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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    Florida Senate - 2004                                  SB 2874
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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.
 4  
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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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