Senate Bill sb2874c1

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    Florida Senate - 2004                           CS for SB 2874

    By the Committee on Comprehensive Planning; and Senator
    Bennett




    316-2620-04

  1                      A bill to be entitled

  2         An act relating to financing public facilities;

  3         providing a short title; providing legislative

  4         policy; defining terms; authorizing local

  5         governments, by ordinance, to impose an impact

  6         fee as a condition of a development order;

  7         providing requirements for the contents of the

  8         ordinance; providing restrictions on the

  9         imposition, any increase in the amount, and the

10         expenditure of impact fees; requiring that

11         certain credits be given against the payment of

12         impact fees; requiring the refund of impact

13         fees that have been collected but not

14         encumbered within a reasonable time period;

15         providing accounting requirements; providing

16         for administrative appeals; providing rights of

17         a developer who pays an impact fee during the

18         pendency of an appeal; providing for voluntary

19         binding arbitration; providing rights of

20         property owners, developers, and governmental

21         entities; providing that this act does not

22         repeal existing laws or ordinances; providing

23         that existing ordinances must comply with the

24         act by a specified date; creating s. 201.032,

25         F.S.; allowing county governing authorities, by

26         ordinance, to levy a surtax on deeds and other

27         documents taxed under s. 201.02, F.S.;

28         establishing a maximum rate of the surtax;

29         requiring the grantor to pay the surtax;

30         exempting certain documents from the surtax;

31         providing that the surtax must be approved by

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    Florida Senate - 2004                           CS for SB 2874
    316-2620-04




 1         referendum or adopted by extraordinary vote of

 2         the governing authority; requiring the

 3         governing authority to notify the Department of

 4         Revenue of an imposition, termination, or rate

 5         change of the surtax; restricting the effective

 6         dates for imposing a surtax or changing the tax

 7         rate; requiring a ballot statement and

 8         providing a format; providing for the use of

 9         surtax proceeds; requiring the Department of

10         Revenue to administer the surtax and providing

11         for administrative costs of the department;

12         exempting the surtax from s. 201.15, F.S.;

13         restricting uses of the surtax proceeds;

14         requiring a report to the Department of

15         Financial Services; restricting the imposition

16         or increase of an impact fee if the governing

17         authority imposes the surtax; requiring the

18         Department of Revenue to adopt forms; requiring

19         the use of such forms when the surtax is paid;

20         requiring an affidavit under certain

21         circumstances; authorizing the clerk of the

22         court to collect a fee; authorizing the

23         Department of Revenue to adopt emergency rules;

24         providing an exception when there is a

25         dissolution of marriage; providing an effective

26         date.

27  

28  Be It Enacted by the Legislature of the State of Florida:

29  

30         Section 1.  Short title.--Sections 1 through 8 of this

31  act may be cited as the "Florida Impact Fee Act."

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    Florida Senate - 2004                           CS for SB 2874
    316-2620-04




 1         Section 2.  Policy.--The Legislature finds that an

 2  equitable program for planning and financing public facilities

 3  needed to serve new growth and development is necessary in

 4  order to promote and accommodate orderly growth and

 5  development and to protect the public health, safety, and

 6  welfare of the residents of this state. Therefore, it is the

 7  intent of the Legislature that this act:

 8         (1)  Ensure that adequate public facilities are

 9  available to serve new growth and development.

10         (2)  Promote orderly growth and development by

11  codifying the minimum standards required for the adoption of

12  an impact fee ordinance by a local government as provided for

13  in case law.

14         (3)  Ensure that new growth and development is required

15  to pay no more than its proportionate share of the cost of any

16  public facilities necessary to accommodate a development

17  project.

18         (4)  Ensure that funds collected under an impact fee

19  ordinance are expended to provide a benefit for those who have

20  paid the fee.

21         Section 3.  Definitions.--As used in this act, the

22  term:

23         (1)  "Developer" means a person or legal entity that

24  undertakes development.

25         (2)  "Development" means a construction of a building

26  or structure, a change in the use of a building or structure,

27  or a change in the use of land, any of which creates

28  additional demand and need for public facilities by having an

29  impact on the capacity of a public facility and thereby

30  creating a need for improvements to the public facility.

31  

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    Florida Senate - 2004                           CS for SB 2874
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 1         (3)  "Development order" means the approval of a

 2  development by a municipality or county that authorizes the

 3  commencement of development.

