Florida Senate - 2019                          SENATOR AMENDMENT
       Bill No. CS/CS/HB 7103, 2nd Eng.
       
       
       
       
       
       
                                Ì155860-Î155860                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/RE/2R         .                                
             05/02/2019 02:18 PM       .                                
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       Senator Lee moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 125.01055, Florida Statutes, is amended
    6  to read:
    7         125.01055 Affordable housing.—
    8         (1) Notwithstanding any other provision of law, a county
    9  may adopt and maintain in effect any law, ordinance, rule, or
   10  other measure that is adopted for the purpose of increasing the
   11  supply of affordable housing using land use mechanisms such as
   12  inclusionary housing ordinances.
   13         (2) An inclusionary housing ordinance may require a
   14  developer to provide a specified number or percentage of
   15  affordable housing units to be included in a development or
   16  allow a developer to contribute to a housing fund or other
   17  alternatives in lieu of building the affordable housing units.
   18  However, in exchange, a county must provide incentives to fully
   19  offset all costs to the developer of its affordable housing
   20  contribution. Such incentives may include, but are not limited
   21  to:
   22         (a)Allowing the developer density or intensity bonus
   23  incentives or more floor space than allowed under the current or
   24  proposed future land use designation or zoning;
   25         (b)Reducing or waiving fees, such as impact fees or water
   26  and sewer charges; or
   27         (c)Granting other incentives.
   28         (3) Subsection (2) does not apply in an area of critical
   29  state concern, as designated in s. 380.0552.
   30         Section 2. Section 125.022, Florida Statutes, is amended to
   31  read:
   32         125.022 Development permits and orders.—
   33         (1)Within 30 days after receiving an application for
   34  approval of a development permit or development order, a county
   35  must review the application for completeness and issue a letter
   36  indicating that all required information is submitted or
   37  specifying with particularity any areas that are deficient. If
   38  the application is deficient, the applicant has 30 days to
   39  address the deficiencies by submitting the required additional
   40  information. Within 120 days after the county has deemed the
   41  application complete, or 180 days for applications that require
   42  final action through a quasi-judicial hearing or a public
   43  hearing, the county must approve, approve with conditions, or
   44  deny the application for a development permit or development
   45  order. Both parties may agree to a reasonable request for an
   46  extension of time, particularly in the event of a force majeure
   47  or other extraordinary circumstance. An approval, approval with
   48  conditions, or denial of the application for a development
   49  permit or development order must include written findings
   50  supporting the county’s decision. The timeframes contained in
   51  this subsection do not apply in an area of critical state
   52  concern, as designated in s. 380.0552.
   53         (2)(1) When reviewing an application for a development
   54  permit or development order that is certified by a professional
   55  listed in s. 403.0877, a county may not request additional
   56  information from the applicant more than three times, unless the
   57  applicant waives the limitation in writing. Before a third
   58  request for additional information, the applicant must be
   59  offered a meeting to attempt to resolve outstanding issues.
   60  Except as provided in subsection (5) (4), if the applicant
   61  believes the request for additional information is not
   62  authorized by ordinance, rule, statute, or other legal
   63  authority, the county, at the applicant’s request, shall proceed
   64  to process the application for approval or denial.
   65         (3)(2) When a county denies an application for a
   66  development permit or development order, the county shall give
   67  written notice to the applicant. The notice must include a
   68  citation to the applicable portions of an ordinance, rule,
   69  statute, or other legal authority for the denial of the permit
   70  or order.
   71         (4)(3) As used in this section, the terms term “development
   72  permit” and “development order” have has the same meaning as in
   73  s. 163.3164, but do does not include building permits.
   74         (5)(4) For any development permit application filed with
   75  the county after July 1, 2012, a county may not require as a
   76  condition of processing or issuing a development permit or
   77  development order that an applicant obtain a permit or approval
   78  from any state or federal agency unless the agency has issued a
   79  final agency action that denies the federal or state permit
   80  before the county action on the local development permit.
