Florida Senate - 2023 CS for SB 540
By the Committee on Judiciary; and Senator DiCeglie
590-03298-23 2023540c1
1 A bill to be entitled
2 An act relating to local government comprehensive
3 plans; amending s. 163.3184, F.S.; revising the review
4 process for adoption of comprehensive plan amendments;
5 providing that the prevailing party in a challenge to
6 a plan or plan amendment is entitled to recover
7 attorney fees and costs; providing construction;
8 providing retroactive applicability; amending s.
9 163.3187, F.S.; providing that the prevailing party in
10 a challenge to the compliance of a small scale
11 development order is entitled to recover attorney fees
12 and costs; amending s. 163.3202, F.S.; providing
13 applicability; amending s. 163.3215, F.S.; making
14 technical changes; providing an effective date.
15
16 Be It Enacted by the Legislature of the State of Florida:
17
18 Section 1. Paragraph (c) of subsection (3) of section
19 163.3184, Florida Statutes, is amended, and paragraph (g) is
20 added to subsection (5) of that section, to read:
21 163.3184 Process for adoption of comprehensive plan or plan
22 amendment.—
23 (3) EXPEDITED STATE REVIEW PROCESS FOR ADOPTION OF
24 COMPREHENSIVE PLAN AMENDMENTS.—
25 (c)1. The local government shall hold its second public
26 hearing, which shall be a hearing on whether to adopt one or
27 more comprehensive plan amendments pursuant to subsection (11).
28 If the local government fails, within 180 days after receipt of
29 agency comments, to hold the second public hearing, the
30 amendment is amendments shall be deemed withdrawn unless
31 extended by agreement with notice to the state land planning
32 agency and any affected person that provided comments on the
33 amendment. If the amendment is not adopted at the second public
34 hearing, the amendment must be formally adopted by the local
35 government within 180 days after the second public hearing or
36 the amendment is deemed withdrawn The 180-day limitation does
37 not apply to amendments processed pursuant to s. 380.06.
38 2. All comprehensive plan amendments adopted by the
39 governing body, along with the supporting data and analysis,
40 shall be transmitted within 10 working days after the second
41 public hearing to the state land planning agency and any other
42 agency or local government that provided timely comments under
43 subparagraph (b)2.
44 3. The state land planning agency shall notify the local
45 government of any deficiencies within 5 working days after
46 receipt of an amendment package. For purposes of completeness,
47 an amendment shall be deemed complete if it contains a full,
48 executed copy of the adoption ordinance or ordinances; in the
49 case of a text amendment, a full copy of the amended language in
50 legislative format with new words inserted in the text
51 underlined, and words deleted stricken with hyphens; in the case
52 of a future land use map amendment, a copy of the future land
53 use map clearly depicting the parcel, its existing future land
54 use designation, and its adopted designation; and a copy of any
55 data and analyses the local government deems appropriate.
56 4. An amendment adopted under this paragraph does not
57 become effective until 31 days after the state land planning
58 agency notifies the local government that the plan amendment
59 package is complete. If timely challenged, an amendment does not
60 become effective until the state land planning agency or the
61 Administration Commission enters a final order determining the
62 adopted amendment to be in compliance.
63 (5) ADMINISTRATIVE CHALLENGES TO PLANS AND PLAN
64 AMENDMENTS.—
65 (g) The prevailing party in a challenge filed under this
66 subsection is entitled to recover attorney fees and costs in
67 challenging or defending a plan or plan amendment, including
68 reasonable appellate attorney fees and costs.
69 Section 2. The amendment made by section 1 of this act to
70 s. 163.3184(3)(c), Florida Statutes, is remedial in nature, is
71 intended to clarify existing law, and applies retroactively to
72 January 1, 2022.
73 Section 3. Paragraph (a) of subsection (5) of section
74 163.3187, Florida Statutes, is amended to read:
75 163.3187 Process for adoption of small scale comprehensive
76 plan amendment.—
77 (5)(a) Any affected person may file a petition with the
78 Division of Administrative Hearings pursuant to ss. 120.569 and
79 120.57 to request a hearing to challenge the compliance of a
80 small scale development amendment with this act within 30 days
81 following the local government’s adoption of the amendment and
82 shall serve a copy of the petition on the local government. An
83 administrative law judge shall hold a hearing in the affected
84 jurisdiction not less than 30 days nor more than 60 days
85 following the filing of a petition and the assignment of an
86 administrative law judge. The parties to a hearing held pursuant
87 to this subsection shall be the petitioner, the local
88 government, and any intervenor. In the proceeding, the plan
89 amendment shall be determined to be in compliance if the local
90 government’s determination that the small scale development
91 amendment is in compliance is fairly debatable. The state land
92 planning agency may not intervene in any proceeding initiated
93 pursuant to this section. The prevailing party in a challenge
94 filed under this paragraph is entitled to recover attorney fees
95 and costs in challenging or defending the order, including
96 reasonable appellate attorney fees and costs.
97 Section 4. Present subsection (6) of section 163.3202,
98 Florida Statutes, is redesignated as subsection (7), and a new
99 subsection (6) is added to that section to read:
100 163.3202 Land development regulations.—
101 (6) Land development regulations relating to any
102 characteristic of development other than use, or intensity or
103 density of use, do not apply to Florida College System
104 institutions as defined in s. 1000.21(3).