 4         (4)  "Impact fee" means any payment of money imposed

 5  upon development as a condition to granting a development

 6  order and to pay for a proportionate share of the cost of

 7  system improvements needed to serve new growth and

 8  development. The term "impact fee" does not include a fee

 9  levied under any statutory authority other than sections 1-8

10  of this act or a charge or fee to connect to any

11  municipal-owned utility, including, but not limited to,

12  communications, electric, natural gas, water, and wastewater

13  facilities.

14         (5)  "Local government" means a municipality or county,

15  or a special district that has authorization under its

16  enabling legislation to impose an impact fee.

17         (6)  "Proportionate share" means that portion of the

18  cost of system improvements which results from the service

19  demands created by a development project and the expenditure

20  of which provides a benefit to those who paid the impact fee.

21         (7)  "Public facility" or "public facilities" has the

22  same meaning as in section 163.3164, Florida Statutes.

23         (8)  "System improvement" means a capital improvement

24  that is a public facility and is designed to provide service

25  to the community.

26         (9)  "System improvement costs" means costs incurred to

27  provide additional public facilities capacity needed to serve

28  new growth and development, including the cost of

29  construction, reconstruction, or expansion of such facilities;

30  design, surveying, and engineering fees and related land

31  acquisition costs, including land purchases, court awards and

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    Florida Senate - 2004                           CS for SB 2874
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 1  costs, attorney's fees, and expert witness fees; expenses

 2  incurred for qualified staff or a qualified engineer, planner,

 3  architect, landscape architect, or financial consultant for

 4  preparing or updating the capital improvement element; and

 5  ongoing administrative costs. Financing costs for the

 6  retirement of bonds, notes, or other financial obligations

 7  issued by or on behalf of a local government to finance system

 8  improvements may be included as system improvement costs.

 9         Section 4.  Authorization; notice and hearing

10  requirements; minimum standards and requirements for impact

11  fee ordinances.--

12         (1)  A local government may, by ordinance, impose an

13  impact fee as a condition of a development order in accordance

14  with this act. The ordinance must be adopted under the notice

15  and hearing provisions of section 125.66(2)(a), Florida

16  Statutes, for a county or section 166.041(3)(a), Florida

17  Statutes, for a municipality.

18         (2)  An impact fee ordinance may exempt all or part of

19  a development from impact fees. If the ordinance provides for

20  an exemption from impact fees, the ordinance must also specify

21  criteria for the exemption.

22         (3)  An impact fee ordinance may not provide for the

23  imposition of an impact fee to remedy existing deficiencies.

24         (4)  A local government may impose an impact fee only

25  if it can show a rational nexus between the need for

26  additional public facilities and the development.

27         (5)  An impact fee ordinance must require that impact

28  fees be spent only for the category of system improvements for

29  which the fees were collected and that the improvements must

30  provide a benefit to those who have paid the fees.

31  

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    Florida Senate - 2004                           CS for SB 2874
    316-2620-04




 1         (6)  An impact fee may not exceed a proportionate share

 2  of the cost of system improvements.

 3         (7)  An impact fee ordinance must include a schedule of

 4  impact fees which specifies the fee for each public facility.

 5         (8)  An impact fee ordinance must provide for a process

 6  that allows a developer to receive a certification of the

 7  application of the impact fee schedule or individual

 8  assessment to a development project. The certification must

 9  establish that the impact fee may not be increased for 1 year

10  for that development project or for a longer period if the

11  local government determines that a longer construction period

12  warrants an extension.

13         (9)  An impact fee ordinance must include a provision

14  for credits against the payment of impact fees. In calculating

15  an impact fee for a development project, credit must be given

16  for the present value of any construction of system

17  improvements or contribution or dedication of land or money

18  required or accepted by a local government from a developer or

19  the developer's predecessor in title or interest for system

20  improvements for which the impact fee is being collected.

21         (10)  A local government that adopts an impact fee

22  ordinance shall provide a process for refunding impact fees

23  that have been collected but not encumbered within a

24  reasonable period of time, not to exceed 8 years. Any refund

25  must be paid to the current owner and must include the unused

26  or excess development impact fee collected from the developer

27  plus the interest earned on those moneys.

28         Section 5.  Allocation and expenditure of collected

29  impact fees.--

30         (1)  An ordinance that imposes impact fees must require

31  any impact fees that are collected to be maintained in one or

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    Florida Senate - 2004                           CS for SB 2874
    316-2620-04




 1  more interest-bearing accounts. Accounting records must be

 2  maintained for each category of system improvements. Interest

 3  earned on impact fees must be considered funds of the account

 4  on which it is earned and is subject to all restrictions

 5  placed on the use of impact fees under this act.