   81         (6)(5) Issuance of a development permit or development
   82  order by a county does not in any way create any rights on the
   83  part of the applicant to obtain a permit from a state or federal
   84  agency and does not create any liability on the part of the
   85  county for issuance of the permit if the applicant fails to
   86  obtain requisite approvals or fulfill the obligations imposed by
   87  a state or federal agency or undertakes actions that result in a
   88  violation of state or federal law. A county shall attach such a
   89  disclaimer to the issuance of a development permit and shall
   90  include a permit condition that all other applicable state or
   91  federal permits be obtained before commencement of the
   92  development.
   93         (7)(6) This section does not prohibit a county from
   94  providing information to an applicant regarding what other state
   95  or federal permits may apply.
   96         Section 3. Subsection (3) of section 163.3167, Florida
   97  Statutes, is amended to read:
   98         163.3167 Scope of act.—
   99         (3) A municipality established after the effective date of
  100  this act shall, within 1 year after incorporation, establish a
  101  local planning agency, pursuant to s. 163.3174, and prepare and
  102  adopt a comprehensive plan of the type and in the manner set out
  103  in this act within 3 years after the date of such incorporation.
  104  A county comprehensive plan is shall be deemed controlling until
  105  the municipality adopts a comprehensive plan in accordance
  106  accord with this act. A comprehensive plan adopted after January
  107  1, 2019, and all land development regulations adopted to
  108  implement the comprehensive plan must incorporate each
  109  development order existing before the comprehensive plan’s
  110  effective date, may not impair the completion of a development
  111  in accordance with such existing development order, and must
  112  vest the density and intensity approved by such development
  113  order existing on the effective date of the comprehensive plan
  114  without limitation or modification.
  115         Section 4. Paragraph (i) of subsection (5) and paragraph
  116  (h) of subsection (6) of section 163.3180, Florida Statutes, are
  117  amended to read:
  118         163.3180 Concurrency.—
  119         (5)
  120         (i) If a local government elects to repeal transportation
  121  concurrency, it is encouraged to adopt an alternative mobility
  122  funding system that uses one or more of the tools and techniques
  123  identified in paragraph (f). Any alternative mobility funding
  124  system adopted may not be used to deny, time, or phase an
  125  application for site plan approval, plat approval, final
  126  subdivision approval, building permits, or the functional
  127  equivalent of such approvals provided that the developer agrees
  128  to pay for the development’s identified transportation impacts
  129  via the funding mechanism implemented by the local government.
  130  The revenue from the funding mechanism used in the alternative
  131  system must be used to implement the needs of the local
  132  government’s plan which serves as the basis for the fee imposed.
  133  A mobility fee-based funding system must comply with s.
  134  163.31801 governing the dual rational nexus test applicable to
  135  impact fees. An alternative system that is not mobility fee
  136  based shall not be applied in a manner that imposes upon new
  137  development any responsibility for funding an existing
  138  transportation deficiency as defined in paragraph (h).
  139         (6)
  140         (h)1. In order to limit the liability of local governments,
  141  a local government may allow a landowner to proceed with
  142  development of a specific parcel of land notwithstanding a
  143  failure of the development to satisfy school concurrency, if all
  144  the following factors are shown to exist:
  145         a. The proposed development would be consistent with the
  146  future land use designation for the specific property and with
  147  pertinent portions of the adopted local plan, as determined by
  148  the local government.
  149         b. The local government’s capital improvements element and
  150  the school board’s educational facilities plan provide for
  151  school facilities adequate to serve the proposed development,
  152  and the local government or school board has not implemented
  153  that element or the project includes a plan that demonstrates
  154  that the capital facilities needed as a result of the project
  155  can be reasonably provided.
  156         c. The local government and school board have provided a
  157  means by which the landowner will be assessed a proportionate
  158  share of the cost of providing the school facilities necessary
  159  to serve the proposed development.
