Florida Senate - 2019               CS for CS for CS for SB 1730
       
       
        
       By the Committees on Rules; Infrastructure and Security; and
       Community Affairs; and Senator Lee
       
       
       
       
       595-04848-19                                          20191730c3
    1                        A bill to be entitled                      
    2         An act relating to community development and housing;
    3         amending s. 125.01055, F.S.; authorizing an
    4         inclusionary housing ordinance to require a developer
    5         to provide a specified number or percentage of
    6         affordable housing units to be included in a
    7         development or allow a developer to contribute to a
    8         housing fund or other alternatives; requiring a county
    9         to provide certain incentives to fully offset all
   10         costs to the developer of its affordable housing
   11         contribution; amending s. 125.022, F.S.; requiring
   12         that a county review the application for completeness
   13         and issue a certain letter within a specified period
   14         after receiving an application for approval of a
   15         development permit or development order; providing
   16         procedures for addressing deficiencies in, and for
   17         approving or denying, the application; conforming
   18         provisions to changes made by the act; defining the
   19         term “development order”; amending s. 163.3167, F.S.;
   20         providing requirements for a comprehensive plan
   21         adopted after a specified date and all land
   22         development regulations adopted to implement the
   23         comprehensive plan; amending s. 163.3180, F.S.;
   24         revising compliance requirements for a mobility fee
   25         based funding system; requiring a local government to
   26         credit certain contributions, constructions,
   27         expansions, or payments toward any other impact fee or
   28         exaction imposed by local ordinance for public
   29         educational facilities; providing requirements for the
   30         basis of the credit; amending s. 163.31801, F.S.;
   31         adding minimum conditions that certain impact fees
   32         must satisfy; requiring a local government to credit
   33         against the collection of an impact fee any
   34         contribution related to public education facilities,
   35         subject to certain requirements; requiring the holder
   36         of certain impact fee credits to be entitled to a
   37         proportionate increase in the credit balance if a
   38         local government increases its impact fee rates;
   39         providing that the government, in certain actions, has
   40         the burden of proving by a preponderance of the
   41         evidence that the imposition or amount of certain
   42         required dollar-for-dollar credits for the payment of
   43         impact fees meets certain requirements; prohibiting
   44         the court from using a deferential standard for the
   45         benefit of the government; authorizing a county,
   46         municipality, or special district to provide an
   47         exception or waiver for an impact fee for the
   48         development or construction of housing that is
   49         affordable; providing that if a county, municipality,
   50         or special district provides such an exception or
   51         waiver, it is not required to use any revenues to
   52         offset the impact; providing applicability; amending
   53         s. 163.3202, F.S.; requiring local land development
   54         regulations to incorporate certain preexisting
   55         development orders; amending s. 166.033, F.S.;
   56         requiring that a municipality review the application
   57         for completeness and issue a certain letter within a
   58         specified period after receiving an application for
   59         approval of a development permit or development order;
   60         providing procedures for addressing deficiencies in,
   61         and for approving or denying, the application;
   62         conforming provisions to changes made by the act;
   63         defining the term “development order”; amending s.
   64         166.04151, F.S.; authorizing an inclusionary housing
   65         ordinance to require a developer to provide a
   66         specified number or percentage of affordable housing
   67         units to be included in a development or allow a
   68         developer to contribute to a housing fund or other
   69         alternatives; requiring a municipality to provide
   70         certain incentives to fully offset all costs to the
   71         developer of its affordable housing contribution;
   72         amending s. 494.001, F.S.; revising the definition of
   73         the term “mortgage loan”; providing an effective date.
   74          
   75  Be It Enacted by the Legislature of the State of Florida:
   76  
   77         Section 1. Section 125.01055, Florida Statutes, is amended
   78  to read:
   79         125.01055 Affordable housing.—
   80         (1) Notwithstanding any other provision of law, a county
   81  may adopt and maintain in effect any law, ordinance, rule, or
   82  other measure that is adopted for the purpose of increasing the
   83  supply of affordable housing using land use mechanisms such as
   84  inclusionary housing ordinances.
