Senate Bill 1076

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    Florida Senate - 1999                                  SB 1076

    By Senator Webster





    12-1076A-99                                         See HB 223

  1                      A bill to be entitled

  2         An act relating to governmental conflict

  3         resolution; amending s. 164.101, F.S.; renaming

  4         the "Florida Governmental Cooperation Act" as

  5         the "Florida Governmental Conflict Resolution

  6         Act"; amending s. 164.102, F.S.; providing

  7         purpose and intent; creating s. 164.1031, F.S.;

  8         providing definitions; creating s. 164.1041,

  9         F.S.; requiring that, when a local or regional

10         governmental entity files suit against another

11         such governmental entity, the procedural

12         options of the act must be exhausted before

13         court proceedings occur, except in specified

14         circumstances; providing for review by the

15         court of the justification for failure to

16         comply with the act; creating s. 164.1051,

17         F.S.; specifying the governmental conflicts to

18         which the act applies; creating s. 164.1052,

19         F.S.; providing procedures and requirements for

20         initiation of conflict resolution procedures

21         and determination of participants; creating s.

22         164.1053, F.S.; providing for a conflict

23         assessment meeting and providing requirements

24         with respect thereto; creating s. 164.1055,

25         F.S.; providing for a joint public meeting

26         between conflicting entities; providing for

27         mediation when no agreement is reached;

28         creating s. 164.1056, F.S.; providing for final

29         resolution of a conflict when there is a

30         failure to resolve the conflict under the act;

31         creating s. 164.1057, F.S.; specifying the

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1         manner of execution of the resolution of a

  2         conflict; renumbering and amending s. 164.104,

  3         F.S.; providing that a governmental entity that

  4         fails to participate in conflict resolution

  5         procedures shall be required to pay attorney's

  6         fees and costs under certain conditions;

  7         creating s. 164.1061, F.S.; providing for

  8         extension of the time requirements of the act;

  9         repealing ss. 164.103, 164.105, and 164.106,

10         F.S., which provide procedures and requirements

11         for resolution of governmental disputes and for

12         tolling of statutes of limitations; providing

13         effect on existing contracts and agreements;

14         providing an effective date.

15

16  Be It Enacted by the Legislature of the State of Florida:

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18         Section 1.  Section 164.101, Florida Statutes, is

19  amended to read:

20         164.101  Short title.--Sections 164.101-164.1061 This

21  act may be cited as the "Florida Governmental Conflict

22  Resolution Cooperation Act."

23         Section 2.  Section 164.102, Florida Statutes, is

24  amended to read:

25         164.102  Purpose and intent.--The purpose and intent of

26  this act is to promote, protect, and improve the public

27  health, safety, and welfare and to enhance intergovernmental

28  coordination efforts by the creation of a governmental

29  conflict dispute resolution procedure process that can provide

30  an equitable, expeditious, effective, and inexpensive method

31  for resolution of conflicts disputes between and among local

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1  and regional governmental entities counties and

  2  municipalities. It is the intent of the Legislature that

  3  conflicts between governmental entities be resolved to the

  4  greatest extent possible without litigation.

  5         Section 3.  Section 164.1031, Florida Statutes, is

  6  created to read:

  7         164.1031  Definitions.--For purposes of this act:

  8         (1)  "Local governmental entities" includes

  9  municipalities, counties, school boards, special districts,

10  and other local entities within the jurisdiction of one county

11  created by general or special law or local ordinance.

12         (2)  "Regional governmental entities" includes regional

13  planning councils, metropolitan planning organizations, water

14  supply authorities that include more than one county, local

15  health councils, water management districts, and other

16  regional entities that are authorized and created by general

17  or special law that have duties or responsibilities extending

18  beyond the jurisdiction of a single county.

19         (3)  "Governmental entity" includes local and regional

20  governmental entities.

21         (4)  "Local government resolution" has the same meaning

22  as provided in s. 166.041.

23         (5)  "Governing body" means the council, commission, or

24  other board or body in which the general legislative powers of

25  a local or regional governmental entity are vested.

