Florida Senate - 2009 CS for CS for SB 1602
By the Committees on Judiciary; and Community Affairs; and
Senator Baker
590-05735-09 20091602c2
1 A bill to be entitled
2 An act relating to community development districts;
3 amending s. 190.003, F.S.; defining the term “compact,
4 urban, mixed-use district”; amending s. 190.006, F.S.;
5 providing for application of certain board of
6 supervisors election time periods to compact, urban,
7 mixed-use districts; providing for retroactive
8 application; amending ss. 190.005, 190.011, 190.016,
9 190.021, and 348.968, F.S.; conforming cross
10 references; amending s. 190.012, F.S.; revising deed
11 restriction enforcement rulemaking authority of boards
12 of directors of community development districts;
13 authorizing certain property owners to elect a
14 district board advisor; providing advisor
15 responsibilities; providing requirements for district
16 board advisor review and recommendations relating to
17 enforcement of the district rules outside the
18 boundaries of the district; requiring creation of a
19 district board advisor seat after an interlocal
20 agreement is entered into; providing for election of
21 the advisor and the term of office; providing election
22 procedures and requirements; amending s. 190.046,
23 F.S.; revising procedures and requirements to amend
24 the boundaries of a community development district;
25 revising procedures and requirements to merge
26 community development districts; providing
27 limitations; providing for petition filing fees;
28 preserving rights of creditors, liens upon property,
29 and claims and pending actions or proceedings;
30 providing an effective date.
31
32 Be It Enacted by the Legislature of the State of Florida:
33
34 Section 1. Subsections (7) through (21) of section 190.003,
35 Florida Statutes, are renumbered as subsections (8) through
36 (22), respectively, and a new subsection (7) is added to that
37 section to read:
38 190.003 Definitions.—As used in this chapter, the term:
39 (7) “Compact, urban, mixed-use district” means a district
40 located within a municipality and within a community
41 redevelopment area created pursuant to s. 163.356, that consists
42 of a maximum of 75 acres, and has development entitlements of at
43 least 400,000 square feet of retail development and 500
44 residential units.
45 Section 2. Paragraph (a) of subsection (3) of section
46 190.006, Florida Statutes, is amended to read:
47 190.006 Board of supervisors; members and meetings.—
48 (3)(a)1. If the board proposes to exercise the ad valorem
49 taxing power authorized by s. 190.021, the district board shall
50 call an election at which the members of the board of
51 supervisors will be elected. Such election shall be held in
52 conjunction with a primary or general election unless the
53 district bears the cost of a special election. Each member shall
54 be elected by the qualified electors of the district for a term
55 of 4 years, except that, at the first such election, three
56 members shall be elected for a period of 4 years and two members
57 shall be elected for a period of 2 years. All elected board
58 members must be qualified electors of the district.
59 2.a. Regardless of whether a district has proposed to levy
60 ad valorem taxes, commencing 6 years after the initial
61 appointment of members or, for a district exceeding 5,000 acres
62 in area or for a compact, urban, mixed-use district, 10 years
63 after the initial appointment of members, the position of each
64 member whose term has expired shall be filled by a qualified
65 elector of the district, elected by the qualified electors of
66 the district. However, for those districts established after
67 June 21, 1991, and for those existing districts established
68 after December 31, 1983, which have less than 50 qualified
69 electors on June 21, 1991, sub-subparagraphs b. and d. shall
70 apply. If, in the 6th year after the initial appointment of
71 members, or 10 years after such initial appointment for
72 districts exceeding 5,000 acres in area or for a compact, urban,
73 mixed-use district, there are not at least 250 qualified
74 electors in the district, or for a district exceeding 5,000
75 acres or for a compact, urban, mixed-use district, there are not
76 at least 500 qualified electors, members of the board shall
77 continue to be elected by landowners.
78 b. After the 6th or 10th year, once a district reaches 250
79 or 500 qualified electors, respectively, then the positions of
80 two board members whose terms are expiring shall be filled by
81 qualified electors of the district, elected by the qualified
82 electors of the district for 4-year terms. The remaining board
83 member whose term is expiring shall be elected for a 4-year term
84 by the landowners and is not required to be a qualified elector.
