Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. SB 998
       
       
       
       
       
       
                                Barcode 335706                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/29/2011           .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————
       The Committee on Judiciary (Simmons) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsections (3), (4), (5), (6), (11), and (13)
    6  of section 70.001, Florida Statutes, are amended to read:
    7         70.001 Private property rights protection.—
    8         (3) For purposes of this section:
    9         (a) The existence of a “vested right” is to be determined
   10  by applying the principles of equitable estoppel or substantive
   11  due process under the common law or by applying the statutory
   12  law of this state.
   13         (b) The term “existing use” means:
   14         1. An actual, present use or activity on the real property,
   15  including periods of inactivity which are normally associated
   16  with, or are incidental to, the nature or type of use; or
   17         2. An activity or such reasonably foreseeable,
   18  nonspeculative land uses which are suitable for the subject real
   19  property and compatible with adjacent land uses and which have
   20  created an existing fair market value in the property greater
   21  than the fair market value of the actual, present use or
   22  activity on the real property.
   23         (c) The term “governmental entity” includes an agency of
   24  the state, a regional or a local government created by the State
   25  Constitution or by general or special act, any county or
   26  municipality, or any other entity that independently exercises
   27  governmental authority. The term does not include the United
   28  States or any of its agencies, or an agency of the state, a
   29  regional or a local government created by the State Constitution
   30  or by general or special act, any county or municipality, or any
   31  other entity that independently exercises governmental
   32  authority, when exercising the powers of the United States or
   33  any of its agencies through a formal delegation of federal
   34  authority.
   35         (d) The term “action of a governmental entity” means a
   36  specific action of a governmental entity which affects real
   37  property, including action on an application or permit.
   38         (e) The terms “inordinate burden” and or “inordinately
   39  burdened” mean that an action of one or more governmental
   40  entities has directly restricted or limited the use of real
   41  property such that the property owner is permanently unable to
   42  attain the reasonable, investment-backed expectation for the
   43  existing use of the real property or a vested right to a
   44  specific use of the real property with respect to the real
   45  property as a whole, or that the property owner is left with
   46  existing or vested uses that are unreasonable such that the
   47  property owner bears permanently a disproportionate share of a
   48  burden imposed for the good of the public, which in fairness
   49  should be borne by the public at large. The terms “inordinate
   50  burden” and or “inordinately burdened” do not include temporary
   51  impacts to real property; impacts to real property occasioned by
   52  governmental abatement, prohibition, prevention, or remediation
   53  of a public nuisance at common law or a noxious use of private
   54  property; or impacts to real property caused by an action of a
   55  governmental entity taken to grant relief to a property owner
   56  under this section. However, a moratorium on development, as
   57  defined in s. 380.04, which is in effect for longer than 1 year
   58  may, depending upon the circumstances, constitute an inordinate
   59  burden as provided in this paragraph.
   60         (f) The term “property owner” means the person who holds
   61  legal title to the real property at issue. The term does not
   62  include a governmental entity.
   63         (g) The term “real property” means land and includes any
   64  appurtenances and improvements to the land, including any other
   65  relevant real property in which the property owner had a
   66  relevant interest.
   67         (4)(a) Not less than 120 180 days before prior to filing an
   68  action under this section against a governmental entity, a
   69  property owner who seeks compensation under this section must
   70  present the claim in writing to the head of the governmental
   71  entity, except that if the property is classified as
   72  agricultural pursuant to s. 193.461, the notice period is 90
   73  days. The property owner must submit, along with the claim, a
   74  bona fide, valid appraisal that supports the claim and
   75  demonstrates the loss in fair market value to the real property.
   76  If the action of government is the culmination of a process that
   77  involves more than one governmental entity, or if a complete
   78  resolution of all relevant issues, in the view of the property
   79  owner or in the view of a governmental entity to whom a claim is
   80  presented, requires the active participation of more than one
   81  governmental entity, the property owner shall present the claim
   82  as provided in this section to each of the governmental
   83  entities.
   84         (b) The governmental entity shall provide written notice of
   85  the claim to all parties to any administrative action that gave
   86  rise to the claim, and to owners of real property contiguous to
   87  the owner’s property at the addresses listed on the most recent
   88  county tax rolls. Within 15 days after the claim being
   89  presented, the governmental entity shall report the claim in
   90  writing to the Department of Legal Affairs, and shall provide
   91  the department with the name, address, and telephone number of
   92  the employee of the governmental entity from whom additional
   93  information may be obtained about the claim during the pendency
   94  of the claim and any subsequent judicial action.
   95         (c) During the 90-day-notice period or the 120-day-notice
   96  180-day-notice period, unless extended by agreement of the
   97  parties, the governmental entity shall make a written settlement
   98  offer to effectuate:
   99         1. An adjustment of land development or permit standards or
  100  other provisions controlling the development or use of land.
  101         2. Increases or modifications in the density, intensity, or
  102  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
  106  mitigation.
  107         6. Location on the least sensitive portion of the property.
  108         7. Conditioning the amount of development or use permitted.
