Florida Senate - 2021                CS for CS for CS for SB 750
       By the Committees on Appropriations; Finance and Tax; and
       Community Affairs; and Senators Gruters and Perry
       576-04219-21                                           2021750c3
    1                        A bill to be entitled                      
    2         An act relating to impact fees; amending s. 163.31801,
    3         F.S.; defining the terms “infrastructure” and “public
    4         facilities”; requiring local governments and special
    5         districts to credit against the collection of impact
    6         fees any contribution related to public facilities or
    7         infrastructure; providing conditions under which
    8         credits may not be applied; providing limitations on
    9         impact fee increases; providing for retroactive
   10         operation; requiring specified entities to submit an
   11         affidavit attesting that impact fees were
   12         appropriately collected and expended; providing for
   13         retroactive applicability; requiring school districts
   14         to report specified information regarding impact fees;
   15         providing a directive to the Division of Law Revision;
   16         providing an effective date.
   18  Be It Enacted by the Legislature of the State of Florida:
   20         Section 1. Section 163.31801, Florida Statutes, is amended
   21  to read:
   22         163.31801 Impact fees; short title; intent; minimum
   23  requirements; audits; challenges.—
   24         (1) This section may be cited as the “Florida Impact Fee
   25  Act.”
   26         (2) The Legislature finds that impact fees are an important
   27  source of revenue for a local government to use in funding the
   28  infrastructure necessitated by new growth. The Legislature
   29  further finds that impact fees are an outgrowth of the home rule
   30  power of a local government to provide certain services within
   31  its jurisdiction. Due to the growth of impact fee collections
   32  and local governments’ reliance on impact fees, it is the intent
   33  of the Legislature to ensure that, when a county or municipality
   34  adopts an impact fee by ordinance or a special district adopts
   35  an impact fee by resolution, the governing authority complies
   36  with this section.
   37         (3) For purposes of this section, the term:
   38         (a) “Infrastructure” means a fixed capital expenditure or
   39  fixed capital outlay, excluding the cost of repairs or
   40  maintenance, associated with the construction, reconstruction,
   41  or improvement of public facilities that have a life expectancy
   42  of at least 5 years; related land acquisition, land improvement,
   43  design, engineering, and permitting costs; and other related
   44  construction costs required to bring the public facility into
   45  service. The term also includes a fire department vehicle, an
   46  emergency medical service vehicle, a sheriff’s office vehicle, a
   47  police department vehicle, a school bus as defined in s.
   48  1006.25, and the equipment necessary to outfit the vehicle or
   49  bus for its official use. For independent special fire control
   50  districts, the term “infrastructure” includes new facilities as
   51  defined in s. 191.009(4).
   52         (b) “Public facilities” has the same meaning as in s.
   53  163.3164 and includes emergency medical, fire, and law
   54  enforcement facilities.
   55         (4)(3) At a minimum, each local government that adopts and
   56  collects an impact fee by ordinance and each special district
   57  that adopts, collects, and administers an impact fee by
   58  resolution must an impact fee adopted by ordinance of a county
   59  or municipality or by resolution of a special district must
   60  satisfy all of the following conditions:
   61         (a) Ensure that the calculation of the impact fee is must
   62  be based on the most recent and localized data.
   63         (b) The local government must Provide for accounting and
   64  reporting of impact fee collections and expenditures and. If a
   65  local governmental entity imposes an impact fee to address its
   66  infrastructure needs, the entity must account for the revenues
   67  and expenditures of such impact fee in a separate accounting
   68  fund.
   69         (c) Limit administrative charges for the collection of
   70  impact fees must be limited to actual costs.
   71         (d) The local government must Provide notice at least not
   72  less than 90 days before the effective date of an ordinance or
   73  resolution imposing a new or increased impact fee. A local
   74  government county or municipality is not required to wait 90
   75  days to decrease, suspend, or eliminate an impact fee. Unless
   76  the result is to reduce the total mitigation costs or impact
   77  fees imposed on an applicant, new or increased impact fees may
   78  not apply to current or pending permit applications submitted
   79  before the effective date of an ordinance or resolution imposing
   80  a new or increased impact fee.