26         (6)  "Designee" means a representative with full

27  authority to negotiate on behalf of a governmental entity and

28  to recommend settlement to the appropriate decisionmaking body

29  or authority of the governmental entity.

30         (7)  "Noticed public meeting" means a public meeting in

31  which notice is given at least 10 days prior to the meeting by

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1  publication in the newspaper of widest circulation in the

  2  jurisdictions of the primary conflicting governmental

  3  entities. Each primary conflicting governmental entity shall

  4  provide notice within its jurisdiction.

  5         (8)  "Primary conflicting governmental entities" means

  6  the governmental entity initiating the conflict resolution

  7  process provided for in this act, together with the

  8  governmental entity or entities with whom the initiating

  9  governmental entity has a conflict. The term does not include

10  other governmental entities which may have a role in approving

11  or implementing a particular element or aspect of any

12  settlement of the conflict, or which may receive notice or

13  intervene in the conflict resolution process provided for in

14  this act.

15         (9)  "Mediation" means a process whereby a neutral

16  third person called a mediator acts to encourage and

17  facilitate the resolution of a conflict between two or more

18  parties.  The role of the mediator includes, but is not

19  limited to, assisting the parties in identifying issues and

20  exploring settlement alternatives.

21         Section 4.  Section 164.1041, Florida Statutes, is

22  created to read:

23         164.1041  Duty to negotiate.--

24         (1)  If a governmental entity files suit against

25  another governmental entity, court proceedings shall not occur

26  unless the procedural options of this act have been exhausted.

27  All governmental entities are encouraged to use the procedures

28  in this act to resolve conflicts that may occur at any time

29  between governmental entities, but shall use these procedures

30  before court proceedings, consistent with the provisions of

31  this section.  The provisions of this act do not apply to

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1  administrative proceedings pursuant to chapter 120 or any

  2  appeal from any administrative or trial court judgment or

  3  decision.  Nothing in this act shall limit a governmental

  4  entity from initiating eminent domain, foreclosure, or other

  5  court proceedings where, as a function of the nature of the

  6  suit, other governmental entities are necessary parties, if

  7  there are no materially disputed issues with regard to such

  8  joinder. Nothing in this act shall limit a governmental entity

  9  from filing any counterclaim or cross-claim in any litigation

10  in which it is a defendant.  Nothing in this act is intended

11  to abrogate other provisions of law which provide procedures

12  for challenges to specific governmental actions, including,

13  but not limited to, comprehensive plan amendments and tax

14  assessment challenges.  The provisions of this act shall not

15  apply to conflicts between governmental entities if an

16  alternative dispute resolution process, such as mediation or

17  arbitration, is specifically required by general law or agreed

18  to by contract, interlocal agreement, or other written

19  instrument, or if the governmental entities have reached an

20  impasse during an alternative dispute resolution process

21  engaged in prior to the initiation of court action.  Further,

22  nothing in this act shall preclude a governmental entity from

23  filing a suit without resort to the provisions of this act

24  against any federal or other governmental entity not governed

25  by state law.

26         (2)  If a governmental entity, by a three-fourths vote

27  of its governing body, finds that an immediate danger to the

28  health, safety, or welfare of the public requires immediate

29  action, or that significant legal rights will be compromised

30  if a court proceeding does not take place before the

31  provisions of this act are complied with, no notice or public

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1  meeting or other proceeding as provided by this act shall be

  2  required before such a court proceeding.  If a water

  3  management district, by three-fourths vote of its governing

  4  body, finds that an immediate danger to the natural resources,

  5  water resources, and wildlife requires immediate declaratory

  6  relief, or that significant legal rights will be compromised

  7  if a court proceeding does not take place before the

  8  provisions of this act are complied with, no notice or public

  9  meeting or other proceeding as provided by this act shall be

10  required before such a court proceeding.  However, the court,

11  upon motion, may review the justification for failure to

12  comply with the provisions of this act and make a

13  determination as to whether the provisions of this act should

14  be complied with prior to a court proceeding.  If the court

15  determines that the provisions of this act should be complied

16  with prior to a court proceeding and that following the

17  provisions of this act will not result in the compromise of

18  significant legal rights, the court shall dismiss the action

19  for failure to comply with the provisions of this act or shall

20  abate the suit until the provisions of this act are complied

21  with.

