Senate Bill sb1880

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    Florida Senate - 2006                                  SB 1880

    By Senator Argenziano





    3-577A-06                                               See HB

  1                      A bill to be entitled

  2         An act relating to agricultural economic

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

  4         providing a deadline for an owner of

  5         agricultural land to present a claim prior to

  6         filing an action against a governmental entity

  7         regarding private property rights; amending s.

  8         163.3162, F.S.; providing for application for

  9         an amendment to the local government

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 supply development

25         options for agricultural self-suppliers are

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

27         a 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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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




 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  paragraph (a) of subsection (5), and paragraph (c) of

 9  subsection (6) of section 70.001, Florida Statutes, are

10  amended to read:

11         70.001  Private property rights protection.--

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

13  action under this section against a governmental entity, a

14  property owner who seeks compensation under this section must

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

16  entity, except that if the property is classified as

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

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

19  bona fide, valid appraisal that supports the claim and

20  demonstrates the loss in fair market value to the real

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

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

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

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

25  whom a claim is presented, requires the active participation

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

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

28  governmental entities.

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

30  180-day-notice period, unless extended by agreement of the

31  

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




 1  parties, the governmental entity shall make a written

 2  settlement offer to effectuate:

 3         1.  An adjustment of land development or permit

 4  standards or other provisions controlling the development or

 5  use of land.

 6         2.  Increases or modifications in the density,

 7  intensity, or use of areas of development.

 8         3.  The transfer of developmental rights.

 9         4.  Land swaps or exchanges.

10         5.  Mitigation, including payments in lieu of onsite

11  mitigation.

12         6.  Location on the least sensitive portion of the

13  property.

14         7.  Conditioning the amount of development or use

15  permitted.

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

17  comprehensive basis than a single proposed use or development.

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

19  special exception, or other extraordinary relief.

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

21  therein, by an appropriate governmental entity.

22         11.  No changes to the action of the governmental

23  entity.

24  

25  If the property owner accepts the settlement offer, the

26  governmental entity may implement the settlement offer by

27  appropriate development agreement; by issuing a variance,

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

29  appropriate method, subject to paragraph (d).

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

31  180-day-notice period, unless a settlement offer is accepted

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




 1  by the property owner, each of the governmental entities

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

 3  written ripeness decision identifying the allowable uses to

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

 5  governmental entity to issue a written ripeness decision

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

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

 8  governmental entity, and shall operate as a ripeness decision

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

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

11  prerequisite to judicial review, and the matter shall be

12  deemed ripe or final for the purposes of the judicial

13  proceeding created by this section, notwithstanding the

14  availability of other administrative remedies.

15         (6)

16         (c)1.  In any action filed pursuant to this section,

17  the  property owner is entitled to recover reasonable costs

18  and attorney fees incurred by the property owner, from the

19  governmental entity or entities, according to their

20  proportionate share as determined by the court, from the date

21  of the filing of the circuit court action, if the property

22  owner prevails in the action and the court determines that the

23  settlement offer, including the ripeness decision, of the

24  governmental entity or entities did not constitute a bona fide

25  offer to the property owner which reasonably would have

26  resolved the claim, based upon the knowledge available to the

27  governmental entity or entities and the property owner during

28  the 90-day-notice period or the 180-day-notice period.

29         2.  In any action filed pursuant to this section, the

30  governmental entity or entities are entitled to recover

31  reasonable costs and attorney's attorney fees incurred by the

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




 1  governmental entity or entities from the date of the filing of

 2  the circuit court action, if the governmental entity or

 3  entities prevail in the action and the court determines that

 4  the property owner did not accept a bona fide settlement

 5  offer, including the ripeness decision, which reasonably would

 6  have resolved the claim fairly to the property owner if the

 7  settlement offer had been accepted by the property owner,

 8  based upon the knowledge available to the governmental entity

 9  or entities and the property owner during the 90-day-notice

10  period or the 180-day-notice period.

11         3.  The determination of total reasonable costs and

12  attorney's attorney fees pursuant to this paragraph shall be

13  made by the court and not by the jury. Any proposed settlement

14  offer or any proposed ripeness decision, except for the final

15  written settlement offer or the final written ripeness

16  decision, and any negotiations or rejections in regard to the

17  formulation either of the settlement offer or the ripeness

18  decision, are inadmissible in the subsequent proceeding

19  established by this section except for the purposes of the

20  determination pursuant to this paragraph.