  109         8. A requirement that issues be addressed on a more
  110  comprehensive basis than a single proposed use or development.
  111         9. Issuance of the development order, a variance, special
  112  exception, or other extraordinary relief.
  113         10. Purchase of the real property, or an interest therein,
  114  by an appropriate governmental entity or by payment of
  115  compensation.
  116         11. No changes to the action of the governmental entity.
  117  
  118  If the property owner accepts the settlement offer, the
  119  governmental entity may implement the settlement offer by
  120  appropriate development agreement; by issuing a variance,
  121  special exception, or other extraordinary relief; or by other
  122  appropriate method, subject to paragraph (d).
  123         (d)1. Whenever a governmental entity enters into a
  124  settlement agreement under this section which would have the
  125  effect of a modification, variance, or a special exception to
  126  the application of a rule, regulation, or ordinance as it would
  127  otherwise apply to the subject real property, the relief granted
  128  shall protect the public interest served by the regulations at
  129  issue and be the appropriate relief necessary to prevent the
  130  governmental regulatory effort from inordinately burdening the
  131  real property.
  132         2. Whenever a governmental entity enters into a settlement
  133  agreement under this section which would have the effect of
  134  contravening the application of a statute as it would otherwise
  135  apply to the subject real property, the governmental entity and
  136  the property owner shall jointly file an action in the circuit
  137  court where the real property is located for approval of the
  138  settlement agreement by the court to ensure that the relief
  139  granted protects the public interest served by the statute at
  140  issue and is the appropriate relief necessary to prevent the
  141  governmental regulatory effort from inordinately burdening the
  142  real property.
  143         (5)(a) During the 90-day-notice period or the 120-day
  144  notice 180-day-notice period, unless a settlement offer is
  145  accepted by the property owner, each of the governmental
  146  entities provided notice pursuant to paragraph (4)(a) shall
  147  issue a written statement of allowable uses ripeness decision
  148  identifying the allowable uses to which the subject property may
  149  be put. The failure of the governmental entity to issue a
  150  written statement of allowable uses ripeness decision during the
  151  applicable 90-day-notice period or 120-day-notice 180-day-notice
  152  period shall be deemed a denial for purposes of allowing a
  153  property owner to file an action in the circuit court under this
  154  section. If a written statement of allowable uses is issued, it
  155  to ripen the prior action of the governmental entity, and shall
  156  operate as a ripeness decision that has been rejected by the
  157  property owner. The ripeness decision, as a matter of law,
  158  constitutes the last prerequisite to judicial review, and the
  159  matter shall be deemed ripe or final for the purposes of the
  160  judicial proceeding created by this section, notwithstanding the
  161  availability of other administrative remedies.
  162         (b) If the property owner rejects the settlement offer and
  163  the statement of allowable uses ripeness decision of the
  164  governmental entity or entities, the property owner may file a
  165  claim for compensation in the circuit court, a copy of which
  166  shall be served contemporaneously on the head of each of the
  167  governmental entities that made a settlement offer and a
  168  ripeness decision that was rejected by the property owner.
  169  Actions under this section shall be brought only in the county
  170  where the real property is located.
  171         (6)(a) The circuit court shall determine whether an
  172  existing use of the real property or a vested right to a
  173  specific use of the real property existed and, if so, whether,
  174  considering the settlement offer and statement of allowable uses
  175  ripeness decision, the governmental entity or entities have
  176  inordinately burdened the real property. If the actions of more
  177  than one governmental entity, considering any settlement offers
  178  and statements of allowable uses ripeness decisions, are
  179  responsible for the action that imposed the inordinate burden on
  180  the real property of the property owner, the court shall
  181  determine the percentage of responsibility each such
  182  governmental entity bears with respect to the inordinate burden.
  183  A governmental entity may take an interlocutory appeal of the
  184  court’s determination that the action of the governmental entity
  185  has resulted in an inordinate burden. An interlocutory appeal
  186  does not automatically stay the proceedings; however, the court
  187  may stay the proceedings during the pendency of the
  188  interlocutory appeal. If the governmental entity does not
  189  prevail in the interlocutory appeal, the court shall award to
  190  the prevailing property owner the costs and a reasonable
  191  attorney fee incurred by the property owner in the interlocutory
  192  appeal.
  193         (b) Following its determination of the percentage of
  194  responsibility of each governmental entity, and following the
  195  resolution of any interlocutory appeal, the court shall impanel
  196  a jury to determine the total amount of compensation to the
  197  property owner for the loss in value due to the inordinate
  198  burden to the real property. The award of compensation shall be
  199  determined by calculating the difference in the fair market
  200  value of the real property, as it existed at the time of the
  201  governmental action at issue, as though the owner had the
  202  ability to attain the reasonable investment-backed expectation
  203  or was not left with uses that are unreasonable, whichever the
  204  case may be, and the fair market value of the real property, as
  205  it existed at the time of the governmental action at issue, as
  206  inordinately burdened, considering the settlement offer together
  207  with the statement of allowable uses ripeness decision, of the
  208  governmental entity or entities. In determining the award of
  209  compensation, consideration may not be given to business damages
  210  relative to any development, activity, or use that the action of
  211  the governmental entity or entities, considering the settlement
  212  offer together with the statement of allowable uses ripeness
  213  decision has restricted, limited, or prohibited. The award of
  214  compensation shall include a reasonable award of prejudgment
  215  interest from the date the claim was presented to the
  216  governmental entity or entities as provided in subsection (4).
