CS/HB 701

1	A bill to be entitled
2	An act relating to property rights; amending s. 70.001,
3	F.S.; revising a definition; providing a factor that may
4	be considered in determining whether inordinate burden has
5	been imposed on real property; shortening a notice period
6	for certain actions; revising procedures for determining a
7	governmental entity's final decision identifying the
8	allowable uses for a property; providing that enactment of
9	a law or adoption of a regulation does not constitute
10	applying the law or regulation; providing for a waiver of
11	sovereign immunity for liability; providing for
12	prospective application; providing an effective date.
13
14	WHEREAS, the Legislature wishes to clarify its original
15	intent with respect to allowing appropriate compensation for
16	unduly burdened real property and to provide a waiver of
17	sovereign immunity under section 70.001, Florida Statutes, the
18	Bert J. Harris, Jr., Private Property Rights Protection Act, to
19	conform statutory language to Royal World Metropolitan, Inc. v.
20	City of Miami Beach, 863 So.2d 320 (Fla. 3rd D.C.A. 2003), and
21	WHEREAS, the Legislature wishes to emphasize the
22	alternative bases under this act for determining an existing
23	use, and to correct and to clarify that certain determinations
24	under this act are questions of law and fact, considered in City
25	of Jacksonville v. Coffield, 18 So.3d 589 (Fla. 1st D.C.A.
26	2009), and
27	WHEREAS, the Legislature wishes to correct and to clarify
28	its original intent with respect to what constitutes the first
29	application of a law or regulation under the act, considered in
30	Citrus County, Florida v. Halls River Development, Inc., 8 So.3d
31	413 (Fla. 5th D.C.A. 2009), and M & H Profit, Inc. v. City of
32	Panama City, 28 So.3d 71 (Fla. 1st D.C.A. 2010), and
33	WHEREAS, the Legislature wishes to make other changes to
34	clarify provisions of this act, NOW, THEREFORE,
35
36	Be It Enacted by the Legislature of the State of Florida:
37
38	Section 1.  Paragraphs (b) and (e) of subsection (3),
39	paragraphs (a) and (c) of subsection (4), and subsections (5),
40	(6), (11), and (13) of section 70.001, Florida Statutes, are
41	amended to read:
42	70.001  Private property rights protection.-
43	(3)  For purposes of this section:
44	(b)  The term "existing use" means:
45	1.  An actual, present use or activity on the real
46	property, including periods of inactivity which are normally
47	associated with, or are incidental to, the nature or type of
48	use; or
49	2.  Activity or such reasonably foreseeable, nonspeculative
50	land uses which are suitable for the subject real property and
51	compatible with adjacent land uses and which have created an
52	existing fair market value in the property greater than the fair
53	market value of the actual, present use or activity on the real
54	property.
55	(e)  The terms "inordinate burden" and or "inordinately
56	burdened" mean that an action of one or more governmental
57	entities has directly restricted or limited the use of real
58	property such that the property owner is permanently unable to
59	attain the reasonable, investment-backed expectation for the
60	existing use of the real property or a vested right to a
61	specific use of the real property with respect to the real
62	property as a whole, or that the property owner is left with
63	existing or vested uses that are unreasonable such that the
64	property owner bears permanently a disproportionate share of a
65	burden imposed for the good of the public, which in fairness
66	should be borne by the public at large. The terms "inordinate
67	burden" and or "inordinately burdened" do not include temporary
68	impacts to real property; impacts to real property occasioned by
69	governmental abatement, prohibition, prevention, or remediation
70	of a public nuisance at common law or a noxious use of private
71	property; or impacts to real property caused by an action of a
72	governmental entity taken to grant relief to a property owner
73	under this section; however, a moratorium on development, as
74	defined in s. 380.04, that is in effect for longer than 1 year
75	is not a temporary impact to real property and, thus, depending
76	upon the particular circumstances, may constitute an "inordinate
77	burden" as provided in this paragraph.
78	(4)(a)  Not less than 120 180 days prior to filing an
79	action under this section against a governmental entity, a
80	property owner who seeks compensation under this section must
81	present the claim in writing to the head of the governmental
82	entity, except that if the property is classified as
83	agricultural pursuant to s. 193.461, the notice period is 90
84	days. The property owner must submit, along with the claim, a
85	bona fide, valid appraisal that supports the claim and
86	demonstrates the loss in fair market value to the real property.