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

22  163.3162, Florida Statutes, to read:

23         163.3162  Agricultural Lands and Practices Act.--

24         (5)  AMENDMENT TO LOCAL GOVERNMENT COMPREHENSIVE

25  PLAN.--

26         (a)  The owner of a parcel of land defined as an

27  agricultural enclave under s. 163.3164(33)(e)1. may apply for

28  an amendment to the local government comprehensive plan

29  pursuant to s. 163.3187. Such amendment is not subject to rule

30  9J-5.006(5), Florida Administrative Code, and may include land

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

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




 1  and intensities of use of the industrial, commercial, or

 2  residential areas that surround the parcel. The local

 3  government shall make a determination regarding transmittal of

 4  such amendment within 120 days after receipt of a complete

 5  application for the amendment and transmit the amendment to

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

 7  163.3184 at the first available transmittal cycle. The state

 8  land planning agency may not use any provision of rule

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

10  determining compliance of an amendment under this paragraph.

11         (b)  In order to preserve commercial agricultural

12  activity, encourage mixed-use infill development, prevent

13  urban sprawl, and provide more efficient delivery of municipal

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

15  as an agricultural enclave under s. 163.3164(33)(e)2. may

16  apply for an amendment to the local government comprehensive

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

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

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

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

21  residential areas that surround the parcel.

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

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

24  under this paragraph shall have 180 days following the date

25  that the local government receives a complete application to

26  negotiate in good faith to reach consensus on the land uses

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

28  intensities of use of the industrial, commercial, or

29  residential areas that surround the parcel. Within 30 days

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

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

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




 1  schedule for information submittal, public hearings,

 2  negotiations, and final action on the amendment, which

 3  schedule may thereafter be altered only with the written

 4  consent of the local government and the owner. Compliance with

 5  the schedule in the written agreement constitutes good-faith

 6  negotiations for purposes of subparagraph 3.

 7         2.  Upon conclusion of good-faith negotiations under

 8  subparagraph 1., regardless of whether the local government

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

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

11  of the industrial, commercial, or residential areas that

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

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

14  If the local government fails to transmit the amendment within

15  180 days after receipt of a complete application, the

16  amendment must be immediately transferred to the state land

17  planning agency for such review at the first available

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

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

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

21  under this paragraph.

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

23  9J-5.006(5), Florida Administrative Code, shall apply

24  throughout the negotiation and amendment process under this

25  paragraph.

26         (c)  Nothing within this subsection relating to

27  agricultural enclaves shall preempt or replace any protection

28  currently existing for any property located within the

29  boundaries of the following areas:

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

31  or

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




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

 2  373.4592(2).

 3         Section 3.  Subsection (33) is added to section

 4  163.3164, Florida Statutes, to read:

 5         163.3164  Local Government Comprehensive Planning and

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

 7  act:

 8         (33)  "Agricultural enclave" means an unincorporated,

 9  undeveloped parcel that:

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

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

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

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

14  amendment application;

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

16  perimeter by:

17         1.  Property that has existing industrial, commercial,

18  or residential development; or

19         2.  Property that the local government has designated,

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

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

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

23  75 percent of such property is existing industrial,

24  commercial, or residential development;

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

26  transportation, schools, and recreation facilities, available

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

28  of a financially feasible 5-year schedule of capital

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

30  alternative provider of local government infrastructure; and

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

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




 1         1.  The parcel may not exceed 640 acres; or

 2         2.  The parcel may not exceed 2,560 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 need

24  not be limited to:

25         (a)  A water supply development component for each

26  water supply planning region identified by the district which

27  includes:

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

29  existing and future reasonable-beneficial uses within the

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

31  associated with identifying the water supply needs of existing

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




 1  and future reasonable-beneficial uses shall be based upon

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

 3  Population projections used for determining public water

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

 5  determining the best available data, the district shall

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

 7  Business Research (BEBR) medium population projections and any

 8  population projection data and analysis submitted by a local

 9  government pursuant to the public workshop described in

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

11  government's comprehensive plan. Any adjustment of or

12  deviation from the BEBR projections must be fully described,

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

14  adjusted data.

