Florida Senate - 2018                          SENATOR AMENDMENT
       Bill No. CS/CS/HB 883, 2nd Eng.
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       Senator Brandes moved the following:
    1         Senate Amendment to Amendment (333236) (with title
    2  amendment)
    4         Before line 5
    5  insert:
    6         Section 1. Section 163.3215, Florida Statutes, is amended
    7  to read:
    8         163.3215 Challenging Standing to enforce local
    9  comprehensive plans through development orders or local
   10  comprehensive plans; procedures; attorney fees.—
   11         (1) Subsections (3) and (4) provide the exclusive methods
   12  for an aggrieved or adversely affected party to appeal and
   13  challenge the consistency of a development order with a
   14  comprehensive plan adopted under this part. The local government
   15  that issues the development order is to be named as a respondent
   16  in all proceedings under this section. Subsection (3) does shall
   17  not apply to development orders for which a local government has
   18  established a process consistent with the requirements of
   19  subsection (4). A local government may decide which types of
   20  development orders will proceed under subsection (4). Subsection
   21  (3) shall apply to all other development orders that are not
   22  subject to subsection (4).
   23         (2) As used in this section, the term “aggrieved or
   24  adversely affected party” means any person or local government
   25  that will suffer an adverse effect to an interest protected or
   26  furthered by the local government comprehensive plan, including
   27  interests related to health and safety, police and fire
   28  protection service systems, densities or intensities of
   29  development, transportation facilities, health care facilities,
   30  equipment or services, and environmental or natural resources.
   31  The alleged adverse interest may be shared in common with other
   32  members of the community at large but must exceed in degree the
   33  general interest in community good shared by all persons. The
   34  term includes the owner, developer, or applicant for a
   35  development order.
   36         (3) Any aggrieved or adversely affected party may maintain
   37  a de novo action for declaratory, injunctive, or other relief
   38  against any local government to challenge any decision of such
   39  local government granting or denying an application for, or to
   40  prevent such local government from taking any action on, a
   41  development order, as defined in s. 163.3164, which materially
   42  alters the use or density or intensity of use on a particular
   43  piece of property which is not consistent with the comprehensive
   44  plan adopted under this part. The de novo action must be filed
   45  no later than 30 days following rendition of a development order
   46  or other written decision, or when all local administrative
   47  appeals, if any, are exhausted, whichever occurs later.
   48         (4) If a local government elects to adopt or has adopted an
   49  ordinance establishing, at a minimum, the requirements listed in
   50  this subsection, the sole method by which an aggrieved and
   51  adversely affected party may challenge any decision of local
   52  government granting or denying an application for a development
   53  order, as defined in s. 163.3164, which materially alters the
   54  use or density or intensity of use on a particular piece of
   55  property, on the basis that it is not consistent with the
   56  comprehensive plan adopted under this part, is by an appeal
   57  filed by a petition for writ of certiorari filed in circuit
   58  court no later than 30 days following rendition of a development
   59  order or other written decision of the local government, or when
   60  all local administrative appeals, if any, are exhausted,
   61  whichever occurs later. An action for injunctive or other relief
   62  may be joined with the petition for certiorari. Principles of
   63  judicial or administrative res judicata and collateral estoppel
   64  apply to these proceedings. Minimum components of the local
   65  process are as follows:
   66         (a) The local process must make provision for notice of an
   67  application for a development order that materially alters the
   68  use or density or intensity of use on a particular piece of
   69  property, including notice by publication or mailed notice
   70  consistent with the provisions of ss. 125.66(4)(b)2. and 3. and
   71  166.041(3)(c)2.b. and c., and must require prominent posting at
   72  the job site. The notice must be given within 10 days after the
   73  filing of an application for a development order; however,
   74  notice under this subsection is not required for an application
   75  for a building permit or any other official action of local
   76  government which does not materially alter the use or density or
   77  intensity of use on a particular piece of property. The notice
   78  must clearly delineate that an aggrieved or adversely affected
   79  person has the right to request a quasi-judicial hearing before
   80  the local government for which the application is made, must
   81  explain the conditions precedent to the appeal of any
   82  development order ultimately rendered upon the application, and
   83  must specify the location where written procedures can be
   84  obtained that describe the process, including how to initiate
   85  the quasi-judicial process, the timeframes for initiating the
   86  process, and the location of the hearing. The process may
   87  include an opportunity for an alternative dispute resolution.
   88         (b) The local process must provide a clear point of entry
   89  consisting of a written preliminary decision, at a time and in a
   90  manner to be established in the local ordinance, with the time
   91  to request a quasi-judicial hearing running from the issuance of
   92  the written preliminary decision; the local government, however,
   93  is not bound by the preliminary decision. A party may request a
   94  hearing to challenge or support a preliminary decision.