87	If the action of government is the culmination of a process that
88	involves more than one governmental entity, or if a complete
89	resolution of all relevant issues, in the view of the property
90	owner or in the view of a governmental entity to whom a claim is
91	presented, requires the active participation of more than one
92	governmental entity, the property owner shall present the claim
93	as provided in this section to each of the governmental
94	entities.
95	(c)  During the 90-day-notice period or the 120-day-notice
96	180-day-notice period, unless extended by agreement of the
97	parties, the governmental entity shall make a written settlement
98	offer to effectuate:
99	1.  An adjustment of land development or permit standards
100	or other provisions controlling the development or use of land.
101	2.  Increases or modifications in the density, intensity,
102	or use of areas of development.
103	3.  The transfer of developmental rights.
104	4.  Land swaps or exchanges.
105	5.  Mitigation, including payments in lieu of onsite
106	mitigation.
107	6.  Location on the least sensitive portion of the
108	property.
109	7.  Conditioning the amount of development or use
110	permitted.
111	8.  A requirement that issues be addressed on a more
112	comprehensive basis than a single proposed use or development.
113	9.  Issuance of the development order, a variance, special
114	exception, or other extraordinary relief.
115	10.  Purchase of the real property, or an interest therein,
116	by an appropriate governmental entity or payment of
117	compensation.
118	11.  No changes to the action of the governmental entity.
119
120	If the property owner accepts the settlement offer, the
121	governmental entity may implement the settlement offer by
122	appropriate development agreement; by issuing a variance,
123	special exception, or other extraordinary relief; or by other
124	appropriate method, subject to paragraph (d).
125	(5)(a)  During the 90-day-notice period or the 120-day-
126	notice 180-day-notice period, unless a settlement offer is
127	accepted by the property owner, each of the governmental
128	entities provided notice pursuant to paragraph (4)(a) shall
129	issue a written ripeness decision identifying the allowable uses
130	to which the subject property may be put. The failure of the
131	governmental entity to issue such a written ripeness decision
132	during the applicable 90-day-notice period or 120-day-notice
133	180-day-notice period shall cause be deemed to ripen the prior
134	action of the governmental entity to become its final decision,
135	for purposes of this section, identifying the uses for the
136	subject property, and shall operate as a ripeness decision that
137	has been rejected by the property owner. Whether rendered by
138	submission of a written decision during the 120-day-notice
139	period or by failure to submit such a written decision, the
140	final decision of the governmental entity produced under this
141	paragraph operates as a final decision that has been rejected by
142	the property owner. This final The ripeness decision, as a
143	matter of law, constitutes the last prerequisite to judicial
144	review on the merits, and the matter shall be deemed ripe or
145	final for the purposes of the judicial proceeding created by
146	this section, notwithstanding the availability of other
147	administrative remedies.
148	(b)  If the property owner rejects the settlement offer and
149	the final ripeness decision of the governmental entity or
150	entities, the property owner may file a claim for compensation
151	in the circuit court, a copy of which shall be served
152	contemporaneously on the head of each of the governmental
153	entities that made a settlement offer and a final ripeness
154	decision that was rejected by the property owner. Actions under
155	this section shall be brought only in the county where the real
156	property is located.
157	(6)(a)  The circuit court shall determine whether an
158	existing use of the real property or a vested right to a
159	specific use of the real property existed and, if so, whether,
160	considering the settlement offer and final ripeness decision,
161	the governmental entity or entities have inordinately burdened
162	the real property. If the actions of more than one governmental
163	entity, considering any settlement offers and final ripeness
164	decisions, are responsible for the action that imposed the
165	inordinate burden on the real property of the property owner,
166	the court shall determine the percentage of responsibility each
167	such governmental entity bears with respect to the inordinate
168	burden. A governmental entity may take an interlocutory appeal
169	of the court's determination that the action of the governmental
170	entity has resulted in an inordinate burden. An interlocutory
171	appeal does not automatically stay the proceedings; however, the
172	court may stay the proceedings during the pendency of the
173	interlocutory appeal. If the governmental entity does not
174	prevail in the interlocutory appeal, the court shall award to
175	the prevailing property owner the costs and a reasonable
176	attorney fee incurred by the property owner in the interlocutory
177	appeal.
