Florida Senate - 2021                                    SB 1876
       
       
        
       By Senator Albritton
       
       
       
       
       
       26-01487-21                                           20211876__
    1                        A bill to be entitled                      
    2         An act relating to governmental actions affecting
    3         private property rights; amending s. 70.001, F.S.;
    4         revising notice of claim requirements for property
    5         owners; creating a presumption that certain settlement
    6         offers protect the public interest; specifying that
    7         property owners retain the option to have a court
    8         determine awards of compensation; authorizing property
    9         owners to bring claims against governmental entities
   10         in certain circumstances; providing that property
   11         owners are not required to submit formal development
   12         applications or proceed through formal application
   13         processes to bring claims in specified circumstances;
   14         amending s. 70.45, F.S.; defining the term “imposed”
   15         or “imposition”; authorizing property owners to bring
   16         actions to declare prohibited exactions invalid;
   17         providing applicability; amending s. 70.51, F.S.;
   18         providing and revising definitions; providing for
   19         resolution of disputes concerning comprehensive plan
   20         amendments under the Florida Land Use and
   21         Environmental Dispute Resolution Act; revising
   22         requirements for initiating a proceeding under the
   23         act; providing for an award of attorney fees and costs
   24         to property owners who successfully bring actions to
   25         compel a governmental entity to participate in certain
   26         proceedings; revising provisions related to the
   27         tolling of certain administrative proceedings;
   28         revising the time periods for a governmental entity to
   29         respond to a request for relief; requiring mediations
   30         to be conducted according to specified provisions;
   31         requiring the governmental entity’s conduct in dispute
   32         resolution to be considered in determining whether
   33         regulatory efforts were unreasonable or unfairly
   34         burdened use of the property; revising the deadline
   35         for a magistrate to prepare and file a written
   36         recommendation; revising provisions related to
   37         settlement agreements; specifying that a governmental
   38         entity has authority to rehear and reconsider certain
   39         actions pursuant to a special magistrate’s
   40         recommendation; providing requirements for such
   41         rehearing and reconsideration; revising provisions
   42         related to other remedies that may be pursued by a
   43         property owner; providing requirements for guidelines
   44         adopted by governmental entities for dispute
   45         resolution proceedings; specifying that certain
   46         settlement discussions are confidential; requiring
   47         that actions on proposed settlements be taken at open
   48         meetings; deleting obsolete language; amending s.
   49         163.3181, F.S.; conforming provisions to changes made
   50         by the act; providing an effective date.
   51          
   52  Be It Enacted by the Legislature of the State of Florida:
   53  
   54         Section 1. Subsections (4), (5), and (6) and paragraph (a)
   55  of subsection (11) of section 70.001, Florida Statutes, are
   56  amended to read:
   57         70.001 Private property rights protection.—
   58         (4)(a) Not fewer less than 90 150 days before prior to
   59  filing an action under this section against a governmental
   60  entity, a property owner who seeks compensation under this
   61  section must present the claim in writing to the head of the
   62  governmental entity, except that if the property is classified
   63  as agricultural pursuant to s. 193.461, the notice period is 90
   64  days. The property owner must submit, along with the claim, a
   65  bona fide, valid appraisal that supports the claim and
   66  demonstrates the loss in fair market value to the real property.
   67  If the action of government is the culmination of a process that
   68  involves more than one governmental entity, or if a complete
   69  resolution of all relevant issues, in the view of the property
   70  owner or in the view of a governmental entity to whom a claim is
   71  presented, requires the active participation of more than one
   72  governmental entity, the property owner shall present the claim
   73  as provided in this section to each of the governmental
   74  entities.
   75         (b) The governmental entity shall provide written notice of
   76  the claim to all parties to any administrative action that gave
   77  rise to the claim, and to owners of real property contiguous to
   78  the owner’s property at the addresses listed on the most recent
   79  county tax rolls. Within 15 days after the claim is presented,
   80  the governmental entity shall report the claim in writing to the
   81  Department of Legal Affairs, and shall provide the department
   82  with the name, address, and telephone number of the employee of
   83  the governmental entity from whom additional information may be
   84  obtained about the claim during the pendency of the claim and
   85  any subsequent judicial action.
   86         (c) During the 90-day-notice period or the 150-day-notice
   87  period, unless extended by agreement of the parties, the
   88  governmental entity shall make a written settlement offer to
   89  effectuate:
   90         1. An adjustment of land development or permit standards or
   91  other provisions controlling the development or use of land.
   92         2. Increases or modifications in the density, intensity, or
   93  use of areas of development.
   94         3. The transfer of developmental rights.
   95         4. Land swaps or exchanges.
   96         5. Mitigation, including payments in lieu of onsite
   97  mitigation.
   98         6. Location on the least sensitive portion of the property.
   99         7. Conditioning the amount of development or use permitted.
  100         8. A requirement that issues be addressed on a more
  101  comprehensive basis than a single proposed use or development.
  102         9. Issuance of the development order, a variance, a special
  103  exception, or any other extraordinary relief.
  104         10. Purchase of the real property, or an interest therein,
  105  by an appropriate governmental entity or payment of
  106  compensation.
