HB 1333

1
A bill to be entitled
2An act relating to property rights; amending s. 70.001,
3F.S., the "Bert J. Harris, Jr., Private Property Rights
4Protection Act"; revising a definition; shortening a
5period of notice for certain actions; providing for the
6state land planning agency to receive notice of claims;
7revising procedures for determining a governmental
8entity's final decision identifying the allowable uses for
9a property; extending a period of time for bringing a
10cause of action; providing that enactment of a law or
11adoption of a regulation does not constitute applying the
12law or regulation; providing for a waiver of sovereign
13immunity for liability; providing an effective date.
14
15     WHEREAS, the Legislature wishes to clarify its original
16intent with respect to allowing appropriate compensation for
17unduly burdened real property and to provide a waiver of
18sovereign immunity under section 70.001, Florida Statutes, the
19Bert J. Harris, Jr., Private Property Rights Protection Act, and
20     WHEREAS, the Legislature wishes to make other changes to
21clarify provisions of this act and to improve the reporting of
22cases filed under the act, NOW, THEREFORE,
23
24Be It Enacted by the Legislature of the State of Florida:
25
26     Section 1.  Paragraph (e) of subsection (3), paragraphs
27(a), (b), and (c) of subsection (4), paragraph (a) of subsection
28(5), paragraph (c) of subsection (6), and subsections (11) and
29(13) of section 70.001, Florida Statutes, are amended to read:
30     70.001  Private property rights protection.--
31     (3)  For purposes of this section:
32     (e)  The terms "inordinate burden" or "inordinately
33burdened" mean that an action of one or more governmental
34entities has directly restricted or limited the use of real
35property such that the property owner is permanently unable to
36attain the reasonable, investment-backed expectation for the
37existing use of the real property or a vested right to a
38specific use of the real property with respect to the real
39property as a whole, or that the property owner is left with
40existing or vested uses that are unreasonable such that the
41property owner bears permanently a disproportionate share of a
42burden imposed for the good of the public, which in fairness
43should be borne by the public at large. The terms "inordinate
44burden" or "inordinately burdened" do not include temporary
45impacts to real property; impacts to real property occasioned by
46governmental abatement, prohibition, prevention, or remediation
47of a public nuisance at common law or a noxious use of private
48property; or impacts to real property caused by an action of a
49governmental entity taken to grant relief to a property owner
50under this section; however, a moratorium on development, as
51defined in s. 380.04, which is in effect for longer than 1 year
52is not a temporary impact to real property and is included
53within the terms "inordinate burden" or "inordinately burdened".
54     (4)(a)  Not less than 120 180 days prior to filing an
55action under this section against a governmental entity, a
56property owner who seeks compensation under this section must
57present the claim in writing to the head of the governmental
58entity, except that if the property is classified as
59agricultural pursuant to s. 193.461, the notice period is 90
60days. The property owner must submit, along with the claim, a
61bona fide, valid appraisal that supports the claim and
62demonstrates the loss in fair market value to the real property.
63If the action of government is the culmination of a process that
64involves more than one governmental entity, or if a complete
65resolution of all relevant issues, in the view of the property
66owner or in the view of a governmental entity to whom a claim is
67presented, requires the active participation of more than one
68governmental entity, the property owner shall present the claim
69as provided in this section to each of the governmental
70entities.
71     (b)  The governmental entity shall provide written notice
72of the claim to all parties to any administrative action that
73gave rise to the claim, and to owners of real property
74contiguous to the owner's property at the addresses listed on
75the most recent county tax rolls. Within 15 days after the claim
76is being presented, the governmental entity shall report the
77claim in writing to the state land planning agency Department of
78Legal Affairs, and shall provide the agency department with the
79name, address, and telephone number of the employee of the
80governmental entity from whom additional information may be
81obtained about the claim during the pendency of the claim and
82any subsequent judicial action.
83     (c)  During the 90-day-notice period or the 120-day-notice
84180-day-notice period, unless extended by agreement of the
85parties, the governmental entity shall make a written settlement
86offer to effectuate:
87     1.  An adjustment of land development or permit standards
88or other provisions controlling the development or use of land.
89     2.  Increases or modifications in the density, intensity,
90or use of areas of development.
91     3.  The transfer of developmental rights.
92     4.  Land swaps or exchanges.
93     5.  Mitigation, including payments in lieu of onsite
94mitigation.