85 Thereafter, as terms expire, board members shall be qualified
86 electors elected by qualified electors of the district for a
87 term of 4 years.
88 c. Once a district qualifies to have any of its board
89 members elected by the qualified electors of the district, the
90 initial and all subsequent elections by the qualified electors
91 of the district shall be held at the general election in
92 November. The board shall adopt a resolution if necessary to
93 implement this requirement when the board determines the number
94 of qualified electors as required by sub-subparagraph d., to
95 extend or reduce the terms of current board members.
96 d. On or before June 1 of each year, the board shall
97 determine the number of qualified electors in the district as of
98 the immediately preceding April 15. The board shall use and rely
99 upon the official records maintained by the supervisor of
100 elections and property appraiser or tax collector in each county
101 in making this determination. Such determination shall be made
102 at a properly noticed meeting of the board and shall become a
103 part of the official minutes of the district.
104 Section 3. The amendment to s. 190.006, Florida Statutes,
105 made by this act shall apply retroactively to districts
106 established prior to July 1, 2009.
107 Section 4. Paragraph (a) of subsection (1) of section
108 190.005, Florida Statutes, is amended to read:
109 190.005 Establishment of district.—
110 (1) The exclusive and uniform method for the establishment
111 of a community development district with a size of 1,000 acres
112 or more shall be pursuant to a rule, adopted under chapter 120
113 by the Florida Land and Water Adjudicatory Commission, granting
114 a petition for the establishment of a community development
115 district.
116 (a) A petition for the establishment of a community
117 development district shall be filed by the petitioner with the
118 Florida Land and Water Adjudicatory Commission. The petition
119 shall contain:
120 1. A metes and bounds description of the external
121 boundaries of the district. Any real property within the
122 external boundaries of the district which is to be excluded from
123 the district shall be specifically described, and the last known
124 address of all owners of such real property shall be listed. The
125 petition shall also address the impact of the proposed district
126 on any real property within the external boundaries of the
127 district which is to be excluded from the district.
128 2. The written consent to the establishment of the district
129 by all landowners whose real property is to be included in the
130 district or documentation demonstrating that the petitioner has
131 control by deed, trust agreement, contract, or option of 100
132 percent of the real property to be included in the district, and
133 when real property to be included in the district is owned by a
134 governmental entity and subject to a ground lease as described
135 in s. 190.003(14)(13), the written consent by such governmental
136 entity.
137 3. A designation of five persons to be the initial members
138 of the board of supervisors, who shall serve in that office
139 until replaced by elected members as provided in s. 190.006.
140 4. The proposed name of the district.
141 5. A map of the proposed district showing current major
142 trunk water mains and sewer interceptors and outfalls if in
143 existence.
144 6. Based upon available data, the proposed timetable for
145 construction of the district services and the estimated cost of
146 constructing the proposed services. These estimates shall be
147 submitted in good faith but shall not be binding and may be
148 subject to change.
149 7. A designation of the future general distribution,
150 location, and extent of public and private uses of land proposed
151 for the area within the district by the future land use plan
152 element of the effective local government comprehensive plan of
153 which all mandatory elements have been adopted by the applicable
154 general-purpose local government in compliance with the Local
155 Government Comprehensive Planning and Land Development
156 Regulation Act.
157 8. A statement of estimated regulatory costs in accordance
158 with the requirements of s. 120.541.
159 Section 5. Paragraph (b) of subsection (7) of section
160 190.011, Florida Statutes, is amended to read:
161 190.011 General powers.—The district shall have, and the
162 board may exercise, the following powers:
163 (7)
164 (b) When real property in the district is owned by a
165 governmental entity and subject to a ground lease as described
166 in s. 190.003(14)(13), to collect ground rent from landowners
167 pursuant to a contract with such governmental entity and to
168 contract with the county tax collector for collection of such
169 ground rent using the procedures authorized in s. 197.3631,
170 other than the procedures contained in s. 197.3632.
171 Section 6. Subsection (2) of section 190.016, Florida
172 Statutes, is amended to read:
173 190.016 Bonds.—
174 (2) AUTHORIZATION AND FORM OF BONDS.—Any general obligation
175 bonds, benefit bonds, or revenue bonds may be authorized by
176 resolution or resolutions of the board which shall be adopted by
177 a majority of all the members thereof then in office. Such
178 resolution or resolutions may be adopted at the same meeting at
179 which they are introduced and need not be published or posted.