   95         (c) The local process must provide an opportunity for
   96  participation in the process by an aggrieved or adversely
   97  affected party, allowing a reasonable time for the party to
   98  prepare and present a case for the quasi-judicial hearing.
   99         (d) The local process must provide, at a minimum, an
  100  opportunity for the disclosure of witnesses and exhibits before
  101  prior to hearing and an opportunity for the depositions of
  102  witnesses to be taken.
  103         (e) The local process may not require that a party be
  104  represented by an attorney in order to participate in a hearing.
  105         (f) The local process must provide for a quasi-judicial
  106  hearing before an impartial special master who is an attorney
  107  who has at least 5 years’ experience and who shall, at the
  108  conclusion of the hearing, recommend written findings of fact
  109  and conclusions of law. The special master shall have the power
  110  to swear witnesses and take their testimony under oath, to issue
  111  subpoenas and other orders regarding the conduct of the
  112  proceedings, and to compel entry upon the land. The standard of
  113  review applied by the special master in determining whether a
  114  proposed development order is consistent with the comprehensive
  115  plan shall be strict scrutiny in accordance with Florida law.
  116         (g) At the quasi-judicial hearing, all parties must have
  117  the opportunity to respond, to present evidence and argument on
  118  all issues involved which are related to the development order,
  119  and to conduct cross-examination and submit rebuttal evidence.
  120  Public testimony must be allowed.
  121         (h) The local process must provide for a duly noticed
  122  public hearing before the local government at which public
  123  testimony is allowed. At the quasi-judicial hearing, the local
  124  government is bound by the special master’s findings of fact
  125  unless the findings of fact are not supported by competent
  126  substantial evidence. The governing body may modify the
  127  conclusions of law if it finds that the special master’s
  128  application or interpretation of law is erroneous. The governing
  129  body may make reasonable legal interpretations of its
  130  comprehensive plan and land development regulations without
  131  regard to whether the special master’s interpretation is labeled
  132  as a finding of fact or a conclusion of law. The local
  133  government’s final decision must be reduced to writing,
  134  including the findings of fact and conclusions of law, and is
  135  not considered rendered or final until officially date-stamped
  136  by the city or county clerk.
  137         (i) An ex parte communication relating to the merits of the
  138  matter under review may not be made to the special master. An ex
  139  parte communication relating to the merits of the matter under
  140  review may not be made to the governing body after a time to be
  141  established by the local ordinance, which time must be no later
  142  than receipt of the special master’s recommended order by the
  143  governing body.
  144         (j) At the option of the local government, the process may
  145  require actions to challenge the consistency of a development
  146  order with land development regulations to be brought in the
  147  same proceeding.
  148         (5) Venue in any cases brought under this section shall lie
  149  in the county or counties where the actions or inactions giving
  150  rise to the cause of action are alleged to have occurred.
  151         (6)(a) The signature of an attorney or party constitutes a
  152  certificate that he or she has read the pleading, motion, or
  153  other paper and that, to the best of his or her knowledge,
  154  information, and belief formed after reasonable inquiry, it is
  155  not interposed for any improper purpose, such as to harass or to
  156  cause unnecessary delay or for economic advantage, competitive
  157  reasons or frivolous purposes or needless increase in the cost
  158  of litigation. If a pleading, motion, or other paper is signed
  159  in violation of these requirements, the court, upon motion or
  160  its own initiative, shall impose upon the person who signed it,
  161  a represented party, or both, an appropriate sanction, which may
  162  include an order to pay to the other party or parties the amount
  163  of reasonable expenses incurred because of the filing of the
  164  pleading, motion, or other paper, including a reasonable
  165  attorney’s fee.
  166         (b)The prevailing party in a challenge to a development
  167  order or a local comprehensive plan is entitled to recover
  168  reasonable attorney fees and costs incurred in challenging or
  169  defending the order, including reasonable appellate attorney
  170  fees and costs.
  171         (7) In any proceeding under subsection (3) or subsection
  172  (4), no settlement shall be entered into by the local government
  173  unless the terms of the settlement have been the subject of a
  174  public hearing after notice as required by this part.
  175         (8) In any proceeding under subsection (3) or subsection
  176  (4), the Department of Legal Affairs may intervene to represent
  177  the interests of the state.
  178         (9) Neither subsection (3) nor subsection (4) relieves the
  179  local government of its obligations to hold public hearings as
  180  required by law.
  182  ================= T I T L E  A M E N D M E N T ================
  183  And the title is amended as follows:
  184         Between lines 123 and 124
  185  insert:
  186         163.3215, F.S.; providing for attorney fees for
  187         prevailing parties in an action challenging a
  188         development order or local comprehensive plan;
  189         amending s.