  119         (10)(a) This section does not apply to any actions taken by
  120  a governmental entity which relate to the operation,
  121  maintenance, or expansion of transportation facilities, and this
  122  section does not affect existing law regarding eminent domain
  123  relating to transportation.
  124         (b) This section does not apply to any actions taken by a
  125  county with respect to the adoption of a Flood Insurance Rate
  126  Map issued by the Federal Emergency Management Agency for the
  127  purpose of participating in the National Flood Insurance
  128  Program, unless such adoption incorrectly applies an aspect of
  129  the Flood Insurance Rate Map to the property, in such a way as
  130  to, but not limited to, incorrectly assess the elevation of the
  131  property.
  132         Section 2. Section 70.45, Florida Statutes, is created to
  133  read:
  134         70.45 Governmental exactions.—
  135         (1) As used in this section, the term:
  136         (a) “Damages” means, in addition to the right to injunctive
  137  relief, the reduction in fair market value of the real property
  138  or the amount of the fee or infrastructure cost that exceeds
  139  what would be permitted under this section.
  140         (b) “Governmental entity” has the same meaning as provided
  141  in s. 70.001(3)(c).
  142         (c) “Prohibited exaction” means any condition imposed by a
  143  governmental entity on a property owner’s proposed use of real
  144  property that lacks an essential nexus to a legitimate public
  145  purpose and is not roughly proportionate to the impacts of the
  146  proposed use that the governmental entity seeks to avoid,
  147  minimize, or mitigate.
  148         (d) “Property owner” has the same meaning as provided in s.
  149  70.001(3)(f).
  150         (e) “Real property” has the same meaning as provided in s.
  151  70.001(3)(g).
  152         (2) In addition to other remedies available in law or
  153  equity, a property owner may bring an action in a court of
  154  competent jurisdiction under this section to recover damages
  155  caused by a prohibited exaction. Such action may not be brought
  156  until a prohibited exaction is actually imposed or required in
  157  writing as a final condition of approval for the requested use
  158  of real property. The right to bring an action under this
  159  section may not be waived. This section does not apply to impact
  160  fees adopted under s. 163.31801 or non-ad valorem assessments as
  161  defined in s. 197.3632.
  162         (3) At least 90 days before filing an action under this
  163  section, but no later than 180 days after imposition of the
  164  prohibited exaction, the property owner shall provide to the
  165  relevant governmental entity written notice of the proposed
  166  action. This written notice shall identify the exaction that the
  167  property owner believes is prohibited, briefly explain why the
  168  property owner believes the exaction is prohibited, and provide
  169  an estimate of the damages. Upon receipt of the property owner’s
  170  written notice, the governmental entity may treat the claim as
  171  pending litigation for purposes of s. 286.011(8).
  172         (a) Upon receipt of the written notice, the governmental
  173  entity shall review the notice of claim and respond in writing
  174  to the property owner by identifying the basis for the exaction
  175  and explaining why the governmental entity maintains that the
  176  exaction is proportionate to the harm created by the proposed
  177  use of real property, or by proposing to remove all or a portion
  178  of the exaction.
  179         (b) The written response may not be used against the
  180  governmental entity in subsequent litigation other than for
  181  purposes of assessing attorney fees and costs under subsection
  182  (5).
  183         (4) For each claim filed under this section, the
  184  governmental entity has the burden of proving that the exaction
  185  has an essential nexus to a legitimate public purpose and is
  186  roughly proportionate to the impacts of the proposed use that
  187  the governmental entity is seeking to avoid, minimize, or
  188  mitigate. The property owner has the burden of proving damages
  189  that result from a prohibited exaction.
  190         (5) The court may award attorney fees and costs to the
  191  prevailing party; however, if the court determines that the
  192  exaction which is the subject of the claim lacks an essential
  193  nexus to a legitimate public purpose and is not roughly
  194  proportionate to the impacts of the proposed use, the court
  195  shall award attorney fees and costs to the property owner.
  196         (6) To ensure that courts may assess damages for claims
  197  filed under this section in accordance with s. 13, Art. X of the
  198  State Constitution, the state, for itself and its agencies or
  199  political subdivisions, waives sovereign immunity for causes of
  200  action based upon the application of this section. Such waiver
  201  is limited only to actions brought under this section.
  202         (7) This section applies to any prohibited exaction imposed
  203  or required in writing on or after October 1, 2015, as a final
  204  condition of approval for the requested use of real property.
  205         Section 3. Section 70.80, Florida Statutes, is amended to
  206  read:
  207         70.80 Construction of ss. 70.001, 70.45, and 70.51.—It is
  208  the express declaration of the Legislature that ss. 70.001,
  209  70.45, and 70.51 have separate and distinct bases, objectives,
  210  applications, and processes. It is therefore the intent of the
  211  Legislature that ss. 70.001, 70.45, and 70.51 are not to be
  212  construed in pari materia.
  213         Section 4. This act shall take effect October 1, 2015.