Florida Senate - 2019                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1730
       
       
       
       
       
       
                                Ì611290|Î611290                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/10/2019           .                                
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       The Committee on Infrastructure and Security (Lee) recommended
       the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 125.01055, Florida Statutes, is amended
    6  to read:
    7         125.01055 Affordable housing.—
    8         (1) Notwithstanding any other provision of law, a county
    9  may adopt and maintain in effect any law, ordinance, rule, or
   10  other measure that is adopted for the purpose of increasing the
   11  supply of affordable housing using land use mechanisms such as
   12  inclusionary housing ordinances. An inclusionary housing
   13  ordinance may require a developer to provide a specified number
   14  or percentage of affordable housing units to be included in a
   15  development or allow a developer to contribute to a housing fund
   16  or other alternatives in lieu of building the affordable housing
   17  units. However, in exchange, a county must provide incentives to
   18  fully offset all costs to the developer of its affordable
   19  housing contribution. Such incentives may include, but are not
   20  limited to:
   21         (a)Allowing the developer density or intensity bonus
   22  incentives or more floor space than allowed under the current or
   23  proposed future land use designation or zoning;
   24         (b)Reducing or waiving fees, such as impact fees or water
   25  and sewer charges; or
   26         (c)Granting other incentives.
   27         Section 2. Section 125.022, Florida Statutes, is amended to
   28  read:
   29         125.022 Development permits and orders.—
   30         (1)Within 30 days after receiving an application for a
   31  development permit or development order, a county must review
   32  the application for completeness and issue a letter indicating
   33  that all required information is submitted or specifying with
   34  particularity any areas that are deficient. If deficient, the
   35  applicant has 30 days to address the deficiencies by submitting
   36  the required additional information. Within 120 days after the
   37  county has deemed the application complete the county shall
   38  approve, approve with conditions, or deny the application for a
   39  development permit or development order. The time periods
   40  contained in this section may be waived in writing by the
   41  applicant. An approval, approval with conditions, or denial of
   42  the application for a development permit or development order
   43  must include written findings supporting the county’s decision.
   44         (2)(1) When reviewing an application for a development
   45  permit or development order that is certified by a professional
   46  listed in s. 403.0877, a county may not request additional
   47  information from the applicant more than three times, unless the
   48  applicant waives the limitation in writing. Before a third
   49  request for additional information, the applicant must be
   50  offered a meeting to attempt to resolve outstanding issues.
   51  Except as provided in subsection (5)(4), if the applicant
   52  believes the request for additional information is not
   53  authorized by ordinance, rule, statute, or other legal
   54  authority, the county, at the applicant’s request, shall proceed
   55  to process the application for approval or denial.
   56         (3)(2) When a county denies an application for a
   57  development permit or development order, the county shall give
   58  written notice to the applicant. The notice must include a
   59  citation to the applicable portions of an ordinance, rule,
   60  statute, or other legal authority for the denial of the permit
   61  or order.
   62         (4)(3) As used in this section, the terms term “development
   63  permit” and “development order” have has the same meaning as in
   64  s. 163.3164, but do does not include building permits.
   65         (5)(4) For any development permit application filed with
   66  the county after July 1, 2012, a county may not require as a
   67  condition of processing or issuing a development permit or
   68  development order that an applicant obtain a permit or approval
   69  from any state or federal agency unless the agency has issued a
   70  final agency action that denies the federal or state permit
   71  before the county action on the local development permit.
   72         (6)(5) Issuance of a development permit or development
   73  order by a county does not in any way create any rights on the
   74  part of the applicant to obtain a permit from a state or federal
   75  agency and does not create any liability on the part of the
   76  county for issuance of the permit if the applicant fails to
   77  obtain requisite approvals or fulfill the obligations imposed by
   78  a state or federal agency or undertakes actions that result in a
   79  violation of state or federal law. A county shall attach such a
   80  disclaimer to the issuance of a development permit and shall
   81  include a permit condition that all other applicable state or
   82  federal permits be obtained before commencement of the
   83  development.
   84         (7)(6) This section does not prohibit a county from
   85  providing information to an applicant regarding what other state
   86  or federal permits may apply.
