Florida Senate - 2015                              CS for SB 284
       
       
        
       By the Committee on Environmental Preservation and Conservation;
       and Senator Diaz de la Portilla
       
       
       
       
       592-02826-15                                           2015284c1
    1                        A bill to be entitled                      
    2         An act relating to private property rights; amending
    3         s. 70.001, F.S.; revising the terms “property owner”
    4         and “real property”; authorizing a governmental entity
    5         to treat a written claim as pending litigation for
    6         purposes of holding certain meetings privately;
    7         providing that any settlement agreement reached
    8         between an owner and a governmental entity applies so
    9         long as the agreement resolves all issues; providing
   10         exceptions to the applicability of the Bert J. Harris,
   11         Jr., Private Property Rights Protection Act; creating
   12         s. 70.45, F.S.; defining terms; authorizing a property
   13         owner to bring an action for injunctive relief or the
   14         recovery of damages caused by a prohibited exaction;
   15         requiring a property owner to provide written notice
   16         of such action to the relevant governmental entity;
   17         authorizing the governmental entity to treat such
   18         claim as pending litigation for purposes of holding
   19         certain meetings privately; specifying the burdens of
   20         proof imposed on the governmental entity and the
   21         property owner in such action; authorizing the award
   22         of prejudgment interest and reasonable attorney fees
   23         and costs under specified circumstances; waiving the
   24         state’s sovereign immunity for certain causes of
   25         action; amending s. 70.80, F.S.; specifying that an
   26         action for a prohibited exaction is not to be
   27         construed in pari materia with certain other actions;
   28         providing an effective date.
   29          
   30  Be It Enacted by the Legislature of the State of Florida:
   31  
   32         Section 1. Paragraphs (f) and (g) of subsection (3),
   33  paragraphs (b), (c), and (d) of subsection (4), and subsection
   34  (10) of section 70.001, Florida Statutes, are amended, and a new
   35  paragraph (b) is added to subsection (4) of that section, to
   36  read:
   37         70.001 Private property rights protection.—
   38         (3) For purposes of this section:
   39         (f) The term “property owner” means the person who holds
   40  legal title to the real property that is the subject of and
   41  directly impacted by the action of a governmental entity at
   42  issue. The term does not include a governmental entity.
   43         (g) The term “real property” means land and includes any
   44  appurtenances and improvements to the land, including any other
   45  relevant real property in which the property owner has had a
   46  relevant interest. The term includes only parcels that are the
   47  subject of and directly impacted by the action of a governmental
   48  entity.
   49         (4)
   50         (b) Upon receipt of a written claim, a governmental entity
   51  may treat the claim as pending litigation for purposes of s.
   52  286.011(8).
   53         (c)(b) The governmental entity shall provide written notice
   54  of the claim to all parties to any administrative action that
   55  gave rise to the claim, and to owners of real property
   56  contiguous to the owner’s property at the addresses listed on
   57  the most recent county tax rolls. Within 15 days after the claim
   58  is being presented, the governmental entity shall report the
   59  claim in writing to the Department of Legal Affairs, and shall
   60  provide the department with the name, address, and telephone
   61  number of the employee of the governmental entity from whom
   62  additional information may be obtained about the claim during
   63  the pendency of the claim and any subsequent judicial action.
   64         (d)(c) During the 90-day-notice period or the 150-day
   65  notice period, unless extended by agreement of the parties, the
   66  governmental entity shall make a written settlement offer to
   67  effectuate:
   68         1. An adjustment of land development or permit standards or
   69  other provisions controlling the development or use of land.
   70         2. Increases or modifications in the density, intensity, or
   71  use of areas of development.
   72         3. The transfer of developmental rights.
   73         4. Land swaps or exchanges.
   74         5. Mitigation, including payments in lieu of onsite
   75  mitigation.
   76         6. Location on the least sensitive portion of the property.
   77         7. Conditioning the amount of development or use permitted.
   78         8. A requirement that issues be addressed on a more
   79  comprehensive basis than a single proposed use or development.
   80         9. Issuance of the development order, a variance, special
   81  exception, or other extraordinary relief.
   82         10. Purchase of the real property, or an interest therein,
   83  by an appropriate governmental entity or payment of
   84  compensation.
   85         11. No changes to the action of the governmental entity.
   86  
   87  If the property owner accepts a the settlement offer either
   88  before or after filing an action, the governmental entity may
   89  implement the settlement offer by appropriate development
   90  agreement; by issuing a variance, special exception, or other
   91  extraordinary relief; or by other appropriate method, subject to
   92  paragraph (e) (d).
   93         (e)(d)1. When Whenever a governmental entity enters into a
   94  settlement agreement under this section which would have the
   95  effect of a modification, variance, or a special exception to
   96  the application of a rule, regulation, or ordinance as it would
   97  otherwise apply to the subject real property, the relief granted
   98  shall protect the public interest served by the regulations at
