Florida Senate - 2009                             CS for SB 1602
       
       
       
       By the Committee on Community Affairs; and Senator Baker
       
       
       
       
       578-03856-09                                          20091602c1
    1                        A bill to be entitled                      
    2         An act relating to community development districts;
    3         amending s. 190.012, F.S.; revising the rulemaking
    4         authority of boards of directors of community
    5         development districts regarding enforcement of deed
    6         restrictions; amending s. 190.046, F.S.; revising
    7         procedures and requirements for amending the
    8         boundaries of a community development district;
    9         revising procedures and requirements for merging
   10         community development districts; providing
   11         limitations; providing that certain actions constitute
   12         consent of landowners within a district to amendment
   13         of the boundaries of the district; requiring written
   14         consent from such landowners as a prerequisite to the
   15         amendment of the boundaries of a district; authorizing
   16         filing fees for petitions for merger; preserving
   17         rights of certain creditors and certain liens upon
   18         property; providing for the continuance of existing
   19         claims and pending actions or proceedings by or
   20         against a district that is a party to a merger;
   21         authorizing the substituting of a surviving district
   22         for a dissolved district in such action, claim, or
   23         proceeding; providing that approval of the merger
   24         agreement and the petition by the board of supervisors
   25         of the district constitutes consent of the landowners
   26         within the district to a merger; providing an
   27         effective date.
   28  
   29  Be It Enacted by the Legislature of the State of Florida:
   30  
   31         Section 1. Paragraphs (a) and (b) of subsection (4) of
   32  section 190.012, Florida Statutes, are amended to read:
   33         190.012 Special powers; public improvements and community
   34  facilities.—The district shall have, and the board may exercise,
   35  subject to the regulatory jurisdiction and permitting authority
   36  of all applicable governmental bodies, agencies, and special
   37  districts having authority with respect to any area included
   38  therein, any or all of the following special powers relating to
   39  public improvements and community facilities authorized by this
   40  act:
   41         (4)(a) To adopt rules necessary for the district to enforce
   42  certain deed restrictions pertaining to the use and operation of
   43  real property within the district and outside the district if
   44  pursuant to an interlocal agreement under chapter 163 if within
   45  another district or, if not within another district, with the
   46  consent of the county or municipality in which the deed
   47  restriction enforcement is proposed to occur. For the purpose of
   48  this subsection, the term “deed restrictions” means are those
   49  covenants, conditions, and restrictions, compliance mechanisms,
   50  and enforcement remedies contained in any applicable
   51  declarations of covenants and restrictions that govern the use
   52  and operation of real property within the district and, for
   53  which covenants, conditions, and restrictions, there is no
   54  homeowners’ association or property owner’s association having
   55  respective enforcement powers unless, with respect to a
   56  homeowners’ association whose board is under member control, the
   57  association and the district agree in writing to enforcement by
   58  the district. The district may adopt by rule all or certain
   59  portions of the deed restrictions that:
   60         1. Relate to limitations, or prohibitions, compliance
   61  mechanisms, or enforcement remedies that apply only to external
   62  appearances or uses structures and are deemed by the district to
   63  be generally beneficial for the district’s landowners and for
   64  which enforcement by the district is appropriate, as determined
   65  by the district’s board of supervisors; or
   66         2. Are consistent with the requirements of a development
   67  order or regulatory agency permit.
   68         (b) The board may vote to adopt such rules only when all of
   69  the following conditions exist:
   70         1. The district’s geographic area contains no homeowners’
   71  associations as defined in s. 720.301(9);
   72         1.2. The district was in existence on the effective date of
   73  this subsection, or is located within a development that
   74  consists of multiple developments of regional impact and a
   75  Florida Quality Development.;
   76         2.3. For residential districts, the majority of the board
   77  has been elected by qualified electors pursuant to the
   78  provisions of s. 190.006.; and
   79         3.For residential districts, less than 25 percent of
   80  residential units are in a homeowners’ association.
