| 1 | A bill to be entitled |
| 2 | An act relating to agricultural economic development; |
| 3 | amending s. 70.001, F.S.; providing a deadline for an |
| 4 | owner of agricultural land to present a claim prior to |
| 5 | filing an action against a governmental entity regarding |
| 6 | private property rights; amending s. 163.3162, F.S.; |
| 7 | providing for application for an amendment to the local |
| 8 | government comprehensive plan by the owner of land that |
| 9 | meets certain provisions of the definition of an |
| 10 | agricultural enclave; providing requirements relating to |
| 11 | such applications; exempting certain amendments from |
| 12 | specified rules of the Department of Community Affairs |
| 13 | under certain circumstances; amending s. 163.3164, F.S.; |
| 14 | defining the term "agricultural enclave" for purposes of |
| 15 | the Local Government Comprehensive Planning and Land |
| 16 | Development Regulation Act; creating s. 259.047, F.S.; |
| 17 | providing requirements relating to the purchase of land on |
| 18 | which an agricultural lease exists; amending s. 373.0361, |
| 19 | F.S.; providing for recognition that alternative water |
| 20 | supply development options for agricultural self-suppliers |
| 21 | are limited; amending s. 373.2234, F.S.; conforming a |
| 22 | cross-reference; amending s. 373.236, F.S.; requiring |
| 23 | water management districts to inform landowners of the |
| 24 | option to obtain certain consumptive use permits; creating |
| 25 | s. 373.407, F.S.; providing for memoranda of agreement |
| 26 | regarding qualification for agricultural-related |
| 27 | exemptions; providing an effective date. |
| 28 |
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| 29 | Be It Enacted by the Legislature of the State of Florida: |
| 30 |
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| 31 | Section 1. Paragraphs (a) and (c) of subsection (4), |
| 32 | paragraph (a) of subsection (5), and paragraph (c) of subsection |
| 33 | (6) of section 70.001, Florida Statutes, are amended to read: |
| 34 | 70.001 Private property rights protection.-- |
| 35 | (4)(a) Not less than 180 days prior to filing an action |
| 36 | under this section against a governmental entity, a property |
| 37 | owner who seeks compensation under this section must present the |
| 38 | claim in writing to the head of the governmental entity, except |
| 39 | that if the property is classified as agricultural pursuant to |
| 40 | s. 193.461, the notice period is 90 days. The property owner |
| 41 | must submit, along with the claim, a bona fide, valid appraisal |
| 42 | that supports the claim and demonstrates the loss in fair market |
| 43 | value to the real property. If the action of government is the |
| 44 | culmination of a process that involves more than one |
| 45 | governmental entity, or if a complete resolution of all relevant |
| 46 | issues, in the view of the property owner or in the view of a |
| 47 | governmental entity to whom a claim is presented, requires the |
| 48 | active participation of more than one governmental entity, the |
| 49 | property owner shall present the claim as provided in this |
| 50 | section to each of the governmental entities. |
| 51 | (c) During the 90-day-notice period or the 180-day-notice |
| 52 | period, unless extended by agreement of the parties, the |
| 53 | governmental entity shall make a written settlement offer to |
| 54 | effectuate: |
| 55 | 1. An adjustment of land development or permit standards |
| 56 | or other provisions controlling the development or use of land. |
| 57 | 2. Increases or modifications in the density, intensity, |
| 58 | or use of areas of development. |
| 59 | 3. The transfer of developmental rights. |
| 60 | 4. Land swaps or exchanges. |
| 61 | 5. Mitigation, including payments in lieu of onsite |
| 62 | mitigation. |
| 63 | 6. Location on the least sensitive portion of the |
| 64 | property. |
| 65 | 7. Conditioning the amount of development or use |
| 66 | permitted. |
| 67 | 8. A requirement that issues be addressed on a more |
| 68 | comprehensive basis than a single proposed use or development. |
| 69 | 9. Issuance of the development order, a variance, special |
| 70 | exception, or other extraordinary relief. |
| 71 | 10. Purchase of the real property, or an interest therein, |
| 72 | by an appropriate governmental entity. |
| 73 | 11. No changes to the action of the governmental entity. |
| 74 |
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| 75 | If the property owner accepts the settlement offer, the |
| 76 | governmental entity may implement the settlement offer by |
| 77 | appropriate development agreement; by issuing a variance, |
| 78 | special exception, or other extraordinary relief; or by other |
| 79 | appropriate method, subject to paragraph (d). |
| 80 | (5)(a) During the 90-day-notice period or the 180-day- |
| 81 | notice period, unless a settlement offer is accepted by the |
