CS/HB 701

1
A bill to be entitled
2An act relating to property rights; amending s. 70.001,
3F.S.; revising a definition; providing a factor that may
4be considered in determining whether inordinate burden has
5been imposed on real property; shortening a notice period
6for certain actions; revising procedures for determining a
7governmental entity's final decision identifying the
8allowable uses for a property; providing that enactment of
9a law or adoption of a regulation does not constitute
10applying the law or regulation; providing for a waiver of
11sovereign immunity for liability; providing for
12prospective application; providing an effective date.
13
14     WHEREAS, the Legislature wishes to clarify its original
15intent with respect to allowing appropriate compensation for
16unduly burdened real property and to provide a waiver of
17sovereign immunity under section 70.001, Florida Statutes, the
18Bert J. Harris, Jr., Private Property Rights Protection Act, to
19conform statutory language to Royal World Metropolitan, Inc. v.
20City of Miami Beach, 863 So.2d 320 (Fla. 3rd D.C.A. 2003), and
21     WHEREAS, the Legislature wishes to emphasize the
22alternative bases under this act for determining an existing
23use, and to correct and to clarify that certain determinations
24under this act are questions of law and fact, considered in City
25of Jacksonville v. Coffield, 18 So.3d 589 (Fla. 1st D.C.A.
262009), and
27     WHEREAS, the Legislature wishes to correct and to clarify
28its original intent with respect to what constitutes the first
29application of a law or regulation under the act, considered in
30Citrus County, Florida v. Halls River Development, Inc., 8 So.3d
31413 (Fla. 5th D.C.A. 2009), and M & H Profit, Inc. v. City of
32Panama City, 28 So.3d 71 (Fla. 1st D.C.A. 2010), and
33     WHEREAS, the Legislature wishes to make other changes to
34clarify provisions of this act, NOW, THEREFORE,
35
36Be It Enacted by the Legislature of the State of Florida:
37
38     Section 1.  Paragraphs (b) and (e) of subsection (3),
39paragraphs (a) and (c) of subsection (4), and subsections (5),
40(6), (11), and (13) of section 70.001, Florida Statutes, are
41amended to read:
42     70.001  Private property rights protection.-
43     (3)  For purposes of this section:
44     (b)  The term "existing use" means:
45     1.  An actual, present use or activity on the real
46property, including periods of inactivity which are normally
47associated with, or are incidental to, the nature or type of
48use; or
49     2.  Activity or such reasonably foreseeable, nonspeculative
50land uses which are suitable for the subject real property and
51compatible with adjacent land uses and which have created an
52existing fair market value in the property greater than the fair
53market value of the actual, present use or activity on the real
54property.
55     (e)  The terms "inordinate burden" and or "inordinately
56burdened" mean that an action of one or more governmental
57entities has directly restricted or limited the use of real
58property such that the property owner is permanently unable to
59attain the reasonable, investment-backed expectation for the
60existing use of the real property or a vested right to a
61specific use of the real property with respect to the real
62property as a whole, or that the property owner is left with
63existing or vested uses that are unreasonable such that the
64property owner bears permanently a disproportionate share of a
65burden imposed for the good of the public, which in fairness
66should be borne by the public at large. The terms "inordinate
67burden" and or "inordinately burdened" do not include temporary
68impacts to real property; impacts to real property occasioned by
69governmental abatement, prohibition, prevention, or remediation
70of a public nuisance at common law or a noxious use of private
71property; or impacts to real property caused by an action of a
72governmental entity taken to grant relief to a property owner
73under this section; however, a moratorium on development, as
74defined in s. 380.04, that is in effect for longer than 1 year
75is not a temporary impact to real property and, thus, depending
76upon the particular circumstances, may constitute an "inordinate
77burden" as provided in this paragraph.
78     (4)(a)  Not less than 120 180 days prior to filing an
79action under this section against a governmental entity, a
80property owner who seeks compensation under this section must
81present the claim in writing to the head of the governmental
82entity, except that if the property is classified as
83agricultural pursuant to s. 193.461, the notice period is 90
84days. The property owner must submit, along with the claim, a
85bona fide, valid appraisal that supports the claim and
86demonstrates the loss in fair market value to the real property.