105 Section 5. Subsections (3) and (4) of section 163.3215,
106 Florida Statutes, are amended to read:
107 163.3215 Standing to enforce local comprehensive plans
108 through development orders.—
109 (3) Any aggrieved or adversely affected party may maintain
110 a de novo action for declaratory, injunctive, or other relief
111 against any local government to challenge any decision of such
112 local government granting or denying an application for, or to
113 prevent such local government from taking any action on, a
114 development order, as defined in s. 163.3164, on the basis that
115 the development order which materially alters the use or density
116 or intensity of use on a particular piece of property, rendering
117 it which is not consistent with the comprehensive plan adopted
118 under this part. The de novo action must be filed no later than
119 30 days following rendition of a development order or other
120 written decision, or when all local administrative appeals, if
121 any, are exhausted, whichever occurs later.
122 (4) If a local government elects to adopt or has adopted an
123 ordinance establishing, at a minimum, the requirements listed in
124 this subsection, the sole method by which an aggrieved and
125 adversely affected party may challenge any decision of local
126 government granting or denying an application for a development
127 order, as defined in s. 163.3164, which materially alters the
128 use or density or intensity of use on a particular piece of
129 property, on the basis that it is not consistent with the
130 comprehensive plan adopted under this part, is by an appeal
131 filed by a petition for writ of certiorari filed in circuit
132 court no later than 30 days following rendition of a development
133 order or other written decision of the local government, or when
134 all local administrative appeals, if any, are exhausted,
135 whichever occurs later. An action for injunctive or other relief
136 may be joined with the petition for certiorari. Principles of
137 judicial or administrative res judicata and collateral estoppel
138 apply to these proceedings. Minimum components of the local
139 process are as follows:
140 (a) The local process must make provision for notice of an
141 application for a development order that materially alters the
142 use or density or intensity of use on a particular piece of
143 property, including notice by publication or mailed notice
144 consistent with the provisions of ss. 125.66(4)(b)2. and 3. and
145 166.041(3)(c)2.b. and c., and must require prominent posting at
146 the job site. The notice must be given within 10 days after the
147 filing of an application for a development order; however,
148 notice under this subsection is not required for an application
149 for a building permit or any other official action of local
150 government which does not materially alter the use or density or
151 intensity of use on a particular piece of property. The notice
152 must clearly delineate that an aggrieved or adversely affected
153 person has the right to request a quasi-judicial hearing before
154 the local government for which the application is made, must
155 explain the conditions precedent to the appeal of any
156 development order ultimately rendered upon the application, and
157 must specify the location where written procedures can be
158 obtained that describe the process, including how to initiate
159 the quasi-judicial process, the timeframes for initiating the
160 process, and the location of the hearing. The process may
161 include an opportunity for an alternative dispute resolution.
162 (b) The local process must provide a clear point of entry
163 consisting of a written preliminary decision, at a time and in a
164 manner to be established in the local ordinance, with the time
165 to request a quasi-judicial hearing running from the issuance of
166 the written preliminary decision; the local government, however,
167 is not bound by the preliminary decision. A party may request a
168 hearing to challenge or support a preliminary decision.
169 (c) The local process must provide an opportunity for
170 participation in the process by an aggrieved or adversely
171 affected party, allowing a reasonable time for the party to
172 prepare and present a case for the quasi-judicial hearing.
173 (d) The local process must provide, at a minimum, an
174 opportunity for the disclosure of witnesses and exhibits prior
175 to hearing and an opportunity for the depositions of witnesses
176 to be taken.
177 (e) The local process may not require that a party be
178 represented by an attorney in order to participate in a hearing.
179 (f) The local process must provide for a quasi-judicial
180 hearing before an impartial special master who is an attorney
181 who has at least 5 years’ experience and who shall, at the
182 conclusion of the hearing, recommend written findings of fact
183 and conclusions of law. The special master shall have the power
184 to swear witnesses and take their testimony under oath, to issue
185 subpoenas and other orders regarding the conduct of the
186 proceedings, and to compel entry upon the land. The standard of
187 review applied by the special master in determining whether a
188 proposed development order is consistent with the comprehensive
189 plan shall be strict scrutiny in accordance with Florida law.
190 (g) At the quasi-judicial hearing, all parties must have
191 the opportunity to respond, to present evidence and argument on
192 all issues involved which are related to the development order,
193 and to conduct cross-examination and submit rebuttal evidence.
194 Public testimony must be allowed.
195 (h) The local process must provide for a duly noticed
196 public hearing before the local government at which public
197 testimony is allowed. At the quasi-judicial hearing, the local
198 government is bound by the special master’s findings of fact
199 unless the findings of fact are not supported by competent
200 substantial evidence. The governing body may modify the
201 conclusions of law if it finds that the special master’s
202 application or interpretation of law is erroneous. The governing
203 body may make reasonable legal interpretations of its
204 comprehensive plan and land development regulations without
205 regard to whether the special master’s interpretation is labeled
206 as a finding of fact or a conclusion of law. The local
207 government’s final decision must be reduced to writing,
208 including the findings of fact and conclusions of law, and is
209 not considered rendered or final until officially date-stamped
210 by the city or county clerk.
211 (i) An ex parte communication relating to the merits of the
212 matter under review may not be made to the special master. An ex
213 parte communication relating to the merits of the matter under
214 review may not be made to the governing body after a time to be
215 established by the local ordinance, which time must be no later
216 than receipt of the special master’s recommended order by the
217 governing body.
218 (j) At the option of the local government, the process may
219 require actions to challenge the consistency of a development
220 order with land development regulations to be brought in the
221 same proceeding.
222 Section 6. This act shall take effect July 1, 2023.