  107         11. No changes to the action of the governmental entity.
  108  
  109  If the property owner accepts a settlement offer, either before
  110  or after filing an action, the governmental entity may implement
  111  the settlement offer by appropriate development agreement; by
  112  issuing a variance, a special exception, or any other
  113  extraordinary relief; or by any other appropriate method,
  114  subject to paragraph (d).
  115         (d)1. When a governmental entity enters into a settlement
  116  agreement under this section which would have the effect of a
  117  modification, variance, or a special exception to the
  118  application of a rule, regulation, or ordinance as it would
  119  otherwise apply to the subject real property, the relief granted
  120  shall protect the public interest served by the regulations at
  121  issue and be the appropriate relief necessary to prevent the
  122  governmental regulatory effort from inordinately burdening the
  123  real property. Settlement offers made pursuant to paragraph (c)
  124  shall be presumed to protect the public interest.
  125         2. When a governmental entity enters into a settlement
  126  agreement under this section which would have the effect of
  127  contravening the application of a statute as it would otherwise
  128  apply to the subject real property, the governmental entity and
  129  the property owner shall jointly file an action in the circuit
  130  court where the real property is located for approval of the
  131  settlement agreement by the court to ensure that the relief
  132  granted protects the public interest served by the statute at
  133  issue and is the appropriate relief necessary to prevent the
  134  governmental regulatory effort from inordinately burdening the
  135  real property.
  136  
  137  This paragraph applies to any settlement reached between a
  138  property owner and a governmental entity regardless of when the
  139  settlement agreement was entered so long as the agreement fully
  140  resolves all claims asserted under this section.
  141         (5)(a) During the 90-day-notice period or the 150-day
  142  notice period, unless a settlement offer is accepted by the
  143  property owner, each of the governmental entities provided
  144  notice pursuant to subsection (4) paragraph (4)(a) shall issue a
  145  written statement of allowable uses identifying the allowable
  146  uses to which the subject property may be put. The failure of
  147  the governmental entity to issue a statement of allowable uses
  148  during the applicable 90-day-notice period or 150-day-notice
  149  period shall be deemed a denial for purposes of allowing a
  150  property owner to file an action in the circuit court under this
  151  section. If a written statement of allowable uses is issued, it
  152  constitutes the last prerequisite to judicial review for the
  153  purposes of the judicial proceeding created by this section,
  154  notwithstanding the availability of other administrative
  155  remedies.
  156         (b) If the property owner rejects the settlement offer and
  157  the statement of allowable uses of the governmental entity or
  158  entities, the property owner may file a claim for compensation
  159  in the circuit court, a copy of which shall be served
  160  contemporaneously on the head of each of the governmental
  161  entities that made a settlement offer and a statement of
  162  allowable uses that was rejected by the property owner. Actions
  163  under this section shall be brought only in the county where the
  164  real property is located.
  165         (6)(a) The circuit court shall determine whether an
  166  existing use of the real property or a vested right to a
  167  specific use of the real property existed and, if so, whether,
  168  considering the settlement offer and statement of allowable
  169  uses, the governmental entity or entities have inordinately
  170  burdened the real property. If the actions of more than one
  171  governmental entity, considering any settlement offers and
  172  statement of allowable uses, are responsible for the action that
  173  imposed the inordinate burden on the real property of the
  174  property owner, the court shall determine the percentage of
  175  responsibility each such governmental entity bears with respect
  176  to the inordinate burden. A governmental entity may take an
  177  interlocutory appeal of the court’s determination that the
  178  action of the governmental entity has resulted in an inordinate
  179  burden. An interlocutory appeal does not automatically stay the
  180  proceedings; however, the court may stay the proceedings during
  181  the pendency of the interlocutory appeal. If the governmental
  182  entity does not prevail in the interlocutory appeal, the court
  183  shall award to the prevailing property owner the costs and a
  184  reasonable attorney fee incurred by the property owner in the
  185  interlocutory appeal.
  186         (b) Following its determination of the percentage of
  187  responsibility of each governmental entity, and following the
  188  resolution of any interlocutory appeal, the court shall impanel
  189  a jury to determine the total amount of compensation to the
  190  property owner for the loss in value due to the inordinate
  191  burden to the real property. The property owner retains the
  192  option to forego a jury and elect to have the court determine
  193  the award of compensation. The award of compensation shall be
  194  determined by calculating the difference in the fair market
  195  value of the real property, as it existed at the time of the
  196  governmental action at issue, as though the owner had the
  197  ability to attain the reasonable investment-backed expectation
  198  or was not left with uses that are unreasonable, whichever the
  199  case may be, and the fair market value of the real property, as
  200  it existed at the time of the governmental action at issue, as
  201  inordinately burdened, considering the settlement offer together
  202  with the statement of allowable uses, of the governmental entity
  203  or entities. In determining the award of compensation,
  204  consideration may not be given to business damages relative to
  205  any development, activity, or use that the action of the
  206  governmental entity or entities, considering the settlement
  207  offer together with the statement of allowable uses has
  208  restricted, limited, or prohibited. The award of compensation
  209  shall include a reasonable award of prejudgment interest from
  210  the date the claim was presented to the governmental entity or
  211  entities as provided in subsection (4).
