Florida Senate - 2010 CS for SB 2322
By the Committee on Community Affairs; and Senator Bennett
578-03135-10 20102322c1
1 A bill to be entitled
2 An act relating to energy improvement districts;
3 creating s. 163.08, F.S.; providing for supplemental
4 authority to local governments regarding improvements
5 to real property; providing legislative findings and
6 intent; defining “local government,” “qualifying
7 improvement,” “energy conservation and efficiency
8 improvement,” “renewable-energy improvement,” and
9 “wind-resistance improvement”; authorizing a local
10 government to levy a non-ad valorem assessment to fund
11 a qualifying improvement; authorizing a property owner
12 to enter into a financing agreement with a local
13 government to finance a qualifying improvement;
14 authorizing a local government to collect for such
15 purpose through a non-ad valorem assessment; providing
16 exceptions; providing for discontinuance of utility
17 service under certain circumstances if the financing
18 agreement provides for repayment through a utility
19 bill; authorizing a local government to enter into a
20 partnership with one or more local governments for the
21 purpose of providing and financing qualifying
22 improvements; authorizing a for-profit entity or a
23 not-for-profit organization to administer a qualifying
24 improvement program on behalf of and at the discretion
25 of the local government; authorizing a local
26 government to incur debt payable from revenues
27 received from the improved property; requiring that a
28 local government verify past payment delinquencies and
29 involuntary liens on the property; requiring that a
30 qualifying improvement be affixed to an existing
31 building or facility on the property and be performed
32 by a properly certified or registered contractor;
33 limiting the total amount of a non-ad valorem
34 assessment or a municipal or county lien; providing
35 exceptions; requiring that a property owner provide
36 certain parties with notice of intent to enter into a
37 financing agreement, the maximum principal amount to
38 be financed, and the maximum annual assessment needed
39 to repay that amount; prohibiting acceleration of a
40 mortgage under certain circumstances; providing that
41 certain provisions of state law do not limit or
42 prohibit any local government from exercising certain
43 authority; providing for statutory construction
44 regarding a local government’s home-rule authority;
45 providing an effective date.
46
47 Be It Enacted by the Legislature of the State of Florida:
48
49 Section 1. Section 163.08, Florida Statutes, is created to
50 read:
51 163.08 Supplemental authority regarding improvements to
52 real property.—
53 (1)(a) The Legislature affirms its previous amendments to
54 the energy goal of the state comprehensive plan, which provided,
55 in part, that Florida shall reduce its energy requirements
56 through enhanced conservation and efficiency measures in all
57 end-use sectors and shall reduce atmospheric carbon dioxide by
58 promoting an increased use of renewable-energy resources. The
59 Legislature also affirms its previous declaration that it is the
60 public policy of this state to play a leading role in developing
61 and instituting energy management programs aimed at promoting
62 energy conservation, energy security, and reduction of
63 greenhouse gases. In addition to establishing policies to
64 promote the use of renewable energy, the Legislature finds that
65 it must continue to provide for a schedule of increases in
66 energy performance of buildings subject to the Florida Energy
67 Efficiency Code for Building Construction. The Legislature
68 further finds that it must continue to adopt new energy
69 conservation and greenhouse gas reduction comprehensive planning
70 requirements for local governments. The Legislature acknowledges
71 that in the General Election of 2008, the voters of this state
72 approved a constitutional amendment authorizing the Legislature,
73 by general law, to prohibit consideration of any change or
74 improvement made for the purpose of improving the property’s
75 resistance to wind damage or the installation of a renewable
76 energy-source device in the determination of the assessed value
77 of real property used for residential purposes.
78 (b) All energy-consuming improved properties not using
79 energy-conservation strategies contribute to the burden
80 affecting all improved property resulting from fossil fuel
81 energy production. Improved property that has been retrofitted
82 with energy-related qualifying improvements receives the special
83 benefit of alleviating the property’s burden from energy
84 consumption. All improved properties not protected from wind
85 damage by wind-resistance improvements contribute to the burden
86 affecting all improved property resulting from potential wind
87 damage. Improved property that has been retrofitted with wind
88 resistance qualifying improvements receives the special benefit
89 of reducing the property’s burden from potential wind damage.
90 Further, the installation and operation of qualifying
91 improvements not only benefit the affected properties for which
92 the improvements are made, but also assist in fulfilling the
93 goals of the state’s energy and hurricane mitigation policies.
94 To make qualifying improvements more affordable and assist
95 property owners who wish to undertake them, there is a
96 compelling state interest in enabling property owners, on a
97 voluntary basis, to finance such improvements with local
98 government assistance.
99 (c) The Legislature finds that the actions authorized under
100 this section, including the financing therein of qualifying
101 improvements through the execution of financing agreements and
102 the related imposition of voluntary assessments or charges, are
103 reasonable and necessary to serve and achieve a compelling state
104 interest and for the prosperity and welfare of the state and its
105 property owners and inhabitants.
106 (2) For purposes of this section, the term:
107 (a) “Local government” means a county, a municipality, or a
108 special district.
109 (b) “Qualifying improvement” includes any of the following:
110 1. “Energy conservation and efficiency improvement,” which
111 means a measure to reduce consumption, through conservation or
112 more efficient use, of electricity, natural gas, propane, or
113 other forms of energy on the property, including, but not
114 limited to, air sealing, installation of insulation,
115 installation of energy-efficient heating, cooling, or
116 ventilation systems, building modifications to increase the use
117 of daylighting, replacement of windows, installation of energy
118 controls or energy-recovery systems, and installation of
119 efficient lighting equipment, provided that, to be covered by an
120 agreement with a property owner and financed under this section,
121 such improvement must be affixed to a building or facility that
122 is part of the property.