  160         2. If a local government applies school concurrency, it may
  161  not deny an application for site plan, final subdivision
  162  approval, or the functional equivalent for a development or
  163  phase of a development authorizing residential development for
  164  failure to achieve and maintain the level-of-service standard
  165  for public school capacity in a local school concurrency
  166  management system where adequate school facilities will be in
  167  place or under actual construction within 3 years after the
  168  issuance of final subdivision or site plan approval, or the
  169  functional equivalent. School concurrency is satisfied if the
  170  developer executes a legally binding commitment to provide
  171  mitigation proportionate to the demand for public school
  172  facilities to be created by actual development of the property,
  173  including, but not limited to, the options described in sub
  174  subparagraph a. Options for proportionate-share mitigation of
  175  impacts on public school facilities must be established in the
  176  comprehensive plan and the interlocal agreement pursuant to s.
  177  163.31777.
  178         a. Appropriate mitigation options include the contribution
  179  of land; the construction, expansion, or payment for land
  180  acquisition or construction of a public school facility; the
  181  construction of a charter school that complies with the
  182  requirements of s. 1002.33(18); or the creation of mitigation
  183  banking based on the construction of a public school facility in
  184  exchange for the right to sell capacity credits. Such options
  185  must include execution by the applicant and the local government
  186  of a development agreement that constitutes a legally binding
  187  commitment to pay proportionate-share mitigation for the
  188  additional residential units approved by the local government in
  189  a development order and actually developed on the property,
  190  taking into account residential density allowed on the property
  191  prior to the plan amendment that increased the overall
  192  residential density. The district school board must be a party
  193  to such an agreement. As a condition of its entry into such a
  194  development agreement, the local government may require the
  195  landowner to agree to continuing renewal of the agreement upon
  196  its expiration.
  197         b. If the interlocal agreement and the local government
  198  comprehensive plan authorize a contribution of land; the
  199  construction, expansion, or payment for land acquisition; the
  200  construction or expansion of a public school facility, or a
  201  portion thereof; or the construction of a charter school that
  202  complies with the requirements of s. 1002.33(18), as
  203  proportionate-share mitigation, the local government shall
  204  credit such a contribution, construction, expansion, or payment
  205  toward any other impact fee or exaction imposed by local
  206  ordinance for public educational facilities the same need, on a
  207  dollar-for-dollar basis at fair market value. The credit must be
  208  based on the total impact fee assessed and not on the impact fee
  209  for any particular type of school.
  210         c. Any proportionate-share mitigation must be directed by
  211  the school board toward a school capacity improvement identified
  212  in the 5-year school board educational facilities plan that
  213  satisfies the demands created by the development in accordance
  214  with a binding developer’s agreement.
  215         3. This paragraph does not limit the authority of a local
  216  government to deny a development permit or its functional
  217  equivalent pursuant to its home rule regulatory powers, except
  218  as provided in this part.
  219         Section 5. Section 163.31801, Florida Statutes, is amended
  220  to read:
  221         163.31801 Impact fees; short title; intent; minimum
  222  requirements; audits; challenges definitions; ordinances levying
  223  impact fees.—
  224         (1) This section may be cited as the “Florida Impact Fee
  225  Act.”
  226         (2) The Legislature finds that impact fees are an important
  227  source of revenue for a local government to use in funding the
  228  infrastructure necessitated by new growth. The Legislature
  229  further finds that impact fees are an outgrowth of the home rule
  230  power of a local government to provide certain services within
  231  its jurisdiction. Due to the growth of impact fee collections
  232  and local governments’ reliance on impact fees, it is the intent
  233  of the Legislature to ensure that, when a county or municipality
  234  adopts an impact fee by ordinance or a special district adopts
  235  an impact fee by resolution, the governing authority complies
  236  with this section.
  237         (3) At a minimum, an impact fee adopted by ordinance of a
  238  county or municipality or by resolution of a special district
  239  must satisfy all of the following conditions, at minimum:
  240         (a) Require that The calculation of the impact fee must be
  241  based on the most recent and localized data.