   85         (2) An inclusionary housing ordinance may require a
   86  developer to provide a specified number or percentage of
   87  affordable housing units to be included in a development or
   88  allow a developer to contribute to a housing fund or other
   89  alternatives in lieu of building the affordable housing units.
   90  However, in exchange, a county must provide incentives to fully
   91  offset all costs to the developer of its affordable housing
   92  contribution. Such incentives may include, but are not limited
   93  to:
   94         (a)Allowing the developer density or intensity bonus
   95  incentives or more floor space than allowed under the current or
   96  proposed future land use designation or zoning;
   97         (b)Reducing or waiving fees, such as impact fees or water
   98  and sewer charges; or
   99         (c)Granting other incentives.
  100         Section 2. Section 125.022, Florida Statutes, is amended to
  101  read:
  102         125.022 Development permits and orders.—
  103         (1)Within 30 days after receiving an application for
  104  approval of a development permit or development order, a county
  105  must review the application for completeness and issue a letter
  106  indicating that all required information is submitted or
  107  specifying with particularity any areas that are deficient. If
  108  the application is deficient, the applicant has 30 days to
  109  address the deficiencies by submitting the required additional
  110  information. Within 120 days after the county has deemed the
  111  application complete, or 180 days for applications that require
  112  final action through a quasi-judicial hearing or a public
  113  hearing, the county must approve, approve with conditions, or
  114  deny the application for a development permit or development
  115  order. Both parties may agree to a reasonable request for an
  116  extension of time, particularly in the event of a force majeure
  117  or other extraordinary circumstance. An approval, approval with
  118  conditions, or denial of the application for a development
  119  permit or development order must include written findings
  120  supporting the county’s decision.
  121         (2)(1) When reviewing an application for a development
  122  permit or development order that is certified by a professional
  123  listed in s. 403.0877, a county may not request additional
  124  information from the applicant more than three times, unless the
  125  applicant waives the limitation in writing. Before a third
  126  request for additional information, the applicant must be
  127  offered a meeting to attempt to resolve outstanding issues.
  128  Except as provided in subsection (5) (4), if the applicant
  129  believes the request for additional information is not
  130  authorized by ordinance, rule, statute, or other legal
  131  authority, the county, at the applicant’s request, shall proceed
  132  to process the application for approval or denial.
  133         (3)(2) When a county denies an application for a
  134  development permit or development order, the county shall give
  135  written notice to the applicant. The notice must include a
  136  citation to the applicable portions of an ordinance, rule,
  137  statute, or other legal authority for the denial of the permit
  138  or order.
  139         (4)(3) As used in this section, the terms term “development
  140  permit” and “development order” have has the same meaning as in
  141  s. 163.3164, but do does not include building permits.
  142         (5)(4) For any development permit application filed with
  143  the county after July 1, 2012, a county may not require as a
  144  condition of processing or issuing a development permit or
  145  development order that an applicant obtain a permit or approval
  146  from any state or federal agency unless the agency has issued a
  147  final agency action that denies the federal or state permit
  148  before the county action on the local development permit.
  149         (6)(5) Issuance of a development permit or development
  150  order by a county does not in any way create any rights on the
  151  part of the applicant to obtain a permit from a state or federal
  152  agency and does not create any liability on the part of the
  153  county for issuance of the permit if the applicant fails to
  154  obtain requisite approvals or fulfill the obligations imposed by
  155  a state or federal agency or undertakes actions that result in a
  156  violation of state or federal law. A county shall attach such a
  157  disclaimer to the issuance of a development permit and shall
  158  include a permit condition that all other applicable state or
  159  federal permits be obtained before commencement of the
  160  development.
  161         (7)(6) This section does not prohibit a county from
  162  providing information to an applicant regarding what other state
  163  or federal permits may apply.