15         2.  A list of water supply development project options,

16  including traditional and alternative water supply project

17  options, from which local government, government-owned and

18  privately owned utilities, regional water supply authorities,

19  multijurisdictional water supply entities, self-suppliers, and

20  others may choose for water supply development. In addition to

21  projects listed by the district, such users may propose

22  specific projects for inclusion in the list of alternative

23  water supply projects. If such users propose a project to be

24  listed as an alternative water supply project, the district

25  shall determine whether it meets the goals of the plan, and,

26  if so, it shall be included in the list. The total capacity of

27  the projects included in the plan shall exceed the needs

28  identified in subparagraph 1. and shall take into account

29  water conservation and other demand management measures, as

30  well as water resources constraints, including adopted minimum

31  flows and levels and water reservations. Where the district

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




 1  determines it is appropriate, the plan should specifically

 2  identify the need for multijurisdictional approaches to

 3  project options that, based on planning level analysis, are

 4  appropriate to supply the intended uses and that, based on

 5  such analysis, appear to be permittable and financially and

 6  technically feasible. The list of water supply development

 7  options must contain provisions that recognize that

 8  alternative water supply options for agricultural

 9  self-suppliers are limited.

10         3.  For each project option identified in subparagraph

11  2., the following shall be provided:

12         a.  An estimate of the amount of water to become

13  available through the project.

14         b.  The timeframe in which the project option should be

15  implemented and the estimated planning-level costs for capital

16  investment and operating and maintaining the project.

17         c.  An analysis of funding needs and sources of

18  possible funding options. For alternative water supply

19  projects the water management districts shall provide funding

20  assistance in accordance with s. 373.1961(3).

21         d.  Identification of the entity that should implement

22  each project option and the current status of project

23  implementation.

24         Section 6.  Section 373.2234, Florida Statutes, is

25  amended to read:

26         373.2234  Preferred water supply sources.--The

27  governing board of a water management district is authorized

28  to adopt rules that identify preferred water supply sources

29  for consumptive uses for which there is sufficient data to

30  establish that a preferred source will provide a substantial

31  new water supply to meet the existing and projected

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




 1  reasonable-beneficial uses of a water supply planning region

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

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

 4  such rules must contain a description of the preferred water

 5  supply source and an assessment of the water the preferred

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

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

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

 9  proposed use of a preferred water supply source must be

10  considered by a water management district when determining

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

12  consistent with the public interest pursuant to s.

13  373.223(1)(c). A consumptive use permit issued for the use of

14  a preferred water supply source must be granted, when

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

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

17  373.236(4)(3). Nothing in this section shall be construed to

18  exempt the use of preferred water supply sources from the

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

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

21  nonpreferred water supply source must be issued for a duration

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

23  supply source is not consistent with the public interest.

24  Additionally, nothing in this section shall be interpreted to

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

26  restrict or prohibit the use of a nonpreferred water supply

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

28  management district to implement this section shall specify

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

30  required and that the use of a nonpreferred water supply

31  source is not restricted or prohibited.

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




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

 2  373.236, Florida Statutes, are renumbered as subsections (3)

 3  and (4), respectively, present subsection (4) is renumbered as

 4  subsection (5) and amended, and a new subsection (2) is added

 5  to that section, to read:

 6         373.236  Duration of permits; compliance reports.--

 7         (2)  The Legislature finds that some agricultural

 8  landowners remain unaware of their ability to request a

 9  20-year consumptive use permit under subsection (1) for

10  initial permits or for renewals. Therefore, the water

11  management districts shall inform agricultural applicants of

12  this option in the application form.

13         (5)(4)  Permits approved for the development of

14  alternative water supplies shall be granted for a term of at

15  least 20 years. However, if the permittee issues bonds for the

16  construction of the project, upon request of the permittee

17  prior to the expiration of the permit, that permit shall be

18  extended for such additional time as is required for the

19  retirement of bonds, not including any refunding or

20  refinancing of such bonds, provided that the governing board

21  determines that the use will continue to meet the conditions

22  for the issuance of the permit. Such a permit is subject to

23  compliance reports under subsection (4) (3).

24         Section 8.  Section 373.407, Florida Statutes, is

25  created to read:

26         373.407  Memorandum of agreement for an

27  agricultural-related exemption.--No later than July 1, 2007,

28  the Department of Agriculture and Consumer Services and each

29  water management district shall enter into a memorandum of

30  agreement under which the Department of Agricultural and

31  Consumer Services shall assist in a determination by a water

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    Florida Senate - 2006                                  SB 1880
    3-577A-06                                               See HB




 1  management district as to whether an existing or proposed

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

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

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

 5  Agriculture and Consumer Services shall conduct a nonbinding

 6  review as to whether an existing or proposed activity

 7  qualifies for an agricultural-related exemption in s.

 8  373.406(2). The memorandum of agreement shall provide

 9  processes and procedures by which the Department of

10  Agriculture and Consumer Services shall undertake this review

11  effectively and efficiently and issue a recommendation.

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

13  law.

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