Florida Senate - 2011                              CS for SB 998
       
       
       
       By the Committee on Judiciary; and Senators Simmons, Hays,
       Thrasher, Wise, Bennett, Alexander, Dean, Gaetz, Evers,
       Haridopolos, and Siplin
       
       
       590-03188-11                                           2011998c1
    1                        A bill to be entitled                      
    2         An act relating to property rights; amending s.
    3         70.001, F.S.; redefining the terms “inordinate burden”
    4         and “inordinately burdened” as they relate to the Bert
    5         J. Harris, Jr., Private Property Rights Protection
    6         Act” to specify that a moratorium on development in
    7         effect for longer than a specified period constitutes
    8         an inordinate burden; revising the time within which a
    9         property owner who seeks compensation must present the
   10         claim in writing to the head of the governmental
   11         entity; revising the time within which a governmental
   12         entity must make a written settlement offer to a
   13         claimant; revising the time within which a
   14         governmental entity that has provided notice must
   15         issue a written statement of allowable uses, rather
   16         than a ripeness decision, which identifies the
   17         allowable uses to which the subject property may be
   18         put; providing that the failure of the governmental
   19         entity to issue a written statement of allowable uses
   20         during the applicable revised notice requirement is
   21         deemed a denial for purposes of allowing a property
   22         owner to file an action in the circuit court;
   23         providing that if a written statement of allowable
   24         uses is issued, it constitutes the last prerequisite
   25         to judicial review; conforming terminology to changes
   26         made by the act; providing that enacting a law or
   27         adopting a regulation does not constitute the
   28         application of the law or regulation to a property;
   29         providing for application of sovereign immunity;
   30         providing for application of the act; providing an
   31         effective date.
   32  
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Subsections (3), (4), (5), (6), (11), and (13)
   36  of section 70.001, Florida Statutes, are amended to read:
   37         70.001 Private property rights protection.—
   38         (3) For purposes of this section:
   39         (a) The existence of a “vested right” is to be determined
   40  by applying the principles of equitable estoppel or substantive
   41  due process under the common law or by applying the statutory
   42  law of this state.
   43         (b) The term “existing use” means:
   44         1. An actual, present use or activity on the real property,
   45  including periods of inactivity which are normally associated
   46  with, or are incidental to, the nature or type of use; or
   47         2. An activity or such reasonably foreseeable,
   48  nonspeculative land uses which are suitable for the subject real
   49  property and compatible with adjacent land uses and which have
   50  created an existing fair market value in the property greater
   51  than the fair market value of the actual, present use or
   52  activity on the real property.
   53         (c) The term “governmental entity” includes an agency of
   54  the state, a regional or a local government created by the State
   55  Constitution or by general or special act, any county or
   56  municipality, or any other entity that independently exercises
   57  governmental authority. The term does not include the United
   58  States or any of its agencies, or an agency of the state, a
   59  regional or a local government created by the State Constitution
   60  or by general or special act, any county or municipality, or any
   61  other entity that independently exercises governmental
   62  authority, when exercising the powers of the United States or
   63  any of its agencies through a formal delegation of federal
   64  authority.
   65         (d) The term “action of a governmental entity” means a
   66  specific action of a governmental entity which affects real
   67  property, including action on an application or permit.
   68         (e) The terms “inordinate burden” and or “inordinately
   69  burdened” mean that an action of one or more governmental
   70  entities has directly restricted or limited the use of real
   71  property such that the property owner is permanently unable to
   72  attain the reasonable, investment-backed expectation for the
   73  existing use of the real property or a vested right to a
   74  specific use of the real property with respect to the real
   75  property as a whole, or that the property owner is left with
   76  existing or vested uses that are unreasonable such that the
   77  property owner bears permanently a disproportionate share of a
   78  burden imposed for the good of the public, which in fairness
   79  should be borne by the public at large. The terms “inordinate
   80  burden” and or “inordinately burdened” do not include temporary
   81  impacts to real property; impacts to real property occasioned by
   82  governmental abatement, prohibition, prevention, or remediation
   83  of a public nuisance at common law or a noxious use of private
   84  property; or impacts to real property caused by an action of a
   85  governmental entity taken to grant relief to a property owner
   86  under this section. However, a moratorium on development, as
   87  defined in s. 380.04, which is in effect for longer than 1 year
   88  may, depending upon the circumstances, constitute an inordinate
   89  burden as provided in this paragraph.
   90         (f) The term “property owner” means the person who holds
   91  legal title to the real property at issue. The term does not
   92  include a governmental entity.
   93         (g) The term “real property” means land and includes any
   94  appurtenances and improvements to the land, including any other
   95  relevant real property in which the property owner had a
   96  relevant interest.
   97         (4)(a) Not less than 120 180 days before prior to filing an
   98  action under this section against a governmental entity, a
   99  property owner who seeks compensation under this section must
  100  present the claim in writing to the head of the governmental
  101  entity, except that if the property is classified as
  102  agricultural pursuant to s. 193.461, the notice period is 90
  103  days. The property owner must submit, along with the claim, a
  104  bona fide, valid appraisal that supports the claim and
  105  demonstrates the loss in fair market value to the real property.