   87         Section 3. Paragraph (i) of subsection (5) and paragraph
   88  (h) of subsection (6) of section 163.3180, Florida Statutes, is
   89  amended to read:
   90         163.3180 Concurrency.—
   91         (5)
   92         (i) If a local government elects to repeal transportation
   93  concurrency, it is encouraged to adopt an alternative mobility
   94  funding system that uses one or more of the tools and techniques
   95  identified in paragraph (f). Any alternative mobility funding
   96  system adopted may not be used to deny, time, or phase an
   97  application for site plan approval, plat approval, final
   98  subdivision approval, building permits, or the functional
   99  equivalent of such approvals provided that the developer agrees
  100  to pay for the development’s identified transportation impacts
  101  via the funding mechanism implemented by the local government.
  102  The revenue from the funding mechanism used in the alternative
  103  system must be used to implement the needs of the local
  104  government’s plan which serves as the basis for the fee imposed.
  105  A mobility fee-based funding system must comply with s.
  106  163.31801 governing the dual rational nexus test applicable to
  107  impact fees. An alternative system that is not mobility fee
  108  based shall not be applied in a manner that imposes upon new
  109  development any responsibility for funding an existing
  110  transportation deficiency as defined in paragraph (h).
  111         (6)
  112         (h)1. In order to limit the liability of local governments,
  113  a local government may allow a landowner to proceed with
  114  development of a specific parcel of land notwithstanding a
  115  failure of the development to satisfy school concurrency, if all
  116  the following factors are shown to exist:
  117         a. The proposed development would be consistent with the
  118  future land use designation for the specific property and with
  119  pertinent portions of the adopted local plan, as determined by
  120  the local government.
  121         b. The local government’s capital improvements element and
  122  the school board’s educational facilities plan provide for
  123  school facilities adequate to serve the proposed development,
  124  and the local government or school board has not implemented
  125  that element or the project includes a plan that demonstrates
  126  that the capital facilities needed as a result of the project
  127  can be reasonably provided.
  128         c. The local government and school board have provided a
  129  means by which the landowner will be assessed a proportionate
  130  share of the cost of providing the school facilities necessary
  131  to serve the proposed development.
  132         2. If a local government applies school concurrency, it may
  133  not deny an application for site plan, final subdivision
  134  approval, or the functional equivalent for a development or
  135  phase of a development authorizing residential development for
  136  failure to achieve and maintain the level-of-service standard
  137  for public school capacity in a local school concurrency
  138  management system where adequate school facilities will be in
  139  place or under actual construction within 3 years after the
  140  issuance of final subdivision or site plan approval, or the
  141  functional equivalent. School concurrency is satisfied if the
  142  developer executes a legally binding commitment to provide
  143  mitigation proportionate to the demand for public school
  144  facilities to be created by actual development of the property,
  145  including, but not limited to, the options described in sub
  146  subparagraph a. Options for proportionate-share mitigation of
  147  impacts on public school facilities must be established in the
  148  comprehensive plan and the interlocal agreement pursuant to s.
  149  163.31777.
  150         a. Appropriate mitigation options include the contribution
  151  of land; the construction, expansion, or payment for land
  152  acquisition or construction of a public school facility; the
  153  construction of a charter school that complies with the
  154  requirements of s. 1002.33(18); or the creation of mitigation
  155  banking based on the construction of a public school facility in
  156  exchange for the right to sell capacity credits. Such options
  157  must include execution by the applicant and the local government
  158  of a development agreement that constitutes a legally binding
  159  commitment to pay proportionate-share mitigation for the
  160  additional residential units approved by the local government in
  161  a development order and actually developed on the property,
  162  taking into account residential density allowed on the property
  163  prior to the plan amendment that increased the overall
  164  residential density. The district school board must be a party
  165  to such an agreement. As a condition of its entry into such a
  166  development agreement, the local government may require the
  167  landowner to agree to continuing renewal of the agreement upon
  168  its expiration.
  169         b. If the interlocal agreement and the local government
  170  comprehensive plan authorize a contribution of land; the
  171  construction, expansion, or payment for land acquisition; the
  172  construction or expansion of a public school facility, or a
  173  portion thereof; or the construction of a charter school that
  174  complies with the requirements of s. 1002.33(18), as
  175  proportionate-share mitigation, the local government shall
  176  credit such a contribution, construction, expansion, or payment
  177  toward any other impact fee or exaction imposed by local
  178  ordinance for public educational facilities the same need, on a
  179  dollar-for-dollar basis at fair market value. The credit must be
  180  based on the total impact fee assessed and not upon the impact
  181  fee for any particular type of school.