| 82 | property owner, each of the governmental entities provided |
| 83 | notice pursuant to paragraph (4)(a) shall issue a written |
| 84 | ripeness decision identifying the allowable uses to which the |
| 85 | subject property may be put. The failure of the governmental |
| 86 | entity to issue a written ripeness decision during the |
| 87 | applicable 90-day-notice period or 180-day-notice period shall |
| 88 | be deemed to ripen the prior action of the governmental entity, |
| 89 | and shall operate as a ripeness decision that has been rejected |
| 90 | by the property owner. The ripeness decision, as a matter of |
| 91 | law, constitutes the last prerequisite to judicial review, and |
| 92 | the matter shall be deemed ripe or final for the purposes of the |
| 93 | judicial proceeding created by this section, notwithstanding the |
| 94 | availability of other administrative remedies. |
| 95 | (6) |
| 96 | (c)1. In any action filed pursuant to this section, the |
| 97 | property owner is entitled to recover reasonable costs and |
| 98 | attorney fees incurred by the property owner, from the |
| 99 | governmental entity or entities, according to their |
| 100 | proportionate share as determined by the court, from the date of |
| 101 | the filing of the circuit court action, if the property owner |
| 102 | prevails in the action and the court determines that the |
| 103 | settlement offer, including the ripeness decision, of the |
| 104 | governmental entity or entities did not constitute a bona fide |
| 105 | offer to the property owner which reasonably would have resolved |
| 106 | the claim, based upon the knowledge available to the |
| 107 | governmental entity or entities and the property owner during |
| 108 | the 90-day-notice period or the 180-day-notice period. |
| 109 | 2. In any action filed pursuant to this section, the |
| 110 | governmental entity or entities are entitled to recover |
| 111 | reasonable costs and attorney fees incurred by the governmental |
| 112 | entity or entities from the date of the filing of the circuit |
| 113 | court action, if the governmental entity or entities prevail in |
| 114 | the action and the court determines that the property owner did |
| 115 | not accept a bona fide settlement offer, including the ripeness |
| 116 | decision, which reasonably would have resolved the claim fairly |
| 117 | to the property owner if the settlement offer had been accepted |
| 118 | by the property owner, based upon the knowledge available to the |
| 119 | governmental entity or entities and the property owner during |
| 120 | the 90-day-notice period or the 180-day-notice period. |
| 121 | 3. The determination of total reasonable costs and |
| 122 | attorney fees pursuant to this paragraph shall be made by the |
| 123 | court and not by the jury. Any proposed settlement offer or any |
| 124 | proposed ripeness decision, except for the final written |
| 125 | settlement offer or the final written ripeness decision, and any |
| 126 | negotiations or rejections in regard to the formulation either |
| 127 | of the settlement offer or the ripeness decision, are |
| 128 | inadmissible in the subsequent proceeding established by this |
| 129 | section except for the purposes of the determination pursuant to |
| 130 | this paragraph. |
| 131 | Section 2. Subsection (5) is added to section 163.3162, |
| 132 | Florida Statutes, to read: |
| 133 | 163.3162 Agricultural Lands and Practices Act.-- |
| 134 | (5) AMENDMENT TO LOCAL GOVERNMENT COMPREHENSIVE PLAN.--The |
| 135 | owner of a parcel of land defined as an agricultural enclave |
| 136 | under s. 163.3164(33) may apply for an amendment to the local |
| 137 | government comprehensive plan pursuant to s. 163.3187. Such |
| 138 | amendment is not subject to rule 9J-5.006(5), Florida |
| 139 | Administrative Code, and may include land uses and intensities |
| 140 | of use that are consistent with the uses and intensities of use |
| 141 | of the industrial, commercial, or residential areas that |
| 142 | surround the parcel. Each application for a comprehensive plan |
| 143 | amendment under this subsection for a parcel larger than 640 |
| 144 | acres must include appropriate new urbanism concepts such as |
| 145 | clustering, mixed-use development, the creation of rural village |
| 146 | and city centers, and the transfer of development rights in |
| 147 | order to discourage urban sprawl while protecting landowner |
| 148 | rights. |
| 149 | (a) The local government and the owner of a parcel of land |
| 150 | that is the subject of an application for an amendment shall |
| 151 | have 180 days following the date that the local government |
| 152 | receives a complete application to negotiate in good faith to |
| 153 | reach consensus on the land uses and intensities of use that are |
| 154 | consistent with the uses and intensities of use of the |
| 155 | industrial, commercial, or residential areas that surround the |