180 The board may, by resolution, authorize the issuance of bonds
181 and fix the aggregate amount of bonds to be issued; the purpose
182 or purposes for which the moneys derived therefrom shall be
183 expended, including, but not limited to, payment of costs as
184 defined in s. 190.003(8)(7); the rate or rates of interest, in
185 compliance with s. 215.84; the denomination of the bonds;
186 whether or not the bonds are to be issued in one or more series;
187 the date or dates of maturity, which shall not exceed 40 years
188 from their respective dates of issuance; the medium of payment;
189 the place or places within or without the state where payment
190 shall be made; registration privileges; redemption terms and
191 privileges, whether with or without premium; the manner of
192 execution; the form of the bonds, including any interest coupons
193 to be attached thereto; the manner of execution of bonds and
194 coupons; and any and all other terms, covenants, and conditions
195 thereof and the establishment of revenue or other funds. Such
196 authorizing resolution or resolutions may further provide for
197 the contracts authorized by s. 159.825(1)(f) and (g) regardless
198 of the tax treatment of such bonds being authorized, subject to
199 the finding by the board of a net saving to the district
200 resulting by reason thereof. Such authorizing resolution may
201 further provide that such bonds may be executed in accordance
202 with the Registered Public Obligations Act, except that bonds
203 not issued in registered form shall be valid if manually
204 countersigned by an officer designated by appropriate resolution
205 of the board. The seal of the district may be affixed,
206 lithographed, engraved, or otherwise reproduced in facsimile on
207 such bonds. In case any officer whose signature shall appear on
208 any bonds or coupons shall cease to be such officer before the
209 delivery of such bonds, such signature or facsimile shall
210 nevertheless be valid and sufficient for all purposes the same
211 as if he or she had remained in office until such delivery.
212 Section 7. Subsection (10) of section 190.021, Florida
213 Statutes, is amended to read:
214 190.021 Taxes; non-ad valorem assessments.—
215 (10) LAND OWNED BY GOVERNMENTAL ENTITY.—Except as otherwise
216 provided by law, no levy of ad valorem taxes or non-ad valorem
217 assessments under this chapter, or chapter 170, chapter 197, or
218 otherwise, by a board of a district on property of a
219 governmental entity that is subject to a ground lease as
220 described in s. 190.003(14)(13), shall constitute a lien or
221 encumbrance on the underlying fee interest of such governmental
222 entity.
223 Section 8. Paragraph (g) of subsection (2) of section
224 348.968, Florida Statutes, is amended to read:
225 348.968 Purposes and powers.—
226 (2) The authority is granted, and shall have and may
227 exercise, all powers necessary, appurtenant, convenient, or
228 incidental to the carrying out of said purposes, including, but
229 not limited to, the following rights and powers:
230 (g) To borrow money and make and issue bonds, which bonds
231 may be issued pursuant to the State Bond Act or, in the
232 alternative, pursuant to the provisions of s. 348.969(2), in
233 either case, for any purpose of the authority authorized,
234 including the financing of all or part of the cost, as specified
235 in s. 190.003(8)(7), of all or any part of the system and the
236 refunding of any and all previous issues of bonds of the
237 authority at or prior to maturity.
