Senate Bill sb0716c2

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    Florida Senate - 2005                     CS for CS for SB 716

    By the Committees on Environmental Preservation; Community
    Affairs; and Senators Argenziano and Haridopolos




    592-2275-05

  1                      A bill to be entitled

  2         An act relating to agricultural economic

  3         development; amending s. 70.001, F.S.; reducing

  4         the period within which an owner of

  5         agricultural land must provide notice of a

  6         claim prior to filing an action against a

  7         governmental entity regarding private property

  8         rights; amending s. 163.3162, F.S.; providing

  9         for application for an amendment to the local

10         comprehensive plan by the owner of land that

11         meets certain provisions of the definition of

12         an agricultural enclave; providing requirements

13         relating to such applications; exempting

14         certain amendments from specified rules of the

15         Department of Community Affairs under certain

16         circumstances; amending s. 163.3164, F.S.;

17         defining the term "agricultural enclave" for

18         purposes of the Local Government Comprehensive

19         Planning and Land Development Regulation Act;

20         creating s. 259.047, F.S.; providing

21         requirements relating to the purchase of land

22         on which an agricultural lease exists; amending

23         s. 373.0361, F.S.; providing for recognition

24         that alternative water-source options for

25         agricultural self-suppliers are limited;

26         amending s. 373.2234, F.S.; conforming a

27         cross-reference; amending s. 373.236, F.S.;

28         requiring water management districts to inform

29         landowners of the option to obtain certain

30         consumptive use permits; creating s. 373.407,

31         F.S.; providing for memoranda of agreement

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 1         regarding qualification for

 2         agricultural-related exemptions; providing an

 3         effective date.

 4  

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

 6  

 7         Section 1.  Paragraphs (a) and (c) of subsection (4)

 8  and paragraph (a) of subsection (5) of section 70.001, Florida

 9  Statutes, are amended to read:

10         70.001  Private property rights protection.--

11         (4)(a)  Not less than 180 days prior to filing an

12  action under this section against a governmental entity, a

13  property owner who seeks compensation under this section must

14  present the claim in writing to the head of the governmental

15  entity, except that if the property is classified as

16  agricultural pursuant to s. 193.461, the notice period is 90

17  days. The property owner must submit, along with the claim, a

18  bona fide, valid appraisal that supports the claim and

19  demonstrates the loss in fair market value to the real

20  property.  If the action of government is the culmination of a

21  process that involves more than one governmental entity, or if

22  a complete resolution of all relevant issues, in the view of

23  the property owner or in the view of a governmental entity to

24  whom a claim is presented, requires the active participation

25  of more than one governmental entity, the property owner shall

26  present the claim as provided in this section to each of the

27  governmental entities.

28         (c)  During the 90-day-notice period or the

29  180-day-notice period, unless extended by agreement of the

30  parties, the governmental entity shall make a written

31  settlement offer to effectuate:

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 1         1.  An adjustment of land development or permit

 2  standards or other provisions controlling the development or

 3  use of land.

 4         2.  Increases or modifications in the density,

 5  intensity, or use of areas of development.

 6         3.  The transfer of developmental rights.

 7         4.  Land swaps or exchanges.

 8         5.  Mitigation, including payments in lieu of onsite

 9  mitigation.

10         6.  Location on the least sensitive portion of the

11  property.

12         7.  Conditioning the amount of development or use

13  permitted.

14         8.  A requirement that issues be addressed on a more

15  comprehensive basis than a single proposed use or development.

16         9.  Issuance of the development order, a variance,

17  special exception, or other extraordinary relief.

18         10.  Purchase of the real property, or an interest

19  therein, by an appropriate governmental entity.

20         11.  No changes to the action of the governmental

21  entity.

22  

23  If the property owner accepts the settlement offer, the

24  governmental entity may implement the settlement offer by

25  appropriate development agreement; by issuing a variance,

26  special exception, or other extraordinary relief; or by other

27  appropriate method, subject to paragraph (d).

28         (5)(a)  During the 90-day-notice period or the

29  180-day-notice period, unless a settlement offer is accepted

30  by the property owner, each of the governmental entities

31  provided notice pursuant to paragraph (4)(a) shall issue a

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 1  written ripeness decision identifying the allowable uses to

 2  which the subject property may be put.  The failure of the

 3  governmental entity to issue a written ripeness decision

 4  during the applicable 90-day-notice period or 180-day-notice

 5  period shall be deemed to ripen the prior action of the

 6  governmental entity, and shall operate as a ripeness decision

 7  that has been rejected by the property owner.  The ripeness

 8  decision, as a matter of law, constitutes the last

 9  prerequisite to judicial review, and the matter shall be

10  deemed ripe or final for the purposes of the judicial

11  proceeding created by this section, notwithstanding the

12  availability of other administrative remedies.