  164         Section 3. Subsection (3) of section 163.3167, Florida
  165  Statutes, is amended to read:
  166         163.3167 Scope of act.—
  167         (3) A municipality established after the effective date of
  168  this act shall, within 1 year after incorporation, establish a
  169  local planning agency, pursuant to s. 163.3174, and prepare and
  170  adopt a comprehensive plan of the type and in the manner set out
  171  in this act within 3 years after the date of such incorporation.
  172  A county comprehensive plan is shall be deemed controlling until
  173  the municipality adopts a comprehensive plan in accordance
  174  accord with this act. A comprehensive plan adopted after January
  175  1, 2019, and all land development regulations adopted to
  176  implement the comprehensive plan must incorporate each
  177  development order existing before the comprehensive plan’s
  178  effective date, may not impair the completion of a development
  179  in accordance with such existing development order, and must
  180  vest the density and intensity approved by such development
  181  order existing on the effective date of the comprehensive plan
  182  without limitation or modification.
  183         Section 4. Paragraph (i) of subsection (5) and paragraph
  184  (h) of subsection (6) of section 163.3180, Florida Statutes, are
  185  amended to read:
  186         163.3180 Concurrency.—
  187         (5)
  188         (i) If a local government elects to repeal transportation
  189  concurrency, it is encouraged to adopt an alternative mobility
  190  funding system that uses one or more of the tools and techniques
  191  identified in paragraph (f). Any alternative mobility funding
  192  system adopted may not be used to deny, time, or phase an
  193  application for site plan approval, plat approval, final
  194  subdivision approval, building permits, or the functional
  195  equivalent of such approvals provided that the developer agrees
  196  to pay for the development’s identified transportation impacts
  197  via the funding mechanism implemented by the local government.
  198  The revenue from the funding mechanism used in the alternative
  199  system must be used to implement the needs of the local
  200  government’s plan which serves as the basis for the fee imposed.
  201  A mobility fee-based funding system must comply with s.
  202  163.31801 governing the dual rational nexus test applicable to
  203  impact fees. An alternative system that is not mobility fee
  204  based shall not be applied in a manner that imposes upon new
  205  development any responsibility for funding an existing
  206  transportation deficiency as defined in paragraph (h).
  207         (6)
  208         (h)1. In order to limit the liability of local governments,
  209  a local government may allow a landowner to proceed with
  210  development of a specific parcel of land notwithstanding a
  211  failure of the development to satisfy school concurrency, if all
  212  the following factors are shown to exist:
  213         a. The proposed development would be consistent with the
  214  future land use designation for the specific property and with
  215  pertinent portions of the adopted local plan, as determined by
  216  the local government.
  217         b. The local government’s capital improvements element and
  218  the school board’s educational facilities plan provide for
  219  school facilities adequate to serve the proposed development,
  220  and the local government or school board has not implemented
  221  that element or the project includes a plan that demonstrates
  222  that the capital facilities needed as a result of the project
  223  can be reasonably provided.
  224         c. The local government and school board have provided a
  225  means by which the landowner will be assessed a proportionate
  226  share of the cost of providing the school facilities necessary
  227  to serve the proposed development.
  228         2. If a local government applies school concurrency, it may
  229  not deny an application for site plan, final subdivision
  230  approval, or the functional equivalent for a development or
  231  phase of a development authorizing residential development for
  232  failure to achieve and maintain the level-of-service standard
  233  for public school capacity in a local school concurrency
  234  management system where adequate school facilities will be in
  235  place or under actual construction within 3 years after the
  236  issuance of final subdivision or site plan approval, or the
  237  functional equivalent. School concurrency is satisfied if the
  238  developer executes a legally binding commitment to provide
  239  mitigation proportionate to the demand for public school
  240  facilities to be created by actual development of the property,
  241  including, but not limited to, the options described in sub
  242  subparagraph a. Options for proportionate-share mitigation of
  243  impacts on public school facilities must be established in the
  244  comprehensive plan and the interlocal agreement pursuant to s.
  245  163.31777.