  217         (c)1. In any action filed pursuant to this section, the
  218  property owner is entitled to recover reasonable costs and
  219  attorney fees incurred by the property owner, from the
  220  governmental entity or entities, according to their
  221  proportionate share as determined by the court, from the date of
  222  the filing of the circuit court action, if the property owner
  223  prevails in the action and the court determines that the
  224  settlement offer, including the statement of allowable uses
  225  ripeness decision, of the governmental entity or entities did
  226  not constitute a bona fide offer to the property owner which
  227  reasonably would have resolved the claim, based upon the
  228  knowledge available to the governmental entity or entities and
  229  the property owner during the 90-day-notice period or the 120
  230  day-notice 180-day-notice period.
  231         2. In any action filed pursuant to this section, the
  232  governmental entity or entities are entitled to recover
  233  reasonable costs and attorney fees incurred by the governmental
  234  entity or entities from the date of the filing of the circuit
  235  court action, if the governmental entity or entities prevail in
  236  the action and the court determines that the property owner did
  237  not accept a bona fide settlement offer, including the statement
  238  of allowable uses ripeness decision, which reasonably would have
  239  resolved the claim fairly to the property owner if the
  240  settlement offer had been accepted by the property owner, based
  241  upon the knowledge available to the governmental entity or
  242  entities and the property owner during the 90-day-notice period
  243  or the 120-day-notice 180-day-notice period.
  244         3. The determination of total reasonable costs and attorney
  245  fees pursuant to this paragraph shall be made by the court and
  246  not by the jury. Any proposed settlement offer or any proposed
  247  statement of allowable uses ripeness decision, except for the
  248  final written settlement offer or the final written ripeness
  249  decision, and any negotiations or rejections in regard to the
  250  formulation either of the settlement offer or the statement of
  251  allowable uses ripeness decision, are inadmissible in the
  252  subsequent proceeding established by this section except for the
  253  purposes of the determination pursuant to this paragraph.
  254         (d) Within 15 days after the execution of any settlement
  255  pursuant to this section, or the issuance of any judgment
  256  pursuant to this section, the governmental entity shall provide
  257  a copy of the settlement or judgment to the Department of Legal
  258  Affairs.
  259         (11) A cause of action may not be commenced under this
  260  section if the claim is presented more than 1 year after a law
  261  or regulation is first applied by the governmental entity to the
  262  property at issue. For purposes of this section, enacting a law
  263  or adopting a regulation does not constitute the application of
  264  the law or regulation to a property. If an owner seeks relief
  265  from the governmental action through lawfully available
  266  administrative or judicial proceedings, the time for bringing an
  267  action under this section is tolled until the conclusion of such
  268  proceedings.
  269         (13) This section waives sovereign immunity solely to the
  270  extent provided herein; however, this section does not otherwise
  271  affect the sovereign immunity of government.
  272         Section 2. The amendments to s. 70.001, Florida Statutes,
  273  made by this act apply prospectively only and do not apply to
  274  any claim or action filed under s. 70.001, Florida Statutes,
  275  which is pending on the effective date of this act.
  276         Section 3. This act shall take effect July 1, 2011.
  277  
  278  ================= T I T L E  A M E N D M E N T ================
  279         And the title is amended as follows:
  280         Delete everything before the enacting clause
  281  and insert:
  282                        A bill to be entitled                      
  283         An act relating to property rights; amending s.
  284         70.001, F.S.; redefining the terms “inordinate burden”
  285         and “inordinately burdened” as they relate to the Bert
  286         J. Harris, Jr., Private Property Rights Protection
  287         Act” to specify that a moratorium on development in
  288         effect for longer than a specified period constitutes
  289         an inordinate burden; revising the time within which a
  290         property owner who seeks compensation must present the
  291         claim in writing to the head of the governmental
  292         entity; revising the time within which a governmental
  293         entity must make a written settlement offer to a
  294         claimant; revising the time within which a
  295         governmental entity that has provided notice must
  296         issue a written statement of allowable uses, rather
  297         than a ripeness decision, which identifies the
  298         allowable uses to which the subject property may be
  299         put; providing that the failure of the governmental
  300         entity to issue a written statement of allowable uses
  301         during the applicable revised notice requirement is
  302         deemed a denial for purposes of allowing a property
  303         owner to file an action in the circuit court;
  304         providing that if a written statement of allowable
  305         uses is issued, it constitutes the last prerequisite
  306         to judicial review; conforming terminology to changes
  307         made by the act; providing that enacting a law or
  308         adopting a regulation does not constitute the
  309         application of the law or regulation to a property;
  310         providing for application of sovereign immunity;
  311         providing for application of the act; providing an
  312         effective date.