  106  If the action of government is the culmination of a process that
  107  involves more than one governmental entity, or if a complete
  108  resolution of all relevant issues, in the view of the property
  109  owner or in the view of a governmental entity to whom a claim is
  110  presented, requires the active participation of more than one
  111  governmental entity, the property owner shall present the claim
  112  as provided in this section to each of the governmental
  113  entities.
  114         (b) The governmental entity shall provide written notice of
  115  the claim to all parties to any administrative action that gave
  116  rise to the claim, and to owners of real property contiguous to
  117  the owner’s property at the addresses listed on the most recent
  118  county tax rolls. Within 15 days after the claim being
  119  presented, the governmental entity shall report the claim in
  120  writing to the Department of Legal Affairs, and shall provide
  121  the department with the name, address, and telephone number of
  122  the employee of the governmental entity from whom additional
  123  information may be obtained about the claim during the pendency
  124  of the claim and any subsequent judicial action.
  125         (c) During the 90-day-notice period or the 120-day-notice
  126  180-day-notice period, unless extended by agreement of the
  127  parties, the governmental entity shall make a written settlement
  128  offer to effectuate:
  129         1. An adjustment of land development or permit standards or
  130  other provisions controlling the development or use of land.
  131         2. Increases or modifications in the density, intensity, or
  132  use of areas of development.
  133         3. The transfer of developmental rights.
  134         4. Land swaps or exchanges.
  135         5. Mitigation, including payments in lieu of onsite
  136  mitigation.
  137         6. Location on the least sensitive portion of the property.
  138         7. Conditioning the amount of development or use permitted.
  139         8. A requirement that issues be addressed on a more
  140  comprehensive basis than a single proposed use or development.
  141         9. Issuance of the development order, a variance, special
  142  exception, or other extraordinary relief.
  143         10. Purchase of the real property, or an interest therein,
  144  by an appropriate governmental entity or by payment of
  145  compensation.
  146         11. No changes to the action of the governmental entity.
  147  
  148  If the property owner accepts the settlement offer, the
  149  governmental entity may implement the settlement offer by
  150  appropriate development agreement; by issuing a variance,
  151  special exception, or other extraordinary relief; or by other
  152  appropriate method, subject to paragraph (d).
  153         (d)1. Whenever a governmental entity enters into a
  154  settlement agreement under this section which would have the
  155  effect of a modification, variance, or a special exception to
  156  the application of a rule, regulation, or ordinance as it would
  157  otherwise apply to the subject real property, the relief granted
  158  shall protect the public interest served by the regulations at
  159  issue and be the appropriate relief necessary to prevent the
  160  governmental regulatory effort from inordinately burdening the
  161  real property.
  162         2. Whenever a governmental entity enters into a settlement
  163  agreement under this section which would have the effect of
  164  contravening the application of a statute as it would otherwise
  165  apply to the subject real property, the governmental entity and
  166  the property owner shall jointly file an action in the circuit
  167  court where the real property is located for approval of the
  168  settlement agreement by the court to ensure that the relief
  169  granted protects the public interest served by the statute at
  170  issue and is the appropriate relief necessary to prevent the
  171  governmental regulatory effort from inordinately burdening the
  172  real property.
  173         (5)(a) During the 90-day-notice period or the 120-day
  174  notice 180-day-notice period, unless a settlement offer is
  175  accepted by the property owner, each of the governmental
  176  entities provided notice pursuant to paragraph (4)(a) shall
  177  issue a written statement of allowable uses ripeness decision
  178  identifying the allowable uses to which the subject property may
  179  be put. The failure of the governmental entity to issue a
  180  written statement of allowable uses ripeness decision during the
  181  applicable 90-day-notice period or 120-day-notice 180-day-notice
  182  period shall be deemed a denial for purposes of allowing a
  183  property owner to file an action in the circuit court under this
  184  section. If a written statement of allowable uses is issued, it
  185  to ripen the prior action of the governmental entity, and shall
  186  operate as a ripeness decision that has been rejected by the
  187  property owner. The ripeness decision, as a matter of law,
  188  constitutes the last prerequisite to judicial review, and the
  189  matter shall be deemed ripe or final for the purposes of the
  190  judicial proceeding created by this section, notwithstanding the
  191  availability of other administrative remedies.
  192         (b) If the property owner rejects the settlement offer and
  193  the statement of allowable uses ripeness decision of the
  194  governmental entity or entities, the property owner may file a
  195  claim for compensation in the circuit court, a copy of which
  196  shall be served contemporaneously on the head of each of the
  197  governmental entities that made a settlement offer and a
  198  ripeness decision that was rejected by the property owner.
  199  Actions under this section shall be brought only in the county
  200  where the real property is located.
  201         (6)(a) The circuit court shall determine whether an
  202  existing use of the real property or a vested right to a
  203  specific use of the real property existed and, if so, whether,
  204  considering the settlement offer and statement of allowable uses
  205  ripeness decision, the governmental entity or entities have
  206  inordinately burdened the real property. If the actions of more
  207  than one governmental entity, considering any settlement offers
  208  and statements of allowable uses ripeness decisions, are
  209  responsible for the action that imposed the inordinate burden on
  210  the real property of the property owner, the court shall
  211  determine the percentage of responsibility each such
  212  governmental entity bears with respect to the inordinate burden.
