Senate Bill sb1392c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                           CS for SB 1392

    By the Committee on Comprehensive Planning





    316-2027-04

  1                      A bill to be entitled

  2         An act relating to community development

  3         districts; amending s. 190.012, F.S.; providing

  4         for the enforcement of deed restrictions in

  5         certain circumstances; amending s. 190.046,

  6         F.S.; providing for additional dissolution

  7         procedures; amending s. 190.006, F.S.;

  8         specifying procedures for selecting a chair at

  9         the initial landowners' meeting; specifying

10         requirements for proxy voting; requiring notice

11         of landowners' elections; specifying the terms

12         of certain supervisors; providing for

13         nonpartisan elections; specifying the time that

14         resident supervisors assume office; authorizing

15         the supervisor of elections to designate seat

16         numbers for resident supervisors of the board;

17         providing procedures for filing qualifying

18         papers; allowing candidates the option of

19         paying a filing fee to qualify for the

20         election; specifying payment requirements;

21         specifying the number of petition signatures

22         required to qualify for the election; requiring

23         the county canvassing board to certify the

24         results of resident elections; providing an

25         effective date.

26  

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

28  

29         Section 1.  Subsection (4) is added to section 190.012,

30  Florida Statutes, to read:

31  

                                  1

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1         190.012  Special powers; public improvements and

 2  community facilities.--The district shall have, and the board

 3  may exercise, subject to the regulatory jurisdiction and

 4  permitting authority of all applicable governmental bodies,

 5  agencies, and special districts having authority with respect

 6  to any area included therein, any or all of the following

 7  special powers relating to public improvements and community

 8  facilities authorized by this act:

 9         (4)(a)  To adopt rules necessary for the district to

10  enforce certain deed restrictions pertaining to the use and

11  operation of real property within the district. For the

12  purpose of this subsection, "deed restrictions" are those

13  covenants, conditions, and restrictions contained in any

14  applicable declarations of covenants and restrictions that

15  govern the use and operation of real property within the

16  district and, for which covenants, conditions, and

17  restrictions, there is no homeowners' association having

18  enforcement powers. The district may adopt by rule all or

19  certain portions of the deed restrictions that:

20         1.  Relate to limitations or prohibitions that apply

21  only to external structures and are deemed by the district to

22  be generally beneficial for the district's landowners and for

23  which enforcement by the district is appropriate, as

24  determined by the district's board of supervisors; or

25         2.  Are consistent with the requirements of a

26  development order or regulatory agency permit.

27         (b)  The board may vote to adopt such rules only when

28  all of the following conditions exist:

29         1.  The district's geographic area contains no

30  homeowners' associations as defined in s. 720.301(7);

31  

                                  2

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1         2.  The district was in existence on the effective date

 2  of this subsection, or is located within a development that

 3  consists of multiple developments of regional impact and a

 4  Florida Quality Development;

 5         3.  The majority of the board has been elected by

 6  qualified electors pursuant to the provisions of s. 190.006;

 7  and

 8         4.  The declarant in any applicable declarations of

 9  covenants and restrictions has provided the board with a

10  written agreement that such rules may be adopted.

11         (c)  Within 60 days after such rules taking effect, the

12  district shall record a notice of rule adoption stating

13  generally what rules were adopted and where a copy of the

14  rules may be obtained. Districts may impose fines for

15  violations of such rules and enforce such rules and fines in

16  circuit court through injunctive relief.

17         Section 2.  Section 190.046, Florida Statutes, is

18  amended to read:

19         190.046  Termination, contraction, or expansion of

20  district.--

21         (1)  The board may petition to contract or expand the

22  boundaries of a community development district in the

23  following manner:

24         (a)  The petition shall contain the same information

25  required by s. 190.005(1)(a)1. and 8.  In addition, if the

26  petitioner seeks to expand the district, the petition shall

27  describe the proposed timetable for construction of any

28  district services to the area, the estimated cost of

29  constructing the proposed services, and the designation of the

30  future general distribution, location, and extent of public

31  and private uses of land proposed for the area by the future

                                  3

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1  land use plan element of the adopted local government local

 2  comprehensive plan.  If the petitioner seeks to contract the

 3  district, the petition shall describe what services and

 4  facilities are currently provided by the district to the area

 5  being removed, and the designation of the future general

 6  distribution, location, and extent of public and private uses

 7  of land proposed for the area by the future land element of

 8  the adopted local government comprehensive plan.

