Florida Senate - 2011 SB 998
By Senator Simmons
22-01045-11 2011998__
1 A bill to be entitled
2 An act relating to property rights; amending s.
3 70.001, F.S.; revising a definition; shortening a
4 notice period for certain actions; providing for the
5 state land planning agency to receive notice of
6 claims; revising procedures for determining a
7 governmental entity’s final decision identifying the
8 allowable uses for a property; providing that
9 enactment of a law or adoption of a regulation does
10 not constitute applying the law or regulation;
11 providing for a waiver of sovereign immunity for
12 liability; providing for prospective application;
13 providing an effective date.
14
15 WHEREAS, the Legislature wishes to clarify its original
16 intent with respect to allowing appropriate compensation for
17 unduly burdened real property and to provide a waiver of
18 sovereign immunity under section 70.001, Florida Statutes, the
19 Bert J. Harris, Jr., Private Property Rights Protection Act, to
20 conform statutory language to Royal World Metropolitan, Inc. v.
21 City of Miami Beach, 863 So.2d 320 (Fla. 3rd D.C.A. 2003), and
22 WHEREAS, the Legislature wishes to emphasize the
23 alternative bases under this act for determining an existing
24 use, and to correct and to clarify that certain determinations
25 under this act are questions of law and fact, considered in City
26 of Jacksonville v. Coffield, 18 So.3d 589 (Fla. 1st D.C.A.
27 2009), and
28 WHEREAS, the Legislature wishes to correct and to clarify
29 its original intent with respect to what constitutes the first
30 application of a law or regulation under the act, considered in
31 Citrus County, Florida v. Halls River Development, Inc., 8 So.3d
32 413 (Fla. 5th D.C.A. 2009), and M & H Profit, Inc. v. City of
33 Panama City, 28 So.3d 71 (Fla. 1st D.C.A. 2010), and
34 WHEREAS, the Legislature wishes to make other changes to
35 clarify provisions of this act, NOW, THEREFORE,
36
37 Be It Enacted by the Legislature of the State of Florida:
38
39 Section 1. Paragraphs (b) and (e) of subsection (3),
40 paragraphs (a) and (c) of subsection (4), and subsections (5),
41 (6), (11), and (13) of section 70.001, Florida Statutes, are
42 amended to read:
43 70.001 Private property rights protection.—
44 (3) For purposes of this section:
45 (b) The term “existing use” means:
46 1. An actual, present use or activity on the real property,
47 including periods of inactivity which are normally associated
48 with, or are incidental to, the nature or type of use; or
49 2. Activity or such reasonably foreseeable, nonspeculative
50 land uses which are suitable for the subject real property and
51 compatible with adjacent land uses and which have created an
52 existing fair market value in the property greater than the fair
53 market value of the actual, present use or activity on the real
54 property.
55 (e) The terms “inordinate burden” and or “inordinately
56 burdened” mean that an action of one or more governmental
57 entities has directly restricted or limited the use of real
58 property such that the property owner is permanently unable to
59 attain the reasonable, investment-backed expectation for the
60 existing use of the real property or a vested right to a
61 specific use of the real property with respect to the real
62 property as a whole, or that the property owner is left with
63 existing or vested uses that are unreasonable such that the
64 property owner bears permanently a disproportionate share of a
65 burden imposed for the good of the public, which in fairness
66 should be borne by the public at large. The terms “inordinate
67 burden” and or “inordinately burdened” do not include temporary
68 impacts to real property; impacts to real property occasioned by
69 governmental abatement, prohibition, prevention, or remediation
70 of a public nuisance at common law or a noxious use of private
71 property; or impacts to real property caused by an action of a
72 governmental entity taken to grant relief to a property owner
73 under this section; however, a moratorium on development, as
74 defined in s. 380.04, that is in effect for longer than 1 year
75 is not a temporary impact to real property and, thus, depending
76 upon the particular circumstances, may constitute an “inordinate
77 burden” as provided in this paragraph.