  242         (b) The local government must provide for accounting and
  243  reporting of impact fee collections and expenditures. If a local
  244  governmental entity imposes an impact fee to address its
  245  infrastructure needs, the entity must shall account for the
  246  revenues and expenditures of such impact fee in a separate
  247  accounting fund.
  248         (c) Limit Administrative charges for the collection of
  249  impact fees must be limited to actual costs.
  250         (d) The local government must provide Require that notice
  251  not be provided no less than 90 days before the effective date
  252  of an ordinance or resolution imposing a new or increased impact
  253  fee. A county or municipality is not required to wait 90 days to
  254  decrease, suspend, or eliminate an impact fee.
  255         (e) Collection of the impact fee may not be required to
  256  occur earlier than the date of issuance of the building permit
  257  for the property that is subject to the fee.
  258         (f) The impact fee must be proportional and reasonably
  259  connected to, or have a rational nexus with, the need for
  260  additional capital facilities and the increased impact generated
  261  by the new residential or commercial construction.
  262         (g) The impact fee must be proportional and reasonably
  263  connected to, or have a rational nexus with, the expenditures of
  264  the funds collected and the benefits accruing to the new
  265  residential or nonresidential construction.
  266         (h) The local government must specifically earmark funds
  267  collected under the impact fee for use in acquiring,
  268  constructing, or improving capital facilities to benefit new
  269  users.
  270         (i) Revenues generated by the impact fee may not be used,
  271  in whole or in part, to pay existing debt or for previously
  272  approved projects unless the expenditure is reasonably connected
  273  to, or has a rational nexus with, the increased impact generated
  274  by the new residential or nonresidential construction.
  275         (4)The local government must credit against the collection
  276  of the impact fee any contribution, whether identified in a
  277  proportionate share agreement or other form of exaction, related
  278  to public education facilities, including land dedication, site
  279  planning and design, or construction. Any contribution must be
  280  applied to reduce any education-based impact fees on a dollar
  281  for-dollar basis at fair market value.
  282         (5) If a local government increases its impact fee rates,
  283  the holder of any impact fee credits, whether such credits are
  284  granted under s. 163.3180, s. 380.06, or otherwise, which were
  285  in existence before the increase, is entitled to the full
  286  benefit of the intensity or density prepaid by the credit
  287  balance as of the date it was first established. This subsection
  288  shall operate prospectively and not retrospectively.
  289         (6)(4) Audits of financial statements of local governmental
  290  entities and district school boards which are performed by a
  291  certified public accountant pursuant to s. 218.39 and submitted
  292  to the Auditor General must include an affidavit signed by the
  293  chief financial officer of the local governmental entity or
  294  district school board stating that the local governmental entity
  295  or district school board has complied with this section.
  296         (7)(5) In any action challenging an impact fee or the
  297  government’s failure to provide required dollar-for-dollar
  298  credits for the payment of impact fees as provided in s.
  299  163.3180(6)(h)2.b., the government has the burden of proving by
  300  a preponderance of the evidence that the imposition or amount of
  301  the fee or credit meets the requirements of state legal
  302  precedent and or this section. The court may not use a
  303  deferential standard for the benefit of the government.
  304         (8) A county, municipality, or special district may provide
  305  an exception or waiver for an impact fee for the development or
  306  construction of housing that is affordable, as defined in s.
  307  420.9071. If a county, municipality, or special district
  308  provides such an exception or waiver, it is not required to use
  309  any revenues to offset the impact.
  310         (9) This section does not apply to water and sewer
  311  connection fees.
  312         Section 6. Paragraph (j) is added to subsection (2) of
  313  section 163.3202, Florida Statutes, to read:
  314         163.3202 Land development regulations.—
  315         (2) Local land development regulations shall contain
  316  specific and detailed provisions necessary or desirable to
  317  implement the adopted comprehensive plan and shall at a minimum:
  318         (j) Incorporate preexisting development orders identified
  319  pursuant to s. 163.3167(3).