   81         4. The declarant in any applicable declarations of
   82  covenants and restrictions has provided the board with a written
   83  agreement that such rules may be adopted. A memorandum of the
   84  agreement shall be recorded in the public records.
   85         Section 2. Subsections (1) and (3) of section 190.046,
   86  Florida Statutes, are amended to read:
   87         190.046 Termination, contraction, or expansion of
   88  district.—
   89         (1) A landowner or the board may petition to contract or
   90  expand the boundaries of a community development district in the
   91  following manner:
   92         (a) The petition shall contain the same information
   93  required by s. 190.005(1)(a)1. and 8. In addition, if the
   94  petitioner seeks to expand the district, the petition shall
   95  describe the proposed timetable for construction of any district
   96  services to the area, the estimated cost of constructing the
   97  proposed services, and the designation of the future general
   98  distribution, location, and extent of public and private uses of
   99  land proposed for the area by the future land use plan element
  100  of the adopted local government local comprehensive plan. If the
  101  petitioner seeks to contract the district, the petition shall
  102  describe what services and facilities are currently provided by
  103  the district to the area being removed, and the designation of
  104  the future general distribution, location, and extent of public
  105  and private uses of land proposed for the area by the future
  106  land element of the adopted local government comprehensive plan.
  107         (b) For those districts initially established by county
  108  ordinance, the petition for ordinance amendment shall be filed
  109  with the county commission. If the land to be included or
  110  excluded is, in whole or in part, within the boundaries of a
  111  municipality, then the county commission shall not amend the
  112  ordinance without municipal approval. A public hearing shall be
  113  held in the same manner and with the same public notice as other
  114  ordinance amendments. The county commission shall consider the
  115  record of the public hearing and the factors set forth in s.
  116  190.005(1)(e) in making its determination to grant or deny the
  117  petition for ordinance amendment.
  118         (c) For those districts initially established by municipal
  119  ordinance pursuant to s. 190.005(2)(e), the municipality shall
  120  assume the duties of the county commission set forth in
  121  paragraph (b); however, if any of the land to be included or
  122  excluded, in whole or in part, is outside the boundaries of the
  123  municipality, then the municipality shall not amend its
  124  ordinance without county commission approval.
  125         (d)1. For those districts initially established by
  126  administrative rule pursuant to s. 190.005(1), the petition
  127  shall be filed with the Florida Land and Water Adjudicatory
  128  Commission.
  129         2. Before Prior to filing the petition, the petitioner
  130  shall pay a filing fee of $1,500 to the county if the district
  131  or the land to be added or deleted from the district is located
  132  within an unincorporated area or to the municipality if the
  133  district or the land to be added or deleted is located within an
  134  incorporated area, and to each municipality the boundaries of
  135  which are contiguous with or contain all or a portion of the
  136  land within or to be added to or deleted from the external
  137  boundaries of the district or the proposed amendment, and submit
  138  a copy of the petition to the county and to each such
  139  municipality. The petitioner shall submit a copy of the petition
  140  to the entities entitled to receive the filing fee. In addition,
  141  if the district is not the petitioner, the petitioner shall file
  142  the petition with the district board of supervisors.
  143         3. Each The county and each municipality shall have the
  144  option of holding a public hearing as provided by s.
  145  190.005(1)(c). However, such public hearing shall be limited to
  146  consideration of the contents of the petition and whether the
  147  petition for amendment should be supported by the county or
  148  municipality.
  149         4. The district board of supervisors shall, in lieu of a
  150  hearing officer, hold the local public hearing provided for by
  151  s. 190.005(1)(d). This local public hearing shall be noticed in
  152  the same manner as provided in s. 190.005(1)(d). Within 45 days
  153  of the conclusion of the hearing, the district board of
  154  supervisors shall transmit to the Florida Land and Water
  155  Adjudicatory Commission the full record of the local hearing,
  156  the transcript of the hearing, any resolutions adopted by the
  157  local general-purpose governments, and its recommendation
  158  whether to grant the petition for amendment. The commission
  159  shall then proceed in accordance with s. 190.005(1)(e).