   81         (e) Ensure that collection of the impact fee may not be
   82  required to occur earlier than the date of issuance of the
   83  building permit for the property that is subject to the fee.
   84         (f) Ensure that the impact fee is must be proportional and
   85  reasonably connected to, or has have a rational nexus with, the
   86  need for additional capital facilities and the increased impact
   87  generated by the new residential or commercial construction.
   88         (g) Ensure that the impact fee is must be proportional and
   89  reasonably connected to, or has have a rational nexus with, the
   90  expenditures of the funds collected and the benefits accruing to
   91  the new residential or nonresidential construction.
   92         (h) The local government must Specifically earmark funds
   93  collected under the impact fee for use in acquiring,
   94  constructing, or improving capital facilities to benefit new
   95  users.
   96         (i) Ensure that revenues generated by the impact fee are
   97  may not be used, in whole or in part, to pay existing debt or
   98  for previously approved projects unless the expenditure is
   99  reasonably connected to, or has a rational nexus with, the
  100  increased impact generated by the new residential or
  101  nonresidential construction.
  102         (5)(a)(4) Notwithstanding any charter provision,
  103  comprehensive plan policy, ordinance, development order,
  104  development permit, or resolution, the local government or
  105  special district must credit against the collection of the
  106  impact fee any contribution, whether identified in a
  107  proportionate share agreement or other form of exaction, related
  108  to public education facilities or infrastructure, including land
  109  dedication, site planning and design, or construction. Any
  110  contribution must be applied on a dollar-for-dollar basis at
  111  fair market value to reduce any education-based impact fee
  112  collected for the general category or class of public facilities
  113  or infrastructure for which the contribution was made fees on a
  114  dollar-for-dollar basis at fair market value.
  115         (b)If a local government or special district does not
  116  charge and collect an impact fee for the general category or
  117  class of public facilities or infrastructure contributed, a
  118  credit may not be applied under paragraph (a).
  119         (6)(5)A local government, school district, or special
  120  district may increase an impact fee only as provided in this
  121  subsection.
  122         (a) An impact fee may be increased only pursuant to a plan
  123  for the imposition, collection, and use of the increased impact
  124  fees which complies with this section.
  125         (b) An increase to a current impact fee rate of not more
  126  than 25 percent of the current rate must be implemented in two
  127  equal annual increments beginning with the date on which the
  128  increased fee is adopted.
  129         (c) An increase to a current impact fee rate which exceeds
  130  25 percent but is not more than 50 percent of the current rate
  131  must be implemented in four equal installments beginning with
  132  the date the increased fee is adopted.
  133         (d) An impact fee increase may not exceed 50 percent of the
  134  current impact fee rate.
  135         (e) An impact fee may not be increased more than once every
  136  4 years.
  137         (f) An impact fee may not be increased retroactively for a
  138  previous or current fiscal or calendar year.
  139         (g)A local government, school district, or special
  140  district may increase an impact fee rate beyond the phase-in
  141  limitations established under paragraph (b), paragraph (c),
  142  paragraph (d), or paragraph (e) by establishing the need for
  143  such increase in full compliance with the requirements of
  144  subsection (4), provided the following criteria are met:
  145         1.A demonstrated-need study justifying any increase in
  146  excess of paragraph (b), paragraph (c), paragraph (d), or
  147  paragraph (e) has been completed within the 12 months prior to
  148  the adoption of the impact fee increase and expressly
  149  demonstrates the extraordinary circumstances necessitating the
  150  need to exceed the phase-in limitations;
  151         2.The local government jurisdiction has held no less than
  152  two publicly noticed workshops dedicated to the extraordinary
  153  circumstances necessitating the need to exceed the phase-in
  154  limitations of paragraph (b), paragraph (c), paragraph (d), or
  155  paragraph (e); and
  156         3.The impact fee increase ordinance is approved by no less
  157  than a two-thirds vote of the governing body.
