Florida Senate - 2019                                    SB 1720
       By Senator Lee
       20-01708-19                                           20191720__
    1                        A bill to be entitled                      
    2         An act relating to property rights; amending s.
    3         70.001, F.S.; revising legislative findings; providing
    4         applicability relating to claims that involve one or
    5         more residential properties which are brought as a
    6         result of certain regulations or ordinances;
    7         authorizing a property owner to waive a jury and
    8         request that the court make a determination of
    9         compensation; revising the calculation for costs a
   10         property owner is entitled to recover; authorizing a
   11         property owner to bring a claim under certain
   12         circumstances when he or she is not provided certain
   13         notice; amending s. 70.45, F.S.; authorizing a
   14         property owner to bring an action to declare a
   15         prohibited exaction invalid; making clarifying
   16         changes; providing an effective date.
   18  Be It Enacted by the Legislature of the State of Florida:
   20         Section 1. Present paragraph (d) of subsection (4) of
   21  section 70.001, Florida Statutes, is redesignated as paragraph
   22  (e), a new paragraph (d) is added to that subsection, and
   23  subsections (1) and (6) and paragraph (a) of subsection (11) of
   24  that section are amended, to read:
   25         70.001 Private property rights protection.—
   26         (1) This act may be cited as the “Bert J. Harris, Jr.,
   27  Private Property Rights Protection Act.” The Legislature
   28  recognizes that some laws, regulations, and ordinances of the
   29  state and political entities in the state, as applied, may
   30  inordinately burden, restrict, or limit private property rights
   31  without amounting to a taking under the State Constitution or
   32  the United States Constitution. The Legislature determines that
   33  there is an important state interest in protecting the interests
   34  of private property owners from such inordinate burdens. The
   35  Legislature further recognizes that it is in the public interest
   36  to ensure that similarly situated properties are subject to the
   37  same rules and regulations. Therefore, it is the intent of the
   38  Legislature that, as a separate and distinct cause of action
   39  from the law of takings, the Legislature herein provides for
   40  relief, or payment of compensation, when a new law, rule,
   41  regulation, or ordinance of the state or a political entity in
   42  the state, as applied, unfairly affects real property.
   43         (4)
   44         (d) When the claim involves one or more residential
   45  properties and is brought as a result of the enactment of a
   46  governmental entity’s regulation or ordinance that applies to
   47  residential property, any settlement offer that includes a
   48  modification or variance to such regulation or ordinance applies
   49  to all similarly situated residential properties subject to
   50  regulation by the governmental entity.
   51         (6)(a) The circuit court shall determine whether an
   52  existing use of the real property or a vested right to a
   53  specific use of the real property existed and, if so, whether,
   54  considering the settlement offer and statement of allowable
   55  uses, the governmental entity or entities have inordinately
   56  burdened the real property. If the actions of more than one
   57  governmental entity, considering any settlement offers and
   58  statement of allowable uses, are responsible for the action that
   59  imposed the inordinate burden on the real property of the
   60  property owner, the court shall determine the percentage of
   61  responsibility each such governmental entity bears with respect
   62  to the inordinate burden. A governmental entity may take an
   63  interlocutory appeal of the court’s determination that the
   64  action of the governmental entity has resulted in an inordinate
   65  burden. An interlocutory appeal does not automatically stay the
   66  proceedings; however, the court may stay the proceedings during
   67  the pendency of the interlocutory appeal. If the governmental
   68  entity does not prevail in the interlocutory appeal, the court
   69  shall award to the prevailing property owner the costs and a
   70  reasonable attorney fee incurred by the property owner in the
   71  interlocutory appeal.
   72         (b) Following its determination of the percentage of
   73  responsibility of each governmental entity, and following the
   74  resolution of any interlocutory appeal, the court shall impanel
   75  a jury to determine the total amount of compensation to the
   76  property owner for the loss in value due to the inordinate
   77  burden to the real property. The property owner may waive a jury
   78  and request that the court make such determination. The award of
   79  compensation shall be determined by calculating the difference
   80  in the fair market value of the real property, as it existed at
   81  the time of the governmental action at issue, as though the
   82  owner had the ability to attain the reasonable investment-backed
   83  expectation or was not left with uses that are unreasonable,
   84  whichever the case may be, and the fair market value of the real
   85  property, as it existed at the time of the governmental action
   86  at issue, as inordinately burdened, considering the settlement
   87  offer together with the statement of allowable uses, of the
   88  governmental entity or entities. In determining the award of
   89  compensation, consideration may not be given to business damages
   90  relative to any development, activity, or use that the action of
   91  the governmental entity or entities, considering the settlement
   92  offer together with the statement of allowable uses has
   93  restricted, limited, or prohibited. The award of compensation
   94  shall include a reasonable award of prejudgment interest from
   95  the date the claim was presented to the governmental entity or
   96  entities as provided in subsection (4).