  212         (c)1. In any action filed pursuant to this section, the
  213  property owner is entitled to recover reasonable costs and
  214  attorney fees incurred by the property owner, from the
  215  governmental entity or entities, according to their
  216  proportionate share as determined by the court, from the date of
  217  the presentation of the claim to the head of the governmental
  218  entity pursuant to paragraph (4)(a) the filing of the circuit
  219  court action, if the property owner prevails in the action and
  220  the court determines that the settlement offer, including the
  221  statement of allowable uses, of the governmental entity or
  222  entities did not constitute a bona fide offer to the property
  223  owner which reasonably would have resolved the claim, based upon
  224  the knowledge available to the governmental entity or entities
  225  and the property owner during the 90-day-notice period or the
  226  150-day-notice period.
  227         2. In any action filed pursuant to this section, the
  228  governmental entity or entities are entitled to recover
  229  reasonable costs and attorney fees incurred by the governmental
  230  entity or entities from the date of the filing of the circuit
  231  court action, if the governmental entity or entities prevail in
  232  the action and the court determines that the property owner did
  233  not accept a bona fide settlement offer, including the statement
  234  of allowable uses, which reasonably would have resolved the
  235  claim fairly to the property owner if the settlement offer had
  236  been accepted by the property owner, based upon the knowledge
  237  available to the governmental entity or entities and the
  238  property owner during the 90-day-notice period or the 150-day
  239  notice period.
  240         3. The determination of total reasonable costs and attorney
  241  fees pursuant to this paragraph shall be made by the court and
  242  not by the jury. Any proposed settlement offer or any proposed
  243  decision, except for the final written settlement offer or the
  244  final written statement of allowable uses, and any negotiations
  245  or rejections in regard to the formulation either of the
  246  settlement offer or the statement of allowable uses, are
  247  inadmissible in the subsequent proceeding established by this
  248  section except for the purposes of the determination pursuant to
  249  this paragraph.
  250         (d) Within 15 days after the execution of any settlement
  251  pursuant to this section, or the issuance of any judgment
  252  pursuant to this section, the governmental entity shall provide
  253  a copy of the settlement or judgment to the Department of Legal
  254  Affairs.
  255         (11) A cause of action may not be commenced under this
  256  section if the claim is presented more than 1 year after a law
  257  or regulation is first applied by the governmental entity to the
  258  property at issue.
  259         (a) For purposes of determining when this 1-year claim
  260  period accrues:
  261         1.a. A law or regulation is first applied upon enactment
  262  and notice as provided for in this sub-subparagraph subparagraph
  263  if the impact of the law or regulation on the real property is
  264  clear and unequivocal in its terms and notice is provided by
  265  mail to the affected property owner or registered agent at the
  266  address referenced in the jurisdiction’s most current ad valorem
  267  tax records. The fact that the law or regulation could be
  268  modified, varied, or altered under any other process or
  269  procedure does not preclude the impact of the law or regulation
  270  on a property from being clear or unequivocal pursuant to this
  271  sub-subparagraph subparagraph. Any notice under this sub
  272  subparagraph subparagraph shall be provided after the enactment
  273  of the law or regulation and shall inform the property owner or
  274  registered agent that the law or regulation may impact the
  275  property owner’s existing property rights and that the property
  276  owner may have only 1 year after from receipt of the notice to
  277  pursue any rights established under this section.
  278         b. If the notice required in sub-subparagraph a. is not
  279  provided to the property owner, the property owner may at any
  280  time after enactment notify the head of the governmental entity
  281  in writing via certified mail and, if available, e-mail that the
  282  property owner deems the impact of the law or regulation on the
  283  property owner’s real property to be clear and unequivocal in
  284  its terms and, as such, restrictive of uses allowed on the
  285  property before the enactment. Within 45 days after receipt of a
  286  notice under this sub-subparagraph, the governmental entity in
  287  receipt of the notice must respond in writing via certified mail
  288  and, if available, e-mail to describe the limitations imposed on
  289  the property by the law or regulation. The property owner is not
  290  required to formally pursue an application for a development
  291  order, development permit, or building permit, as such will be
  292  deemed a waste of resources and shall not be a prerequisite to
  293  bringing a claim pursuant to paragraph (4)(a). However, any such
  294  claim must be filed within 1 year after the date of the property
  295  owner’s receipt of the notice from the governmental entity of
  296  the limitations on use imposed on the real property.
  297         2. Otherwise, the law or regulation is first applied to the
  298  property when there is a formal denial of a written request for
  299  development or variance.
  300         Section 2. Present paragraphs (c), (d), and (e) of
  301  subsection (1) of section 70.45, Florida Statutes, are
  302  redesignated as paragraphs (d), (e), and (f), respectively, a
  303  new paragraph (c) is added to that subsection, and subsections
  304  (2), (4), and (5) of that section are amended, to read:
  305         70.45 Governmental exactions.—
  306         (1) As used in this section, the term:
  307         (c) “Imposed” or “imposition” as it relates to a prohibited
  308  exaction or condition of approval refers to the time at which
  309  the property owner must comply with the prohibited exaction or
  310  condition of approval.