 9         (b)  For those districts initially established by

10  county ordinance, the petition for ordinance amendment shall

11  be filed with the county commission.  If the land to be

12  included or excluded is, in whole or in part, within the

13  boundaries of a municipality, then the county commission shall

14  not amend the ordinance without municipal approval.  A public

15  hearing shall be held in the same manner and with the same

16  public notice as other ordinance amendments.  The county

17  commission shall consider the record of the public hearing and

18  the factors set forth in s. 190.005(1)(e) in making its

19  determination to grant or deny the petition for ordinance

20  amendment.

21         (c)  For those districts initially established by

22  municipal ordinance pursuant to s. 190.005(2)(e), the

23  municipality shall assume the duties of the county commission

24  set forth in paragraph (b); however, if any of the land to be

25  included or excluded, in whole or in part, is outside the

26  boundaries of the municipality, then the municipality shall

27  not amend its ordinance without county commission approval.

28         (d)1.  For those districts initially established by

29  administrative rule pursuant to s. 190.005(1), the petition

30  shall be filed with the Florida Land and Water Adjudicatory

31  Commission.

                                  4

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1         2.  Prior to filing the petition, the petitioner shall

 2  pay a filing fee of $1,500 to the county and to each

 3  municipality the boundaries of which are contiguous with or

 4  contain all or a portion of the land within the district or

 5  the proposed amendment, and submit a copy of the petition to

 6  the county and to each such municipality.  In addition, if the

 7  district is not the petitioner, the petitioner shall file the

 8  petition with the district board of supervisors.

 9         3.  The county and each municipality shall have the

10  option of holding a public hearing as provided by s.

11  190.005(1)(c). However, such public hearing shall be limited

12  to consideration of the contents of the petition and whether

13  the petition for amendment should be supported by the county

14  or municipality.

15         4.  The district board of supervisors shall, in lieu of

16  a hearing officer, hold the local public hearing provided for

17  by s. 190.005(1)(d).  This local public hearing shall be

18  noticed in the same manner as provided in s. 190.005(1)(d).

19  Within 45 days of the conclusion of the hearing, the district

20  board of supervisors shall transmit to the Florida Land and

21  Water Adjudicatory Commission the full record of the local

22  hearing, the transcript of the hearing, any resolutions

23  adopted by the local general-purpose governments, and its

24  recommendation whether to grant the petition for amendment.

25  The commission shall then proceed in accordance with s.

26  190.005(1)(e).

27         5.  A rule amending a district boundary shall describe

28  the land to be added or deleted.

29         (e)  In all cases, written consent of all the

30  landowners whose land is to be added to or deleted from the

31  district shall be required. The filing of the petition for

                                  5

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1  expansion or contraction by the district board of supervisors

 2  shall constitute consent of the landowners within the district

 3  other than of landowners whose land is proposed to be added to

 4  or removed from the district.

 5         (f)1.  During the existence of a district initially

 6  established by administrative rule, petitions to amend the

 7  boundaries of the district pursuant to paragraphs (a)-(e)

 8  shall be limited to a cumulative total of no more than 10

 9  percent of the land in the initial district, and in no event

10  shall all such petitions to amend the boundaries ever

11  encompass more than a total of 250 acres.

12         2.  For districts initially established by county or

13  municipal ordinance, the limitation provided by this paragraph

14  shall be a cumulative total of no more than 50 percent of the

15  land in the initial district, and in no event shall all such

16  petitions to amend the boundaries ever encompass more than a

17  total of 500 acres.

18         3.  Boundary expansions for districts initially

19  established by county or municipal ordinance shall follow the

20  procedure set forth in paragraph (b) or paragraph (c).

21         (g)  Petitions to amend the boundaries of the district

22  which exceed the amount of land specified in paragraph (f)

23  shall be considered petitions to establish a new district and

24  shall follow all of the procedures specified in s. 190.005.

25         (2)  The district shall remain in existence unless:

26         (a)  The district is merged with another district as

27  provided in subsection (3);

28         (b)  All of the specific community development systems,

29  facilities, and services that it is authorized to perform have

30  been transferred to a general-purpose unit of local government

31  in the manner provided in subsections (4), (5), and (6); or

                                  6

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1         (c)  The district is dissolved as provided in

 2  subsection (7), or subsection (8), or subsection (9).

