Florida Senate - 2010               CS for CS for CS for SB 2322
       
       
       
       By the Policy and Steering Committee on Ways and Means; the
       Committees on Finance and Tax; and Community Affairs; and
       Senator Bennett
       
       
       576-05317-10                                          20102322c3
    1                        A bill to be entitled                      
    2         An act relating to qualifying improvements to real
    3         property; creating s. 163.08, F.S.; providing
    4         legislative findings and intent; providing
    5         definitions; authorizing a local government to levy
    6         non-ad valorem assessments to fund certain
    7         improvements; authorizing a property owner to apply
    8         for funding and enter into a financing agreement with
    9         a local government to finance certain improvements;
   10         authorizing a local government to collect moneys for
   11         such purposes through non-ad valorem assessments;
   12         providing collection requirements; authorizing local
   13         governments to enter into partnerships with other
   14         local governments to provide and finance certain
   15         improvements; authorizing a qualifying improvement
   16         program to be administered by a for-profit entity or
   17         not-for-profit organization under certain
   18         circumstances; authorizing a local government to incur
   19         debt payable from revenues received from the improved
   20         property; providing a financing restriction for local
   21         governments; requiring a financial agreement to be
   22         recorded in a county’s public records within 5 days
   23         after execution of the agreement; specifying
   24         responsibilities for local governments before entering
   25         into financing agreements; requiring qualifying
   26         improvements to be affixed to a building or facility
   27         on the property and be performed by a properly
   28         certified or registered contractor; excluding certain
   29         projects from financing agreement coverage; limiting
   30         the amount of the non-ad valorem assessment to a
   31         percentage of the just value of the property;
   32         providing exceptions; specifying information to be
   33         provided to property owners before entering into
   34         financing agreements; prohibiting acceleration of a
   35         mortgage under certain circumstances; providing
   36         assessment disclosure requirements; specifying
   37         unenforceability of certain agreement provisions;
   38         providing for the act to be construed as preserving a
   39         local government’s home rule authority; providing an
   40         effective date.
   41  
   42  Be It Enacted by the Legislature of the State of Florida:
   43  
   44         Section 1. Section 163.08, Florida Statutes, is created to
   45  read:
   46         163.08 Supplemental authority for improvements to real
   47  property.—
   48         (1)(a) In chapter 2008-227, Laws of Florida, the
   49  Legislature amended the energy goal of the state comprehensive
   50  plan to require, in part, that the state reduce its energy
   51  requirements through enhanced conservation and efficiency
   52  measures in all end-use sectors and reduce atmospheric carbon
   53  dioxide by promoting an increased use of renewable energy
   54  resources. That act also declared it the public policy of the
   55  state to play a leading role in developing and instituting
   56  energy management programs that promote energy conservation,
   57  energy security, and the reduction of greenhouse gases. In
   58  addition to establishing policies to promote the use of
   59  renewable energy, the Legislature provided for a schedule of
   60  increases in the energy performance of buildings subject to the
   61  Florida Energy Efficiency Code for Building Construction. In
   62  chapter 2008-191, Laws of Florida, the Legislature adopted new
   63  energy conservation and greenhouse gas reduction comprehensive
   64  planning requirements for local governments. In the 2008 general
   65  election, the voters of this state approved a constitutional
   66  amendment authorizing the Legislature, by general law, to
   67  prohibit consideration of any change or improvement made for the
   68  purpose of improving a property’s resistance to wind damage or
   69  the installation of a renewable energy source device in the
   70  determination of the assessed value of residential real
   71  property.
   72         (b) The Legislature finds that all energy-consuming
   73  improved properties that are not using energy conservation
   74  strategies contribute to the burden affecting all improved
   75  property resulting from fossil fuel energy production. Improved
   76  property that has been retrofitted with energy-related
   77  qualifying improvements receives the special benefit of
   78  alleviating the property’s burden from energy consumption. All
   79  improved properties not protected from wind damage by wind
   80  resistance qualifying improvements contribute to the burden
   81  affecting all improved property resulting from potential wind
   82  damage. Improved property that has been retrofitted with wind
   83  resistance qualifying improvements receives the special benefit
   84  of reducing the property’s burden from potential wind damage.
