House Bill 0223c1

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    Florida House of Representatives - 1999              CS/HB 223

        By the Committee on Community Affairs and Representatives
    Constantine and Sanderson





  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.; providing that, when a local or regional

10         governmental entity files suit against another

11         such governmental entity, court proceedings

12         shall be abated by order of the court until the

13         procedural options of the act have been

14         exhausted, except in specified circumstances;

15         providing for review by the court of the

16         justification for failure to comply with the

17         act; creating s. 164.1051, F.S.; specifying the

18         governmental conflicts to which the act

19         applies; creating s. 164.1052, F.S.; providing

20         procedures and requirements for initiation of

21         conflict resolution procedures and

22         determination of participants; creating s.

23         164.1053, F.S.; providing for a conflict

24         assessment meeting and providing requirements

25         with respect thereto; creating s. 164.1055,

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

27         between conflicting entities; providing for

28         mediation when no agreement is reached;

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

30         resolution of a conflict when there is a

31         failure to resolve the conflict under the act;

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

  2         manner of execution of the resolution of a

  3         conflict; renumbering and amending s. 164.104,

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

  5         fails to participate in conflict resolution

  6         procedures shall be required to pay attorney's

  7         fees and costs under certain conditions;

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

  9         extension of the time requirements of the act;

10         repealing ss. 164.103, 164.105, and 164.106,

11         F.S., which provide procedures and requirements

12         for resolution of governmental disputes and for

13         tolling of statutes of limitations; providing

14         effect on existing contracts and agreements;

15         providing an effective date.

16

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

18

19         Section 1.  Section 164.101, Florida Statutes, is

20  amended to read:

21         164.101  Short title.--Sections 164.101-164.1061 This

22  act may be cited as the "Florida Governmental Conflict

23  Resolution Cooperation Act."

24         Section 2.  Section 164.102, Florida Statutes, is

25  amended to read:

26         164.102  Purpose and intent.--The purpose and intent of

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

28  health, safety, and welfare and to enhance intergovernmental

29  coordination efforts by the creation of a governmental

30  conflict dispute resolution procedure process that can provide

31  an equitable, expeditious, effective, and inexpensive method

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  1  for resolution of conflicts disputes between and among local

  2  and regional governmental entities counties and

  3  municipalities. It is the intent of the Legislature that

  4  conflicts between governmental entities be resolved to the

  5  greatest extent possible without litigation.

  6         Section 3.  Section 164.1031, Florida Statutes, is

  7  created to read:

  8         164.1031  Definitions.--For purposes of this act:

  9         (1)  "Local governmental entities" includes

10  municipalities, counties, school boards, special districts,

11  and other local entities within the jurisdiction of one county

12  created by general or special law or local ordinance.

13         (2)  "Regional governmental entities" includes regional

14  planning councils, metropolitan planning organizations, water

15  supply authorities that include more than one county, local

16  health councils, water management districts, and other

17  regional entities that are authorized and created by general

18  or special law that have duties or responsibilities extending

19  beyond the jurisdiction of a single county.

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

21  governmental entities.

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

23  as provided in s. 166.041.

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

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

26  a local or regional governmental entity are vested.

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

28  authority to negotiate on behalf of a governmental entity and

29  to recommend settlement to the appropriate decisionmaking body

30  or authority of the governmental entity.

31

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

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

  3  publication in the newspaper of widest circulation in the

  4  jurisdictions of the primary conflicting governmental

  5  entities. Each primary conflicting governmental entity shall

  6  provide notice within its jurisdiction.

  7         (8)  "Primary conflicting governmental entities" means

  8  the governmental entity initiating the conflict resolution

  9  process provided for in this act, together with the

10  governmental entity or entities with whom the initiating

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

12  other governmental entities which may have a role in approving

13  or implementing a particular element or aspect of any

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

15  intervene in the conflict resolution process provided for in

16  this act.

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

18  third person called a mediator acts to encourage and

19  facilitate the resolution of a conflict between two or more

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

21  limited to, assisting the parties in identifying issues and

22  exploring settlement alternatives.

23         Section 4.  Section 164.1041, Florida Statutes, is

24  created to read:

25         164.1041  Duty to negotiate.--

26         (1)  If a governmental entity files suit against

27  another governmental entity, court proceedings on the suit

28  shall be abated, by order of the court, until the procedural

29  options of this act have been exhausted. The governing body of

30  a governmental entity initiating conflict resolution

31  procedures pursuant to this act shall, by motion, request the

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  1  court to issue an order abating the case pursuant to this

  2  section.  All governmental entities are encouraged to use the

  3  procedures in this act to resolve conflicts that may occur at

  4  any time between governmental entities, but shall use these

  5  procedures before court proceedings, consistent with the

  6  provisions of this section.  The provisions of this act do not

  7  apply to administrative proceedings pursuant to chapter 120 or

  8  any appeal from any administrative or trial court judgment or

  9  decision.  Nothing in this act shall limit a governmental

10  entity from initiating and prosecuting eminent domain,

11  foreclosure, or other court proceedings where, as a function

12  of the nature of the suit, other governmental entities are

13  necessary parties, if there are no materially disputed issues

14  with regard to such joinder. Nothing in this act shall limit a

15  governmental entity from filing any counterclaim or

16  cross-claim in any litigation in which it is a defendant.