   99  issue and be the appropriate relief necessary to prevent the
  100  governmental regulatory effort from inordinately burdening the
  101  real property.
  102         2. When Whenever a governmental entity enters into a
  103  settlement agreement under this section which would have the
  104  effect of contravening the application of a statute as it would
  105  otherwise apply to the subject real property, the governmental
  106  entity and the property owner shall jointly file an action in
  107  the circuit court where the real property is located for
  108  approval of the settlement agreement by the court to ensure that
  109  the relief granted protects the public interest served by the
  110  statute at issue and is the appropriate relief necessary to
  111  prevent the governmental regulatory effort from inordinately
  112  burdening the real property.
  113  
  114  This paragraph applies to any settlement agreement reached
  115  between a property owner and a governmental entity regardless of
  116  when the settlement agreement was entered into so long as the
  117  agreement fully resolves all claims asserted under this section.
  118         (10)(a) This section does not apply to any actions taken by
  119  a governmental entity which relate to the operation,
  120  maintenance, or expansion of transportation facilities, and this
  121  section does not affect existing law regarding eminent domain
  122  relating to transportation.
  123         (b) This section does not apply to any actions taken by a
  124  county with respect to the adoption of a Flood Insurance Rate
  125  Map issued by the Federal Emergency Management Agency for the
  126  purpose of participating in the National Flood Insurance
  127  Program, unless such adoption incorrectly applies an aspect of
  128  the Flood Insurance Rate Map to the property in such a way as
  129  to, but not limited to, incorrectly assess the elevation of the
  130  property.
  131         Section 2. Section 70.45, Florida Statutes, is created to
  132  read:
  133         70.45 Governmental exactions.—
  134         (1) As used in this section, the term:
  135         (a) “Damages” means the monetary amount necessary to fully
  136  and fairly compensate the property owner for harm caused by an
  137  exaction prohibited by this section. The term includes a
  138  reduction in the fair market value of the real property, a
  139  refund of excessive fees charged or infrastructure costs
  140  incurred, or such other actual damages as may be proven at
  141  trial.
  142         (b) “Governmental entity” has the same meaning as in s.
  143  70.001(3)(c).
  144         (c) “Prohibited exaction” means any condition imposed by a
  145  governmental entity on a property owner’s proposed use of real
  146  property which lacks an essential nexus to a legitimate public
  147  purpose and is not roughly proportionate to the impacts of the
  148  proposed use that the governmental entity is seeking to avoid,
  149  minimize, or mitigate.
  150         (d) “Property owner” has the same meaning as in s.
  151  70.001(3)(f).
  152         (e) “Real property” has the same meaning as in s.
  153  70.001(3)(g).
  154         (2) In addition to other remedies available in law or
  155  equity, a property owner may bring an action in a court of
  156  competent jurisdiction under this section for injunctive relief
  157  or to recover damages caused by a prohibited exaction. Such
  158  action may not be brought until a prohibited exaction is
  159  actually imposed or required in written form as a final
  160  condition of approval for the requested use of real property.
  161  The right to bring an action under this section may not be
  162  waived.
  163         (3) At least 90 days before filing an action under this
  164  section, a property owner shall provide to the relevant
  165  governmental entity written notice of the action. This written
  166  notice must identify the exaction that the property owner
  167  believes is prohibited and include a brief explanation of why
  168  the property owner believes the exaction is prohibited and an
  169  estimate of the damages. Upon receipt of the property owner’s
  170  written notice, the governmental entity may treat the claim as
  171  pending litigation for purposes of s. 286.011(8).
  172         (4) For each claim filed under this section, the
  173  governmental entity has the burden of proving that the exaction
  174  at issue has an essential nexus to a legitimate public purpose
  175  and is roughly proportionate to the impacts of the proposed use
  176  that the governmental entity is seeking to avoid, minimize or
  177  mitigate. The property owner has the burden of proving damages
  178  that result from a prohibited exaction.
  179         (5) In addition to the damages provided for in this
  180  section, the court shall award prejudgment interest and
  181  reasonable attorney fees and costs to a property owner who
  182  prevails in an action under this section. The court may award
  183  reasonable attorney fees and costs to the governmental entity if
  184  the court finds that the property owner filed the action in bad
  185  faith and absent a colorable basis for relief.
  186         (6) To ensure that courts may assess damages for claims
  187  filed under this section, in accordance with s. 13, Art. X of
  188  the State Constitution, the state for itself and for its
  189  agencies or political subdivisions waives sovereign immunity for
  190  causes of action based upon the application of this section. The
  191  waiver is limited only to claims brought under this section.
  192         Section 3. Section 70.80, Florida Statutes, is amended to
  193  read:
  194         70.80 Construction of ss. 70.001, 70.45, and 70.51.—It is
  195  the express declaration of the Legislature that ss. 70.001,
  196  70.45, and 70.51 have separate and distinct bases, objectives,
  197  applications, and processes. It is therefore the intent of the
  198  Legislature that ss. 70.001, 70.45, and 70.51 are not to be
  199  construed in pari materia.
  200         Section 4. This act shall take effect October 1, 2015.