  158         (h) Any local government or school district that enacts new
  159  impact fees as the result of a current impact fee study may
  160  implement the total amount of those fees in up to four equal
  161  segments in up to 4 succeeding years.
  162         (i) This subsection shall operate retroactively to January
  163  1, 2021.
  164         (7) If an impact fee is increased a local government
  165  increases its impact fee rates, the holder of any impact fee
  166  credits, whether such credits are granted under s. 163.3180, s.
  167  380.06, or otherwise, which were in existence before the
  168  increase, is entitled to the full benefit of the intensity or
  169  density prepaid by the credit balance as of the date it was
  170  first established. This subsection shall operate prospectively
  171  and not retrospectively.
  172         (8)(6)A local government, school district, or special
  173  district must submit with its annual financial report required
  174  under s. 218.32 or its financial audit report required under s.
  175  218.39 a separate affidavit signed by its chief financial
  176  officer or, if there is no chief financial officer, its
  177  executive officer attesting, to the best of his or her
  178  knowledge, that all impact fees were collected and expended by
  179  the local government, school district, or special district, or
  180  were collected and expended on its behalf, in full compliance
  181  with the spending period provision in the local ordinance or
  182  resolution, and that funds expended from each impact fee account
  183  were used only to acquire, construct, or improve specific
  184  infrastructure needs as defined in this section Audits of
  185  financial statements of local governmental entities and district
  186  school boards which are performed by a certified public
  187  accountant pursuant to s. 218.39 and submitted to the Auditor
  188  General must include an affidavit signed by the chief financial
  189  officer of the local governmental entity or district school
  190  board stating that the local governmental entity or district
  191  school board has complied with this section.
  192         (9)(7) In any action challenging an impact fee or the
  193  government’s failure to provide required dollar-for-dollar
  194  credits for the payment of impact fees as provided in s.
  195  163.3180(6)(h)2.b., the government has the burden of proving by
  196  a preponderance of the evidence that the imposition or amount of
  197  the fee or credit meets the requirements of state legal
  198  precedent and this section. The court may not use a deferential
  199  standard for the benefit of the government.
  200         (10)(8) Impact fee credits are assignable and transferable
  201  at any time after establishment from one development or parcel
  202  to any other that is within the same impact fee zone or impact
  203  fee district or that is within an adjoining impact fee zone or
  204  impact fee district within the same local government
  205  jurisdiction and which receives benefits from the improvement or
  206  contribution that generated the credits. This subsection applies
  207  to all impact fee credits regardless of whether the credits were
  208  established before or after the effective date of this act.
  209         (11)(9) A county, municipality, or special district may
  210  provide an exception or waiver for an impact fee for the
  211  development or construction of housing that is affordable, as
  212  defined in s. 420.9071. If a county, municipality, or special
  213  district provides such an exception or waiver, it is not
  214  required to use any revenues to offset the impact.
  215         (12)(10) This section does not apply to water and sewer
  216  connection fees.
  217         (13)(11) In addition to the items that must be reported in
  218  the annual financial reports under s. 218.32, a local
  219  government, school district county, municipality, or special
  220  district must report all of the following information data on
  221  all impact fees charged:
  222         (a) The specific purpose of the impact fee, including the
  223  specific infrastructure needs to be met, including, but not
  224  limited to, transportation, parks, water, sewer, and schools.
  225         (b) The impact fee schedule policy describing the method of
  226  calculating impact fees, such as flat fees, tiered scales based
  227  on number of bedrooms, or tiered scales based on square footage.
  228         (c) The amount assessed for each purpose and for each type
  229  of dwelling.
  230         (d) The total amount of impact fees charged by type of
  231  dwelling.
  232         (e) Each exception and waiver provided for construction or
  233  development of housing that is affordable.
  234         Section 2. The Division of Law Revision is directed to
  235  replace the phrase “the effective date of this act” wherever it
  236  occurs in this act with the date the act becomes a law.
  237         Section 3. This act shall take effect upon becoming a law.