  182         c. Any proportionate-share mitigation must be directed by
  183  the school board toward a school capacity improvement identified
  184  in the 5-year school board educational facilities plan that
  185  satisfies the demands created by the development in accordance
  186  with a binding developer’s agreement.
  187         3. This paragraph does not limit the authority of a local
  188  government to deny a development permit or its functional
  189  equivalent pursuant to its home rule regulatory powers, except
  190  as provided in this part.
  191         Section 4. Section 163.31801, Florida Statutes, is amended
  192  to read:
  193         163.31801 Impact fees; short title; intent; minimum
  194  requirements; audits; challenges definitions; ordinances levying
  195  impact fees.—
  196         (1) This section may be cited as the “Florida Impact Fee
  197  Act.”
  198         (2) The Legislature finds that impact fees are an important
  199  source of revenue for a local government to use in funding the
  200  infrastructure necessitated by new growth. The Legislature
  201  further finds that impact fees are an outgrowth of the home rule
  202  power of a local government to provide certain services within
  203  its jurisdiction. Due to the growth of impact fee collections
  204  and local governments’ reliance on impact fees, it is the intent
  205  of the Legislature to ensure that, when a county or municipality
  206  adopts an impact fee by ordinance or a special district adopts
  207  an impact fee by resolution, the governing authority complies
  208  with this section.
  209         (3) At a minimum, an impact fee adopted by ordinance of a
  210  county or municipality or by resolution of a special district
  211  must satisfy all of the following conditions, at minimum:
  212         (a) Require that The calculation of the impact fee must be
  213  based on the most recent and localized data.
  214         (b) The local government must provide for accounting and
  215  reporting of impact fee collections and expenditures. If a local
  216  governmental entity imposes an impact fee to address its
  217  infrastructure needs, the entity must shall account for the
  218  revenues and expenditures of such impact fee in a separate
  219  accounting fund.
  220         (c) Limit Administrative charges for the collection of
  221  impact fees must be limited to actual costs.
  222         (d) The local government must provide Require that notice
  223  not be provided no less than 90 days before the effective date
  224  of an ordinance or resolution imposing a new or increased impact
  225  fee. A county or municipality is not required to wait 90 days to
  226  decrease, suspend, or eliminate an impact fee.
  227         (e) Collection of the impact fee may not be required to
  228  occur earlier than the date of issuance of the building permit
  229  for the property that is subject to the fee.
  230         (f) The impact fee must be proportional and reasonably
  231  connected to, or have a rational nexus with, the need for
  232  additional capital facilities and the increased impact generated
  233  by the new residential or commercial construction.
  234         (g) The impact fee must be proportional and reasonably
  235  connected to, or have a rational nexus with, the expenditures of
  236  the funds collected and the benefits accruing to the new
  237  residential or nonresidential construction.
  238         (h) The local government must specifically earmark funds
  239  collected under the impact fee for use in acquiring,
  240  constructing, or improving capital facilities to benefit new
  241  users.
  242         (i) Revenues generated by the impact fee may not be used,
  243  in whole or in part, to pay existing debt or for previously
  244  approved projects unless the expenditure is reasonably connected
  245  to, or has a rational nexus with, the increased impact generated
  246  by the new residential or nonresidential construction.
  247         (4)  The local government must credit against the
  248  collection of the impact fee any contribution, whether
  249  identified in a proportionate share agreement or other form of
  250  exaction, related to public education facilities, including land
  251  dedication, site planning and design, or construction. Any
  252  contribution must be applied to reduce impact fees on a dollar
  253  for-dollar basis at fair market value.
  254         (5) If a local government increases its impact fee rates,
  255  then the holder of any impact fee credits, whether such credits
  256  are granted under s. 163.3180, s. 380.06, or otherwise, which
  257  were in existence prior to the increase, is entitled to a
  258  proportionate increase in the credit balance.
  259         (6)(4) Audits of financial statements of local governmental
  260  entities and district school boards which are performed by a
  261  certified public accountant pursuant to s. 218.39 and submitted
  262  to the Auditor General must include an affidavit signed by the
  263  chief financial officer of the local governmental entity or
  264  district school board stating that the local governmental entity
  265  or district school board has complied with this section.