  311         (2) In addition to other remedies available in law or
  312  equity, a property owner may bring an action in a court of
  313  competent jurisdiction under this section to declare a
  314  prohibited exaction invalid and recover damages caused by a
  315  prohibited exaction. Such action may not be brought by a
  316  property owner at the property owner’s discretion when until a
  317  prohibited exaction is actually imposed or when it is required
  318  in writing as a final condition of approval for the requested
  319  use of real property. The right to bring an action under this
  320  section may not be waived. This section does not apply to impact
  321  fees adopted under s. 163.31801 or non-ad valorem assessments as
  322  defined in s. 197.3632.
  323         (4) For each claim filed under this section, the
  324  governmental entity has the burden of proving that the
  325  challenged exaction has an essential nexus to a legitimate
  326  public purpose and is roughly proportionate to the impacts of
  327  the proposed use that the governmental entity is seeking to
  328  avoid, minimize, or mitigate. The property owner has the burden
  329  of proving damages that result from a prohibited exaction.
  330         (5) The court may award attorney fees and costs to the
  331  prevailing party; however, if the court determines that the
  332  challenged exaction which is the subject of the claim lacks an
  333  essential nexus to a legitimate public purpose, the court shall
  334  award attorney fees and costs to the property owner.
  335         Section 3. The amendments made by this act to ss. 70.001
  336  and 70.45, Florida Statutes, apply to claims made in response to
  337  actions taken by governmental entities on or after July 1, 2021.
  338         Section 4. Subsections (2), (3), and (4), paragraph (b) of
  339  subsection (5), paragraphs (a), (b), and (c) of subsection (6),
  340  subsections (8) and (10) through (13), paragraph (a) of
  341  subsection (15), paragraph (a) of subsection (16), and
  342  subsections (17) through (21), (24), (25), (26), (28), and (30)
  343  of section 70.51, Florida Statutes, are amended to read:
  344         70.51 Land use and environmental dispute resolution.—
  345         (2) As used in this section, the term:
  346         (a) “Comprehensive plan amendment” means a governmental
  347  action subject to s. 163.3181(4).
  348         (b)(a) “Development order” means any order, or notice of
  349  proposed state or regional governmental agency action, which is
  350  or will have the effect of granting, denying, or granting with
  351  conditions an application for a development permit, and includes
  352  the rezoning of a specific parcel. Actions by the state or a
  353  local government on comprehensive plan amendments are not
  354  development orders.
  355         (c)(b) “Development permit” means any building permit,
  356  zoning permit, subdivision approval, certification, special
  357  exception, variance, or any other similar action of local
  358  government, as well as any permit authorized to be issued under
  359  state law by state, regional, or local government which has the
  360  effect of authorizing the development of real property
  361  including, but not limited to, programs implementing chapters
  362  125, 161, 163, 166, 187, 258, 372, 373, 378, 380, and 403.
  363         (h)(c) “Special magistrate” means a person selected by the
  364  parties to perform the duties prescribed in this section. The
  365  special magistrate must be a resident of the state and possess
  366  experience and expertise in mediation and at least one of the
  367  following disciplines and a working familiarity with the others:
  368  land use and environmental permitting, land planning, land
  369  economics, local and state government organization and powers,
  370  and the law governing the same. A special magistrate is not
  371  required to be a certified mediator.
  372         (d) “Enforcement action” means any civil or administrative
  373  action by a governmental entity intended to enforce any law,
  374  ordinance, regulation, rule, or policy related to the
  375  development or use of real property. The term includes, but is
  376  not limited to, any action taken under chapter 162, such as a
  377  notice of violation, order, or placement of a lien, or the
  378  service of a notice of violation or an order to correct a
  379  condition, or an equivalent action, by a state agency.
  380         (g)(d) “Owner” means a person with a legal or equitable
  381  interest in real property who filed an application for a
  382  development permit for the property at the state, regional, or
  383  local level and who received a development order, who filed a
  384  comprehensive plan amendment, or who holds legal title to or who
  385  has a legal or equitable interest in real property that is
  386  subject to, or is otherwise a person subject to, an enforcement
  387  action of a governmental entity.
  388         (i)(e) “Proposed Use of the property” means the proposal
  389  filed by the owner to develop his or her real property or the
  390  actual use of the property giving rise to an enforcement action.
  391         (e)(f) “Governmental entity” includes an agency of the
  392  state, a regional or a local government created by the State
  393  Constitution or by general or special act, any county or
  394  municipality, or any other entity that independently exercises
  395  governmental authority. The term does not include the United
  396  States or any of its agencies.
  397         (f)(g) “Land” or “real property” means land and includes
  398  any appurtenances and improvements to the land, including any
  399  other relevant real property in which the owner had a relevant
  400  interest.
  401         (3) Any owner who believes that a development order, either
  402  separately or in conjunction with other development orders, a
  403  comprehensive plan amendment, or an enforcement action of a
  404  governmental entity, is unreasonable or unfairly burdens the use
  405  of the owner’s real property, may apply within 30 days after
  406  receipt of the order, comprehensive plan amendment, or notice of
  407  the governmental action for relief under this section.