  320         Section 7. Section 166.033, Florida Statutes, is amended to
  321  read:
  322         166.033 Development permits and orders.—
  323         (1) Within 30 days after receiving an application for
  324  approval of a development permit or development order, a
  325  municipality must review the application for completeness and
  326  issue a letter indicating that all required information is
  327  submitted or specifying with particularity any areas that are
  328  deficient. If the application is deficient, the applicant has 30
  329  days to address the deficiencies by submitting the required
  330  additional information. Within 120 days after the municipality
  331  has deemed the application complete, or 180 days for
  332  applications that require final action through a quasi-judicial
  333  hearing or a public hearing, the municipality must approve,
  334  approve with conditions, or deny the application for a
  335  development permit or development order. Both parties may agree
  336  to a reasonable request for an extension of time, particularly
  337  in the event of a force majeure or other extraordinary
  338  circumstance. An approval, approval with conditions, or denial
  339  of the application for a development permit or development order
  340  must include written findings supporting the municipality’s
  341  decision. The timeframes contained in this subsection do not
  342  apply in an area of critical state concern, as designated in s.
  343  380.0552 or chapter 28-36, Florida Administrative Code.
  344         (2)(1) When reviewing an application for a development
  345  permit or development order that is certified by a professional
  346  listed in s. 403.0877, a municipality may not request additional
  347  information from the applicant more than three times, unless the
  348  applicant waives the limitation in writing. Before a third
  349  request for additional information, the applicant must be
  350  offered a meeting to attempt to resolve outstanding issues.
  351  Except as provided in subsection (5) (4), if the applicant
  352  believes the request for additional information is not
  353  authorized by ordinance, rule, statute, or other legal
  354  authority, the municipality, at the applicant’s request, shall
  355  proceed to process the application for approval or denial.
  356         (3)(2) When a municipality denies an application for a
  357  development permit or development order, the municipality shall
  358  give written notice to the applicant. The notice must include a
  359  citation to the applicable portions of an ordinance, rule,
  360  statute, or other legal authority for the denial of the permit
  361  or order.
  362         (4)(3) As used in this section, the terms term “development
  363  permit” and “development order” have has the same meaning as in
  364  s. 163.3164, but do does not include building permits.
  365         (5)(4) For any development permit application filed with
  366  the municipality after July 1, 2012, a municipality may not
  367  require as a condition of processing or issuing a development
  368  permit or development order that an applicant obtain a permit or
  369  approval from any state or federal agency unless the agency has
  370  issued a final agency action that denies the federal or state
  371  permit before the municipal action on the local development
  372  permit.
  373         (6)(5) Issuance of a development permit or development
  374  order by a municipality does not in any way create any right on
  375  the part of an applicant to obtain a permit from a state or
  376  federal agency and does not create any liability on the part of
  377  the municipality for issuance of the permit if the applicant
  378  fails to obtain requisite approvals or fulfill the obligations
  379  imposed by a state or federal agency or undertakes actions that
  380  result in a violation of state or federal law. A municipality
  381  shall attach such a disclaimer to the issuance of development
  382  permits and shall include a permit condition that all other
  383  applicable state or federal permits be obtained before
  384  commencement of the development.
  385         (7)(6) This section does not prohibit a municipality from
  386  providing information to an applicant regarding what other state
  387  or federal permits may apply.
  388         Section 8. Section 166.04151, Florida Statutes, is amended
  389  to read:
  390         166.04151 Affordable housing.—
  391         (1) Notwithstanding any other provision of law, a
  392  municipality may adopt and maintain in effect any law,
  393  ordinance, rule, or other measure that is adopted for the
  394  purpose of increasing the supply of affordable housing using
  395  land use mechanisms such as inclusionary housing ordinances.
  396         (2) An inclusionary housing ordinance may require a
  397  developer to provide a specified number or percentage of
  398  affordable housing units to be included in a development or
  399  allow a developer to contribute to a housing fund or other
  400  alternatives in lieu of building the affordable housing units.