13         Section 2.  Subsection (5) is added to section

14  163.3162, Florida Statutes, to read:

15         163.3162  Agricultural Lands and Practices Act.--

16         (5)(a)  The owner of a parcel of land defined as an

17  agricultural enclave under s. 163.3164(32)(e)1. may apply for

18  an amendment to the local government comprehensive plan

19  pursuant to s. 163.3187.  Such amendment is not subject to

20  rule 9J-5.006(5), Florida Administrative Code, and may include

21  land uses and intensities of use that are consistent with the

22  uses and intensities of use of the industrial, commercial, or

23  residential areas that surround the parcel.  The local

24  government shall make a determination regarding transmittal of

25  such amendment within 120 days after receipt of a complete

26  application for the amendment and transmit the amendment to

27  the state land planning agency for review pursuant to s.

28  163.3184 at the first available transmittal cycle.  The state

29  land planning agency may not use any provision of rule

30  9J-5.006(5), Florida Administrative Code, as a factor in

31  determining compliance of an amendment under this paragraph.

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 1         (b)  In order to preserve commercial agricultural

 2  activity, encourage mixed-use infill development, prevent

 3  urban sprawl, and provide more efficient delivery of municipal

 4  services and facilities, the owner of a parcel of land defined

 5  as an agricultural enclave under s. 163.3164(32)(e)2. may

 6  apply for an amendment to the local government comprehensive

 7  plan pursuant to s. 163.3187. Such amendment is not subject to

 8  rule 9J-5.006(5), Florida Administrative Code, and may include

 9  land uses and intensities of use that are consistent with the

10  uses and intensities of use of the industrial, commercial, or

11  residential areas that surround the parcel.  Each application

12  for a comprehensive plan amendment under this paragraph must

13  include appropriate new urbanism concepts such as clustering,

14  mixed-use development, the creation of rural village and city

15  centers, and the transfer of development rights in order to

16  discourage urban sprawl while protecting landowner rights.

17         1.  The local government and the owner of a parcel of

18  land that is the subject of an application for an amendment

19  under this paragraph have 180 days following the date that the

20  local government receives a complete application to negotiate

21  in good faith to reach consensus on the land uses and

22  intensities of use that are consistent with the uses and

23  intensities of use of the industrial, commercial, or

24  residential areas that surround the parcel.  Within 30 days

25  after the local government's receipt of such an application,

26  the local government and owner must agree in writing to a

27  schedule for information submittal, public hearings,

28  negotiations, and final action on the amendment, which

29  schedule may thereafter be altered only with the written

30  consent of the local government and the owner.  Compliance

31  

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 1  with the schedule in the written agreement constitutes good

 2  faith negotiations for purposes of subparagraph 3.

 3         2.  Upon conclusion of good faith negotiations under

 4  subparagraph 1., regardless of whether the local government

 5  and owner reach consensus on the land uses and intensities of

 6  use that are consistent with the uses and intensities of use

 7  of the industrial, commercial, or residential areas that

 8  surround the parcel, the amendment must be transmitted to the

 9  state land planning agency for review pursuant to s. 163.3184.

10  If the local government fails to transmit the amendment within

11  180 days after receipt of a complete application, the

12  amendment must be immediately transferred to the state land

13  planning agency for such review at the first available

14  transmittal cycle.  The state land planning agency may not use

15  any provision of rule 9J-5.006(5), Florida Administrative

16  Code, as a factor in determining compliance of an amendment

17  under this paragraph.

18         3.  If the owner fails to negotiate in good faith, rule

19  9J-5.006(5), Florida Administrative Code, shall apply

20  throughout the negotiation and amendment process under this

21  paragraph.

22         (c)  Nothing within this subsection relating to

23  agricultural enclaves shall preempt or replace any protection

24  currently existing for any property located within the

25  boundaries of the following areas:

26         1.  The Wekiva Study Area, as described in s. 369.316;

27  or

28         2.  The Everglades Protection Area, as defined in s.

29  373.4592(2).

