Florida Senate - 2015                        COMMITTEE AMENDMENT
       Bill No. SB 284
       
       
       
       
       
       
                                Ì788846\Î788846                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/26/2015           .                                
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       The Committee on Environmental Preservation and Conservation
       (Simpson) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraphs (f) and (g) of subsection (3),
    6  paragraphs (b), (c), and (d) of subsection (4), and subsection
    7  (10) of section 70.001, Florida Statutes, are amended, and a new
    8  paragraph (b) is added to subsection (4) of that section, to
    9  read:
   10         70.001 Private property rights protection.—
   11         (3) For purposes of this section:
   12         (f) The term “property owner” means the person who holds
   13  legal title to the real property that is the subject of and
   14  directly impacted by the action of a governmental entity at
   15  issue. The term does not include a governmental entity.
   16         (g) The term “real property” means land and includes any
   17  appurtenances and improvements to the land, including any other
   18  relevant real property in which the property owner has had a
   19  relevant interest. The term includes only parcels that are the
   20  subject of and directly impacted by the action of a governmental
   21  entity.
   22         (4)
   23         (b) Upon receipt of a written claim, a governmental entity
   24  may treat the claim as pending litigation for purposes of s.
   25  286.011(8).
   26         (c)(b) The governmental entity shall provide written notice
   27  of the claim to all parties to any administrative action that
   28  gave rise to the claim, and to owners of real property
   29  contiguous to the owner’s property at the addresses listed on
   30  the most recent county tax rolls. Within 15 days after the claim
   31  is being presented, the governmental entity shall report the
   32  claim in writing to the Department of Legal Affairs, and shall
   33  provide the department with the name, address, and telephone
   34  number of the employee of the governmental entity from whom
   35  additional information may be obtained about the claim during
   36  the pendency of the claim and any subsequent judicial action.
   37         (d)(c) During the 90-day-notice period or the 150-day
   38  notice period, unless extended by agreement of the parties, the
   39  governmental entity shall make a written settlement offer to
   40  effectuate:
   41         1. An adjustment of land development or permit standards or
   42  other provisions controlling the development or use of land.
   43         2. Increases or modifications in the density, intensity, or
   44  use of areas of development.
   45         3. The transfer of developmental rights.
   46         4. Land swaps or exchanges.
   47         5. Mitigation, including payments in lieu of onsite
   48  mitigation.
   49         6. Location on the least sensitive portion of the property.
   50         7. Conditioning the amount of development or use permitted.
   51         8. A requirement that issues be addressed on a more
   52  comprehensive basis than a single proposed use or development.
   53         9. Issuance of the development order, a variance, special
   54  exception, or other extraordinary relief.
   55         10. Purchase of the real property, or an interest therein,
   56  by an appropriate governmental entity or payment of
   57  compensation.
   58         11. No changes to the action of the governmental entity.
   59  
   60  If the property owner accepts a the settlement offer either
   61  before or after filing an action, the governmental entity may
   62  implement the settlement offer by appropriate development
   63  agreement; by issuing a variance, special exception, or other
   64  extraordinary relief; or by other appropriate method, subject to
   65  paragraph (e) (d).
   66         (e)(d)1. When Whenever a governmental entity enters into a
   67  settlement agreement under this section which would have the
   68  effect of a modification, variance, or a special exception to
   69  the application of a rule, regulation, or ordinance as it would
   70  otherwise apply to the subject real property, the relief granted
   71  shall protect the public interest served by the regulations at
   72  issue and be the appropriate relief necessary to prevent the
   73  governmental regulatory effort from inordinately burdening the
   74  real property.
   75         2. When Whenever a governmental entity enters into a
   76  settlement agreement under this section which would have the
   77  effect of contravening the application of a statute as it would
   78  otherwise apply to the subject real property, the governmental
   79  entity and the property owner shall jointly file an action in
   80  the circuit court where the real property is located for
   81  approval of the settlement agreement by the court to ensure that
   82  the relief granted protects the public interest served by the
   83  statute at issue and is the appropriate relief necessary to
   84  prevent the governmental regulatory effort from inordinately
   85  burdening the real property.
   86  
   87  This paragraph applies to any settlement agreement reached
   88  between a property owner and a governmental entity regardless of
   89  when the settlement agreement was entered into so long as the
   90  agreement fully resolves all claims asserted under this section.
   91         (10)(a) This section does not apply to any actions taken by
   92  a governmental entity which relate to the operation,
   93  maintenance, or expansion of transportation facilities, and this
   94  section does not affect existing law regarding eminent domain
   95  relating to transportation.
   96         (b) This section does not apply to any actions taken by a
   97  county with respect to the adoption of a Flood Insurance Rate
   98  Map issued by the Federal Emergency Management Agency for the
   99  purpose of participating in the National Flood Insurance
  100  Program, unless such adoption incorrectly applies an aspect of
  101  the Flood Insurance Rate Map to the property in such a way as