22         Section 5.  Section 164.1051, Florida Statutes, is

23  created to read:

24         164.1051  Scope.--It is not the intent of this act to

25  limit the conflicts that may be considered under this act,

26  except any administrative proceeding pursuant to chapter 120.

27  Pursuant to s. 164.1041, this act shall apply, at a minimum,

28  to governmental conflicts arising from any of the following

29  issues or processes, including, but not limited to:

30         (1)  Any issue relating to local comprehensive plans or

31  plan amendments prepared pursuant to part II of chapter 163,

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1  including, but not limited to, conflicts involving levels of

  2  service for public facilities and natural resource protection.

  3         (2)  Municipal annexation.

  4         (3)  Service provision areas.

  5         (4)  Allocation of resources, including water, land, or

  6  other natural resources.

  7         (5)  Siting of hazardous waste facilities, land fills,

  8  garbage collection facilities, silt disposal sites, or any

  9  other locally unwanted land uses.

10         (6)  Governmental entity permitting processes.

11         (7)  Siting of elementary and secondary schools.

12         Section 6.  Section 164.1052, Florida Statutes, is

13  created to read:

14         164.1052  Initiation of conflict resolution procedure;

15  duty to give notice.--

16         (1)  The governing body of a governmental entity shall

17  initiate the conflict resolution procedures provided by this

18  act through passage of a resolution by its members. The

19  resolution shall state that it is the intention of the

20  governing body to initiate the conflict resolution procedures

21  provided by this act prior to a court proceeding to resolve

22  the conflict and shall specify the issues of conflict and the

23  governmental entity or entities with which the governing body

24  has a conflict. Within 5 days after the passage of the

25  resolution, a letter and a certified copy of the resolution

26  shall be provided to the chief administrator of the

27  governmental entity or entities with which the governing body

28  has a conflict by certified mail, return receipt requested.

29  The letter shall state, at a minimum, the conflict, other

30  governmental entities in conflict with the initiating

31  governmental entity, the justification for initiating the

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1  conflict resolution process, the proposed date and location

  2  for the conflict assessment meeting to be held pursuant to s.

  3  164.1053, and suggestions regarding the officials who should

  4  be present at the conflict assessment meeting. The initiating

  5  governmental entity also shall mail a copy of the letter and

  6  resolution to any state, regional, or local governmental

  7  entities which, in the determination of the initiating

  8  governmental entity, may have a role in approving or

  9  implementing a particular element or aspect of any settlement

10  of the conflict or whose substantial interests may be affected

11  by the resolution of the conflict, and any other governmental

12  entity deemed appropriate by the initiating governmental

13  entity.

14         (2)  Within 10 days after receiving a copy of a

15  certified letter noticing the initiation of the conflict

16  resolution procedure, other governmental entities receiving

17  the notice may elect to participate in the conflict resolution

18  process, but are not entitled by virtue of that participation

19  to control the timing or progress of the conflict resolution

20  process, which at all times shall remain in the discretion of

21  the primary conflicting governmental entities. However, a

22  governmental entity which receives notice of a conflict may,

23  by passage of its own resolution and by otherwise following

24  the procedures set forth in subsection (1), join the conflict

25  resolution process as a primary conflicting governmental

26  entity. The intent of a governmental entity to join in the

27  conflict resolution process shall be communicated to the

28  initiating governmental entity by certified mail. The joining

29  governmental entity also shall mail a copy of the letter to

30  any state, regional, or local governmental entities which, in

31  the determination of the joining governmental entity, may have

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1  a role in approving or implementing a particular element or

  2  aspect of any settlement of the conflict or whose substantial

  3  interests may be affected by the resolution of the conflict,

  4  and any other governmental entity deemed appropriate by the

  5  joining governmental entity.