   97         (c)1. In any action filed pursuant to this section, the
   98  property owner is entitled to recover reasonable costs and
   99  attorney fees incurred by the property owner, from the
  100  governmental entity or entities, according to their
  101  proportionate share as determined by the court, from the date of
  102  presenting the claim to the governmental entity pursuant to
  103  paragraph (4)(a) the filing of the circuit court action, if the
  104  property owner prevails in the action and the court determines
  105  that the settlement offer, including the statement of allowable
  106  uses, of the governmental entity or entities did not constitute
  107  a bona fide offer to the property owner which reasonably would
  108  have resolved the claim, based upon the knowledge available to
  109  the governmental entity or entities and the property owner
  110  during the 90-day-notice period or the 150-day-notice period.
  111         2. In any action filed pursuant to this section, the
  112  governmental entity or entities are entitled to recover
  113  reasonable costs and attorney fees incurred by the governmental
  114  entity or entities from the date of the filing of the circuit
  115  court action, if the governmental entity or entities prevail in
  116  the action and the court determines that the property owner did
  117  not accept a bona fide settlement offer, including the statement
  118  of allowable uses, which reasonably would have resolved the
  119  claim fairly to the property owner if the settlement offer had
  120  been accepted by the property owner, based upon the knowledge
  121  available to the governmental entity or entities and the
  122  property owner during the 90-day-notice period or the 150-day
  123  notice period.
  124         3. The determination of total reasonable costs and attorney
  125  fees pursuant to this paragraph shall be made by the court and
  126  not by the jury. Any proposed settlement offer or any proposed
  127  decision, except for the final written settlement offer or the
  128  final written statement of allowable uses, and any negotiations
  129  or rejections in regard to the formulation either of the
  130  settlement offer or the statement of allowable uses, are
  131  inadmissible in the subsequent proceeding established by this
  132  section except for the purposes of the determination pursuant to
  133  this paragraph.
  134         (d) Within 15 days after the execution of any settlement
  135  pursuant to this section, or the issuance of any judgment
  136  pursuant to this section, the governmental entity shall provide
  137  a copy of the settlement or judgment to the Department of Legal
  138  Affairs.
  139         (11) A cause of action may not be commenced under this
  140  section if the claim is presented more than 1 year after a law
  141  or regulation is first applied by the governmental entity to the
  142  property at issue.
  143         (a) For purposes of determining when this 1-year claim
  144  period accrues:
  145         1.a. A law or regulation is first applied upon enactment
  146  and notice as provided for in this sub-subparagraph subparagraph
  147  if the impact of the law or regulation on the real property is
  148  clear and unequivocal in its terms and notice is provided by
  149  mail to the affected property owner or registered agent at the
  150  address referenced in the jurisdiction’s most current ad valorem
  151  tax records. The fact that the law or regulation could be
  152  modified, varied, or altered under any other process or
  153  procedure does not preclude the impact of the law or regulation
  154  on a property from being clear or unequivocal pursuant to this
  155  sub-subparagraph subparagraph. Any notice under this sub
  156  subparagraph subparagraph shall be provided after the enactment
  157  of the law or regulation and shall inform the property owner or
  158  registered agent that the law or regulation may impact the
  159  property owner’s existing property rights and that the property
  160  owner may have only 1 year from receipt of the notice to pursue
  161  any rights established under this section.
  162         b. If a property owner is not provided notice pursuant to
  163  sub-subparagraph a., the property owner may bring a claim
  164  against the governmental entity after the enactment of the law
  165  or regulation if the law or regulation’s effect on the real
  166  property is clear and unequivocal in its terms. In such cases, a
  167  property owner is not required to submit a formal application
  168  for development or to proceed through any formal application
  169  process if such action would be futile and a waste of resources.
  170         2. Otherwise, the law or regulation is first applied to the
  171  property when there is a formal denial of a written request for
  172  development or variance.
  173         Section 2. Subsections (2), (4), and (5) of section 70.45,
  174  Florida Statutes, are amended to read:
  175         70.45 Governmental exactions.—
  176         (2) In addition to other remedies available in law or
  177  equity, a property owner may bring an action in a court of
  178  competent jurisdiction under this section to declare a
  179  prohibited exaction invalid and to recover damages caused by a
  180  prohibited exaction. Such action may not be brought until a
  181  prohibited exaction is actually imposed or required in writing
  182  as a final condition of approval for the requested use of real
  183  property. The right to bring an action under this section may
  184  not be waived. This section does not apply to impact fees
  185  adopted under s. 163.31801 or non-ad valorem assessments as
  186  defined in s. 197.3632.
  187         (4) For each claim filed under this section, the
  188  governmental entity has the burden of proving that the
  189  challenged exaction has an essential nexus to a legitimate
  190  public purpose and is roughly proportionate to the impacts of
  191  the proposed use that the governmental entity is seeking to
  192  avoid, minimize, or mitigate. The property owner has the burden
  193  of proving damages that result from a prohibited exaction.
  194         (5) The court may award attorney fees and costs to the
  195  prevailing party; however, if the court determines that the
  196  challenged exaction which is the subject of the claim lacks an
  197  essential nexus to a legitimate public purpose, the court shall
  198  award attorney fees and costs to the property owner.
  199         Section 3. This act shall take effect July 1, 2019.