  408         (4) To initiate a proceeding under this section, an owner
  409  must file a request for relief with the elected or appointed
  410  head of the governmental entity that issued the development
  411  order or orders, denied the comprehensive plan amendment, or
  412  that initiated the enforcement action. Filing may be by
  413  electronic mail to the official e-mail address of the head of
  414  the governmental entity, by hand delivery to such person, or by
  415  United States mail to such person at his or her official
  416  address. Formal service of process is not required for such
  417  filing. The process shall be considered initiated as of the date
  418  the petition is filed with the head of the governmental entity
  419  pursuant to this subsection. The head of the governmental entity
  420  may not charge the owner for the request for relief and must
  421  forward the request for relief to the special magistrate who is
  422  mutually agreed upon by the owner and the governmental entity
  423  within 10 days after receipt of the request.
  424         (5) The governmental entity with whom a request has been
  425  filed shall also serve a copy of the request for relief by
  426  United States mail or by hand delivery to:
  427         (b) Any substantially affected party who submitted oral or
  428  written testimony, sworn or unsworn, of a substantive nature
  429  which stated with particularity objections to or support for any
  430  development order, comprehensive plan amendment, at issue or
  431  enforcement action at issue. Notice under this paragraph is
  432  required only if that party indicated a desire to receive notice
  433  of any subsequent special magistrate proceedings occurring on
  434  the development order, comprehensive plan amendment, or
  435  enforcement action. Each governmental entity must maintain in
  436  its files relating to each particular development order,
  437  comprehensive plan amendment, or enforcement action orders a
  438  mailing list of persons who have presented oral or written
  439  testimony and who have requested notice.
  440         (6) The request for relief must contain:
  441         (a) A brief statement of the owner’s proposed use of the
  442  property.
  443         (b) A summary of the development order or comprehensive
  444  plan amendment or a description of the enforcement action. A
  445  copy of the development order or comprehensive plan amendment or
  446  the documentation of an enforcement action at issue must be
  447  attached to the request.
  448         (c) A brief statement of the impact of the development
  449  order, denial of the comprehensive plan amendment, or
  450  enforcement action on the ability of the owner to achieve the
  451  proposed use of the property.
  452         (8) The special magistrate has the sole authority to
  453  determine whether a request for relief is complete and was
  454  timely filed and may conduct a hearing on whether the request
  455  for relief should be dismissed for failing to include the
  456  information required in subsection (6). If the special
  457  magistrate dismisses the case, the special magistrate shall
  458  allow the owner to amend the request and refile. Failure to file
  459  an adequate amended request within the time specified shall
  460  result in a dismissal with prejudice as to this proceeding. A
  461  property owner who is successful in a suit to require a
  462  governmental entity to participate in a proceeding under this
  463  section shall be awarded attorney fees and costs.
  464         (10)(a) Before initiating a special magistrate proceeding
  465  to review a local development order, comprehensive plan
  466  amendment, or local enforcement action, the owner must exhaust
  467  all nonjudicial local government administrative appeals if the
  468  appeals take no longer than 4 months. Once nonjudicial local
  469  administrative appeals are exhausted and the development order,
  470  comprehensive plan amendment, or enforcement action is final, or
  471  within 4 months after issuance of the development order, denial
  472  of the comprehensive plan amendment, or notice of the
  473  enforcement action if the owner has pursued local administrative
  474  appeals even if the appeals have not been concluded, the owner
  475  may initiate a proceeding under this section. Initiation of a
  476  proceeding tolls rendition or effectiveness of the development
  477  order, denial of the comprehensive plan amendment, the time for
  478  seeking judicial review of a local government development order
  479  or enforcement action until the special magistrate’s
  480  recommendation is acted upon by the local government. Election
  481  by the owner to file for judicial review of a local government
  482  development order, comprehensive plan amendment, or enforcement
  483  action before prior to initiating a proceeding under this
  484  section waives any right to a special magistrate proceeding.
  485         (b) If an owner requests special magistrate relief from a
  486  development order, comprehensive plan amendment, or enforcement
  487  action issued by a state or regional agency, the time for
  488  challenging agency action under ss. 120.569 and 120.57 is tolled
  489  until the agency acts upon the recommendation of the special
  490  magistrate or the proceeding is terminated by the owner. If an
  491  owner chooses to bring a proceeding under ss. 120.569 and 120.57
  492  before initiating a special magistrate proceeding, then the
  493  owner waives any right to a special magistrate proceeding unless
  494  all parties consent to proceeding to mediation.
  495         (11) The initial party to the proceeding is the
  496  governmental entity that issues the development order or
  497  comprehensive plan amendment to the owner or that is taking the
  498  enforcement action. In those instances when the development
  499  order, comprehensive plan amendment, or enforcement action is
  500  the culmination of a process involving more than one
  501  governmental entity or when a complete resolution of all
  502  relevant issues would require the active participation of more
  503  than one governmental entity, the special magistrate may, upon
  504  application of a party, join those governmental entities as
  505  parties to the proceeding if it will assist in effecting the
  506  purposes of this section, and those governmental entities so
  507  joined shall actively participate in the procedure.