87If the action of government is the culmination of a process that
88involves more than one governmental entity, or if a complete
89resolution of all relevant issues, in the view of the property
90owner or in the view of a governmental entity to whom a claim is
91presented, requires the active participation of more than one
92governmental entity, the property owner shall present the claim
93as provided in this section to each of the governmental
94entities.
95     (c)  During the 90-day-notice period or the 120-day-notice
96180-day-notice period, unless extended by agreement of the
97parties, the governmental entity shall make a written settlement
98offer to effectuate:
99     1.  An adjustment of land development or permit standards
100or other provisions controlling the development or use of land.
101     2.  Increases or modifications in the density, intensity,
102or use of areas of development.
103     3.  The transfer of developmental rights.
104     4.  Land swaps or exchanges.
105     5.  Mitigation, including payments in lieu of onsite
106mitigation.
107     6.  Location on the least sensitive portion of the
108property.
109     7.  Conditioning the amount of development or use
110permitted.
111     8.  A requirement that issues be addressed on a more
112comprehensive basis than a single proposed use or development.
113     9.  Issuance of the development order, a variance, special
114exception, or other extraordinary relief.
115     10.  Purchase of the real property, or an interest therein,
116by an appropriate governmental entity or payment of
117compensation.
118     11.  No changes to the action of the governmental entity.
119
120If the property owner accepts the settlement offer, the
121governmental entity may implement the settlement offer by
122appropriate development agreement; by issuing a variance,
123special exception, or other extraordinary relief; or by other
124appropriate method, subject to paragraph (d).
125     (5)(a)  During the 90-day-notice period or the 120-day-
126notice 180-day-notice period, unless a settlement offer is
127accepted by the property owner, each of the governmental
128entities provided notice pursuant to paragraph (4)(a) shall
129issue a written ripeness decision identifying the allowable uses
130to which the subject property may be put. The failure of the
131governmental entity to issue such a written ripeness decision
132during the applicable 90-day-notice period or 120-day-notice
133180-day-notice period shall cause be deemed to ripen the prior
134action of the governmental entity to become its final decision,
135for purposes of this section, identifying the uses for the
136subject property, and shall operate as a ripeness decision that
137has been rejected by the property owner. Whether rendered by
138submission of a written decision during the 120-day-notice
139period or by failure to submit such a written decision, the
140final decision of the governmental entity produced under this
141paragraph operates as a final decision that has been rejected by
142the property owner. This final The ripeness decision, as a
143matter of law, constitutes the last prerequisite to judicial
144review on the merits, and the matter shall be deemed ripe or
145final for the purposes of the judicial proceeding created by
146this section, notwithstanding the availability of other
147administrative remedies.
148     (b)  If the property owner rejects the settlement offer and
149the final ripeness decision of the governmental entity or
150entities, the property owner may file a claim for compensation
151in the circuit court, a copy of which shall be served
152contemporaneously on the head of each of the governmental
153entities that made a settlement offer and a final ripeness
154decision that was rejected by the property owner. Actions under
155this section shall be brought only in the county where the real
156property is located.
157     (6)(a)  The circuit court shall determine whether an
158existing use of the real property or a vested right to a
159specific use of the real property existed and, if so, whether,
160considering the settlement offer and final ripeness decision,
161the governmental entity or entities have inordinately burdened
162the real property. If the actions of more than one governmental
163entity, considering any settlement offers and final ripeness
164decisions, are responsible for the action that imposed the
165inordinate burden on the real property of the property owner,
166the court shall determine the percentage of responsibility each
167such governmental entity bears with respect to the inordinate
168burden. A governmental entity may take an interlocutory appeal
169of the court's determination that the action of the governmental
170entity has resulted in an inordinate burden. An interlocutory
171appeal does not automatically stay the proceedings; however, the
172court may stay the proceedings during the pendency of the
173interlocutory appeal. If the governmental entity does not
174prevail in the interlocutory appeal, the court shall award to
175the prevailing property owner the costs and a reasonable
176attorney fee incurred by the property owner in the interlocutory
177appeal.