  266         (7)(5) In any action challenging an impact fee or the
  267  government’s failure to provide required dollar-for-dollar
  268  credits for the payment of impact fees as provided in s.
  269  163.3180(6)(h)2.b, the government has the burden of proving by a
  270  preponderance of the evidence that the imposition or amount of
  271  the fee or credit meets the requirements of state legal
  272  precedent or and this section. The court may not use a
  273  deferential standard for the benefit of the government.
  274         (8)  A county, municipality, or special district may
  275  provide an exception or waiver for an impact fee for the
  276  development or construction of housing that is affordable, as
  277  defined in s. 420.9071. If a county, municipality, or special
  278  district provides such an exception or waiver, it is not
  279  required to use any revenues to offset the impact.
  280         Section 5. Section 166.033, Florida Statutes, is amended to
  281  read:
  282         166.033 Development permits and orders.—
  283         (1) Within 30 days after receiving an application for
  284  approval of a development permit or development order, a
  285  municipality must review the application for completeness and
  286  issue a letter indicating that all required information is
  287  submitted or specifying with particularity any areas that are
  288  deficient. If deficient, the applicant has 30 days to address
  289  the deficiencies by submitting the required additional
  290  information. Within 120 days after the municipality has deemed
  291  the application complete the municipality must approve, approve
  292  with conditions, or deny the application for a development
  293  permit or development order. The time periods contained in this
  294  subsection may be waived in writing by the applicant. An
  295  approval, approval with conditions, or denial of the application
  296  for a development permit or development order must include
  297  written findings supporting the county’s decision.
  298         (2)(1) When reviewing an application for a development
  299  permit or development order that is certified by a professional
  300  listed in s. 403.0877, a municipality may not request additional
  301  information from the applicant more than three times, unless the
  302  applicant waives the limitation in writing. Before a third
  303  request for additional information, the applicant must be
  304  offered a meeting to attempt to resolve outstanding issues.
  305  Except as provided in subsection (5)(4), if the applicant
  306  believes the request for additional information is not
  307  authorized by ordinance, rule, statute, or other legal
  308  authority, the municipality, at the applicant’s request, shall
  309  proceed to process the application for approval or denial.
  310         (3)(2) When a municipality denies an application for a
  311  development permit or development order, the municipality shall
  312  give written notice to the applicant. The notice must include a
  313  citation to the applicable portions of an ordinance, rule,
  314  statute, or other legal authority for the denial of the permit
  315  or order.
  316         (4)(3) As used in this section, the terms term “development
  317  permit” and “development order” have has the same meaning as in
  318  s. 163.3164, but do does not include building permits.
  319         (5)(4) For any development permit application filed with
  320  the municipality after July 1, 2012, a municipality may not
  321  require as a condition of processing or issuing a development
  322  permit or development order that an applicant obtain a permit or
  323  approval from any state or federal agency unless the agency has
  324  issued a final agency action that denies the federal or state
  325  permit before the municipal action on the local development
  326  permit.
  327         (6)(5) Issuance of a development permit or development
  328  order by a municipality does not in any way create any right on
  329  the part of an applicant to obtain a permit from a state or
  330  federal agency and does not create any liability on the part of
  331  the municipality for issuance of the permit if the applicant
  332  fails to obtain requisite approvals or fulfill the obligations
  333  imposed by a state or federal agency or undertakes actions that
  334  result in a violation of state or federal law. A municipality
  335  shall attach such a disclaimer to the issuance of development
  336  permits and shall include a permit condition that all other
  337  applicable state or federal permits be obtained before
  338  commencement of the development.
  339         (7)(6) This section does not prohibit a municipality from
  340  providing information to an applicant regarding what other state
  341  or federal permits may apply.
  342         Section 6. Section 166.04151, Florida Statutes, is amended
  343  to read:
  344         166.04151 Affordable housing.—
  345         (1) Notwithstanding any other provision of law, a
  346  municipality may adopt and maintain in effect any law,
  347  ordinance, rule, or other measure that is adopted for the
  348  purpose of increasing the supply of affordable housing using
  349  land use mechanisms such as inclusionary housing ordinances. An
  350  inclusionary housing ordinance may require a developer to
  351  provide a specified number or percentage of affordable housing
  352  units to be included in a development or allow a developer to
  353  contribute to a housing fund or other alternatives in lieu of
  354  building the affordable housing units. However, in exchange, a
  355  municipality must provide incentives to fully offset all costs
  356  to the developer of its affordable housing contribution. Such
  357  incentives may include, but are not limited to:
  358         (a) Allowing the developer density or intensity bonus
  359  incentives or more floor space than allowed under the current or
  360  proposed future land use designation or zoning;
  361         (b) Reducing or waiving fees, such as impact fees or water
  362  and sewer charges; or
  363         (c) Granting other incentives.