  246         a. Appropriate mitigation options include the contribution
  247  of land; the construction, expansion, or payment for land
  248  acquisition or construction of a public school facility; the
  249  construction of a charter school that complies with the
  250  requirements of s. 1002.33(18); or the creation of mitigation
  251  banking based on the construction of a public school facility in
  252  exchange for the right to sell capacity credits. Such options
  253  must include execution by the applicant and the local government
  254  of a development agreement that constitutes a legally binding
  255  commitment to pay proportionate-share mitigation for the
  256  additional residential units approved by the local government in
  257  a development order and actually developed on the property,
  258  taking into account residential density allowed on the property
  259  prior to the plan amendment that increased the overall
  260  residential density. The district school board must be a party
  261  to such an agreement. As a condition of its entry into such a
  262  development agreement, the local government may require the
  263  landowner to agree to continuing renewal of the agreement upon
  264  its expiration.
  265         b. If the interlocal agreement and the local government
  266  comprehensive plan authorize a contribution of land; the
  267  construction, expansion, or payment for land acquisition; the
  268  construction or expansion of a public school facility, or a
  269  portion thereof; or the construction of a charter school that
  270  complies with the requirements of s. 1002.33(18), as
  271  proportionate-share mitigation, the local government shall
  272  credit such a contribution, construction, expansion, or payment
  273  toward any other impact fee or exaction imposed by local
  274  ordinance for public educational facilities the same need, on a
  275  dollar-for-dollar basis at fair market value. The credit must be
  276  based on the total impact fee assessed and not on the impact fee
  277  for any particular type of school.
  278         c. Any proportionate-share mitigation must be directed by
  279  the school board toward a school capacity improvement identified
  280  in the 5-year school board educational facilities plan that
  281  satisfies the demands created by the development in accordance
  282  with a binding developer’s agreement.
  283         3. This paragraph does not limit the authority of a local
  284  government to deny a development permit or its functional
  285  equivalent pursuant to its home rule regulatory powers, except
  286  as provided in this part.
  287         Section 5. Section 163.31801, Florida Statutes, is amended
  288  to read:
  289         163.31801 Impact fees; short title; intent; minimum
  290  requirements; audits; challenges definitions; ordinances levying
  291  impact fees.—
  292         (1) This section may be cited as the “Florida Impact Fee
  293  Act.”
  294         (2) The Legislature finds that impact fees are an important
  295  source of revenue for a local government to use in funding the
  296  infrastructure necessitated by new growth. The Legislature
  297  further finds that impact fees are an outgrowth of the home rule
  298  power of a local government to provide certain services within
  299  its jurisdiction. Due to the growth of impact fee collections
  300  and local governments’ reliance on impact fees, it is the intent
  301  of the Legislature to ensure that, when a county or municipality
  302  adopts an impact fee by ordinance or a special district adopts
  303  an impact fee by resolution, the governing authority complies
  304  with this section.
  305         (3) At a minimum, an impact fee adopted by ordinance of a
  306  county or municipality or by resolution of a special district
  307  must satisfy all of the following conditions, at minimum:
  308         (a) Require that The calculation of the impact fee must be
  309  based on the most recent and localized data.
  310         (b) The local government must provide for accounting and
  311  reporting of impact fee collections and expenditures. If a local
  312  governmental entity imposes an impact fee to address its
  313  infrastructure needs, the entity must shall account for the
  314  revenues and expenditures of such impact fee in a separate
  315  accounting fund.
  316         (c) Limit Administrative charges for the collection of
  317  impact fees must be limited to actual costs.
  318         (d) The local government must provide Require that notice
  319  not be provided no less than 90 days before the effective date
  320  of an ordinance or resolution imposing a new or increased impact
  321  fee. A county or municipality is not required to wait 90 days to
  322  decrease, suspend, or eliminate an impact fee.
  323         (e) Collection of the impact fee may not be required to
  324  occur earlier than the date of issuance of the building permit
  325  for the property that is subject to the fee.
  326         (f) The impact fee must be proportional and reasonably
  327  connected to, or have a rational nexus with, the need for
  328  additional capital facilities and the increased impact generated
  329  by the new residential or commercial construction.
