Senate Bill sb2852

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    Florida Senate - 2007                                  SB 2852

    By Senator Peaden





    2-1628A-07                                         See HB 1333

  1                      A bill to be entitled

  2         An act relating to property rights; amending s.

  3         70.001, F.S., the "Bert J. Harris, Jr., Private

  4         Property Rights Protection Act"; revising a

  5         definition; shortening a period of notice for

  6         certain actions; providing for the state land

  7         planning agency to receive notice of claims;

  8         revising procedures for determining a

  9         governmental entity's final decision

10         identifying the allowable uses for a property;

11         extending a period of time for bringing a cause

12         of action; providing that enactment of a law or

13         adoption of a regulation does not constitute

14         applying the law or regulation; providing for a

15         waiver of sovereign immunity for liability;

16         providing an effective date.

17  

18         WHEREAS, the Legislature wishes to clarify its original

19  intent with respect to allowing appropriate compensation for

20  unduly burdened real property and to provide a waiver of

21  sovereign immunity under section 70.001, Florida Statutes, the

22  Bert J. Harris, Jr., Private Property Rights Protection Act,

23  and

24         WHEREAS, the Legislature wishes to make other changes

25  to clarify provisions of this act and to improve the reporting

26  of cases filed under the act, NOW, THEREFORE,

27  

28  Be It Enacted by the Legislature of the State of Florida:

29  

30         Section 1.  Paragraph (e) of subsection (3), paragraphs

31  (a), (b), and (c) of subsection (4), paragraph (a) of

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    Florida Senate - 2007                                  SB 2852
    2-1628A-07                                         See HB 1333




 1  subsection (5), paragraph (c) of subsection (6), and

 2  subsections (11) and (13) of section 70.001, Florida Statutes,

 3  are amended to read:

 4         70.001  Private property rights protection.--

 5         (3)  For purposes of this section:

 6         (e)  The terms "inordinate burden" or "inordinately

 7  burdened" mean that an action of one or more governmental

 8  entities has directly restricted or limited the use of real

 9  property such that the property owner is permanently unable to

10  attain the reasonable, investment-backed expectation for the

11  existing use of the real property or a vested right to a

12  specific use of the real property with respect to the real

13  property as a whole, or that the property owner is left with

14  existing or vested uses that are unreasonable such that the

15  property owner bears permanently a disproportionate share of a

16  burden imposed for the good of the public, which in fairness

17  should be borne by the public at large. The terms "inordinate

18  burden" or "inordinately burdened" do not include temporary

19  impacts to real property; impacts to real property occasioned

20  by governmental abatement, prohibition, prevention, or

21  remediation of a public nuisance at common law or a noxious

22  use of private property; or impacts to real property caused by

23  an action of a governmental entity taken to grant relief to a

24  property owner under this section; however, a moratorium on

25  development, as defined in s. 380.04, which is in effect for

26  longer than 1 year is not a temporary impact to real property

27  and is included within the terms "inordinate burden" or

28  "inordinately burdened".

29         (4)(a)  Not less than 120 180 days prior to filing an

30  action under this section against a governmental entity, a

31  property owner who seeks compensation under this section must

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    Florida Senate - 2007                                  SB 2852
    2-1628A-07                                         See HB 1333




 1  present the claim in writing to the head of the governmental

 2  entity, except that if the property is classified as

 3  agricultural pursuant to s. 193.461, the notice period is 90

 4  days. The property owner must submit, along with the claim, a

 5  bona fide, valid appraisal that supports the claim and

 6  demonstrates the loss in fair market value to the real

 7  property. If the action of government is the culmination of a

 8  process that involves more than one governmental entity, or if

 9  a complete resolution of all relevant issues, in the view of

10  the property owner or in the view of a governmental entity to

11  whom a claim is presented, requires the active participation

12  of more than one governmental entity, the property owner shall

13  present the claim as provided in this section to each of the

14  governmental entities.

15         (b)  The governmental entity shall provide written

16  notice of the claim to all parties to any administrative

17  action that gave rise to the claim, and to owners of real

18  property contiguous to the owner's property at the addresses

19  listed on the most recent county tax rolls. Within 15 days

20  after the claim is being presented, the governmental entity

21  shall report the claim in writing to the state land planning

22  agency Department of Legal Affairs, and shall provide the

23  agency department with the name, address, and telephone number

24  of the employee of the governmental entity from whom

25  additional information may be obtained about the claim during

26  the pendency of the claim and any subsequent judicial action.

27         (c)  During the 90-day-notice period or the

28  120-day-notice 180-day-notice period, unless extended by

29  agreement of the parties, the governmental entity shall make a

30  written settlement offer to effectuate:

31  

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    Florida Senate - 2007                                  SB 2852
    2-1628A-07                                         See HB 1333




 1         1.  An adjustment of land development or permit

 2  standards or other provisions controlling the development or

 3  use of land.

 4         2.  Increases or modifications in the density,

 5  intensity, or use of areas of development.

 6         3.  The transfer of developmental rights.