  364         Section 7. Subsection (24) of section 494.001, Florida
  365  Statues, is amended to read:
  366         494.001 Definitions.—As used in this chapter, the term:
  367         (24) “Mortgage loan” means any:
  368         (a) Residential loan that primarily for personal, family,
  369  or household use which is secured by a mortgage, deed of trust,
  370  or other equivalent consensual security interest on a dwelling,
  371  as defined in s. 103(w) s. 103(v) of the federal Truth in
  372  Lending Act, or for the purchase of residential real estate upon
  373  which a dwelling is to be constructed;
  374         (b) Loan on commercial real property if the borrower is an
  375  individual or the lender is a noninstitutional investor; or
  376         (c) Loan on improved real property consisting of five or
  377  more dwelling units if the borrower is an individual or the
  378  lender is a noninstitutional investor.
  379         Section 8. This act shall take effect upon becoming law.
  380  
  381  ================= T I T L E  A M E N D M E N T ================
  382  And the title is amended as follows:
  383         Delete everything before the enacting clause
  384  and insert:
  385                        A bill to be entitled                      
  386         An act relating to community development and housing;
  387         amending s. 125.01055, F.S.; authorizing an
  388         inclusionary housing ordinance to require a developer
  389         to provide certain affordable housing units to be
  390         included in a development or allow a developer to
  391         contribute to a housing fund or other alternatives;
  392         requiring a county to provide certain incentives to
  393         fully offset all costs to the developer of its
  394         affordable housing contribution; amending s. 125.022,
  395         F.S.; requiring that a county review the application
  396         for completeness and issue a certain letter within a
  397         specified period after receiving an application for
  398         approval of a development permit or development order;
  399         providing procedures for addressing deficiencies in,
  400         and for approving or denying, the application;
  401         conforming provisions to changes made by the act;
  402         defining the term “development order”; amending s.
  403         163.3180, F.S.; requiring a local government to credit
  404         certain contributions, constructions, expansions, or
  405         payments toward any other impact fee or exaction
  406         imposed by local ordinance for public educational
  407         facilities; providing requirements for the basis of
  408         the credit; amending s. 163.31801, F.S.; adding
  409         minimum conditions that certain impact fees must
  410         satisfy; requiring that, under certain circumstances,
  411         a holder of certain impact fee or mobility fee credits
  412         receive the full value of the credits as of the date
  413         they were first established based on the impact fee or
  414         mobility fee rate that was in effect on such date;
  415         providing that the government, in certain actions, has
  416         the burden of proving by a preponderance of the
  417         evidence that the imposition or amount of impact fees
  418         or required dollar-for-dollar credits for the payment
  419         of impact fees meets certain requirements; prohibiting
  420         the court from using a deferential standard for the
  421         benefit of the government; providing applicability;
  422         authorizing a county, municipality, or special
  423         district to provide an exception or waiver for an
  424         impact fee for the development or construction of
  425         housing that is affordable; providing that if a
  426         county, municipality, or special district provides
  427         such an exception or waiver, it is not required to use
  428         any revenues to offset the impact; amending s.
  429         166.033, F.S.; requiring that a municipality review
  430         the application for completeness and issue a certain
  431         letter within a specified period after receiving an
  432         application for approval of a development permit or
  433         development order; providing procedures for addressing
  434         deficiencies in, and for approving or denying, the
  435         application; conforming provisions to changes made by
  436         the act; defining the term “development order”;
  437         amending s. 166.04151, F.S.; authorizing an
  438         inclusionary housing ordinance to require a developer
  439         to provide certain affordable housing units to be
  440         included in a development or allow a developer to
  441         contribute to a housing fund or other alternatives;
  442         requiring a county to provide certain incentives to
  443         fully offset all costs to the developer of its
  444         affordable housing contribution; amending s. 494.001,
  445         F.S.; revising the definition of the term “mortgage
  446         loan”; providing an effective date.