  213  A governmental entity may take an interlocutory appeal of the
  214  court’s determination that the action of the governmental entity
  215  has resulted in an inordinate burden. An interlocutory appeal
  216  does not automatically stay the proceedings; however, the court
  217  may stay the proceedings during the pendency of the
  218  interlocutory appeal. If the governmental entity does not
  219  prevail in the interlocutory appeal, the court shall award to
  220  the prevailing property owner the costs and a reasonable
  221  attorney fee incurred by the property owner in the interlocutory
  222  appeal.
  223         (b) Following its determination of the percentage of
  224  responsibility of each governmental entity, and following the
  225  resolution of any interlocutory appeal, the court shall impanel
  226  a jury to determine the total amount of compensation to the
  227  property owner for the loss in value due to the inordinate
  228  burden to the real property. The award of compensation shall be
  229  determined by calculating the difference in the fair market
  230  value of the real property, as it existed at the time of the
  231  governmental action at issue, as though the owner had the
  232  ability to attain the reasonable investment-backed expectation
  233  or was not left with uses that are unreasonable, whichever the
  234  case may be, and the fair market value of the real property, as
  235  it existed at the time of the governmental action at issue, as
  236  inordinately burdened, considering the settlement offer together
  237  with the statement of allowable uses ripeness decision, of the
  238  governmental entity or entities. In determining the award of
  239  compensation, consideration may not be given to business damages
  240  relative to any development, activity, or use that the action of
  241  the governmental entity or entities, considering the settlement
  242  offer together with the statement of allowable uses ripeness
  243  decision has restricted, limited, or prohibited. The award of
  244  compensation shall include a reasonable award of prejudgment
  245  interest from the date the claim was presented to the
  246  governmental entity or entities as provided in subsection (4).
  247         (c)1. In any action filed pursuant to this section, the
  248  property owner is entitled to recover reasonable costs and
  249  attorney fees incurred by the property owner, from the
  250  governmental entity or entities, according to their
  251  proportionate share as determined by the court, from the date of
  252  the filing of the circuit court action, if the property owner
  253  prevails in the action and the court determines that the
  254  settlement offer, including the statement of allowable uses
  255  ripeness decision, of the governmental entity or entities did
  256  not constitute a bona fide offer to the property owner which
  257  reasonably would have resolved the claim, based upon the
  258  knowledge available to the governmental entity or entities and
  259  the property owner during the 90-day-notice period or the 120
  260  day-notice 180-day-notice period.
  261         2. In any action filed pursuant to this section, the
  262  governmental entity or entities are entitled to recover
  263  reasonable costs and attorney fees incurred by the governmental
  264  entity or entities from the date of the filing of the circuit
  265  court action, if the governmental entity or entities prevail in
  266  the action and the court determines that the property owner did
  267  not accept a bona fide settlement offer, including the statement
  268  of allowable uses ripeness decision, which reasonably would have
  269  resolved the claim fairly to the property owner if the
  270  settlement offer had been accepted by the property owner, based
  271  upon the knowledge available to the governmental entity or
  272  entities and the property owner during the 90-day-notice period
  273  or the 120-day-notice 180-day-notice period.
  274         3. The determination of total reasonable costs and attorney
  275  fees pursuant to this paragraph shall be made by the court and
  276  not by the jury. Any proposed settlement offer or any proposed
  277  statement of allowable uses ripeness decision, except for the
  278  final written settlement offer or the final written ripeness
  279  decision, and any negotiations or rejections in regard to the
  280  formulation either of the settlement offer or the statement of
  281  allowable uses ripeness decision, are inadmissible in the
  282  subsequent proceeding established by this section except for the
  283  purposes of the determination pursuant to this paragraph.
  284         (d) Within 15 days after the execution of any settlement
  285  pursuant to this section, or the issuance of any judgment
  286  pursuant to this section, the governmental entity shall provide
  287  a copy of the settlement or judgment to the Department of Legal
  288  Affairs.
  289         (11) A cause of action may not be commenced under this
  290  section if the claim is presented more than 1 year after a law
  291  or regulation is first applied by the governmental entity to the
  292  property at issue. For purposes of this section, enacting a law
  293  or adopting a regulation does not constitute the application of
  294  the law or regulation to a property. If an owner seeks relief
  295  from the governmental action through lawfully available
  296  administrative or judicial proceedings, the time for bringing an
  297  action under this section is tolled until the conclusion of such
  298  proceedings.
  299         (13) This section waives sovereign immunity solely to the
  300  extent provided herein; however, this section does not otherwise
  301  affect the sovereign immunity of government.
  302         Section 2. The amendments to s. 70.001, Florida Statutes,
  303  made by this act apply prospectively only and do not apply to
  304  any claim or action filed under s. 70.001, Florida Statutes,
  305  which is pending on the effective date of this act.
  306         Section 3. This act shall take effect July 1, 2011.