 3         (3)  The district may merge with other community

 4  development districts upon filing a petition for establishment

 5  of a community development district pursuant to s. 190.005 or

 6  may merge with any other special districts upon filing a

 7  petition for establishment of a community development district

 8  pursuant to s. 190.005.  The government formed by a merger

 9  involving a community development district pursuant to this

10  section shall assume all indebtedness of, and receive title

11  to, all property owned by the preexisting special districts.

12  Prior to filing said petition, the districts desiring to merge

13  shall enter into a merger agreement and shall provide for the

14  proper allocation of the indebtedness so assumed and the

15  manner in which said debt shall be retired. The approval of

16  the merger agreement by the board of supervisors elected by

17  the electors of the district shall constitute consent of the

18  landowners within the district.

19         (4)  The local general-purpose government within the

20  geographical boundaries of which the district lies may adopt a

21  nonemergency ordinance providing for a plan for the transfer

22  of a specific community development service from a district to

23  the local general-purpose government.  The plan must provide

24  for the assumption and guarantee of the district debt that is

25  related to the service by the local general-purpose government

26  and must demonstrate the ability of the local general-purpose

27  government to provide such service:

28         (a)  As efficiently as the district.

29         (b)  At a level of quality equal to or higher than the

30  level of quality actually delivered by the district to the

31  users of the service.

                                  7

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1         (c)  At a charge equal to or lower than the actual

 2  charge by the district to the users of the service.

 3         (5)  No later than 30 days following the adoption of a

 4  transfer plan ordinance, the board of supervisors may file, in

 5  the circuit court for the county in which the local

 6  general-purpose government that adopted the ordinance is

 7  located, a petition seeking review by certiorari of the

 8  factual and legal basis for the adoption of the transfer plan

 9  ordinance.

10         (6)  Upon the transfer of all of the community

11  development services of the district to a general-purpose unit

12  of local government, the district shall be terminated in

13  accordance with a plan of termination which shall be adopted

14  by the board of supervisors and filed with the clerk of the

15  circuit court.

16         (7)  If, within 5 years after the effective date of the

17  rule or ordinance establishing creating the district, a

18  landowner has not received a development permit, as defined in

19  chapter 380, on some part or all of the area covered by the

20  district, then the district will be automatically dissolved

21  and a judge of the circuit court shall cause a statement to

22  that effect to be filed in the public records.

23         (8)  In the event the district has become inactive

24  pursuant to s. 189.4044, the respective board of county

25  commissioners or city commission shall be informed and it

26  shall take appropriate action.

27         (9)  If a district has no outstanding financial

28  obligations and no operating or maintenance responsibilities,

29  upon the petition of the district, the district may be

30  dissolved by a nonemergency ordinance of the general-purpose

31  local governmental entity that established the district or, if

                                  8

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1  the district was established by rule of the Florida Land and

 2  Water Adjudicatory Commission, the district may be dissolved

 3  by repeal of such rule of the commission.

 4         Section 3.  Section 190.006, Florida Statutes, is

 5  amended to read:

 6         190.006  Board of supervisors; members and meetings.--

 7         (1)  The board of the district shall exercise the

 8  powers granted to the district pursuant to this act. The board

 9  shall consist of five members; except as otherwise provided

10  herein, each member shall hold office for a term of 2 years or

11  4 years, as provided in this section, and until a successor is

12  chosen and qualifies.  The members of the board must be

13  residents of the state and citizens of the United States.

14         (2)(a)  Within 90 days following the effective date of

15  the rule or ordinance establishing the district, there shall

16  be held a meeting of the landowners of the district for the

17  purpose of electing five supervisors for the district.  Notice

18  of the landowners' meeting shall be published once a week for

19  2 consecutive weeks in a newspaper which is in general

20  circulation in the area of the district, the last day of such

21  publication to be not fewer than 14 days or more than 28 days

22  before the date of the election.  The landowners, when

23  assembled at such meeting, shall organize by electing a chair

24  who shall conduct the meeting. The chair may be any person

25  present at the meeting. If the chair is a landowner or proxy

26  holder of a landowner, he or she may nominate candidates and

27  make and second motions.