 6         (2)  A local government that imposes an impact fee

 7  shall keep records that identify the amount of any development

 8  impact fees collected and how those fees were encumbered or

 9  expended during the preceding year for each category of system

10  improvements.

11         Section 6.  Appeals.--

12         (1)  A local government that adopts an impact fee

13  ordinance may provide for an administrative appeal to its

14  governing body, or to such other body as is designated in the

15  ordinance, of a determination of the amount of the impact fee

16  for a development project or an appeal of an interpretation of

17  the fee. An administrative appeal under this section does not

18  affect the availability of other legal remedies.

19         (2)  A developer may pay an impact fee to obtain a

20  development order during the pendency of an appeal under

21  subsection (1). However, if the developer has filed an appeal,

22  the developer may not be estopped from pursuing the appeal

23  under subsection (1) as a result of paying the impact fee. In

24  addition, the developer is entitled to a refund if it is

25  determined through the appeals process provided in subsection

26  (1) that the impact fee at issue violates this act.

27         (3)  An impact fee ordinance may provide for the

28  resolution of disputes over an impact fee through voluntary

29  binding arbitration with a mutually agreed-upon arbitrator.

30         Section 7.  Other powers and rights.--This act does not

31  prevent or prohibit agreements between property owners or

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    Florida Senate - 2004                           CS for SB 2874
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 1  developers and local governments or other governmental

 2  entities regarding the construction or installation of system

 3  improvements and providing for credits or reimbursements for

 4  system improvement costs incurred by a developer, including

 5  interproject transfers of credits, or providing for

 6  reimbursement for project improvement costs that are used or

 7  shared by more than one development project.

 8         Section 8.  Transition.--This act does not repeal any

 9  existing laws or ordinances authorizing a local government to

10  impose impact fees or to require contributions or property

11  dedications for capital improvements. However, an existing

12  ordinance that is not in compliance with this act must be

13  brought into compliance with this act by October 1, 2005.

14         Section 9.  Section 201.032, Florida Statutes, is

15  created to read:

16         201.032  Local option real estate transfer surtax on

17  deeds; conditions of levy; use of proceeds.--

18         (1)  Subject to subsections (9) and (10), the governing

19  authority of a county may levy a surtax on documents that are

20  taxed under s. 201.02, at a rate not exceeding 5 cents on each

21  $100 or fractional part thereof of the consideration for the

22  real estate or interest therein. The grantor of the real

23  estate or interest therein shall pay the surtax. However, the

24  surtax may not be levied on the document that conveys a

25  specific interest in real property in this state for the first

26  time following July 1, 2004. Subsequent documents conveying

27  the same interest are subject to the surtax.

28         (2)  The levy of the surtax shall be pursuant to an

29  ordinance conditioned to take effect only upon approval by a

30  majority vote of the electors of the county voting in a

31  referendum or pursuant to an ordinance enacted by an

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    Florida Senate - 2004                           CS for SB 2874
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 1  extraordinary vote of the governing authority of the county.

 2  The governing authority of the county must hold a public

 3  hearing at least 2 weeks before the formal adoption of the

 4  ordinance.

 5         (3)  The governing authority of the county shall notify

 6  the Department of Revenue within 10 days after final adoption

 7  by ordinance or referendum of an imposition, termination, or

 8  rate change of the surtax. The notice must specify the period

 9  during which the surtax will be in effect and the rate of the

10  surtax and must include a copy of the ordinance and such other

11  information as the department requires by rule. Failure to

12  timely provide such notification to the department shall

13  result in the delay of the effective date of the surtax for a

14  period of 1 year. A surtax or an increase or decrease in the

15  rate of the surtax must take effect on January 1 and must

16  terminate on December 31.

17         (4)  If the surtax is conditioned to take effect only

18  upon approval by a majority vote of the electors of the county

19  voting in a referendum, the county governing authority shall

20  place on the ballot a statement that includes a brief general

21  description of the projects to be funded by the surtax and

22  that conforms to the requirements of s. 101.161 and reads as

23  follows:

24  _____FOR the surtax

25  _____AGAINST the surtax

26         (5)  Proceeds of the surtax may be used only to provide

27  infrastructure necessary to implement adopted local government

28  comprehensive plans. As used in this subsection, the term

29  "infrastructure" means any fixed capital expenditure or fixed

30  capital outlay associated with the construction,

31  reconstruction, or improvement of public facilities that have

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    Florida Senate - 2004                           CS for SB 2874
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 1  a life expectancy of 5 or more years and any land acquisition,

 2  land improvement, design, and engineering costs related

 3  thereto.