78 (4)(a) Not less than 120 180 days prior to filing an action
79 under this section against a governmental entity, a property
80 owner who seeks compensation under this section must present the
81 claim in writing to the head of the governmental entity, except
82 that if the property is classified as agricultural pursuant to
83 s. 193.461, the notice period is 90 days. The property owner
84 must submit, along with the claim, a bona fide, valid appraisal
85 that supports the claim and demonstrates the loss in fair market
86 value to the real property. If the action of government is the
87 culmination of a process that involves more than one
88 governmental entity, or if a complete resolution of all relevant
89 issues, in the view of the property owner or in the view of a
90 governmental entity to whom a claim is presented, requires the
91 active participation of more than one governmental entity, the
92 property owner shall present the claim as provided in this
93 section to each of the governmental entities.
94 (c) During the 90-day-notice period or the 120-day-notice
95 180-day-notice period, unless extended by agreement of the
96 parties, the governmental entity shall make a written settlement
97 offer to effectuate:
98 1. An adjustment of land development or permit standards or
99 other provisions controlling the development or use of land.
100 2. Increases or modifications in the density, intensity, or
101 use of areas of development.
102 3. The transfer of developmental rights.
103 4. Land swaps or exchanges.
104 5. Mitigation, including payments in lieu of onsite
105 mitigation.
106 6. Location on the least sensitive portion of the property.
107 7. Conditioning the amount of development or use permitted.
108 8. A requirement that issues be addressed on a more
109 comprehensive basis than a single proposed use or development.
110 9. Issuance of the development order, a variance, special
111 exception, or other extraordinary relief.
112 10. Purchase of the real property, or an interest therein,
113 by an appropriate governmental entity or payment of
114 compensation.
115 11. No changes to the action of the governmental entity.
116
117 If the property owner accepts the settlement offer, the
118 governmental entity may implement the settlement offer by
119 appropriate development agreement; by issuing a variance,
120 special exception, or other extraordinary relief; or by other
121 appropriate method, subject to paragraph (d).
122 (5)(a) During the 90-day-notice period or the 120-day
123 notice 180-day-notice period, unless a settlement offer is
124 accepted by the property owner, each of the governmental
125 entities provided notice pursuant to paragraph (4)(a) shall
126 issue a written ripeness decision identifying the allowable uses
127 to which the subject property may be put. The failure of the
128 governmental entity to issue such a written ripeness decision
129 during the applicable 90-day-notice period or 120-day-notice
130 180-day-notice period shall cause be deemed to ripen the prior
131 action of the governmental entity to become its final decision,
132 for purposes of this section, identifying the uses for the
133 subject property, and shall operate as a ripeness decision that
134 has been rejected by the property owner. Whether rendered by
135 submission of a written decision during the 120-day-notice
136 period or by failure to submit such a written decision, the
137 final decision of the governmental entity produced under this
138 paragraph operates as a final decision that has been rejected by
139 the property owner. This final The ripeness decision, as a
140 matter of law, constitutes the last prerequisite to judicial
141 review on the merits, and the matter shall be deemed ripe or
142 final for the purposes of the judicial proceeding created by
143 this section, notwithstanding the availability of other
144 administrative remedies.
145 (b) If the property owner rejects the settlement offer and
146 the final ripeness decision of the governmental entity or
147 entities, the property owner may file a claim for compensation
148 in the circuit court, a copy of which shall be served
149 contemporaneously on the head of each of the governmental
150 entities that made a settlement offer and a final ripeness
151 decision that was rejected by the property owner. Actions under
152 this section shall be brought only in the county where the real
153 property is located.
154 (6)(a) The circuit court shall determine whether an
155 existing use of the real property or a vested right to a
156 specific use of the real property existed and, if so, whether,
157 considering the settlement offer and final ripeness decision,
158 the governmental entity or entities have inordinately burdened
159 the real property. If the actions of more than one governmental
160 entity, considering any settlement offers and final ripeness
161 decisions, are responsible for the action that imposed the
162 inordinate burden on the real property of the property owner,
163 the court shall determine the percentage of responsibility each
164 such governmental entity bears with respect to the inordinate
165 burden. A governmental entity may take an interlocutory appeal
166 of the court’s determination that the action of the governmental
167 entity has resulted in an inordinate burden. An interlocutory
168 appeal does not automatically stay the proceedings; however, the
169 court may stay the proceedings during the pendency of the
170 interlocutory appeal. If the governmental entity does not
171 prevail in the interlocutory appeal, the court shall award to
172 the prevailing property owner the costs and a reasonable
173 attorney fee incurred by the property owner in the interlocutory
174 appeal.