| 156 | parcel. Within 30 days after the local government's receipt of |
| 157 | such an application, the local government and owner must agree |
| 158 | in writing to a schedule for information submittal, public |
| 159 | hearings, negotiations, and final action on the amendment, which |
| 160 | schedule may thereafter be altered only with the written consent |
| 161 | of the local government and the owner. Compliance with the |
| 162 | schedule in the written agreement constitutes good-faith |
| 163 | negotiations for purposes of paragraph (c). |
| 164 | (b) Upon conclusion of good-faith negotiations under |
| 165 | paragraph (a), regardless of whether the local government and |
| 166 | owner reach consensus on the land uses and intensities of use |
| 167 | that are consistent with the uses and intensities of use of the |
| 168 | industrial, commercial, or residential areas that surround the |
| 169 | parcel, the amendment must be transmitted to the state land |
| 170 | planning agency for review pursuant to s. 163.3184. If the local |
| 171 | government fails to transmit the amendment within 180 days after |
| 172 | receipt of a complete application, the amendment must be |
| 173 | immediately transferred to the state land planning agency for |
| 174 | such review at the first available transmittal cycle. The state |
| 175 | land planning agency may not use any provision of rule 9J- |
| 176 | 5.006(5), Florida Administrative Code, as a factor in |
| 177 | determining compliance of an amendment. |
| 178 | (c) If the owner fails to negotiate in good faith, rule |
| 179 | 9J-5.006(5), Florida Administrative Code, shall apply throughout |
| 180 | the negotiation and amendment process. |
| 181 | (d) Nothing within this subsection relating to |
| 182 | agricultural enclaves shall preempt or replace any protection |
| 183 | currently existing for any property located within the |
| 184 | boundaries of the following areas: |
| 185 | 1. The Wekiva Study Area, as described in s. 369.316; or |
| 186 | 2. The Everglades Protection Area, as defined in s. |
| 187 | 373.4592(2). |
| 188 | Section 3. Subsection (33) is added to section 163.3164, |
| 189 | Florida Statutes, to read: |
| 190 | 163.3164 Local Government Comprehensive Planning and Land |
| 191 | Development Regulation Act; definitions.--As used in this act: |
| 192 | (33) "Agricultural enclave" means an unincorporated, |
| 193 | undeveloped parcel that: |
| 194 | (a) Is owned by a single person or entity; |
| 195 | (b) Has been in continuous use for bona fide agricultural |
| 196 | purposes, as defined by s. 193.461, for a period of 5 years |
| 197 | prior to the date of any comprehensive plan amendment |
| 198 | application; |
| 199 | (c) Excluding any portion of the property perimeter, not |
| 200 | to exceed 40 percent, that is contiguous to lands owned by any |
| 201 | federal, state, regional, or local government or quasi- |
| 202 | governmental entity, is surrounded on at least 75 percent of its |
| 203 | perimeter by: |
| 204 | 1. Property that has existing industrial, commercial, or |
| 205 | residential development; or |
| 206 | 2. Property that the local government has designated, in |
| 207 | the local government's comprehensive plan, zoning map, and |
| 208 | future land use map, as land that is to be developed for |
| 209 | industrial, commercial, or residential purposes, and at least 75 |
| 210 | percent of such property is existing industrial, commercial, or |
| 211 | residential development; |
| 212 | (d) Has public services, including water, wastewater, |
| 213 | transportation, schools, and recreation facilities, available or |
| 214 | such public services are scheduled in the capital improvement |
| 215 | element to be provided by the local government or can be |
| 216 | provided by an alternative provider of local government |
| 217 | infrastructure in order to ensure consistency with applicable |
| 218 | concurrency provisions of s. 163.3180; and |
| 219 | (e) Does not exceed 1,280 acres; however, if the property |
| 220 | is surrounded by existing or authorized residential development |
| 221 | that will result in a density at buildout of at least 1,000 |
| 222 | residents per square mile, or is within an area for which the |
| 223 | state land planning agency has previously authorized the |
| 224 | preparation of an option sector plan pursuant to s. 163.3245, |
| 225 | then the area shall be determined to be urban and the parcel may |
| 226 | not exceed 5,120 acres. |
| 227 | Section 4. Section 259.047, Florida Statutes, is created |
| 228 | to read: |
| 229 | 259.047 Acquisition of land on which an agricultural lease |
| 230 | exists.-- |
| 231 | (1) When land with an existing agricultural lease is |
| 232 | acquired in fee simple pursuant to this chapter or chapter 375, |
| 233 | the existing agricultural lease may continue in force for the |
| 234 | actual time remaining on the lease agreement. Any entity |
| 235 | managing lands acquired under this section must consider |