95     6.  Location on the least sensitive portion of the
96property.
97     7.  Conditioning the amount of development or use
98permitted.
99     8.  A requirement that issues be addressed on a more
100comprehensive basis than a single proposed use or development.
101     9.  Issuance of the development order, a variance, special
102exception, or other extraordinary relief.
103     10.  Purchase of the real property, or an interest therein,
104by an appropriate governmental entity or payment of
105compensation.
106     11.  No changes to the action of the governmental entity.
107
108If the property owner accepts the settlement offer, the
109governmental entity may implement the settlement offer by
110appropriate development agreement; by issuing a variance,
111special exception, or other extraordinary relief; or by other
112appropriate method, subject to paragraph (d).
113     (5)(a)  During the 90-day-notice period or the 120-day-
114notice 180-day-notice period, unless a settlement offer is
115accepted by the property owner, each of the governmental
116entities provided notice pursuant to paragraph (4)(a) shall
117issue a written ripeness decision identifying the allowable uses
118to which the subject property may be put. The failure of the
119governmental entity to issue such a written ripeness decision
120during the applicable 90-day-notice period or 120-day-notice
121180-day-notice period shall cause be deemed to ripen the prior
122action of the governmental entity to become its final decision,
123for purposes of the act, identifying the uses for the subject
124property, and shall operate as a ripeness decision that has been
125rejected by the property owner. Whether rendered by submission
126of a written decision during the 120-day-notice period or by
127failure to submit such a written decision, the final decision of
128the governmental entity produced under this paragraph operates
129as a final decision that has been rejected by the property
130owner. This final The ripeness decision, as a matter of law,
131constitutes the last prerequisite to judicial review of the
132merits, and the matter shall be deemed ripe or final for the
133purposes of the judicial proceeding created by this section,
134notwithstanding the availability of other administrative
135remedies.
136     (6)
137     (c)1.  In any action filed pursuant to this section, the
138property owner is entitled to recover reasonable costs and
139attorney fees incurred by the property owner, from the
140governmental entity or entities, according to their
141proportionate share as determined by the court, from the date of
142the filing of the circuit court action, if the property owner
143prevails in the action and the court determines that the
144settlement offer, including the ripeness decision, of the
145governmental entity or entities did not constitute a bona fide
146offer to the property owner which reasonably would have resolved
147the claim, based upon the knowledge available to the
148governmental entity or entities and the property owner during
149the 90-day-notice period or the 120-day-notice 180-day-notice
150period.
151     2.  In any action filed pursuant to this section, the
152governmental entity or entities are entitled to recover
153reasonable costs and attorney fees incurred by the governmental
154entity or entities from the date of the filing of the circuit
155court action, if the governmental entity or entities prevail in
156the action and the court determines that the property owner did
157not accept a bona fide settlement offer, including the ripeness
158decision, which reasonably would have resolved the claim fairly
159to the property owner if the settlement offer had been accepted
160by the property owner, based upon the knowledge available to the
161governmental entity or entities and the property owner during
162the 90-day-notice period or the 120-day-notice 180-day-notice
163period.
164     3.  The determination of total reasonable costs and
165attorney fees pursuant to this paragraph shall be made by the
166court and not by the jury. Any proposed settlement offer or any
167proposed ripeness decision, except for the final written
168settlement offer or the final written ripeness decision, and any
169negotiations or rejections in regard to the formulation either
170of the settlement offer or the ripeness decision, are
171inadmissible in the subsequent proceeding established by this
172section except for the purposes of the determination pursuant to
173this paragraph.
174     (11)  A cause of action may not be commenced under this
175section if the claim is presented more than 2 years 1 year after
176a law or regulation is first applied by the governmental entity
177to the property at issue. Enacting a law or adopting a
178regulation does not constitute applying the law or regulation to
179a property. If an owner seeks relief from the governmental
180action through lawfully available administrative or judicial
181proceedings, the time for bringing an action under this section
182is tolled until the conclusion of such proceedings.
183     (13)  In accordance with s. 13, Art. X of the State
184Constitution, the state, for itself and for its agencies or
185political subdivisions, waives sovereign immunity for liability
186for actions subject to this section, but only to the extent
187specified in this section. This section does not affect the
188sovereign immunity of government.
189     Section 2.  This act shall take effect July 1, 2007.


CODING: Words stricken are deletions; words underlined are additions.