  330         (g) The impact fee must be proportional and reasonably
  331  connected to, or have a rational nexus with, the expenditures of
  332  the funds collected and the benefits accruing to the new
  333  residential or nonresidential construction.
  334         (h) The local government must specifically earmark funds
  335  collected under the impact fee for use in acquiring,
  336  constructing, or improving capital facilities to benefit new
  337  users.
  338         (i) Revenues generated by the impact fee may not be used,
  339  in whole or in part, to pay existing debt or for previously
  340  approved projects unless the expenditure is reasonably connected
  341  to, or has a rational nexus with, the increased impact generated
  342  by the new residential or nonresidential construction.
  343         (4)The local government must credit against the collection
  344  of the impact fee any contribution, whether identified in a
  345  proportionate share agreement or other form of exaction, related
  346  to public education facilities, including land dedication, site
  347  planning and design, or construction. Any contribution must be
  348  applied to reduce any education-based impact fees on a dollar
  349  for-dollar basis at fair market value.
  350         (5) If a local government increases its impact fee rates,
  351  the holder of any impact fee credits, whether such credits are
  352  granted under s. 163.3180, s. 380.06, or otherwise, which were
  353  in existence before the increase, is entitled to the full
  354  benefit of the intensity or density prepaid by the credit
  355  balance as of the date it was first established.
  356         (6)(4) Audits of financial statements of local governmental
  357  entities and district school boards which are performed by a
  358  certified public accountant pursuant to s. 218.39 and submitted
  359  to the Auditor General must include an affidavit signed by the
  360  chief financial officer of the local governmental entity or
  361  district school board stating that the local governmental entity
  362  or district school board has complied with this section.
  363         (7)(5) In any action challenging an impact fee or the
  364  government’s failure to provide required dollar-for-dollar
  365  credits for the payment of impact fees as provided in s.
  366  163.3180(6)(h)2.b., the government has the burden of proving by
  367  a preponderance of the evidence that the imposition or amount of
  368  the fee or credit meets the requirements of state legal
  369  precedent and or this section. The court may not use a
  370  deferential standard for the benefit of the government.
  371         (8) A county, municipality, or special district may provide
  372  an exception or waiver for an impact fee for the development or
  373  construction of housing that is affordable, as defined in s.
  374  420.9071. If a county, municipality, or special district
  375  provides such an exception or waiver, it is not required to use
  376  any revenues to offset the impact.
  377         (9) This section does not apply to water and sewer
  378  connection fees.
  379         Section 6. Paragraph (j) is added to subsection (2) of
  380  section 163.3202, Florida Statutes, to read:
  381         163.3202 Land development regulations.—
  382         (2) Local land development regulations shall contain
  383  specific and detailed provisions necessary or desirable to
  384  implement the adopted comprehensive plan and shall at a minimum:
  385         (j) Incorporate preexisting development orders identified
  386  pursuant to s. 163.3167(3).
  387         Section 7. Section 166.033, Florida Statutes, is amended to
  388  read:
  389         166.033 Development permits and orders.—
  390         (1) Within 30 days after receiving an application for
  391  approval of a development permit or development order, a
  392  municipality must review the application for completeness and
  393  issue a letter indicating that all required information is
  394  submitted or specifying with particularity any areas that are
  395  deficient. If the application is deficient, the applicant has 30
  396  days to address the deficiencies by submitting the required
  397  additional information. Within 120 days after the municipality
  398  has deemed the application complete, or 180 days for
  399  applications that require final action through a quasi-judicial
  400  hearing or a public hearing, the municipality must approve,
  401  approve with conditions, or deny the application for a
  402  development permit or development order. Both parties may agree
  403  to a reasonable request for an extension of time, particularly
  404  in the event of a force majeure or other extraordinary
  405  circumstance. An approval, approval with conditions, or denial
  406  of the application for a development permit or development order
  407  must include written findings supporting the municipality’s
  408  decision.