17  Nothing in this act is intended to abrogate other provisions

18  of law which provide procedures for challenges to specific

19  governmental actions, including, but not limited to,

20  comprehensive plan amendments and tax assessment challenges.

21  The provisions of this act shall not apply to conflicts

22  between governmental entities if an alternative dispute

23  resolution process, such as mediation or arbitration, is

24  specifically required by general law or agreed to by contract,

25  interlocal agreement, or other written instrument, or if the

26  governmental entities have reached an impasse during an

27  alternative dispute resolution process engaged in prior to the

28  initiation of court action.  Further, nothing in this act

29  shall preclude a governmental entity from filing a suit

30  without resort to the provisions of this act against any

31  federal or other governmental entity not governed by state

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  1  law. Nothing in this section shall be deemed to toll or waive

  2  jurisdictional time limits on specific pleadings or motions

  3  set forth in statute or court rules unless modified pursuant

  4  to s. 164.1061.

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

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

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

  8  action, or that significant legal rights will be compromised

  9  if a court proceeding does not take place before the

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

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

12  required before such a court proceeding.  If a water

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

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

15  water resources, and wildlife requires immediate declaratory

16  relief, or that significant legal rights will be compromised

17  if a court proceeding does not take place before the

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

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

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

21  upon motion, may review the justification for failure to

22  comply with the provisions of this act and make a

23  determination as to whether the provisions of this act should

24  be complied with prior to action by the court.  If the court

25  determines that the provisions of this act should be complied

26  with prior to court action and that following the provisions

27  of this act will not result in the compromise of significant

28  legal rights, the court shall abate the suit until the

29  provisions of this act are complied with.

30         Section 5.  Section 164.1051, Florida Statutes, is

31  created to read:

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  1         164.1051  Scope.--It is not the intent of this act to

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

  3  except that any administrative proceeding pursuant to chapter

  4  120 shall not be subject to this act. Pursuant to s. 164.1041,

  5  this act shall apply, at a minimum, to governmental conflicts

  6  arising from any of the following issues or processes,

  7  including, but not limited to:

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

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

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

11  service for public facilities and natural resource protection.

12         (2)  Municipal annexation.

13         (3)  Service provision areas.

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

15  other natural resources.

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

17  garbage collection facilities, silt disposal sites, or any

18  other locally unwanted land uses.

19         (6)  Governmental entity permitting processes.

20         (7)  Siting of elementary and secondary schools.

21         Section 6.  Section 164.1052, Florida Statutes, is

22  created to read:

23         164.1052  Initiation of conflict resolution procedure;

24  duty to give notice.--

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

26  initiate the conflict resolution procedures provided by this

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

28  resolution shall state that it is the intention of the

29  governing body to initiate the conflict resolution procedures

30  provided by this act prior to initiating court proceedings or

31  prosecuting action on a previously filed court proceeding to

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  1  resolve the conflict and shall specify the issues of conflict

  2  and the governmental entity or entities with which the

  3  governing body has a conflict. Within 5 days after the passage

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

  5  resolution shall be provided to the chief administrator of the

  6  governmental entity or entities with which the governing body

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

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

  9  governmental entities in conflict with the initiating

10  governmental entity, the justification for initiating the

11  conflict resolution process, the proposed date and location

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

13  164.1053, and suggestions regarding the officials who should

14  be present at the conflict assessment meeting. The initiating

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

16  resolution to any state, regional, or local governmental

17  entities which, in the determination of the initiating

18  governmental entity, may have a role in approving or

19  implementing a particular element or aspect of any settlement

20  of the conflict or whose substantial interests may be affected

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

22  entity deemed appropriate by the initiating governmental

23  entity.

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

25  certified letter noticing the initiation of the conflict

26  resolution procedure, other governmental entities receiving

27  the notice may elect to participate in the conflict resolution

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

29  to control the timing or progress of the conflict resolution

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

31  the primary conflicting governmental entities. However, a

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  1  governmental entity which receives notice of a conflict may,

  2  by passage of its own resolution and by otherwise following

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

  4  resolution process as a primary conflicting governmental

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

  6  conflict resolution process shall be communicated to the

  7  initiating governmental entity by certified mail. The joining

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

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

10  the determination of the joining governmental entity, may have

11  a role in approving or implementing a particular element or

12  aspect of any settlement of the conflict or whose substantial

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

14  and any other governmental entity deemed appropriate by the

15  joining governmental entity.

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

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

18  passage of a resolution by a governmental entity.

