Senate Bill sb2874
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Florida Senate - 2004 SB 2874
By Senator Bennett
21-1582-04
1 A bill to be entitled
2 An act relating to financing public facilities;
3 providing a short title; providing legislative
4 policy; defining terms; authorizing local
5 governments, by ordinance, to impose an impact
6 fee as a condition of a development order;
7 providing requirements for the contents of the
8 ordinance; providing restrictions on the
9 imposition, any increase in the amount, and the
10 expenditure of impact fees; requiring that
11 certain credits be given against the payment of
12 impact fees; requiring the refund of impact
13 fees that have been collected but not
14 encumbered within a reasonable time period;
15 providing accounting requirements; providing
16 for administrative appeals; providing rights of
17 a developer who pays an impact fee during the
18 pendency of an appeal; providing for voluntary
19 binding arbitration; providing rights of
20 property owners, developers, and governmental
21 entities; providing that this act does not
22 repeal existing laws or ordinances; providing
23 that existing ordinances must comply with the
24 act by a specified date; creating s. 201.032,
25 F.S.; allowing county governing authorities, by
26 ordinance, to levy a surtax on deeds and other
27 documents taxed under s. 201.02, F.S.;
28 establishing a maximum rate of the surtax;
29 requiring the grantor to pay the surtax;
30 exempting certain documents from the surtax;
31 providing that the surtax must be approved by
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1 referendum or adopted by extraordinary vote of
2 the governing authority; requiring the
3 governing authority to notify the Department of
4 Revenue of an imposition, termination, or rate
5 change of the surtax; restricting the effective
6 dates for imposing a surtax or changing the tax
7 rate; requiring a ballot statement and
8 providing a format; providing for the use of
9 surtax proceeds; requiring the Department of
10 Revenue to administer the surtax and providing
11 for administrative costs of the department;
12 exempting the surtax from s. 201.15, F.S.;
13 restricting uses of the surtax proceeds;
14 requiring a report to the Department of
15 Financial Services; restricting the imposition
16 or increase of an impact fee if the governing
17 authority imposes the surtax; providing an
18 effective date.
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20 Be It Enacted by the Legislature of the State of Florida:
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22 Section 1. Short title.--Sections 1 through 8 of this
23 act may be cited as the "Florida Impact Fee Act."
24 Section 2. Policy.--The Legislature finds that an
25 equitable program for planning and financing public facilities
26 needed to serve new growth and development is necessary in
27 order to promote and accommodate orderly growth and
28 development and to protect the public health, safety, and
29 welfare of the residents of this state. Therefore, it is the
30 intent of the Legislature that this act:
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1 (1) Ensure that adequate public facilities are
2 available to serve new growth and development.
3 (2) Promote orderly growth and development by
4 codifying the minimum standards required for the adoption of
5 an impact fee ordinance by a local government as provided for
6 in case law.
7 (3) Ensure that new growth and development is required
8 to pay no more than its proportionate share of the cost of any
9 public facilities necessary to accommodate a development
10 project.
11 (4) Ensure that funds collected under an impact fee
12 ordinance are expended to provide a benefit for those who have
13 paid the fee.
14 Section 3. Definitions.--As used in this act, the
15 term:
16 (1) "Developer" means a person or legal entity that
17 undertakes development.
18 (2) "Development" means a construction of a building
19 or structure, a change in the use of a building or structure,
20 or a change in the use of land, any of which creates
21 additional demand and need for public facilities by having an
22 impact on the capacity of a public facility and thereby
23 creating a need for improvements to the public facility.
24 (3) "Development order" means the approval of a
25 development by a municipality or county that authorizes the
26 commencement of development.
27 (4) "Impact fee" means any payment of money imposed
28 upon development as a condition to granting a development
29 order and to pay for a proportionate share of the cost of
30 system improvements needed to serve new growth and
31 development. The term "impact fee" does not include a fee
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1 levied under any statutory authority other than sections 1-8
2 of this act.
3 (5) "Local government" means a municipality or county,
4 or a special district that has authorization under its
5 enabling legislation to impose an impact fee.
6 (6) "Proportionate share" means that portion of the
7 cost of system improvements which results from the service
8 demands created by a development project and the expenditure
9 of which provides a benefit to those who paid the impact fee.
10 (7) "Public facility" or "public facilities" has the
11 same meaning as in section 163.3164, Florida Statutes.
12 (8) "System improvement" means a capital improvement
13 that is a public facility and is designed to provide service
14 to the community.