  6         (3)  For purposes of this act, the date of initiation

  7  of the conflict resolution procedure shall be the date of the

  8  passage of a resolution by a governmental entity.

  9         Section 7.  Section 164.1053, Florida Statutes, is

10  created to read:

11         164.1053  Conflict assessment phase.--

12         (1)  After the initiation of the conflict resolution

13  procedure, and after proper notice by certified letter has

14  been given, a conflict assessment meeting shall occur. The

15  meeting shall be scheduled to occur within 30 days of the

16  receipt of the letter initiating the conflict resolution

17  procedure. Public notice shall be given for this meeting in

18  accordance with s. 164.1031(7). The conflict assessment

19  meeting shall be scheduled to allow the attendance by the

20  appropriate personnel from each primary conflicting

21  governmental entity.  The chief administrator, or his or her

22  designee, for each governmental entity that is a primary

23  conflicting governmental entity in the conflict resolution

24  procedure shall be present at this meeting. If the entities in

25  conflict agree, the assistance of a facilitator may be

26  enlisted for the conflict assessment meeting. During the

27  conflict assessment meeting, the governmental entities shall

28  discuss the issues pertaining to the conflict and an

29  assessment of the conflict from the perspective of each

30  governmental entity involved.

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1         (2)  If a tentative resolution to the conflict can be

  2  agreed upon by the representatives of the primary conflicting

  3  governmental entities at the conflict assessment meeting, the

  4  primary conflicting governmental entities may proceed with

  5  whatever steps they deem appropriate to fully resolve the

  6  conflict, including, but not limited to, the scheduling of

  7  additional meetings for informal negotiations or proposing a

  8  resolution to the governing bodies of the primary conflicting

  9  governmental entities.

10         (3)  In the event that no tentative resolution can be

11  agreed upon, the primary conflicting governmental entities

12  shall schedule a joint public meeting as described in s.

13  164.1055, which meeting shall occur within 50 days of the

14  receipt of the first letter initiating the conflict resolution

15  process from the initiating governmental entity.

16         (4)  After the conclusion of the conflict assessment

17  meeting, any primary conflicting governmental entity may

18  request mediation as provided in s. 164.1055(2).

19         Section 8.  Section 164.1055, Florida Statutes, is

20  created to read:

21         164.1055  Joint public meeting.--

22         (1)  Failure to resolve a conflict after following

23  authorized procedures as specified in s. 164.1053 shall

24  require the scheduling of a joint public meeting between the

25  primary conflicting governmental entities.  The governmental

26  entity first initiating the conflict resolution process shall

27  have the responsibility to schedule the joint public meeting

28  and arrange a location. If the entities in conflict agree, the

29  assistance of a facilitator may be enlisted to assist them in

30  conducting the meeting.  In this meeting, the governing bodies

31  of the primary conflicting governmental entities shall:

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1         (a)  Consider the statement of issues prepared in the

  2  conflict assessment phase.

  3         (b)  Seek an agreement.

  4         (c)  Schedule additional meetings of the entities in

  5  conflict, or of their designees, to continue to seek

  6  resolution of the conflict.

  7         (2)  If no agreement is reached, the primary

  8  conflicting governmental entities shall participate in

  9  mediation, the costs of which shall be equally divided between

10  the primary conflicting governmental entities. The primary

11  conflicting governmental entities shall endeavor in good faith

12  to select a mutually acceptable mediator. If the primary

13  conflicting governmental entities are unable to mutually agree

14  on a mediator within 14 days after the joint public meeting,

15  the primary conflicting governmental entities shall arrange

16  for a mediator to be selected or recommended by an independent

17  conflict resolution organization, such as the Florida Conflict

18  Resolution Consortium, and shall agree to accept the

19  recommendation of that independent organization, or shall

20  agree upon an alternate method for selection of a mediator,

21  within 7 business days after the close of that 14-day period.

22  Upon the selection of a mediator, the conflicting governmental

23  entities shall schedule mediation to occur within 14 days, and

24  shall issue a written agreement on the issues in conflict

25  within 10 days of the conclusion of the mediation proceeding.