178     (b)  Following its determination of the percentage of
179responsibility of each governmental entity, and following the
180resolution of any interlocutory appeal, the court shall impanel
181a jury to determine the total amount of compensation to the
182property owner for the loss in value due to the inordinate
183burden to the real property. The award of compensation shall be
184determined by calculating the difference in the fair market
185value of the real property, as it existed at the time of the
186governmental action at issue, as though the owner had the
187ability to attain the reasonable investment-backed expectation
188or was not left with uses that are unreasonable, whichever the
189case may be, and the fair market value of the real property, as
190it existed at the time of the governmental action at issue, as
191inordinately burdened, considering the settlement offer together
192with the final ripeness decision, of the governmental entity or
193entities. In determining the award of compensation,
194consideration may not be given to business damages relative to
195any development, activity, or use that the action of the
196governmental entity or entities, considering the settlement
197offer together with the final ripeness decision, has restricted,
198limited, or prohibited. The award of compensation shall include
199a reasonable award of prejudgment interest from the date the
200claim was presented to the governmental entity or entities as
201provided in subsection (4).
202     (c)1.  In any action filed pursuant to this section, the
203property owner is entitled to recover reasonable costs and
204attorney fees incurred by the property owner, from the
205governmental entity or entities, according to their
206proportionate share as determined by the court, from the date of
207the filing of the circuit court action, if the property owner
208prevails in the action and the court determines that the
209settlement offer, including the final ripeness decision, of the
210governmental entity or entities did not constitute a bona fide
211offer to the property owner which reasonably would have resolved
212the claim, based upon the knowledge available to the
213governmental entity or entities and the property owner during
214the 90-day-notice period or the 120-day-notice 180-day-notice
215period.
216     2.  In any action filed pursuant to this section, the
217governmental entity or entities are entitled to recover
218reasonable costs and attorney fees incurred by the governmental
219entity or entities from the date of the filing of the circuit
220court action, if the governmental entity or entities prevail in
221the action and the court determines that the property owner did
222not accept a bona fide settlement offer, including the final
223ripeness decision, which reasonably would have resolved the
224claim fairly to the property owner if the settlement offer had
225been accepted by the property owner, based upon the knowledge
226available to the governmental entity or entities and the
227property owner during the 90-day-notice period or the 120-day-
228notice 180-day-notice period.
229     3.  The determination of total reasonable costs and
230attorney fees pursuant to this paragraph shall be made by the
231court and not by the jury. Any proposed settlement offer or any
232proposed ripeness decision, except for the final written
233settlement offer or the final written ripeness decision, and any
234negotiations or rejections in regard to the formulation either
235of the settlement offer or the final ripeness decision, are
236inadmissible in the subsequent proceeding established by this
237section except for the purposes of the determination pursuant to
238this paragraph.
239     (d)  Within 15 days after the execution of any settlement
240pursuant to this section, or the issuance of any judgment
241pursuant to this section, the governmental entity shall provide
242a copy of the settlement or judgment to the Department of Legal
243Affairs.
244     (11)  A cause of action may not be commenced under this
245section if the claim is presented more than 1 year after a law
246or regulation is first applied by the governmental entity to the
247property at issue. For purposes of this section, enacting a law
248or adopting a regulation does not constitute applying the law or
249regulation to a property. If an owner seeks relief from the
250governmental action through lawfully available administrative or
251judicial proceedings, the time for bringing an action under this
252section is tolled until the conclusion of such proceedings.
253     (13)  In accordance with s. 13, Art. X of the State
254Constitution, the state, for itself and for its agencies or
255political subdivisions, waives sovereign immunity for causes of
256action based upon the application of any law, regulation, or
257ordinance subject to this section, but only to the extent
258specified in this section This section does not affect the
259sovereign immunity of government.
260     Section 2.  The amendments to s. 70.001, Florida Statutes,
261made by this act apply prospectively only and do not apply to
262any claim or action filed under s. 70.001, Florida Statutes,
263which is pending on the effective date of this act.
264     Section 3.  This act shall take effect July 1, 2011.


CODING: Words stricken are deletions; words underlined are additions.