15 (9) "System improvement costs" means costs incurred to
16 provide additional public facilities capacity needed to serve
17 new growth and development, including the cost of
18 construction, reconstruction, or expansion of such facilities;
19 design, surveying, and engineering fees and related land
20 acquisition costs, including land purchases, court awards and
21 costs, attorney's fees, and expert witness fees; expenses
22 incurred for qualified staff or a qualified engineer, planner,
23 architect, landscape architect, or financial consultant for
24 preparing or updating the capital improvement element; and
25 ongoing administrative costs. Financing costs for the
26 retirement of bonds, notes, or other financial obligations
27 issued by or on behalf of a local government to finance system
28 improvements may be included as system improvement costs only
29 to the extent that these costs are directly related to the
30 provision of additional public facilities capacity.
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1 Section 4. Authorization; notice and hearing
2 requirements; minimum standards and requirements for impact
3 fee ordinances.--
4 (1) A local government may, by ordinance, impose an
5 impact fee as a condition of a development order in accordance
6 with this act. The ordinance must be adopted under the notice
7 and hearing provisions of section 125.66(2)(a), Florida
8 Statutes, for a county or section 166.041(3)(a), Florida
9 Statutes, for a municipality.
10 (2) An impact fee ordinance may exempt all or part of
11 a development from impact fees. If the ordinance provides for
12 an exemption from impact fees, the ordinance must also specify
13 criteria for the exemption.
14 (3) An impact fee ordinance may not provide for the
15 imposition of an impact fee to remedy existing deficiencies.
16 (4) A local government may impose an impact fee only
17 if it can show a rational nexus between the need for
18 additional public facilities and the development.
19 (5) An impact fee ordinance must require that impact
20 fees be spent only for the category of system improvements for
21 which the fees were collected and that the improvements must
22 provide a benefit to those who have paid the fees.
23 (6) An impact fee may not exceed a proportionate share
24 of the cost of system improvements.
25 (7) An impact fee ordinance must include a schedule of
26 impact fees which specifies the fee for each public facility.
27 (8) An impact fee ordinance must provide for a process
28 that allows a developer to receive a certification of the
29 application of the impact fee schedule or individual
30 assessment to a development project. The certification must
31 establish that the impact fee may not be increased for 1 year
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1 for that development project or for a longer period if the
2 local government determines that a longer construction period
3 warrants an extension.
4 (9) An impact fee ordinance must include a provision
5 for credits against the payment of impact fees. In calculating
6 an impact fee for a development project, credit must be given
7 for the present value of any construction of system
8 improvements or contribution or dedication of land or money
9 required or accepted by a local government from a developer or
10 the developer's predecessor in title or interest for system
11 improvements for which the impact fee is being collected. In
12 addition, credit must be given for any state or federal funds
13 received by the local government for system improvements.
14 (10) A local government that adopts an impact fee
15 ordinance shall provide a process for refunding impact fees
16 that have been collected but not encumbered within a
17 reasonable period of time, not to exceed 8 years. Any refund
18 must be paid to the current owner and must include the unused
19 or excess development impact fee collected from the developer
20 plus the interest earned on those moneys.
21 Section 5. Allocation and expenditure of collected
22 impact fees.--
23 (1) An ordinance that imposes impact fees must require
24 any impact fees that are collected to be maintained in one or
25 more interest-bearing accounts. Accounting records must be
26 maintained for each category of system improvements. Interest
27 earned on impact fees must be considered funds of the account
28 on which it is earned and is subject to all restrictions
29 placed on the use of impact fees under this act.
30 (2) A local government that imposes an impact fee
31 shall keep records that identify the amount of any development
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1 impact fees collected and how those fees were encumbered or
2 expended during the preceding year for each category of system
3 improvements.
4 Section 6. Appeals.--
5 (1) A local government that adopts an impact fee
6 ordinance may provide for an administrative appeal to its
7 governing body, or to such other body as is designated in the
8 ordinance, of a determination of the amount of the impact fee
9 for a development project or an appeal of an interpretation of
10 the fee. An administrative appeal under this section does not
11 affect the availability of other legal remedies.
12 (2) A developer may pay an impact fee to obtain a
13 development order during the pendency of an appeal under
14 subsection (1). However, if the developer has filed an appeal,
15 the developer may not be estopped from pursuing the appeal
16 under subsection (1) as a result of paying the impact fee. In
17 addition, the developer is entitled to a refund if it is
18 determined through the appeals process provided in subsection
19 (1) that the impact fee at issue violates this act.
20 (3) An impact fee ordinance may provide for the
21 resolution of disputes over an impact fee through voluntary
22 binding arbitration with a mutually agreed-upon arbitrator.
23 Section 7. Other powers and rights.--This act does not
24 prevent or prohibit agreements between property owners or
25 developers and local governments or other governmental
26 entities regarding the construction or installation of system
27 improvements and providing for credits or reimbursements for
28 system improvement costs incurred by a developer, including
29 interproject transfers of credits, or providing for
30 reimbursement for project improvement costs that are used or
31 shared by more than one development project.