30         Section 3.  Subsection (32) is added to section

31  163.3164, Florida Statutes, to read:

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 1         163.3164  Local Government Comprehensive Planning and

 2  Land Development Regulation Act; definitions.--As used in this

 3  act:

 4         (32)  "Agricultural enclave" means an unincorporated,

 5  undeveloped parcel that:

 6         (a)  Is owned by a single person or entity;

 7         (b)  Has been in continuous use for bona fide

 8  agricultural purposes, as defined by s. 193.461, for a period

 9  of 5 years prior to the date of any comprehensive plan

10  amendment application;

11         (c)  Is surrounded on at least 75 percent of its

12  perimeter by:

13         1.  Property that has existing industrial, commercial,

14  or residential development; or

15         2.  Property that the local government has designated,

16  in the local government's comprehensive plan, zoning map, and

17  future land use map, as land that is to be developed for

18  industrial, commercial, or residential purposes, and at least

19  75 percent of such property is existing industrial,

20  commercial, or residential development,

21         (d)  Has public services, including water, wastewater,

22  transportation, schools, and recreation facilities, available

23  or such public services are scheduled to be provided as part

24  of a financially feasible 5-year schedule of capital

25  improvements that is adopted by the local government or by an

26  alternative provider of local government infrastructure; and

27         (e)  Satisfies one of the following acreage criteria:

28         1.  The parcel may not exceed 500 acres or;

29         2.  The parcel may not exceed 2,560 acres, however, if

30  the parcel is in active agriculture production and is located

31  in a county, any portion of which is under a declared

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 1  quarantine pursuant to chapter 581 or chapter 585, the parcel

 2  may not exceed 5,120 acres.

 3         Section 4.  Section 259.047, Florida Statutes, is

 4  created to read:

 5         259.047  Acquisition of land on which an agricultural

 6  lease exists.--

 7         (1)  When land with an existing agricultural lease is

 8  acquired in fee simple pursuant to this chapter or chapter

 9  375, the existing agricultural lease may continue in force for

10  the actual time remaining on the lease agreement. Any entity

11  managing lands acquired under this section must consider

12  existing agricultural leases in the development of a land

13  management plan required under s. 253.034.

14         (2)  Where consistent with the purposes for which the

15  property was acquired, the state or acquiring entity shall

16  make reasonable efforts to keep lands in agricultural

17  production which are in agricultural production at the time of

18  acquisition.

19         Section 5.  Paragraph (a) of subsection (2) of section

20  373.0361, Florida Statutes, is amended to read:

21         373.0361  Regional water supply planning.--

22         (2)  Each regional water supply plan shall be based on

23  at least a 20-year planning period and shall include, but not

24  be limited to:

25         (a)  A water supply development component that

26  includes:

27         1.  A quantification of the water supply needs for all

28  existing and reasonably projected future uses within the

29  planning horizon. The level-of-certainty planning goal

30  associated with identifying the water supply needs of existing

31  and future reasonable-beneficial uses shall be based upon

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 1  meeting those needs for a 1-in-10-year drought event.

 2  Population projections used for determining public water

 3  supply needs must be based upon the best available data. In

 4  determining the best available data, the district shall

 5  consider the University of Florida's Bureau of Economic and

 6  Business Research (BEBR) medium population projections and any

 7  population projection data and analysis submitted by a local

 8  government pursuant to the public workshop described in

 9  subsection (1) if the data and analysis support the local

10  government's comprehensive plan. Any adjustment of or

11  deviation from the BEBR projections must be fully described,

12  and the original BEBR data must be presented along with the

13  adjusted data.

14         2.  A list of water source options, including

15  traditional and alternative source options, from which local

16  government, government-owned and privately owned utilities,

17  self-suppliers, and others may choose, for water supply

18  development, the total capacity of which will, in conjunction

19  with water conservation and other demand management measures,

20  exceed the needs identified in subparagraph 1. The list of

21  water-source options for water supply development must contain

22  provisions that recognize that alternative water-source

23  options for agricultural self-suppliers are limited.

24         3.  For each option listed in subparagraph 2., the

25  estimated amount of water available for use and the estimated

26  costs of and potential sources of funding for water supply

27  development.

28         4.  A list of water supply development projects that

29  meet the criteria in s. 373.0831(4).

30  

31  

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 1  The water supply development component of a regional water

 2  supply plan which deals with or affects public utilities and

 3  public water supply for those areas served by a regional water

 4  supply authority and its member governments within the

 5  boundaries of the Southwest Florida Water Management District

 6  shall be developed jointly by the authority and the district.