  401  However, in exchange, a municipality must provide incentives to
  402  fully offset all costs to the developer of its affordable
  403  housing contribution. Such incentives may include, but are not
  404  limited to:
  405         (a) Allowing the developer density or intensity bonus
  406  incentives or more floor space than allowed under the current or
  407  proposed future land use designation or zoning;
  408         (b) Reducing or waiving fees, such as impact fees or water
  409  and sewer charges; or
  410         (c) Granting other incentives.
  411         (3)Subsection (2) does not apply in an area of critical
  412  state concern, as designated by s. 380.0552 or chapter 28-36,
  413  Florida Administrative Code.
  414         Section 9. This act shall take effect upon becoming a law.
  415  
  416  ================= T I T L E  A M E N D M E N T ================
  417  And the title is amended as follows:
  418         Delete everything before the enacting clause
  419  and insert:
  420                        A bill to be entitled                      
  421         An act relating to community development and housing;
  422         amending s. 125.01055, F.S.; authorizing an
  423         inclusionary housing ordinance to require a developer
  424         to provide a specified number or percentage of
  425         affordable housing units to be included in a
  426         development or allow a developer to contribute to a
  427         housing fund or other alternatives; requiring a county
  428         to provide certain incentives to fully offset all
  429         costs to the developer of its affordable housing
  430         contribution; providing applicability; amending s.
  431         125.022, F.S.; requiring that a county review the
  432         application for completeness and issue a certain
  433         letter within a specified period after receiving an
  434         application for approval of a development permit or
  435         development order; providing procedures for addressing
  436         deficiencies in, and for approving or denying, the
  437         application; providing applicability of certain
  438         timeframes; conforming provisions to changes made by
  439         the act; defining the term “development order”;
  440         amending s. 163.3167, F.S.; providing requirements for
  441         a comprehensive plan adopted after a specified date
  442         and all land development regulations adopted to
  443         implement the comprehensive plan; amending s.
  444         163.3180, F.S.; revising compliance requirements for a
  445         mobility fee-based funding system; requiring a local
  446         government to credit certain contributions,
  447         constructions, expansions, or payments toward any
  448         other impact fee or exaction imposed by local
  449         ordinance for public educational facilities; providing
  450         requirements for the basis of the credit; amending s.
  451         163.31801, F.S.; adding minimum conditions that
  452         certain impact fees must satisfy; requiring a local
  453         government to credit against the collection of an
  454         impact fee any contribution related to public
  455         education facilities, subject to certain requirements;
  456         requiring the holder of certain impact fee credits to
  457         be entitled to a certain benefit if a local government
  458         increases its impact fee rates; providing
  459         applicability; providing that the government, in
  460         certain actions, has the burden of proving by a
  461         preponderance of the evidence that the imposition or
  462         amount of certain required dollar-for-dollar credits
  463         for the payment of impact fees meets certain
  464         requirements; prohibiting the court from using a
  465         deferential standard for the benefit of the
  466         government; authorizing a county, municipality, or
  467         special district to provide an exception or waiver for
  468         an impact fee for the development or construction of
  469         housing that is affordable; providing that if a
  470         county, municipality, or special district provides
  471         such exception or waiver, it is not required to use
  472         any revenues to offset the impact; providing
  473         applicability; amending s. 163.3202, F.S.; requiring
  474         local land development regulations to incorporate
  475         certain preexisting development orders; amending s.
  476         166.033, F.S.; requiring that a municipality review
  477         the application for completeness and issue a certain
  478         letter within a specified period after receiving an
  479         application for approval of a development permit or
  480         development order; providing procedures for addressing
  481         deficiencies in, and for approving or denying, the
  482         application; providing applicability of certain
  483         timeframes; conforming provisions to changes made by
  484         the act; defining the term “development order”;
  485         amending s. 166.04151, F.S.; authorizing an
  486         inclusionary housing ordinance to require a developer
  487         to provide a specified number or percentage of
  488         affordable housing units to be included in a
  489         development or allow a developer to contribute to a
  490         housing fund or other alternatives; requiring a
  491         municipality to provide certain incentives to fully
  492         offset all costs to the developer of its affordable
  493         housing contribution; providing applicability;
  494         providing an effective date.