 4         (6)  Proceeds of the surtax may be pledged by the

 5  governing authority of the county to pay principal and

 6  interest on bonds issued for the provision of infrastructure

 7  pursuant to subsection (5). If the proceeds are pledged to

 8  secure principal and interest due on such bonds, the pledge

 9  constitutes a valid and legally binding contract between the

10  governing authority of the county and the bondholders, and the

11  governing authority of the county must continue to levy the

12  surtax as long as any bonds are outstanding.

13         (7)  The Department of Revenue shall administer the

14  surtax pursuant to s. 201.11. Section 201.15 does not apply to

15  this surtax. A portion of the tax proceeds, not to exceed 1

16  percent, may be used to pay the department's cost of

17  collection and enforcement of the surtax.

18         (8)  The governing authority of a county that receives

19  the proceeds of the surtax authorized by this section may not

20  apply the proceeds of the surtax, or any other funds

21  designated as capital outlay funds, to operating costs. Each

22  governing authority of the county that levies a surtax shall,

23  within 90 days after the close of its fiscal year, submit to

24  the Department of Financial Services a financial report that

25  contains information showing the use of the surtax proceeds.

26         (9)  If the governing authority of a county does not

27  impose an impact fee pursuant to section 4 of this act and

28  chooses to levy the surtax pursuant to this section, the

29  governing authority of the county may not levy any impact fee

30  until the ordinance imposing this surtax has been rescinded

31  

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    Florida Senate - 2004                           CS for SB 2874
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 1  and all obligations against which the surtax revenues have

 2  been pledged are satisfied.

 3         (10)  If the governing authority of a county imposes a

 4  surtax pursuant to this section, the governing authority may

 5  not increase the rate of any impact fee imposed pursuant to

 6  section 4 of this act beyond the rate imposed on January 1,

 7  2003, and may not impose an additional impact fee until the

 8  ordinance imposing this surtax has been rescinded and all

 9  obligations against which the surtax revenues have been

10  pledged are satisfied.

11         (11)  The Department of Revenue is directed to adopt

12  rules pursuant to ss. 120.536(1) and 120.54 and to design,

13  prepare, print, and adopt forms to implement and enforce the

14  provisions of this section. Such forms must be used and

15  recorded on any document that conveys a specific interest in

16  real property, pursuant to the requirements of this section,

17  in the county imposing the surtax. If no tax is due pursuant

18  to this section, the grantor of the real estate or interest

19  therein must record an affidavit verifying that no tax is due.

20  At the time of recording, the surtax must be paid to the clerk

21  of the court. The clerk shall collect and remit the surtax to

22  the Department of Revenue for distribution to the county

23  levying the surtax. The clerk may retain 1 percent of the

24  surtax paid as a service charge of the clerk's office.

25         (12)  The Department of Revenue is authorized to adopt

26  emergency rules under ss. 120.536(1) and 120.54(4) to

27  implement and enforce the provisions of s. 201.032. The

28  emergency rules shall remain in effect until the adoption of

29  permanent rules as provided in s. 201.032.

30         (13)  Taxes imposed by this section do not apply to a

31  deed, transfer, or conveyance between spouses or former

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    Florida Senate - 2004                           CS for SB 2874
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 1  spouses pursuant to an action for dissolution of marriage

 2  wherein the real property is or was their marital home or an

 3  interest therein. Taxes paid pursuant to this section shall be

 4  refunded in those cases in which a deed, transfer, or

 5  conveyance occurred 1 year before a dissolution of marriage.

 6  This subsection applies in spite of any consideration as

 7  defined in subsection (1).

 8         Section 10.  This act shall take effect July 1, 2004.

 9  

10          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
11                         Senate Bill 2874

12                                 

13  The committee substitute (CS) revises the definition of
    "impact fee" to exclude any charge or fee to connect to any
14  municipal-owned utility. The CS deletes language prohibiting
    the imposition of an impact fee for public facilities built in
15  advance to serve new development. It deletes language
    requiring an impact fee credit for state or federal funds
16  received by the local government for system improvements.

17  In addition, this CS requires the Department of Revenue to
    adopt forms to be used when the surtax is paid; requires an
18  affidavit to be submitted by the seller of the property
    verifying that the tax is not due; authorizes the clerk of the
19  court to collect a fee; authorizes the Department of Revenue
    to adopt emergency rules to implement this section; and
20  provides an exception to the surtax when there is a
    dissolution of marriage.
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