238 Section 9. Subsection (4) of section 190.012, Florida
239 Statutes, is amended to read:
240 190.012 Special powers; public improvements and community
241 facilities.—The district shall have, and the board may exercise,
242 subject to the regulatory jurisdiction and permitting authority
243 of all applicable governmental bodies, agencies, and special
244 districts having authority with respect to any area included
245 therein, any or all of the following special powers relating to
246 public improvements and community facilities authorized by this
247 act:
248 (4)(a) To adopt rules necessary for the district to enforce
249 certain deed restrictions pertaining to the use and operation of
250 real property within the district and outside the district if
251 pursuant to an interlocal agreement under chapter 163 if within
252 another district or, if not within another district, with the
253 consent of the county or municipality in which the deed
254 restriction enforcement is proposed to occur. For the purpose of
255 this subsection, the term “deed restrictions” means are those
256 covenants, conditions, and restrictions, compliance mechanisms,
257 and enforcement remedies contained in any applicable
258 declarations of covenants and restrictions that govern the use
259 and operation of real property within the district and, for
260 which covenants, conditions, and restrictions, there is no
261 homeowners’ association or property owner’s association having
262 respective enforcement powers unless, with respect to a
263 homeowners’ association whose board is under member control, the
264 association and the district agree in writing to enforcement by
265 the district. The district may adopt by rule all or certain
266 portions of the deed restrictions that:
267 1. Relate to limitations, or prohibitions, compliance
268 mechanisms, or enforcement remedies that apply only to external
269 appearances or uses structures and are deemed by the district to
270 be generally beneficial for the district’s landowners and for
271 which enforcement by the district is appropriate, as determined
272 by the district’s board of supervisors; or
273 2. Are consistent with the requirements of a development
274 order or regulatory agency permit.
275 (b) The board may vote to adopt such rules only when all of
276 the following conditions exist:
277 1. The district’s geographic area contains no homeowners’
278 associations as defined in s. 720.301(9);
279 1.2. The district was in existence on the effective date of
280 this subsection, or is located within a development that
281 consists of multiple developments of regional impact and a
282 Florida Quality Development.;
283 2.3. For residential districts, the majority of the board
284 has been elected by qualified electors pursuant to the
285 provisions of s. 190.006.; and
286 3. For residential districts, less than 25 percent of
287 residential units are in a homeowners’ association.
288 4. The declarant in any applicable declarations of
289 covenants and restrictions has provided the board with a written
290 agreement that such rules may be adopted. A memorandum of the
291 agreement shall be recorded in the public records.
292 (c) Within 60 days after such rules take effect, the
293 district shall record a notice of rule adoption stating
294 generally what rules were adopted and where a copy of the rules
295 may be obtained. Districts may impose fines for violations of
296 such rules and enforce such rules and fines in circuit court
297 through injunctive relief.
298 (d) The owners of property located outside the boundary of
299 the district shall elect an advisor to the district board
300 pursuant to paragraph (e). The sole responsibilities of the
301 district board advisor are to review enforcement actions
302 proposed by the district board against properties located
303 outside the district and make recommendations relating to those
304 proposed actions. Before the district board may enforce its
305 rules against any owner of property located outside the
306 district, the district board shall request the district board
307 advisor to make a recommendation on the proposed enforcement
308 action. The district board advisor must render a recommendation
309 within 30 days after receiving a request from the district board
310 or is deemed to have no objection to the district board’s
311 proposed decision or action.
312 (e)1. Whenever an interlocal agreement is entered into
313 pursuant to paragraph (a), a district board advisor seat shall
314 be created for one elected landowner whose property is within
315 the jurisdiction of the governmental entity entering into the
316 interlocal agreement but not within the boundaries of the
317 district. The district board advisor shall be elected by
318 landowners whose land is subject to enforcement by the district
319 but whose land is not within the boundaries of the district. The
320 district board advisor shall be elected for a 2-year term. The
321 first election for a district board advisor shall be within 90
322 days after the effective date of the interlocal agreement
323 between the district and the government entity.
324 2. The election of the district board advisor shall occur
325 at a meeting of eligible landowners. The district shall publish
326 notice of the meeting and election once a week for 2 consecutive
327 weeks in a newspaper of general circulation in the area of the
328 parties to the interlocal agreement. The notice must include
329 instructions on how all landowners may participate in the
330 election and how to obtain a proxy form. The last day of
331 publication may not be less than 14 days or more than 28 days
332 before the date of the election. The landowners, when assembled
333 at the meeting, shall organize by electing a chair who shall
334 conduct the meeting. The chair may be any person present at the
335 meeting. If the chair is a landowner or proxy holder of a
336 landowner, he or she may nominate candidates and make and second
337 motions.