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1 Section 8. Transition.--This act does not repeal any
2 existing laws or ordinances authorizing a local government to
3 impose impact fees or to require contributions or property
4 dedications for capital improvements. However, an existing
5 ordinance that is not in compliance with this act must be
6 brought into compliance with this act by October 1, 2005.
7 Section 9. Section 201.032, Florida Statutes, is
8 created to read:
9 201.032 Local option real estate transfer surtax on
10 deeds; conditions of levy; use of proceeds.--
11 (1) Subject to subsections (9) and (10), the governing
12 authority of a county may levy a surtax on documents that are
13 taxed under s. 201.02, at a rate not exceeding 5 cents on each
14 $100 or fractional part thereof of the consideration for the
15 real estate or interest therein. The grantor of the real
16 estate or interest therein shall pay the surtax. However, the
17 surtax may not be levied on the document that conveys a
18 specific interest in real property in this state for the first
19 time following July 1, 2004. Subsequent documents conveying
20 the same interest are subject to the surtax.
21 (2) The levy of the surtax shall be pursuant to an
22 ordinance conditioned to take effect only upon approval by a
23 majority vote of the electors of the county voting in a
24 referendum or pursuant to an ordinance enacted by an
25 extraordinary vote of the governing authority of the county.
26 The governing authority of the county must hold a public
27 hearing at least 2 weeks before the formal adoption of the
28 ordinance.
29 (3) The governing authority of the county shall notify
30 the Department of Revenue within 10 days after final adoption
31 by ordinance or referendum of an imposition, termination, or
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1 rate change of the surtax. The notice must specify the period
2 during which the surtax will be in effect and the rate of the
3 surtax and must include a copy of the ordinance and such other
4 information as the department requires by rule. Failure to
5 timely provide such notification to the department shall
6 result in the delay of the effective date of the surtax for a
7 period of 1 year. A surtax or an increase or decrease in the
8 rate of the surtax must take effect on January 1 and must
9 terminate on December 31.
10 (4) If the surtax is conditioned to take effect only
11 upon approval by a majority vote of the electors of the county
12 voting in a referendum, the county governing authority shall
13 place on the ballot a statement that includes a brief general
14 description of the projects to be funded by the surtax and
15 that conforms to the requirements of s. 101.161 and reads as
16 follows:
17 _____FOR the surtax
18 _____AGAINST the surtax
19 (5) Proceeds of the surtax may be used only to provide
20 infrastructure necessary to implement adopted local government
21 comprehensive plans. As used in this subsection, the term
22 "infrastructure" means any fixed capital expenditure or fixed
23 capital outlay associated with the construction,
24 reconstruction, or improvement of public facilities that have
25 a life expectancy of 5 or more years and any land acquisition,
26 land improvement, design, and engineering costs related
27 thereto.
28 (6) Proceeds of the surtax may be pledged by the
29 governing authority of the county to pay principal and
30 interest on bonds issued for the provision of infrastructure
31 pursuant to subsection (5). If the proceeds are pledged to
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1 secure principal and interest due on such bonds, the pledge
2 constitutes a valid and legally binding contract between the
3 governing authority of the county and the bondholders, and the
4 governing authority of the county must continue to levy the
5 surtax as long as any bonds are outstanding.
6 (7) The Department of Revenue shall administer the
7 surtax pursuant to s. 201.11. Section 201.15 does not apply to
8 this surtax. A portion of the tax proceeds, not to exceed 1
9 percent, may be used to pay the department's cost of
10 collection and enforcement of the surtax.
11 (8) The governing authority of a county that receives
12 the proceeds of the surtax authorized by this section may not
13 apply the proceeds of the surtax, or any other funds
14 designated as capital outlay funds, to operating costs. Each
15 governing authority of the county that levies a surtax shall,
16 within 90 days after the close of its fiscal year, submit to
17 the Department of Financial Services a financial report that
18 contains information showing the use of the surtax proceeds.
19 (9) If the governing authority of a county does not
20 impose an impact fee pursuant to section 4 of this act and
21 chooses to levy the surtax pursuant to this section, the
22 governing authority of the county may not levy any impact fee
23 until the ordinance imposing this surtax has been rescinded
24 and all obligations against which the surtax revenues have
25 been pledged are satisfied.
26 (10) If the governing authority of a county imposes a
27 surtax pursuant to this section, the governing authority may
28 not increase the rate of any impact fee imposed pursuant to
29 section 4 of this act beyond the rate imposed on January 1,
30 2003, and may not impose an additional impact fee until the
31 ordinance imposing this surtax has been rescinded and all
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1 obligations against which the surtax revenues have been
2 pledged are satisfied.
3 Section 10. This act shall take effect July 1, 2004.
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6 SENATE SUMMARY
7 Provides for local governments to finance public
facilities that are needed to serve new growth and
8 development by levying impact fees or a surtax on certain
documents. (See bill for details.)
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