 7         4.  Land swaps or exchanges.

 8         5.  Mitigation, including payments in lieu of onsite

 9  mitigation.

10         6.  Location on the least sensitive portion of the

11  property.

12         7.  Conditioning the amount of development or use

13  permitted.

14         8.  A requirement that issues be addressed on a more

15  comprehensive basis than a single proposed use or development.

16         9.  Issuance of the development order, a variance,

17  special exception, or other extraordinary relief.

18         10.  Purchase of the real property, or an interest

19  therein, by an appropriate governmental entity or payment of

20  compensation.

21         11.  No changes to the action of the governmental

22  entity.

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24  If the property owner accepts the settlement offer, the

25  governmental entity may implement the settlement offer by

26  appropriate development agreement; by issuing a variance,

27  special exception, or other extraordinary relief; or by other

28  appropriate method, subject to paragraph (d).

29         (5)(a)  During the 90-day-notice period or the

30  120-day-notice 180-day-notice period, unless a settlement

31  offer is accepted by the property owner, each of the

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    Florida Senate - 2007                                  SB 2852
    2-1628A-07                                         See HB 1333




 1  governmental entities provided notice pursuant to paragraph

 2  (4)(a) shall issue a written ripeness decision identifying the

 3  allowable uses to which the subject property may be put. The

 4  failure of the governmental entity to issue such a written

 5  ripeness decision during the applicable 90-day-notice period

 6  or 120-day-notice 180-day-notice period shall cause be deemed

 7  to ripen the prior action of the governmental entity to become

 8  its final decision, for purposes of the act, identifying the

 9  uses for the subject property, and shall operate as a ripeness

10  decision that has been rejected by the property owner. Whether

11  rendered by submission of a written decision during the

12  120-day-notice period or by failure to submit such a written

13  decision, the final decision of the governmental entity

14  produced under this paragraph operates as a final decision

15  that has been rejected by the property owner. This final The

16  ripeness decision, as a matter of law, constitutes the last

17  prerequisite to judicial review of the merits, and the matter

18  shall be deemed ripe or final for the purposes of the judicial

19  proceeding created by this section, notwithstanding the

20  availability of other administrative remedies.

21         (6)

22         (c)1.  In any action filed pursuant to this section,

23  the property owner is entitled to recover reasonable costs and

24  attorney fees incurred by the property owner, from the

25  governmental entity or entities, according to their

26  proportionate share as determined by the court, from the date

27  of the filing of the circuit court action, if the property

28  owner prevails in the action and the court determines that the

29  settlement offer, including the ripeness decision, of the

30  governmental entity or entities did not constitute a bona fide

31  offer to the property owner which reasonably would have

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    Florida Senate - 2007                                  SB 2852
    2-1628A-07                                         See HB 1333




 1  resolved the claim, based upon the knowledge available to the

 2  governmental entity or entities and the property owner during

 3  the 90-day-notice period or the 120-day-notice 180-day-notice

 4  period.

 5         2.  In any action filed pursuant to this section, the

 6  governmental entity or entities are entitled to recover

 7  reasonable costs and attorney fees incurred by the

 8  governmental entity or entities from the date of the filing of

 9  the circuit court action, if the governmental entity or

10  entities prevail in the action and the court determines that

11  the property owner did not accept a bona fide settlement

12  offer, including the ripeness decision, which reasonably would

13  have resolved the claim fairly to the property owner if the

14  settlement offer had been accepted by the property owner,

15  based upon the knowledge available to the governmental entity

16  or entities and the property owner during the 90-day-notice

17  period or the 120-day-notice 180-day-notice period.

18         3.  The determination of total reasonable costs and

19  attorney fees pursuant to this paragraph shall be made by the

20  court and not by the jury. Any proposed settlement offer or

21  any proposed ripeness decision, except for the final written

22  settlement offer or the final written ripeness decision, and

23  any negotiations or rejections in regard to the formulation

24  either of the settlement offer or the ripeness decision, are

25  inadmissible in the subsequent proceeding established by this

26  section except for the purposes of the determination pursuant

27  to this paragraph.

28         (11)  A cause of action may not be commenced under this

29  section if the claim is presented more than 2 years 1 year

30  after a law or regulation is first applied by the governmental

31  entity to the property at issue. Enacting a law or adopting a

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    Florida Senate - 2007                                  SB 2852
    2-1628A-07                                         See HB 1333




 1  regulation does not constitute applying the law or regulation

 2  to a property. If an owner seeks relief from the governmental

 3  action through lawfully available administrative or judicial

 4  proceedings, the time for bringing an action under this

 5  section is tolled until the conclusion of such proceedings.

 6         (13)  In accordance with s. 13, Art. X of the State

 7  Constitution, the state, for itself and for its agencies or

 8  political subdivisions, waives sovereign immunity for

 9  liability for actions subject to this section, but only to the

10  extent specified in this section. This section does not affect

11  the sovereign immunity of government.

12         Section 2.  This act shall take effect July 1, 2007.

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