Florida Senate - 2018 SENATOR AMENDMENT Bill No. CS/CS/HB 883, 2nd Eng. Ì634262ÊÎ634262 LEGISLATIVE ACTION Senate . House . . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— Senator Brandes moved the following: 1 Senate Amendment to Amendment (333236) (with title 2 amendment) 3 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 enforcelocal 9 comprehensive plans throughdevelopment 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 shall17 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 tohearing 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. 181 182 ================= 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.