| 236 | existing agricultural leases in the development of a land |
| 237 | management plan required under s. 253.034. |
| 238 | (2) Where consistent with the purposes for which the |
| 239 | property was acquired, the state or acquiring entity shall make |
| 240 | reasonable efforts to keep lands in agricultural production |
| 241 | which are in agricultural production at the time of acquisition. |
| 242 | Section 5. Paragraph (a) of subsection (2) of section |
| 243 | 373.0361, Florida Statutes, is amended to read: |
| 244 | 373.0361 Regional water supply planning.-- |
| 245 | (2) Each regional water supply plan shall be based on at |
| 246 | least a 20-year planning period and shall include, but need not |
| 247 | be limited to: |
| 248 | (a) A water supply development component for each water |
| 249 | supply planning region identified by the district which |
| 250 | includes: |
| 251 | 1. A quantification of the water supply needs for all |
| 252 | existing and future reasonable-beneficial uses within the |
| 253 | planning horizon. The level-of-certainty planning goal |
| 254 | associated with identifying the water supply needs of existing |
| 255 | and future reasonable-beneficial uses shall be based upon |
| 256 | meeting those needs for a 1-in-10-year drought event. Population |
| 257 | projections used for determining public water supply needs must |
| 258 | be based upon the best available data. In determining the best |
| 259 | available data, the district shall consider the University of |
| 260 | Florida's Bureau of Economic and Business Research (BEBR) medium |
| 261 | population projections and any population projection data and |
| 262 | analysis submitted by a local government pursuant to the public |
| 263 | workshop described in subsection (1) if the data and analysis |
| 264 | support the local government's comprehensive plan. Any |
| 265 | adjustment of or deviation from the BEBR projections must be |
| 266 | fully described, and the original BEBR data must be presented |
| 267 | along with the adjusted data. |
| 268 | 2. A list of water supply development project options, |
| 269 | including traditional and alternative water supply project |
| 270 | options, from which local government, government-owned and |
| 271 | privately owned utilities, regional water supply authorities, |
| 272 | multijurisdictional water supply entities, self-suppliers, and |
| 273 | others may choose for water supply development. In addition to |
| 274 | projects listed by the district, such users may propose specific |
| 275 | projects for inclusion in the list of alternative water supply |
| 276 | projects. If such users propose a project to be listed as an |
| 277 | alternative water supply project, the district shall determine |
| 278 | whether it meets the goals of the plan, and, if so, it shall be |
| 279 | included in the list. The total capacity of the projects |
| 280 | included in the plan shall exceed the needs identified in |
| 281 | subparagraph 1. and shall take into account water conservation |
| 282 | and other demand management measures, as well as water resources |
| 283 | constraints, including adopted minimum flows and levels and |
| 284 | water reservations. Where the district determines it is |
| 285 | appropriate, the plan should specifically identify the need for |
| 286 | multijurisdictional approaches to project options that, based on |
| 287 | planning level analysis, are appropriate to supply the intended |
| 288 | uses and that, based on such analysis, appear to be permittable |
| 289 | and financially and technically feasible. The list of water |
| 290 | supply development options must contain provisions that |
| 291 | recognize that alternative water supply options for agricultural |
| 292 | self-suppliers are limited. |
| 293 | 3. For each project option identified in subparagraph 2., |
| 294 | the following shall be provided: |
| 295 | a. An estimate of the amount of water to become available |
| 296 | through the project. |
| 297 | b. The timeframe in which the project option should be |
| 298 | implemented and the estimated planning-level costs for capital |
| 299 | investment and operating and maintaining the project. |
| 300 | c. An analysis of funding needs and sources of possible |
| 301 | funding options. For alternative water supply projects the water |
| 302 | management districts shall provide funding assistance in |
| 303 | accordance with s. 373.1961(3). |
| 304 | d. Identification of the entity that should implement each |
| 305 | project option and the current status of project implementation. |
| 306 | Section 6. Section 373.2234, Florida Statutes, is amended |
| 307 | to read: |
| 308 | 373.2234 Preferred water supply sources.--The governing |
| 309 | board of a water management district is authorized to adopt |
| 310 | rules that identify preferred water supply sources for |
| 311 | consumptive uses for which there is sufficient data to establish |