 7         Section 6.  Section 373.2234, Florida Statutes, is

 8  amended to read:

 9         373.2234  Preferred water supply sources.--The

10  governing board of a water management district is authorized

11  to adopt rules that identify preferred water supply sources

12  for consumptive uses for which there is sufficient data to

13  establish that a preferred source will provide a substantial

14  new water supply to meet the existing and projected

15  reasonable-beneficial uses of a water supply planning region

16  identified pursuant to s. 373.0361(1), while sustaining

17  existing water resources and natural systems. At a minimum,

18  such rules must contain a description of the preferred water

19  supply source and an assessment of the water the preferred

20  source is projected to produce. If an applicant proposes to

21  use a preferred water supply source, that applicant's proposed

22  water use is subject to s. 373.223(1), except that the

23  proposed use of a preferred water supply source must be

24  considered by a water management district when determining

25  whether a permit applicant's proposed use of water is

26  consistent with the public interest pursuant to s.

27  373.223(1)(c). A consumptive use permit issued for the use of

28  a preferred water supply source must be granted, when

29  requested by the applicant, for at least a 20-year period and

30  may be subject to the compliance reporting provisions of s.

31  373.236(4)(3). Nothing in this section shall be construed to

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 1  exempt the use of preferred water supply sources from the

 2  provisions of ss. 373.016(4) and 373.223(2) and (3), or be

 3  construed to provide that permits issued for the use of a

 4  nonpreferred water supply source must be issued for a duration

 5  of less than 20 years or that the use of a nonpreferred water

 6  supply source is not consistent with the public interest.

 7  Additionally, nothing in this section shall be interpreted to

 8  require the use of a preferred water supply source or to

 9  restrict or prohibit the use of a nonpreferred water supply

10  source. Rules adopted by the governing board of a water

11  management district to implement this section shall specify

12  that the use of a preferred water supply source is not

13  required and that the use of a nonpreferred water supply

14  source is not restricted or prohibited.

15         Section 7.  Present subsections (2) and (3) of section

16  373.236, Florida Statutes, are renumbered as subsections (3)

17  and (4), respectively, and a new subsection (2) is added to

18  that section, to read:

19         373.236  Duration of permits; compliance reports.--

20         (2)  The Legislature finds that some agricultural

21  landowners remain unaware of their ability to request a

22  20-year consumptive use permit under subsection (1) for

23  initial permits or for renewals. Therefore, the water

24  management districts shall inform agricultural applicants of

25  this option in the application form.

26         Section 8.  Section 373.407, Florida Statutes, is

27  created to read:

28         373.407  Memorandum of agreement for an

29  agricultural-related exemption.--No later than July 1, 2006,

30  the Department of Agriculture and Consumer Services and each

31  water management district shall enter into a memorandum of

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 1  agreement under which the Department of Agricultural and

 2  Consumer Services shall assist in a determination by a water

 3  management district as to whether an existing or proposed

 4  activity qualifies for the exemption in s. 373.406(2). The

 5  memorandum of agreement shall provide a process by which, upon

 6  the request of a water management district, the Department of

 7  Agriculture and Consumer Services shall conduct a nonbinding

 8  review as to whether an existing or proposed activity

 9  qualifies for an agricultural-related exemption in s.

10  373.406(2). The memorandum of agreement shall provide

11  processes and procedures by which the Department of

12  Agriculture and Consumer Services shall undertake this review

13  effectively and efficiently and issue a recommendation.

14         Section 9.  This act shall take effect upon becoming a

15  law.

16  

17          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
18                          CS for SB 716

19                                 

20  The committee substitute provides that the notice period for
    an action against a governmental entity by a property owner
21  seeking compensation regarding a property that is classified
    as agricultural pursuant to s. 193.46, F.S., is reduced from
22  180 days to 90 days.

23  The owner of a parcel of land defined as an agricultural
    enclave may apply for an amendment to the local governmental
24  comprehensive plan. The amendment is not subject to rule
    9J-5.006(5), F.A.C., and may include land uses and intensities
25  of use that are consistent with the uses and intensities of
    use of the industrial, commercial, or residential areas that
26  surround the parcel. Further, nothing relating to agricultural
    enclaves shall preempt or replace any protection currently
27  existing for any property located within the boundaries of the
    Wekiva Study Area or the Everglades Protection Area.
28  

29  

30  

31  

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