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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    Florida Senate - 2004                                  SB 2874
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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.

19  

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

21  

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:

31  

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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.

31  

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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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    Florida Senate - 2004                                  SB 2874
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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.

 4  

 5            *****************************************

 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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