338 3. At the meeting, each landowner is entitled to cast one
339 vote per acre of land owned by him or her and located within the
340 district for each person to be elected. A landowner may vote in
341 person or by proxy in writing. Each proxy must be signed by one
342 of the legal owners of the property for which the vote is cast
343 and must contain the typed or printed name of the individual who
344 signed the proxy; the street address, legal description of the
345 property, or tax parcel identification number; and the number of
346 authorized votes. If the proxy authorizes more than one vote,
347 each property must be listed and the number of acres of each
348 property must be included. The signature on a proxy need not be
349 notarized. A fraction of an acre shall be treated as 1 acre,
350 entitling the landowner to one vote with respect thereto. For
351 purposes of determining voting interests, platted lots shall be
352 counted individually and rounded up to the nearest whole acre.
353 The acreage of platted lots may not be aggregated for purposes
354 of determining the number of voting units held by a landowner or
355 a landowner’s proxy.
356 4. If a vacancy occurs in the district advisor seat, a
357 special landowner election shall be held within 60 days after
358 the vacancy using the notice, proxy, and acreage voting
359 provisions of this subsection.
360 Section 10. Subsections (1) and (3) of section 190.046,
361 Florida Statutes, are amended to read:
362 190.046 Termination, contraction, or expansion of
363 district.—
364 (1) A landowner or the board may petition to contract or
365 expand the boundaries of a community development district in the
366 following manner:
367 (a) The petition shall contain the same information
368 required by s. 190.005(1)(a)1. and 8. In addition, if the
369 petitioner seeks to expand the district, the petition shall
370 describe the proposed timetable for construction of any district
371 services to the area, the estimated cost of constructing the
372 proposed services, and the designation of the future general
373 distribution, location, and extent of public and private uses of
374 land proposed for the area by the future land use plan element
375 of the adopted local government local comprehensive plan. If the
376 petitioner seeks to contract the district, the petition shall
377 describe what services and facilities are currently provided by
378 the district to the area being removed, and the designation of
379 the future general distribution, location, and extent of public
380 and private uses of land proposed for the area by the future
381 land element of the adopted local government comprehensive plan.
382 (b) For those districts initially established by county
383 ordinance, the petition for ordinance amendment shall be filed
384 with the county commission. If the land to be included or
385 excluded is, in whole or in part, within the boundaries of a
386 municipality, then the county commission shall not amend the
387 ordinance without municipal approval. A public hearing shall be
388 held in the same manner and with the same public notice as other
389 ordinance amendments. The county commission shall consider the
390 record of the public hearing and the factors set forth in s.
391 190.005(1)(e) in making its determination to grant or deny the
392 petition for ordinance amendment.
393 (c) For those districts initially established by municipal
394 ordinance pursuant to s. 190.005(2)(e), the municipality shall
395 assume the duties of the county commission set forth in
396 paragraph (b); however, if any of the land to be included or
397 excluded, in whole or in part, is outside the boundaries of the
398 municipality, then the municipality shall not amend its
399 ordinance without county commission approval.
400 (d)1. For those districts initially established by
401 administrative rule pursuant to s. 190.005(1), the petition
402 shall be filed with the Florida Land and Water Adjudicatory
403 Commission.
404 2. Prior to filing the petition, the petitioner shall pay a
405 filing fee of $1,500, to the county if the district or the land
406 to be added or deleted from the district is located within an
407 unincorporated area or to the municipality if the district or
408 the land to be added or deleted is located within an
409 incorporated area, and to each municipality the boundaries of
410 which are contiguous with or contain all or a portion of the
411 land within or to be added to or deleted from the external
412 boundaries of the district or the proposed amendment, and submit
413 a copy of the petition to the county and to each such
414 municipality. The petitioner shall submit a copy of the petition
415 to the same entities entitled to receive the filing fee. In
416 addition, if the district is not the petitioner, the petitioner
417 shall file the petition with the district board of supervisors.
418 3. Each The county and each municipality shall have the
419 option of holding a public hearing as provided by s.
420 190.005(1)(c). However, the such public hearing shall be limited
421 to consideration of the contents of the petition and whether the
422 petition for amendment should be supported by the county or
423 municipality.