175 (b) Following its determination of the percentage of
176 responsibility of each governmental entity, and following the
177 resolution of any interlocutory appeal, the court shall impanel
178 a jury to determine the total amount of compensation to the
179 property owner for the loss in value due to the inordinate
180 burden to the real property. The award of compensation shall be
181 determined by calculating the difference in the fair market
182 value of the real property, as it existed at the time of the
183 governmental action at issue, as though the owner had the
184 ability to attain the reasonable investment-backed expectation
185 or was not left with uses that are unreasonable, whichever the
186 case may be, and the fair market value of the real property, as
187 it existed at the time of the governmental action at issue, as
188 inordinately burdened, considering the settlement offer together
189 with the final ripeness decision, of the governmental entity or
190 entities. In determining the award of compensation,
191 consideration may not be given to business damages relative to
192 any development, activity, or use that the action of the
193 governmental entity or entities, considering the settlement
194 offer together with the final ripeness decision, has restricted,
195 limited, or prohibited. The award of compensation shall include
196 a reasonable award of prejudgment interest from the date the
197 claim was presented to the governmental entity or entities as
198 provided in subsection (4).
199 (c)1. In any action filed pursuant to this section, the
200 property owner is entitled to recover reasonable costs and
201 attorney fees incurred by the property owner, from the
202 governmental entity or entities, according to their
203 proportionate share as determined by the court, from the date of
204 the filing of the circuit court action, if the property owner
205 prevails in the action and the court determines that the
206 settlement offer, including the final ripeness decision, of the
207 governmental entity or entities did not constitute a bona fide
208 offer to the property owner which reasonably would have resolved
209 the claim, based upon the knowledge available to the
210 governmental entity or entities and the property owner during
211 the 90-day-notice period or the 120-day-notice 180-day-notice
212 period.
213 2. In any action filed pursuant to this section, the
214 governmental entity or entities are entitled to recover
215 reasonable costs and attorney fees incurred by the governmental
216 entity or entities from the date of the filing of the circuit
217 court action, if the governmental entity or entities prevail in
218 the action and the court determines that the property owner did
219 not accept a bona fide settlement offer, including the final
220 ripeness decision, which reasonably would have resolved the
221 claim fairly to the property owner if the settlement offer had
222 been accepted by the property owner, based upon the knowledge
223 available to the governmental entity or entities and the
224 property owner during the 90-day-notice period or the 120-day
225 notice 180-day-notice period.
226 3. The determination of total reasonable costs and attorney
227 fees pursuant to this paragraph shall be made by the court and
228 not by the jury. Any proposed settlement offer or any proposed
229 ripeness decision, except for the final written settlement offer
230 or the final written ripeness decision, and any negotiations or
231 rejections in regard to the formulation either of the settlement
232 offer or the final ripeness decision, are inadmissible in the
233 subsequent proceeding established by this section except for the
234 purposes of the determination pursuant to this paragraph.
235 (d) Within 15 days after the execution of any settlement
236 pursuant to this section, or the issuance of any judgment
237 pursuant to this section, the governmental entity shall provide
238 a copy of the settlement or judgment to the Department of Legal
239 Affairs.
240 (11) A cause of action may not be commenced under this
241 section if the claim is presented more than 1 year after a law
242 or regulation is first applied by the governmental entity to the
243 property at issue. For purposes of this section, enacting a law
244 or adopting a regulation does not constitute applying the law or
245 regulation to a property. If an owner seeks relief from the
246 governmental action through lawfully available administrative or
247 judicial proceedings, the time for bringing an action under this
248 section is tolled until the conclusion of such proceedings.
249 (13) In accordance with s. 13, Art. X of the State
250 Constitution, the state, for itself and for its agencies or
251 political subdivisions, waives sovereign immunity for causes of
252 action based upon the application of any law, regulation, or
253 ordinance subject to this section, but only to the extent
254 specified in this section. This section does not affect the
255 sovereign immunity of government.
256 Section 2. The amendments to s. 70.001, Florida Statutes,
257 made by this act apply prospectively only and do not apply to
258 any claim or action filed under s. 70.001, Florida Statutes,
259 which is pending on the effective date of this act.
260 Section 3. This act shall take effect July 1, 2011.