28         (b)  At such meeting, each landowner shall be entitled

29  to cast one vote per acre of land owned by him or her and

30  located within the district for each person to be elected.  A

31  landowner may vote in person or by proxy in writing. Each

                                  9

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1  proxy must be signed by one of the legal owners of the

 2  property for which the vote is cast and must contain the typed

 3  or printed name of the individual who signed the proxy; the

 4  street address, legal description of the property, or tax

 5  parcel identification number; and the number of authorized

 6  votes. If the proxy authorizes more than one vote, each

 7  property must be listed and the number of acres of each

 8  property must be included. The signature on a proxy need not

 9  be notarized. A fraction of an acre shall be treated as 1

10  acre, entitling the landowner to one vote with respect

11  thereto.  The two candidates receiving the highest number of

12  votes shall be elected for a period of 4 years, and the three

13  candidates receiving the next largest number of votes shall be

14  elected for a period of 2 years, with the term of office for

15  each successful candidate commencing upon election. The

16  members of the first board elected by landowners shall serve

17  their respective 4-year or 2-year terms; however, the next

18  election by landowners shall be held on the first Tuesday in

19  November. Thereafter, there shall be an election of

20  supervisors for the district every 2 years in November on a

21  date established by the board and noticed pursuant to

22  paragraph (a). The second and subsequent landowners' election

23  shall be announced at a public meeting of the board at least

24  90 days prior to the date of the landowners' meeting and shall

25  also be noticed pursuant to paragraph (a). Instructions on how

26  all landowners may participate in the election, along with

27  sample proxies, shall be provided during the board meeting

28  that announces the landowners' meeting. The two candidates

29  receiving the highest number of votes shall be elected to

30  serve for a 4-year period, and the remaining candidate elected

31  shall serve for a 2-year period.

                                  10

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1         (3)(a)1.  If the board proposes to exercise the ad

 2  valorem taxing power authorized by s. 190.021, the district

 3  board shall call an election at which the members of the board

 4  of supervisors will be elected.  Such election shall be held

 5  in conjunction with a primary or general election unless the

 6  district bears the cost of a special election.  Each member

 7  shall be elected by the qualified electors of the district for

 8  a term of 4 years, except that, at the first such election,

 9  three members shall be elected for a period of 4 years and two

10  members shall be elected for a period of 2 years.  All elected

11  board members must be qualified electors of the district.

12         2.a.  Regardless of whether a district has proposed to

13  levy ad valorem taxes, commencing 6 years after the initial

14  appointment of members or, for a district exceeding 5,000

15  acres in area, 10 years after the initial appointment of

16  members, the position of each member whose term has expired

17  shall be filled by a qualified elector of the district,

18  elected by the qualified electors of the district.  However,

19  for those districts established after June 21, 1991, and for

20  those existing districts established after December 31, 1983,

21  which have less than 50 qualified electors on June 21, 1991,

22  sub-subparagraphs b. and c. shall apply.

23         b.  For those districts to which this sub-subparagraph

24  applies If, in the 6th year after the initial appointment of

25  members, or 10 years after such initial appointment for

26  districts exceeding 5,000 acres in area, there are not at

27  least 250 qualified electors in the district, or for a

28  district exceeding 5,000 acres, there are not at least 500

29  qualified electors, members of the board shall continue to be

30  elected by landowners.

31  

                                  11

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1         b.  After the 6th or 10th year, once a district reaches

 2  250 or 500 qualified electors, respectively, then the position

 3  of two board members whose terms are expiring shall be filled

 4  by qualified electors of the district, elected by the

 5  qualified electors of the district for 4-year terms.  One of

 6  these board members shall serve a 2-year term, and the other a

 7  4-year term.  The remaining board member whose term is

 8  expiring shall be elected for a 4-year term by the landowners

 9  and is not required to be a qualified elector. Thereafter, as

10  terms expire, board members shall be qualified electors

11  elected by qualified electors of the district for a term of 4

12  years.

13         c.  On or before July 15 of each year, the board shall

14  determine the number of qualified electors in the district as

15  of the immediately preceding June 1.  The board shall use and

16  rely upon the official records maintained by the supervisor of

17  elections and property appraiser or tax collector in each

18  county in making this determination.  Such determination shall

19  be made at a properly noticed meeting of the board and shall

20  become a part of the official minutes of the district.