   85  Further, the installation and operation of qualifying
   86  improvements not only benefit the affected properties for which
   87  the improvements are made, but also assist in fulfilling the
   88  goals of the state’s energy and hurricane mitigation policies.
   89  In order to make qualifying improvements more affordable and
   90  assist property owners who wish to undertake such improvements,
   91  the Legislature finds that there is a compelling state interest
   92  in enabling property owners to voluntarily finance such
   93  improvements with local government assistance.
   94         (c) The Legislature determines that the actions authorized
   95  under this section, including, but not limited to, the financing
   96  of qualifying improvements through the execution of financing
   97  agreements and the related imposition of voluntary assessments
   98  are reasonable and necessary to serve and achieve a compelling
   99  state interest and are necessary for the prosperity and welfare
  100  of the state and its property owners and inhabitants.
  101         (2) As used in this section, the term:
  102         (a) “Local government” means a county, municipality, or
  103  special district defined as a dependent district pursuant to s.
  104  189.403 or a special district created by two or more local
  105  general-purpose governments pursuant to s. 163.01.
  106         (b) “Qualifying improvement” includes any:
  107         1. Energy conservation and efficiency improvement, which is
  108  a measure to reduce consumption through conservation or a more
  109  efficient use of electricity, natural gas, propane, or other
  110  forms of energy on the property, including, but not limited to,
  111  air sealing; installation of insulation; installation of energy
  112  efficient heating, cooling, or ventilation systems; building
  113  modifications to increase the use of daylight; replacement of
  114  windows; installation of energy controls or energy recovery
  115  systems; installation of electric vehicle charging equipment;
  116  and installation of efficient lighting equipment.
  117         2. Renewable energy improvement, which is the installation
  118  of any system in which the electrical, mechanical, or thermal
  119  energy is produced from a method that uses one or more of the
  120  following fuels or energy sources: hydrogen, solar energy,
  121  geothermal energy, bioenergy, and wind energy.
  122         3. Wind-resistance improvement, which includes, but is not
  123  limited to:
  124         a. Improving the strength of the roof-deck attachment;
  125         b. Creating a secondary water barrier to prevent water
  126  intrusion;
  127         c. Installing wind-resistant shingles;
  128         d. Installing gable-end bracing;
  129         e. Reinforcing roof-to-wall connections;
  130         f. Installing storm shutters; or
  131         g. Installing opening protections.
  132         (3) A local government may levy non-ad valorem assessments
  133  to fund qualifying improvements.
  134         (4) Subject to local government ordinance or resolution, a
  135  property owner may apply to the local government for funding to
  136  finance a qualifying improvement and enter into a financing
  137  agreement with the local government. Costs incurred by the local
  138  government for such purpose may be collected as a non-ad valorem
  139  assessment. A non-ad valorem assessment shall be collected
  140  pursuant to s. 197.3632, and notwithstanding s. 197.3632(8)(a),
  141  shall not be subject to discount for early payment. However, the
  142  notice and adoption requirements of s. 197.3632(4) do not apply
  143  if this section is used and complied with, and the initial
  144  resolution, publication of notice, and mailed notices to the
  145  property appraiser, tax collector, and Department of Revenue
  146  required by s. 197.3632(3)(a) may be provided on or before
  147  August 15 in conjunction with any non-ad valorem assessment
  148  authorized by this section, if the property appraiser, tax
  149  collector, and local government agree.
  150         (5) Pursuant to this section or as otherwise provided by
  151  law or pursuant to a local government’s home rule power, a local
  152  government may enter into a partnership with one or more local
  153  governments for the purpose of providing and financing
  154  qualifying improvements.
  155         (6) A qualifying improvement program may be administered by
  156  a for-profit entity or a not-for-profit organization on behalf
  157  of and at the discretion of the local government.
  158         (7) A local government may incur debt for the purpose of
  159  providing such improvements, payable from revenues received from
  160  the improved property or any other available revenue source
  161  authorized by law.
  162         (8) A local government may enter into a financing agreement
  163  only with the record owner of the affected property. Any
  164  financing agreement entered into pursuant to this section or a
  165  summary memorandum of such agreement shall be recorded in the
  166  public records of the county within which the property is
  167  located by the sponsoring unit of local government within 5 days
  168  after execution of the agreement. The recorded agreement shall
  169  provide constructive notice that the assessment to be levied on
  170  the property constitutes a lien of equal dignity to county taxes
  171  and assessments from the date of recordation.