123 2. “Renewable-energy improvement,” which means the
124 installation of any system whereby electrical, mechanical, or
125 thermal energy is produced from a method that uses one or more
126 of the following fuels or energy sources: hydrogen, solar
127 energy, geothermal energy, bioenergy, or wind energy.
128 3. “Wind-resistance improvement,” which includes, but is
129 not limited to:
130 a. Improving the strength of the roof deck attachment;
131 b. Creating a secondary water barrier to prevent water
132 intrusion;
133 c. Installing wind-resistant shingles;
134 d. Installing gable-end bracing;
135 e. Reinforcing roof-to-wall connections;
136 f. Installing storm shutters; and
137 g. Installing opening protections.
138 (3) A local government may levy a non-ad valorem assessment
139 to fund a qualifying improvement.
140 (4) Subject to local government ordinance or resolution, a
141 property owner may apply to the local government for funding to
142 finance a qualifying improvement and enter into a financing
143 agreement with the local government. Costs incurred by the local
144 government for such purpose may be collected as a non-ad valorem
145 assessment or a municipal or county lien, or may be collected
146 pursuant to any other lawful method.
147 (a) A non-ad valorem assessment shall be collected pursuant
148 s. 197.3632. However, the notice and adoption requirements of s.
149 197.3632(4) do not apply if the provisions of this section are
150 used and complied with, and the initial resolution, publication
151 of notice, and mailed notices to the property appraiser, tax
152 collector, and Department of Revenue required by s.
153 197.3632(3)(a) are provided on or before August 15 in
154 conjunction with any non-ad valorem assessment authorized by
155 this section if the property appraiser, tax collector, and local
156 government agree.
157 (b) If the financing agreement provides for repayment
158 through a surcharge on a utility or other municipal service bill
159 in the form of a municipal lien, the utility provider may
160 discontinue the delivery of all utility service if the surcharge
161 is not paid. However, the financing agreement must set forth the
162 terms and costs of such discontinuance, including the period
163 after which discontinuance will be imposed.
164 (5) Pursuant to this section, other applicable law, or its
165 home rule power, a local government may enter into a partnership
166 with one or more local governments for the purpose of providing
167 and financing qualifying improvements.
168 (6) A qualifying improvement program may be administered by
169 a for-profit entity or a not-for-profit organization on behalf
170 of and at the discretion of the local government.
171 (7) A local government may incur debt for the purpose of
172 providing such improvements, payable from revenues received from
173 the improved property or any other available revenue source as
174 authorized by law.
175 (8) A local government may enter into a financing agreement
176 only with the owner of record of the affected property.
177 (9) Before entering into a financing agreement, the local
178 government shall reasonably verify that all property taxes and
179 any other assessments levied on the same bill as property taxes
180 have been paid and have not been delinquent for the past 3 years
181 or the property owner’s period of ownership, whichever is less;
182 that there are no involuntary liens such as construction liens
183 on the property; that no notices of default or other evidence of
184 property-based debt delinquency have been recorded during the
185 past 3 years or the property owner’s period of ownership,
186 whichever is less; and that the property owner is current on all
187 mortgage debt on the property.
188 (10) A qualifying improvement shall be affixed to an
189 existing building or facility that is part of the property and
190 shall constitute an improvement to the building or facility or a
191 fixture thereto. An agreement between a local government and a
192 qualifying property owner may not cover projects in buildings or
193 facilities under new construction or construction for which a
194 certificate of occupancy or similar evidence of substantial
195 completion of new construction or improvement has not been
196 issued.
197 (11) Any work requiring a license under any applicable law
198 to make a qualifying improvement shall be performed by a
199 contractor properly certified or registered pursuant to part I
200 or part II of chapter 489.
201 (12) Without the consent of the holders or loan servicers
202 of any mortgage encumbering or otherwise secured by the
203 property, the total amount of any non-ad valorem assessment or
204 municipal or county lien for a property under this section may
205 not exceed 20 percent of the just value of the property as
206 determined by the county property appraiser.
207 (a) Notwithstanding any other provision of law, a non-ad
208 valorem assessment or municipal or county lien for a qualifying
209 improvement defined in subparagraph (2)(b)1. or 2. which is
210 supported by an energy audit is not subject to the limits in
211 this subsection if the audit demonstrates that the annual energy
212 savings from the qualified improvement equals or exceeds the
213 annual repayment amount of the non-ad valorem assessment or
214 municipal or county lien.
215 (b) A local government may adopt alternate parameters to
216 those specified in this subsection to conform to local needs and
217 conditions after conducting a public hearing resulting in a
218 finding of the need for such changes due to local needs and
219 conditions.
220 (13) At least 30 days before entering into a financing
221 agreement, the property owner shall provide to the holders or
222 loan servicers of any existing mortgages encumbering or
223 otherwise secured by the property notice of intent to enter into
224 a financing agreement, together with the maximum principal
225 amount to be financed and the maximum annual assessment
226 necessary to repay such amount. A provision of any agreement
227 between a mortgagee or other lienholder and a property owner or
228 otherwise now or hereafter binding upon a property owner
229 allowing for acceleration of payment of the mortgage, note, or
230 lien or other unilateral modification solely as a result of
231 entering into a financing agreement, as provided for in this
232 section, is not enforceable. This subsection does not limit the
233 authority of the holder or loan servicer to increase the
234 required monthly escrow by an amount necessary to annually pay
235 the qualifying improvement assessment.
236 (14) A provision of any agreement between a local
237 government and a public or private power or energy provider, or
238 other utility provider, may not limit or prohibit any local
239 government from exercising its authority under this section.
240 (15) This section shall be construed to be additional and
241 supplemental to county and municipal home-rule authority and not
242 in derogation thereof or a limitation thereon.
243 Section 2. This act shall take effect July 1, 2010.