21         (b)  Elections of board members by qualified electors

22  held pursuant to this subsection shall be nonpartisan and

23  shall be conducted in the manner prescribed by law for holding

24  general elections. Board members shall assume the office on

25  the second Tuesday following their election.

26         (c)  Candidates seeking election to office by qualified

27  electors under this subsection shall conduct their campaigns

28  in accordance with the provisions of chapter 106 and shall

29  file qualifying papers and qualify for individual seats in

30  accordance with s. 99.061. Candidates shall pay a qualifying

31  fee, which shall consist of a filing fee and an election

                                  12

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1  assessment or, as an alternative, shall file a petition signed

 2  by not less than 1 percent of the registered voters of the

 3  district, Candidates shall file petitions, and take the oath

 4  required in s. 99.021, with the supervisor of elections in the

 5  county affected by such candidacy. The amount of the filing

 6  fee is 3 percent of $4,800; however, if the electors have

 7  provided for compensation pursuant to subsection (8), the

 8  amount of the filing fee is 3 percent of the maximum annual

 9  compensation so provided. The amount of the election

10  assessment is 1 percent of $4,800; however, if the electors

11  have provided for compensation pursuant to subsection (8), the

12  amount of the election assessment is 1 percent of the maximum

13  annual compensation so provided. The filing fee and election

14  assessment shall be distributed as provided in s. 105.031(3).

15         (d)  The supervisor of elections shall appoint the

16  inspectors and clerks of elections, prepare and furnish the

17  ballots, designate polling places, and canvass the returns of

18  the election of board members by qualified electors.  The

19  county canvassing board of county commissioners shall declare

20  and certify the results of the election.

21         (4)  Members of the board shall be known as supervisors

22  and, upon entering into office, shall take and subscribe to

23  the oath of office as prescribed by s. 876.05.  They shall

24  hold office for the terms for which they were elected or

25  appointed and until their successors are chosen and qualified.

26  If, during the term of office, a vacancy occurs, the remaining

27  members of the board shall fill the vacancy by an appointment

28  for the remainder of the unexpired term.

29         (5)  A majority of the members of the board constitutes

30  a quorum for the purposes of conducting its business and

31  exercising its powers and for all other purposes.  Action

                                  13

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1  taken by the district shall be upon a vote of a majority of

 2  the members present unless general law or a rule of the

 3  district requires a greater number.

 4         (6)  As soon as practicable after each election or

 5  appointment, the board shall organize by electing one of its

 6  members as chair and by electing a secretary, who need not be

 7  a member of the board, and such other officers as the board

 8  may deem necessary.

 9         (7)  The board shall keep a permanent record book

10  entitled "Record of Proceedings of ...(name of district)...

11  Community Development District," in which shall be recorded

12  minutes of all meetings, resolutions, proceedings,

13  certificates, bonds given by all employees, and any and all

14  corporate acts.  The record book shall at reasonable times be

15  opened to inspection in the same manner as state, county, and

16  municipal records pursuant to chapter 119.  The record book

17  shall be kept at the office or other regular place of business

18  maintained by the board in the county or municipality in which

19  the district is located or within the boundaries of a

20  development of regional impact or Florida Quality Development,

21  or combination of a development of regional impact and Florida

22  Quality Development, which includes the district.

23         (8)  Each supervisor shall be entitled to receive for

24  his or her services an amount not to exceed $200 per meeting

25  of the board of supervisors, not to exceed $4,800 per year per

26  supervisor, or an amount established by the electors at

27  referendum.  In addition, each supervisor shall receive travel

28  and per diem expenses as set forth in s. 112.061.

29         (9)  All meetings of the board shall be open to the

30  public and governed by the provisions of chapter 286.

31  

                                  14

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






    Florida Senate - 2004                           CS for SB 1392
    316-2027-04




 1         Section 4.  This act shall take effect upon becoming a

 2  law.

 3  

 4          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 5                         Senate Bill 1392

 6                                 

 7  The CS differs from the bill as filed in that it amends s.
    190.012, F.S., to allow certain CDD governing boards to
 8  enforce deed restrictions in specified circumstances.

 9  

10  

11  

12  

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  15

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