  172         (9) Before entering into a financing agreement, the local
  173  government shall reasonably determine that all property taxes
  174  and any other assessments levied on the same bill as property
  175  taxes are paid and have not been delinquent for the preceding 3
  176  years or the property owner’s period of ownership, whichever is
  177  less; that there are no involuntary liens, including, but not
  178  limited to, construction liens on the property; that no notices
  179  of default or other evidence of property-based debt delinquency
  180  have been recorded during the preceding 3 years or the property
  181  owner’s period of ownership, whichever is less; and that the
  182  property owner is current on all mortgage debt on the property.
  183         (10) A qualifying improvement shall be affixed to a
  184  building or facility that is part of the property and shall
  185  constitute an improvement to the building or facility or a
  186  fixture attached to the building or facility. An agreement
  187  between a local government and a qualifying property owner may
  188  not cover wind-resistance improvements in buildings or
  189  facilities under new construction or construction for which a
  190  certificate of occupancy or similar evidence of substantial
  191  completion of new construction or improvement has not been
  192  issued.
  193         (11) Any work requiring a license under any applicable law
  194  to make a qualifying improvement shall be performed by a
  195  contractor properly certified or registered pursuant to part I
  196  or part II of chapter 489.
  197         (12)(a) Without the consent of the holders or loan
  198  servicers of any mortgage encumbering or otherwise secured by
  199  the property, the total amount of any non-ad valorem assessment
  200  for a property under this section may not exceed 20 percent of
  201  the just value of the property as determined by the county
  202  property appraiser.
  203         (b) Notwithstanding paragraph (a), a non-ad valorem
  204  assessment for a qualifying improvement defined in subparagraph
  205  (2)(b)1. or subparagraph (2)(b)2. which is supported by an
  206  energy audit is not subject to the limits in this subsection if
  207  the audit demonstrates that the annual energy savings from the
  208  qualified improvement equals or exceeds the annual repayment
  209  amount of the non-ad valorem assessment.
  210         (13) At least 30 days before entering into a financing
  211  agreement, the property owner shall provide to the holders or
  212  loan servicers of any existing mortgages encumbering or
  213  otherwise secured by the property a notice of the owner’s intent
  214  to enter into a financing agreement together with the maximum
  215  principal amount to be financed and the maximum annual
  216  assessment necessary to repay that amount. A verified copy or
  217  other proof of such notice shall be provided to the local
  218  government. A provision in any agreement between a mortgagee or
  219  other lienholder and a property owner, or otherwise now or
  220  hereafter binding upon a property owner, which allows for
  221  acceleration of payment of the mortgage, note, or lien or other
  222  unilateral modification solely as a result of entering into a
  223  financing agreement as provided for in this section is not
  224  enforceable. This subsection does not limit the authority of the
  225  holder or loan servicer to increase the required monthly escrow
  226  by an amount necessary to annually pay the qualifying
  227  improvement assessment.
  228         (14) Each contract for the sale of a parcel of real
  229  property for which a non-ad valorem assessment has been imposed
  230  under the authority of this section within the local government
  231  shall include, immediately prior to the space reserved in the
  232  contract for the signature of the purchaser, the following
  233  disclosure statement in boldfaced and conspicuous type that is
  234  larger than the type in the remaining text of the contract:
  235  
  236  “THE ...(name of local government)... HAS IMPOSED A NON-AD
  237  VALOREM ASSESSMENT ON THIS PROPERTY. THIS ASSESSMENT IS IN
  238  ADDITION TO OTHER LOCAL GOVERNMENTAL ASSESSMENTS AND ALL OTHER
  239  ASSESSMENTS PROVIDED FOR BY LAW.”
  240         (15) A provision in any agreement between a local
  241  government and a public or private power or energy provider or
  242  other utility provider is not enforceable to limit or prohibit
  243  any local government from exercising its authority under this
  244  section.
  245         (16) This section is additional and supplemental to county
  246  and municipal home rule authority and not in derogation of such
  247  authority or a limitation upon such authority.
  248         Section 2. This act shall take effect upon becoming a law.