  102  to, but not limited to, incorrectly assess the elevation of the
  103  property.
  104         Section 2. Section 70.45, Florida Statutes, is created to
  105  read:
  106         70.45 Governmental exactions.—
  107         (1) As used in this section, the term:
  108         (a) “Damages” means the monetary amount necessary to fully
  109  and fairly compensate the property owner for harm caused by an
  110  exaction prohibited by this section. The term includes a
  111  reduction in the fair market value of the real property, a
  112  refund of excessive fees charged or infrastructure costs
  113  incurred, or such other actual damages as may be proven at
  114  trial.
  115         (b) “Governmental entity” has the same meaning as in s.
  116  70.001(3)(c).
  117         (c) “Prohibited exaction” means any condition imposed by a
  118  governmental entity on a property owner’s proposed use of real
  119  property which lacks an essential nexus to a legitimate public
  120  purpose and is not roughly proportionate to the impacts of the
  121  proposed use that the governmental entity is seeking to avoid,
  122  minimize, or mitigate.
  123         (d) “Property owner” has the same meaning as in s.
  124  70.001(3)(f).
  125         (e) “Real property” has the same meaning as in s.
  126  70.001(3)(g).
  127         (2) In addition to other remedies available in law or
  128  equity, a property owner may bring an action in a court of
  129  competent jurisdiction under this section for injunctive relief
  130  or to recover damages caused by a prohibited exaction. Such
  131  action may not be brought until a prohibited exaction is
  132  actually imposed or required in written form as a final
  133  condition of approval for the requested use of real property.
  134  The right to bring an action under this section may not be
  135  waived.
  136         (3) At least 90 days before filing an action under this
  137  section, a property owner shall provide to the relevant
  138  governmental entity written notice of the action. This written
  139  notice must identify the exaction that the property owner
  140  believes is prohibited and include a brief explanation of why
  141  the property owner believes the exaction is prohibited and an
  142  estimate of the damages. Upon receipt of the property owner’s
  143  written notice, the governmental entity may treat the claim as
  144  pending litigation for purposes of s. 286.011(8).
  145         (4) For each claim filed under this section, the
  146  governmental entity has the burden of proving that the exaction
  147  at issue has an essential nexus to a legitimate public purpose
  148  and is roughly proportionate to the impacts of the proposed use
  149  that the governmental entity is seeking to avoid, minimize or
  150  mitigate. The property owner has the burden of proving damages
  151  that result from a prohibited exaction.
  152         (5) In addition to the damages provided for in this
  153  section, the court shall award prejudgment interest and
  154  reasonable attorney fees and costs to a property owner who
  155  prevails in an action under this section. The court may award
  156  reasonable attorney fees and costs to the governmental entity if
  157  the court finds that the property owner filed the action in bad
  158  faith and absent a colorable basis for relief.
  159         (6) To ensure that courts may assess damages for claims
  160  filed under this section, in accordance with s. 13, Art. X of
  161  the State Constitution, the state for itself and for its
  162  agencies or political subdivisions waives sovereign immunity for
  163  causes of action based upon the application of this section. The
  164  waiver is limited only to claims brought under this section.
  165         Section 3. Section 70.80, Florida Statutes, is amended to
  166  read:
  167         70.80 Construction of ss. 70.001, 70.45, and 70.51.—It is
  168  the express declaration of the Legislature that ss. 70.001,
  169  70.45, and 70.51 have separate and distinct bases, objectives,
  170  applications, and processes. It is therefore the intent of the
  171  Legislature that ss. 70.001, 70.45, and 70.51 are not to be
  172  construed in pari materia.
  173         Section 4. This act shall take effect October 1, 2015.
  174  
  175  ================= T I T L E  A M E N D M E N T ================
  176  And the title is amended as follows:
  177         Delete everything before the enacting clause
  178  and insert:
  179                        A bill to be entitled                      
  180         An act relating to private property rights; amending
  181         s. 70.001, F.S.; revising the terms “property owner”
  182         and “real property”; authorizing a governmental entity
  183         to treat a written claim as pending litigation for
  184         purposes of holding certain meetings privately;
  185         providing that any settlement agreement reached
  186         between an owner and a governmental entity applies so
  187         long as the agreement resolves all issues; providing
  188         exceptions to the applicability of the Bert J. Harris,
  189         Jr., Private Property Rights Protection Act; creating
  190         s. 70.45, F.S.; defining terms; authorizing a property
  191         owner to bring an action for injunctive relief or the
  192         recovery of damages caused by a prohibited exaction;
  193         requiring a property owner to provide written notice
  194         of such action to the relevant governmental entity;
  195         authorizing the governmental entity to treat such
  196         claim as pending litigation for purposes of holding
  197         certain meetings privately; specifying the burdens of
  198         proof imposed on the governmental entity and the
  199         property owner in such action; authorizing the award
  200         of prejudgment interest and reasonable attorney fees
  201         and costs under specified circumstances; waiving the
  202         state’s sovereign immunity for certain causes of
  203         action; amending s. 70.80, F.S.; specifying that an
  204         action for a prohibited exaction is not to be
  205         construed in pari materia with certain other actions;
  206         providing an effective date.