  160         5. A rule amending a district boundary shall describe the
  161  land to be added or deleted.
  162         (e) In all cases, written consent of all the landowners
  163  whose land is to be added to or deleted from the district shall
  164  be required. The filing of the petition for expansion or
  165  contraction by the district board of supervisors shall
  166  constitute consent of the landowners within the district other
  167  than of landowners whose land is proposed to be added to or
  168  removed from the district.
  169         (e)(f)1. During the existence of a district initially
  170  established by administrative rule, the process petitions to
  171  amend the boundaries of the district pursuant to paragraphs (a)
  172  (d) may not permit (a)-(e) shall be limited to a cumulative net
  173  total of no more than 10 percent of the land in the initial
  174  district or, and in no event shall all such petitions to amend
  175  the boundaries ever encompass more than a total of 250 acres on
  176  a cumulative net basis.
  177         2. During the existence of a district For districts
  178  initially established by county or municipal ordinance, the
  179  process to amend the boundaries of the district pursuant to
  180  paragraphs (a)-(d) may not permit limitation provided by this
  181  paragraph shall be a cumulative net total of no more than 50
  182  percent of the land in the initial district or, and in no event
  183  shall all such petitions to amend the boundaries ever encompass
  184  more than a total of 500 acres on a cumulative net basis.
  185         3. Boundary expansions for districts initially established
  186  by county or municipal ordinance shall follow the procedure set
  187  forth in paragraph (b) or paragraph (c).
  188         (f)(g) Petitions to amend the boundaries of the district
  189  exceeding which exceed the amount of land specified in paragraph
  190  (e) (f) shall be processed in accordance with s. 190.005, and
  191  the petition shall include only the elements set forth in s.
  192  190.005(1)(a)1. and 5.-8., and the consent required by paragraph
  193  (g) considered petitions to establish a new district and shall
  194  follow all of the procedures specified in s. 190.005. However,
  195  the resulting administrative rule or ordinance may amend only
  196  the boundaries of the district and may not establish a new
  197  district or cause a new 6-year or 10-year period, as described
  198  in s. 190.006(3)(a)2. to begin. The filing fee for such
  199  petitions shall be as set forth in s. 190.005(1)(b) and (2), as
  200  applicable.
  201         (g)For any petition to amend the boundaries of a district,
  202  the filing of the petition by the district board of supervisors
  203  constitutes consent of the landowners within the district.
  204  Written consent must be obtained from the landowners whose land
  205  is to be added to or deleted from the district as provided in s.
  206  190.005(1)(a)2.
  207         (3) The district may merge with other community development
  208  districts upon filing a petition for merger. Such petition must
  209  include the elements described in s. 190.005(1) and be evaluated
  210  using the criteria set forth in s. 190.005(1)(e). The filing fee
  211  shall be as provided in s. 190.005(1)(b). In addition, the
  212  petition must state whether a new district will be established
  213  or one district will be the surviving district. The district
  214  establishment of a community development district pursuant to s.
  215  190.005 or may merge with any other special districts upon
  216  filing a petition for establishment of a community development
  217  district pursuant to s. 190.005. The government formed by a
  218  merger involving a community development district pursuant to
  219  this section shall assume all indebtedness of, and receive title
  220  to, all property owned by the preexisting special districts, and
  221  the rights of creditors and liens upon property are not impaired
  222  by such merger. Any existing claim, pending action, or
  223  proceeding by or against any district that is a party to the
  224  merger may be continued as if the merger had not occurred, or
  225  the surviving district may be substituted in the proceeding for
  226  the district that ceased to exist. Before Prior to filing the
  227  said petition, the districts desiring to merge shall enter into
  228  a merger agreement and shall provide for the proper allocation
  229  of the indebtedness so assumed and the manner in which the said
  230  debt shall be retired. The approval of the merger agreement and
  231  the petition by the board of supervisors elected by the electors
  232  of the district shall constitute consent of the landowners
  233  within the district.
  234         Section 3. This act shall take effect July 1, 2009.