19         Section 7.  Section 164.1053, Florida Statutes, is

20  created to read:

21         164.1053  Conflict assessment phase.--

22         (1)  After the initiation of the conflict resolution

23  procedure, and after proper notice by certified letter has

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

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

26  receipt of the letter initiating the conflict resolution

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

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

29  meeting shall be scheduled to allow the attendance by the

30  appropriate personnel from each primary conflicting

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

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  1  designee, for each governmental entity that is a primary

  2  conflicting governmental entity in the conflict resolution

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

  4  conflict agree, the assistance of a facilitator may be

  5  enlisted for the conflict assessment meeting. During the

  6  conflict assessment meeting, the governmental entities shall

  7  discuss the issues pertaining to the conflict and an

  8  assessment of the conflict from the perspective of each

  9  governmental entity involved.

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

11  agreed upon by the representatives of the primary conflicting

12  governmental entities at the conflict assessment meeting, the

13  primary conflicting governmental entities may proceed with

14  whatever steps they deem appropriate to fully resolve the

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

16  additional meetings for informal negotiations or proposing a

17  resolution to the governing bodies of the primary conflicting

18  governmental entities.

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

20  agreed upon, the primary conflicting governmental entities

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

22  164.1055, which meeting shall occur within 50 days of the

23  receipt of the first letter initiating the conflict resolution

24  process from the initiating governmental entity.

25         (4)  After the conclusion of the conflict assessment

26  meeting, any primary conflicting governmental entity may

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

28         Section 8.  Section 164.1055, Florida Statutes, is

29  created to read:

30         164.1055  Joint public meeting.--

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  1         (1)  Failure to resolve a conflict after following

  2  authorized procedures as specified in s. 164.1053 shall

  3  require the scheduling of a joint public meeting between the

  4  primary conflicting governmental entities.  The governmental

  5  entity first initiating the conflict resolution process shall

  6  have the responsibility to schedule the joint public meeting

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

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

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

10  of the primary conflicting governmental entities shall:

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

12  conflict assessment phase.

13         (b)  Seek an agreement.

14         (c)  Schedule additional meetings of the entities in

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

16  resolution of the conflict.

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

18  conflicting governmental entities shall participate in

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

20  the primary conflicting governmental entities. The primary

21  conflicting governmental entities shall endeavor in good faith

22  to select a mutually acceptable mediator. If the primary

23  conflicting governmental entities are unable to mutually agree

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

25  the primary conflicting governmental entities shall arrange

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

27  conflict resolution organization, such as the Florida Conflict

28  Resolution Consortium, and shall agree to accept the

29  recommendation of that independent organization, or shall

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

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

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  1  Upon the selection of a mediator, the conflicting governmental

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

  3  shall issue a written agreement on the issues in conflict

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

  5  The written agreement shall not be admissible in any court

  6  proceeding concerning the conflict, except for proceedings to

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

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

  9  in the process in good faith.

10         Section 9.  Section 164.1056, Florida Statutes, is

11  created to read:

12         164.1056  Final resolution.--If there is failure to

13  resolve a conflict between governmental entities through the

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

15  participating in the dispute resolution process may avail

16  themselves of any otherwise available legal rights.

17         Section 10.  Section 164.1057, Florida Statutes, is

18  created to read:

19         164.1057  Execution of resolution of

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

21  passage of an ordinance, resolution, or interlocal agreement

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

23  conflict.

24         Section 11.  Section 164.104, Florida Statutes, is

25  renumbered as section 164.1058, Florida Statutes, and amended

26  to read:

27         164.1058 164.104  Penalty.--If a primary conflicting

28  governmental entity the governing body of a county or

29  municipality which has received notice of intent to initiate

30  the conflict resolution procedure pursuant to this act file a

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

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

  2  remedies provided for in this act, and the initiating

  3  governmental entity files suit and is the prevailing party in

  4  such suit, the primary disputing governmental entity which

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

  6  discuss the proposed litigation, the governing body shall be

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

  8  proceeding of the governmental entity which initiated the

  9  conflict resolution procedure county or municipality which has

10  filed suit.

11         Section 12.  Section 164.1061, Florida Statutes, is

12  created to read:

13         164.1061  Time extensions.--Any of the time

14  requirements set forth in this act may be extended to a date

15  certain by mutual agreement, in writing, of the primary

16  conflicting governmental entities.  To the extent such

17  agreement would cause any jurisdictional time requirements to

18  run with regard to a particular claim, the agreement shall

19  have the effect of extending any jurisdictional time

20  requirements with regard to that claim for the period set

21  forth in the agreement.

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

23  Florida Statutes, are hereby repealed.

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

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

26  applicable agreements or requirements of any contracts,

27  interlocal agreements, or other written instruments which are

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

29  extent that any contractual or other agreement provisions in

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

31

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  1  provisions of this act, the provisions in the written

  2  agreement shall control.

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