  508         (12) Within 21 days after the date on which the notice was
  509  provided under subsection (5) receipt of the request for relief,
  510  any owner of land contiguous to the owner’s property and any
  511  substantially affected person who submitted oral or written
  512  testimony, sworn or unsworn, of a substantive nature which
  513  stated with particularity objections to or support for the
  514  development order, comprehensive plan amendment, or enforcement
  515  action at issue may make a written request to participate in the
  516  hearing by transmitting such request to the official who signed
  517  the notice proceeding. Those persons may be permitted to
  518  participate in the hearing but shall not be granted party or
  519  intervenor status. The participation of such persons is limited
  520  to addressing issues raised regarding alternatives, variances,
  521  and other types of adjustment to the development order,
  522  comprehensive plan amendment, or enforcement action which may
  523  impact their substantial interests, including denial of the
  524  development order or comprehensive plan amendment or application
  525  of an enforcement action.
  526         (13) Each party must make efforts to assure that those
  527  persons qualified by training or experience necessary to address
  528  issues raised by the request or by the special magistrate and
  529  further qualified to address alternatives, variances, and other
  530  types of modifications to the development order, comprehensive
  531  plan amendment, or enforcement action are present at the
  532  hearing.
  533         (15)(a) The special magistrate shall hold a hearing within
  534  60 45 days after his or her receipt of the request for relief
  535  unless a different date is agreed to by all the parties. The
  536  hearing must be held in the county in which the property is
  537  located.
  538         (16)(a) Five days after the date on which the special
  539  magistrate is selected, or 21 days after the date on which the
  540  petition is served Fifteen days following the filing of a
  541  request for relief, whichever is earlier, the governmental
  542  entity that issued the development order or comprehensive plan
  543  amendment or that is taking the enforcement action shall file a
  544  response to the request for relief with the special magistrate
  545  together with a copy to the owner. The response must set forth
  546  in reasonable detail the position of the governmental entity
  547  regarding the matters alleged by the owner. The response must
  548  include a brief statement explaining the public purpose of the
  549  regulations on which the development order, comprehensive plan
  550  amendment, or enforcement action is based.
  551         (17) In all respects, the hearing must be informal and open
  552  to the public and does not require the use of an attorney. The
  553  hearing must operate at the direction and under the supervision
  554  of the special magistrate. The object of the hearing is to focus
  555  attention on the impact of the governmental action giving rise
  556  to the request for relief and to explore alternatives to the
  557  development order, comprehensive plan amendment, or enforcement
  558  action and other regulatory efforts by the governmental entities
  559  in order to recommend relief, when appropriate, to the owner.
  560         (a) The first responsibility of the special magistrate is
  561  to facilitate a resolution of the conflict between the owner and
  562  governmental entities to the end that some modification of the
  563  owner’s proposed use of the property or adjustment in the
  564  development order, comprehensive plan amendment, or enforcement
  565  action or regulatory efforts by one or more of the governmental
  566  parties may be reached. Accordingly, the special magistrate
  567  shall act as a facilitator or mediator between the parties in an
  568  effort to effect a mutually acceptable solution. The parties
  569  shall be represented at the mediation by persons with authority
  570  to bind their respective parties to a solution, or by persons
  571  with authority to recommend a solution directly to the persons
  572  with authority to bind their respective parties to a solution.
  573  The mediation shall be conducted according to ss. 44.401-44.406.
  574         (b) If an acceptable solution is not reached by the parties
  575  after the special magistrate’s attempt at mediation, the special
  576  magistrate shall consider the facts and circumstances set forth
  577  in the request for relief and any responses and any other
  578  information produced at the hearing in order to determine
  579  whether the action by the governmental entity or entities is
  580  unreasonable or unfairly burdens the real property.
  581         (c) In conducting the hearing, the special magistrate may
  582  hear from all parties and witnesses that are necessary to an
  583  understanding of the matter. The special magistrate shall weigh
  584  all information offered at the hearing.
  585         (18) The circumstances to be examined in determining
  586  whether the development order, comprehensive plan amendment, or
  587  enforcement action, or the development order, comprehensive plan
  588  amendment, or enforcement action in conjunction with regulatory
  589  efforts of other governmental parties, is unreasonable or
  590  unfairly burdens use of the property may include, but are not
  591  limited to:
  592         (a) The history of the real property, including when it was
  593  purchased, how much was purchased, where it is located, the
  594  nature of the title, the composition of the property, and how it
  595  was initially used.
  596         (b) The history or development and use of the real
  597  property, including what was developed on the property and by
  598  whom, if it was subdivided and how and to whom it was sold,
  599  whether plats were filed or recorded, and whether infrastructure
  600  and other public services or improvements may have been
  601  dedicated to the public.
  602         (c) The history of environmental protection and land use
  603  controls and other regulations, including how and when the land
  604  was classified, how use was proscribed, and what changes in
  605  classifications occurred.
  606         (d) The present nature and extent of the real property,
  607  including its natural and altered characteristics.