  409         (2)(1) When reviewing an application for a development
  410  permit or development order that is certified by a professional
  411  listed in s. 403.0877, a municipality may not request additional
  412  information from the applicant more than three times, unless the
  413  applicant waives the limitation in writing. Before a third
  414  request for additional information, the applicant must be
  415  offered a meeting to attempt to resolve outstanding issues.
  416  Except as provided in subsection (5)(4), if the applicant
  417  believes the request for additional information is not
  418  authorized by ordinance, rule, statute, or other legal
  419  authority, the municipality, at the applicant’s request, shall
  420  proceed to process the application for approval or denial.
  421         (3)(2) When a municipality denies an application for a
  422  development permit or development order, the municipality shall
  423  give written notice to the applicant. The notice must include a
  424  citation to the applicable portions of an ordinance, rule,
  425  statute, or other legal authority for the denial of the permit
  426  or order.
  427         (4)(3) As used in this section, the terms term “development
  428  permit” and “development order” have has the same meaning as in
  429  s. 163.3164, but do does not include building permits.
  430         (5)(4) For any development permit application filed with
  431  the municipality after July 1, 2012, a municipality may not
  432  require as a condition of processing or issuing a development
  433  permit or development order that an applicant obtain a permit or
  434  approval from any state or federal agency unless the agency has
  435  issued a final agency action that denies the federal or state
  436  permit before the municipal action on the local development
  437  permit.
  438         (6)(5) Issuance of a development permit or development
  439  order by a municipality does not in any way create any right on
  440  the part of an applicant to obtain a permit from a state or
  441  federal agency and does not create any liability on the part of
  442  the municipality for issuance of the permit if the applicant
  443  fails to obtain requisite approvals or fulfill the obligations
  444  imposed by a state or federal agency or undertakes actions that
  445  result in a violation of state or federal law. A municipality
  446  shall attach such a disclaimer to the issuance of development
  447  permits and shall include a permit condition that all other
  448  applicable state or federal permits be obtained before
  449  commencement of the development.
  450         (7)(6) This section does not prohibit a municipality from
  451  providing information to an applicant regarding what other state
  452  or federal permits may apply.
  453         Section 8. Section 166.04151, Florida Statutes, is amended
  454  to read:
  455         166.04151 Affordable housing.—
  456         (1) Notwithstanding any other provision of law, a
  457  municipality may adopt and maintain in effect any law,
  458  ordinance, rule, or other measure that is adopted for the
  459  purpose of increasing the supply of affordable housing using
  460  land use mechanisms such as inclusionary housing ordinances.
  461         (2) An inclusionary housing ordinance may require a
  462  developer to provide a specified number or percentage of
  463  affordable housing units to be included in a development or
  464  allow a developer to contribute to a housing fund or other
  465  alternatives in lieu of building the affordable housing units.
  466  However, in exchange, a municipality must provide incentives to
  467  fully offset all costs to the developer of its affordable
  468  housing contribution. Such incentives may include, but are not
  469  limited to:
  470         (a) Allowing the developer density or intensity bonus
  471  incentives or more floor space than allowed under the current or
  472  proposed future land use designation or zoning;
  473         (b) Reducing or waiving fees, such as impact fees or water
  474  and sewer charges; or
  475         (c) Granting other incentives.
  476         Section 9. Subsection (24) of section 494.001, Florida
  477  Statues, is amended to read:
  478         494.001 Definitions.—As used in this chapter, the term:
  479         (24) “Mortgage loan” means any:
  480         (a) Residential loan that primarily for personal, family,
  481  or household use which is secured by a mortgage, deed of trust,
  482  or other equivalent consensual security interest on a dwelling,
  483  as defined in s. 103(w) s. 103(v) of the federal Truth in
  484  Lending Act, or for the purchase of residential real estate upon
  485  which a dwelling is to be constructed;
  486         (b) Loan on commercial real property if the borrower is an
  487  individual or the lender is a noninstitutional investor; or
  488         (c) Loan on improved real property consisting of five or
  489  more dwelling units if the borrower is an individual or the
  490  lender is a noninstitutional investor.
  491         Section 10. This act shall take effect upon becoming a law.