178	(b)  Following its determination of the percentage of
179	responsibility of each governmental entity, and following the
180	resolution of any interlocutory appeal, the court shall impanel
181	a jury to determine the total amount of compensation to the
182	property owner for the loss in value due to the inordinate
183	burden to the real property. The award of compensation shall be
184	determined by calculating the difference in the fair market
185	value of the real property, as it existed at the time of the
186	governmental action at issue, as though the owner had the
187	ability to attain the reasonable investment-backed expectation
188	or was not left with uses that are unreasonable, whichever the
189	case may be, and the fair market value of the real property, as
190	it existed at the time of the governmental action at issue, as
191	inordinately burdened, considering the settlement offer together
192	with the final ripeness decision, of the governmental entity or
193	entities. In determining the award of compensation,
194	consideration may not be given to business damages relative to
195	any development, activity, or use that the action of the
196	governmental entity or entities, considering the settlement
197	offer together with the final ripeness decision, has restricted,
198	limited, or prohibited. The award of compensation shall include
199	a reasonable award of prejudgment interest from the date the
200	claim was presented to the governmental entity or entities as
201	provided in subsection (4).
202	(c)1.  In any action filed pursuant to this section, the
203	property owner is entitled to recover reasonable costs and
204	attorney fees incurred by the property owner, from the
205	governmental entity or entities, according to their
206	proportionate share as determined by the court, from the date of
207	the filing of the circuit court action, if the property owner
208	prevails in the action and the court determines that the
209	settlement offer, including the final ripeness decision, of the
210	governmental entity or entities did not constitute a bona fide
211	offer to the property owner which reasonably would have resolved
212	the claim, based upon the knowledge available to the
213	governmental entity or entities and the property owner during
214	the 90-day-notice period or the 120-day-notice 180-day-notice
215	period.
216	2.  In any action filed pursuant to this section, the
217	governmental entity or entities are entitled to recover
218	reasonable costs and attorney fees incurred by the governmental
219	entity or entities from the date of the filing of the circuit
220	court action, if the governmental entity or entities prevail in
221	the action and the court determines that the property owner did
222	not accept a bona fide settlement offer, including the final
223	ripeness decision, which reasonably would have resolved the
224	claim fairly to the property owner if the settlement offer had
225	been accepted by the property owner, based upon the knowledge
226	available to the governmental entity or entities and the
227	property owner during the 90-day-notice period or the 120-day-
228	notice 180-day-notice period.
229	3.  The determination of total reasonable costs and
230	attorney fees pursuant to this paragraph shall be made by the
231	court and not by the jury. Any proposed settlement offer or any
232	proposed ripeness decision, except for the final written
233	settlement offer or the final written ripeness decision, and any
234	negotiations or rejections in regard to the formulation either
235	of the settlement offer or the final ripeness decision, are
236	inadmissible in the subsequent proceeding established by this
237	section except for the purposes of the determination pursuant to
238	this paragraph.
239	(d)  Within 15 days after the execution of any settlement
240	pursuant to this section, or the issuance of any judgment
241	pursuant to this section, the governmental entity shall provide
242	a copy of the settlement or judgment to the Department of Legal
243	Affairs.
244	(11)  A cause of action may not be commenced under this
245	section if the claim is presented more than 1 year after a law
246	or regulation is first applied by the governmental entity to the
247	property at issue. For purposes of this section, enacting a law
248	or adopting a regulation does not constitute applying the law or
249	regulation to a property. If an owner seeks relief from the
250	governmental action through lawfully available administrative or
251	judicial proceedings, the time for bringing an action under this
252	section is tolled until the conclusion of such proceedings.
253	(13)  In accordance with s. 13, Art. X of the State
254	Constitution, the state, for itself and for its agencies or
255	political subdivisions, waives sovereign immunity for causes of
256	action based upon the application of any law, regulation, or
257	ordinance subject to this section, but only to the extent
258	specified in this section This section does not affect the
259	sovereign immunity of government.
260	Section 2.  The amendments to s. 70.001, Florida Statutes,
261	made by this act apply prospectively only and do not apply to
262	any claim or action filed under s. 70.001, Florida Statutes,
263	which is pending on the effective date of this act.
264	Section 3.  This act shall take effect July 1, 2011.

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