  608         (e) The reasonable expectations of the owner at the time of
  609  acquisition, or immediately before prior to the implementation
  610  of the regulation at issue, whichever is later, under the
  611  regulations then in effect and under common law.
  612         (f) The public purpose sought to be achieved by the
  613  development order, comprehensive plan amendment, or enforcement
  614  action, including the nature and magnitude of the problem
  615  addressed by the underlying regulations on which the development
  616  order, comprehensive plan amendment, or enforcement action is
  617  based; whether the development order, comprehensive plan
  618  amendment, or enforcement action is necessary to the achievement
  619  of the public purpose; and whether there are alternative
  620  development orders, comprehensive plan amendments, or
  621  enforcement action conditions that would achieve the public
  622  purpose and allow for reduced restrictions on the use of the
  623  property.
  624         (g) Uses authorized for and restrictions placed on similar
  625  property.
  626         (h) Whether the governmental entity attempted to resolve
  627  the dispute in good faith, including, but not limited to,
  628  adhering to the deadlines provided in this section.
  629         (i)(h) Any other information determined relevant by the
  630  special magistrate.
  631         (19) Within 14 days after the conclusion of the hearing, or
  632  when the parties propose a settlement agreement for entry by the
  633  special magistrate pursuant to subsection (22), the special
  634  magistrate shall prepare and file with all parties a written
  635  recommendation.
  636         (a) If the special magistrate finds and concludes that the
  637  development order at issue, or the development order,
  638  comprehensive plan amendment, or enforcement action in
  639  combination with the actions or regulations of other
  640  governmental entities, is not unreasonable or does not unfairly
  641  burden the use of the owner’s property, the special magistrate
  642  must recommend that the development order, comprehensive plan
  643  amendment, or enforcement action remain undisturbed and the
  644  proceeding shall end, subject to the owner’s retention of all
  645  other available remedies.
  646         (b) If the special magistrate finds and concludes that the
  647  development order, comprehensive plan amendment, or enforcement
  648  action, or the development order, comprehensive plan amendment,
  649  or enforcement action in combination with the actions or
  650  regulations of other governmental entities, is unreasonable or
  651  unfairly burdens use of the owner’s property, the special
  652  magistrate, with the owner’s consent to proceed, may recommend
  653  one or more alternatives that protect the public interest served
  654  by the development order, comprehensive plan amendment, or
  655  enforcement action and regulations at issue but allow for
  656  reduced restraints on the use of the owner’s real property,
  657  including, but not limited to:
  658         1. An adjustment of land development or permit standards or
  659  other provisions controlling the development or use of land.
  660         2. Increases or modifications in the density, intensity, or
  661  use of areas of development.
  662         3. The transfer of development rights.
  663         4. Land swaps or exchanges.
  664         5. Mitigation, including payments in lieu of onsite
  665  mitigation.
  666         6. Location on the least sensitive portion of the property.
  667         7. Conditioning the amount of development or use permitted.
  668         8. A requirement that issues be addressed on a more
  669  comprehensive basis than a single proposed use or development.
  670         9. Rehearing or reconsideration and issuance of the
  671  development order, comprehensive plan amendment, or enforcement
  672  action with or without modifications or additional stipulations,
  673  or a variance, special exception, or other extraordinary relief,
  674  including withdrawal of the enforcement action.
  675         10. Purchase of the real property, or an interest therein,
  676  by an appropriate governmental entity.
  677         (c) If the parties reach a proposed settlement agreement at
  678  any time before the special magistrate enters a recommendation,
  679  which agreement may remain subject to approval by the
  680  governmental entity, the parties may request that the special
  681  magistrate transmit the settlement agreement to the governmental
  682  entity as the special magistrate’s findings and recommendation
  683  for consideration and approval by the governmental entity, and
  684  the special magistrate need not include the findings or
  685  conclusions set forth in paragraph (a) or paragraph (b) This
  686  subsection does not prohibit the owner and governmental entity
  687  from entering into an agreement as to the permissible use of the
  688  property prior to the special magistrate entering a
  689  recommendation. An agreement for a permissible use must be
  690  incorporated in the special magistrate’s recommendation.
  691         (d) This section provides legislative authority for the
  692  governmental entity or tribunal to rehear and reconsider its
  693  prior action on a development order, comprehensive plan
  694  amendment, or enforcement action pursuant to, and in
  695  consideration of, a special magistrate’s recommendation,
  696  regardless of whether existing statutes, rules, ordinances, or
  697  regulations provide for such a procedure. Any such rehearing or
  698  reconsideration shall be at a public hearing noticed and
  699  otherwise conducted in the same manner as the original hearing.
  700  The tribunal shall treat the special magistrate’s findings, or a
  701  settlement agreement, as evidence for modification of its prior
  702  development order, comprehensive plan amendment, or enforcement
  703  action, and shall provide an opportunity for any person who
  704  participated in the original hearing or the special magistrate’s
  705  proceeding to provide additional evidence and testimony. The
  706  tribunal’s action on the special magistrate’s recommendation
  707  shall then become the final order on the development order,
  708  comprehensive plan amendment, or enforcement action.