424 4. The district board of supervisors shall, in lieu of a
425 hearing officer, hold the local public hearing provided for by
426 s. 190.005(1)(d). This local public hearing shall be noticed in
427 the same manner as provided in s. 190.005(1)(d). Within 45 days
428 of the conclusion of the hearing, the district board of
429 supervisors shall transmit to the Florida Land and Water
430 Adjudicatory Commission the full record of the local hearing,
431 the transcript of the hearing, any resolutions adopted by the
432 local general-purpose governments, and its recommendation
433 whether to grant the petition for amendment. The commission
434 shall then proceed in accordance with s. 190.005(1)(e).
435 5. A rule amending a district boundary shall describe the
436 land to be added or deleted.
437 (e) In all cases, written consent of all the landowners
438 whose land is to be added to or deleted from the district shall
439 be required. The filing of the petition for expansion or
440 contraction by the district board of supervisors shall
441 constitute consent of the landowners within the district other
442 than of landowners whose land is proposed to be added to or
443 removed from the district.
444 (e)(f)1. During the existence of a district initially
445 established by administrative rule, the process petitions to
446 amend the boundaries of the district pursuant to paragraphs (a)
447 (d) (a)-(e) shall not permit be limited to a cumulative net
448 total greater of no more than 10 percent of the land in the
449 initial district, and in no event greater shall all such
450 petitions to amend the boundaries ever encompass more than a
451 total of 250 acres on a cumulative net basis.
452 2. During the existence of a district For districts
453 initially established by county or municipal ordinance, the
454 process to amend the boundaries of the district pursuant to
455 paragraphs (a)-(d) limitation provided by this paragraph shall
456 not permit be a cumulative net total greater of no more than 50
457 percent of the land in the initial district, and in no event
458 greater shall all such petitions to amend the boundaries ever
459 encompass more than a total of 500 acres on a cumulative net
460 basis.
461 3. Boundary expansions for districts initially established
462 by county or municipal ordinance shall follow the procedure set
463 forth in paragraph (b) or paragraph (c).
464 (f)(g) Petitions to amend the boundaries of the district
465 that which exceed the amount of land specified in paragraph (e)
466 (f) shall be processed in accordance with s. 190.005, and the
467 petition shall include only the elements set forth in s.
468 190.005(1)(a)1. and 5.-8. and the consent required by paragraph
469 (g) considered petitions to establish a new district and shall
470 follow all of the procedures specified in s. 190.005. However,
471 the resulting administrative rule or ordinance may only amend
472 the boundaries of the district and may not establish a new
473 district or cause a new 6-year or 10-year period to begin
474 pursuant to s. 190.006(3)(a)2. The filing fee for such petitions
475 shall be as set forth in s. 190.005(1)(b) and (2), as
476 applicable.
477 (g) In all cases of a petition to amend the boundaries of a
478 district, the filing of the petition by the district board of
479 supervisors constitutes consent of the landowners within the
480 district. In all cases, written consent of those landowners
481 whose land is to be added to or deleted from the district as
482 provided in s. 190.005(1)(a)2. is required.
483 (3) The district may merge with other community development
484 districts upon filing a petition for merger, which petition
485 shall include the elements set forth in s. 190.005(1) and which
486 shall be evaluated using the criteria set forth in s.
487 190.005(1)(e). The filing fee shall be as set forth in s.
488 190.005(1)(b). In addition, the petition shall state whether a
489 new district is to be established or whether one district shall
490 be the surviving district. The district establishment of a
491 community development district pursuant to s. 190.005 or may
492 merge with any other special districts upon filing a petition
493 for establishment of a community development district pursuant
494 to s. 190.005. The government formed by a merger involving a
495 community development district pursuant to this section shall
496 assume all indebtedness of, and receive title to, all property
497 owned by the preexisting special districts, and the rights of
498 creditors and liens upon property shall not be impaired by such
499 merger. Any claim existing or action or proceeding pending by or
500 against any district that is a party to the merger may be
501 continued as if the merger had not occurred, or the surviving
502 district may be substituted in the proceeding for the district
503 that ceased to exist. Prior to filing the said petition, the
504 districts desiring to merge shall enter into a merger agreement
505 and shall provide for the proper allocation of the indebtedness
506 so assumed and the manner in which such said debt shall be
507 retired. The approval of the merger agreement and the petition
508 by the board of supervisors elected by the electors of the
509 district shall constitute consent of the landowners within the
510 district.
511 Section 11. This act shall take effect July 1, 2009.