| 312 | that a preferred source will provide a substantial new water |
| 313 | supply to meet the existing and projected reasonable-beneficial |
| 314 | uses of a water supply planning region identified pursuant to s. |
| 315 | 373.0361(1), while sustaining existing water resources and |
| 316 | natural systems. At a minimum, such rules must contain a |
| 317 | description of the preferred water supply source and an |
| 318 | assessment of the water the preferred source is projected to |
| 319 | produce. If an applicant proposes to use a preferred water |
| 320 | supply source, that applicant's proposed water use is subject to |
| 321 | s. 373.223(1), except that the proposed use of a preferred water |
| 322 | supply source must be considered by a water management district |
| 323 | when determining whether a permit applicant's proposed use of |
| 324 | water is consistent with the public interest pursuant to s. |
| 325 | 373.223(1)(c). A consumptive use permit issued for the use of a |
| 326 | preferred water supply source must be granted, when requested by |
| 327 | the applicant, for at least a 20-year period and may be subject |
| 328 | to the compliance reporting provisions of s. 373.236(4)(3). |
| 329 | Nothing in this section shall be construed to exempt the use of |
| 330 | preferred water supply sources from the provisions of ss. |
| 331 | 373.016(4) and 373.223(2) and (3), or be construed to provide |
| 332 | that permits issued for the use of a nonpreferred water supply |
| 333 | source must be issued for a duration of less than 20 years or |
| 334 | that the use of a nonpreferred water supply source is not |
| 335 | consistent with the public interest. Additionally, nothing in |
| 336 | this section shall be interpreted to require the use of a |
| 337 | preferred water supply source or to restrict or prohibit the use |
| 338 | of a nonpreferred water supply source. Rules adopted by the |
| 339 | governing board of a water management district to implement this |
| 340 | section shall specify that the use of a preferred water supply |
| 341 | source is not required and that the use of a nonpreferred water |
| 342 | supply source is not restricted or prohibited. |
| 343 | Section 7. Present subsections (2) and (3) of section |
| 344 | 373.236, Florida Statutes, are renumbered as subsections (3) and |
| 345 | (4), respectively, present subsection (4) is renumbered as |
| 346 | subsection (5) and amended, and a new subsection (2) is added to |
| 347 | that section, to read: |
| 348 | 373.236 Duration of permits; compliance reports.-- |
| 349 | (2) The Legislature finds that some agricultural |
| 350 | landowners remain unaware of their ability to request a 20-year |
| 351 | consumptive use permit under subsection (1) for initial permits |
| 352 | or for renewals. Therefore, the water management districts shall |
| 353 | inform agricultural applicants of this option in the application |
| 354 | form. |
| 355 | (5)(4) Permits approved for the development of alternative |
| 356 | water supplies shall be granted for a term of at least 20 years. |
| 357 | However, if the permittee issues bonds for the construction of |
| 358 | the project, upon request of the permittee prior to the |
| 359 | expiration of the permit, that permit shall be extended for such |
| 360 | additional time as is required for the retirement of bonds, not |
| 361 | including any refunding or refinancing of such bonds, provided |
| 362 | that the governing board determines that the use will continue |
| 363 | to meet the conditions for the issuance of the permit. Such a |
| 364 | permit is subject to compliance reports under subsection (4)(3). |
| 365 | Section 8. Section 373.407, Florida Statutes, is created |
| 366 | to read: |
| 367 | 373.407 Memorandum of agreement for an agricultural- |
| 368 | related exemption.--No later than July 1, 2007, the Department |
| 369 | of Agriculture and Consumer Services and each water management |
| 370 | district shall enter into a memorandum of agreement under which |
| 371 | the Department of Agricultural and Consumer Services shall |
| 372 | assist in a determination by a water management district as to |
| 373 | whether an existing or proposed activity qualifies for the |
| 374 | exemption in s. 373.406(2). The memorandum of agreement shall |
| 375 | provide a process by which, upon the request of a water |
| 376 | management district, the Department of Agriculture and Consumer |
| 377 | Services shall conduct a nonbinding review as to whether an |
| 378 | existing or proposed activity qualifies for an agricultural- |
| 379 | related exemption in s. 373.406(2). The memorandum of agreement |
| 380 | shall provide processes and procedures by which the Department |
| 381 | of Agriculture and Consumer Services shall undertake this review |
| 382 | effectively and efficiently and issue a recommendation. |
| 383 | Section 9. This act shall take effect upon becoming a law. |