26  The written agreement shall not be admissible in any court

27  proceeding concerning the conflict, except for proceedings to

28  award attorney's fees under s. 164.1058, where the agreement

29  may be used to demonstrate an entity's refusal to participate

30  in the process in good faith.

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1         Section 9.  Section 164.1056, Florida Statutes, is

  2  created to read:

  3         164.1056  Final resolution.--If there is failure to

  4  resolve a conflict between governmental entities through the

  5  procedures provided by ss. 164.1053 and 164.1055, the entities

  6  participating in the dispute resolution process may avail

  7  themselves of any otherwise available legal rights.

  8         Section 10.  Section 164.1057, Florida Statutes, is

  9  created to read:

10         164.1057  Execution of resolution of

11  conflict.--Resolution of a conflict at any phase shall require

12  passage of an ordinance, resolution, or interlocal agreement

13  that reflects the terms or conditions of the resolution to the

14  conflict.

15         Section 11.  Section 164.104, Florida Statutes, is

16  renumbered as section 164.1058, Florida Statutes, and amended

17  to read:

18         164.1058 164.104  Penalty.--If a primary conflicting

19  governmental entity the governing body of a county or

20  municipality which has received notice of intent to initiate

21  the conflict resolution procedure pursuant to this act file a

22  suit pursuant to s. 164.103(1) fails to participate in good

23  faith in the conflict assessment meeting, mediation, or other

24  remedies provided for in this act, and the initiating

25  governmental entity files suit and is the prevailing party in

26  such suit, the primary disputing governmental entity which

27  failed to participate in good faith hold a public meeting to

28  discuss the proposed litigation, the governing body shall be

29  required to pay the attorney's fees and costs in that

30  proceeding of the governmental entity which initiated the

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1  conflict resolution procedure county or municipality which has

  2  filed suit.

  3         Section 12.  Section 164.1061, Florida Statutes, is

  4  created to read:

  5         164.1061  Time extensions.--Any of the time

  6  requirements set forth in this act may be extended by mutual

  7  agreement, in writing, of the primary conflicting governmental

  8  entities.  To the extent such agreement would cause any

  9  jurisdictional time requirements to run with regard to a

10  particular claim, the agreement shall have the effect of

11  extending any jurisdictional time requirements with regard to

12  that claim for the period set forth in the agreement.

13         Section 13.  Sections 164.103, 164.105, and 164.106,

14  Florida Statutes, are hereby repealed.

15         Section 14.  This act shall take effect upon becoming a

16  law, but shall not be construed to abrogate any otherwise

17  applicable agreements or requirements of any contracts,

18  interlocal agreements, or other written instruments which are

19  in existence as of the effective date of this act. To the

20  extent that any contractual or other agreement provisions in

21  existence on the effective date of this act conflict with the

22  provisions of this act, the provisions in the written

23  agreement shall control.

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    Florida Senate - 1999                                  SB 1076
    12-1076A-99                                         See HB 223




  1            *****************************************

  2                       LEGISLATIVE SUMMARY

  3
      Renames the "Florida Governmental Cooperation Act" as the
  4    "Florida Governmental Conflict Resolution Act." Requires
      that, when a local or regional governmental entity files
  5    suit against another such entity, the procedural options
      of the act must be exhausted before court proceedings can
  6    occur, except in specified circumstances. Allows the
      court to review the justification for failure to comply
  7    with the act. Specifies the governmental conflicts to
      which the act applies. Provides procedures and
  8    requirements for initiation of conflict resolution
      procedures and determination of participants. Provides
  9    for a conflict assessment meeting and provides
      requirements with respect thereto. Provides for a joint
10    public meeting between disputing entities, and provides
      for mediation when no agreement is reached. Provides for
11    final resolution of conflicts. Specifies the manner of
      execution of the resolution of a conflict.  Provides that
12    a governmental entity that fails to participate in
      conflict resolution procedures shall be required to pay
13    attorney's fees and costs under certain circumstances.
      Provides for extension of the act's time requirements.
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