  709         (20) The special magistrate’s findings and recommendation
  710  are is a public record under chapter 119. However, actions or
  711  statements of all participants to the special magistrate
  712  mediation proceeding are evidence of an offer to compromise and
  713  inadmissible in any proceeding, judicial or administrative.
  714         (21) Within 45 days after receipt of the special
  715  magistrate’s findings and recommendation, the governmental
  716  entity responsible for the development order, comprehensive plan
  717  amendment, or enforcement action and other governmental entities
  718  participating in the proceeding must consult among themselves
  719  and each governmental entity must:
  720         (a) Accept or modify the recommendation of the special
  721  magistrate, including any proposed settlement agreement, as
  722  submitted and proceed to implement it by development agreement,
  723  when appropriate, by rehearing or reconsidering the development
  724  order or enforcement action, or by other method, in the ordinary
  725  course and consistent with the rules and procedures of that
  726  governmental entity. However, the decision of the governmental
  727  entity to accept the recommendation of the special magistrate
  728  with respect to rehearing or reconsidering the prior development
  729  order or enforcement action or granting a modification,
  730  variance, or special exception to the application of statutes,
  731  rules, regulations, or ordinances as they would otherwise apply
  732  to the subject property does not require an owner to duplicate
  733  previous processes in which the owner has participated in order
  734  to effectuate the granting of the modification, variance, or
  735  special exception; or
  736         (b) Modify the recommendation as submitted by the special
  737  magistrate and proceed to implement it by development agreement,
  738  when appropriate, or by other method, in the ordinary course and
  739  consistent with the rules and procedures of that governmental
  740  entity; or
  741         (b)(c) Reject the recommendation as submitted by the
  742  special magistrate. Failure to act within 45 days is a rejection
  743  unless the period is extended by agreement of the owner and
  744  issuer of the development order, comprehensive plan amendment,
  745  or enforcement action.
  746         (24) The procedure created by this section is not itself,
  747  nor does it create, a judicial cause of action. Once the
  748  governmental entity acts on the special magistrate’s
  749  recommendation, the owner may pursue whatever administrative or
  750  judicial remedies are applicable elect to file suit in a court
  751  of competent jurisdiction. Invoking the procedures of this
  752  section is not a condition precedent to filing a civil action.
  753         (25) Regardless of the action the governmental entity takes
  754  on the special magistrate’s findings and recommendation, a
  755  recommendation that the development order, comprehensive plan
  756  amendment, or enforcement action, or the development order,
  757  comprehensive plan amendment, or enforcement action in
  758  combination with other governmental regulatory actions, is
  759  unreasonable or unfairly burdens use of the owner’s real
  760  property may serve as an indication of sufficient hardship to
  761  support waivers of or modification, variances, or special
  762  exceptions to the application of statutes, rules, regulations,
  763  or ordinances to the subject property, whether as a part of the
  764  implementation of the recommendation, in a subsequent
  765  application, or in an administrative or judicial challenge to
  766  the action of the governmental entity. However, the special
  767  magistrate’s findings and recommendation are not preclusive to
  768  any issue or defense in any subsequent administrative or
  769  judicial proceeding.
  770         (26) A special magistrate’s findings and recommendation
  771  under this section constitutes data in support of, and a support
  772  document for, a comprehensive plan or comprehensive plan
  773  amendment, but is not, in and of itself, dispositive of a
  774  determination of compliance with chapter 163.
  775         (28) Each governmental entity may establish procedural
  776  guidelines to govern the conduct of proceedings authorized by
  777  this section, which must include, but are not limited to,
  778  payment of special magistrate fees and expenses, including the
  779  costs of providing notice and effecting service of the request
  780  for relief under this section, which shall be borne equally by
  781  the governmental entities and the owner. Such guidelines may not
  782  modify the requirements and relief provided by this section in
  783  any way.
  784         (30) In order to encourage the resolution of disputes, and
  785  regardless of whether the parties are engaged in pending
  786  litigation recently before a court or administrative agency, a
  787  governmental entity may conduct meetings following the
  788  procedures in s. 286.011(8) at any time after the governmental
  789  entity responds in writing to a request for relief to discuss
  790  settlement strategies, but shall not take action on a proposed
  791  settlement agreement except at a noticed public meeting This
  792  section applies only to development orders issued, modified, or
  793  amended, or to enforcement actions issued, on or after October
  794  1, 1995.
  795         Section 5. Subsection (4) of section 163.3181, Florida
  796  Statutes, is amended to read:
  797         163.3181 Public participation in the comprehensive planning
  798  process; intent; alternative dispute resolution.—
  799         (4) If a local government denies an owner’s request for an
  800  amendment to the comprehensive plan which is applicable to the
  801  property of the owner, the owner may initiate a dispute
  802  resolution proceeding under s. 70.51 the local government must
  803  afford an opportunity to the owner for informal mediation or
  804  other alternative dispute resolution. The costs of the mediation
  805  or other alternative dispute resolution shall be borne equally
  806  by the local government and the owner. If the owner requests
  807  mediation, the time for bringing a judicial action is tolled
  808  until the completion of the mediation or 120 days, whichever is
  809  earlier.
  810         Section 6. This act shall take effect July 1, 2021.