Senate Bill sb1880c1

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    Florida Senate - 2006                           CS for SB 1880

    By the Committee on Agriculture; and Senator Argenziano





    575-1963-06

  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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 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                           CS for SB 1880
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 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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 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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 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.--The owner of a parcel of land defined as an

26  agricultural enclave under s. 163.3164(33) may apply for an

27  amendment to the local government comprehensive plan pursuant

28  to s. 163.3187. Such amendment is not subject to rule

29  9J-5.006(5), Florida Administrative Code, and may include land

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

31  

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    Florida Senate - 2006                           CS for SB 1880
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 1  and intensities of use of the industrial, commercial, or

 2  residential areas that surround the parcel.

 3         (a)  The local government and the owner of a parcel of

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

 5  under this subsection shall have 180 days following the date

 6  that the local government receives an application to negotiate

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

 8  intensities of use that are consistent with the uses and

 9  intensities of use of the industrial, commercial, or

10  residential areas that surround the parcel. Within 30 days

11  after the local government's receipt of the application, the

12  local government and owner must agree in writing to a schedule

13  for information submittal, public hearings, negotiations, and

14  final action on the amendment, which schedule may thereafter

15  be altered only with the written consent of the local

16  government and the owner. Compliance with the schedule in the

17  written agreement constitutes good-faith negotiations for

18  purposes of paragraph (c).

19         (b)  Upon conclusion of good-faith negotiations under

20  paragraph (a), regardless of whether the local government and

21  owner reach consensus on the land uses and intensities of use

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

23  the industrial, commercial, or residential areas that surround

24  the parcel, the amendment must be transmitted to the state

25  land planning agency for review pursuant to s. 163.3184. If

26  the local government fails to transmit the amendment within

27  180 days after receipt of an application, the amendment must

28  be immediately transferred to the state land planning agency

29  for such review at the first available transmittal cycle. The

30  state land planning agency may not use any provision of rule

31  

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 1  9J-5.006(5), Florida Administrative Code, as a factor in

 2  determining compliance of an amendment under this paragraph.

 3         (c)  If the owner fails to negotiate in good faith,

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

 5  throughout the negotiation and amendment process under this

 6  paragraph.

 7         (d)  Nothing within this subsection relating to

 8  agricultural enclaves shall preempt or replace any protection

 9  currently existing for any property located within the

10  boundaries of the following areas:

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

12  or

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

14  373.4592(2).

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

16  163.3164, Florida Statutes, to read:

17         163.3164  Local Government Comprehensive Planning and

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

19  act:

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

21  undeveloped parcel that:

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

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

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

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

26  amendment application;

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

28  perimeter by:

29         1.  Property that has existing industrial, commercial,

30  or residential development; or

31  

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 1         2.  Property that the local government has designated,

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

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

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

 5  75 percent of such property is existing industrial,

 6  commercial, or residential development;

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

 8  transportation, schools, and recreation facilities, available

 9  or such public services are scheduled to be provided by the

10  local government or by an alternative provider of local

11  government infrastructure consistent with applicable

12  concurrency provisions of s. 163.3180; and

13         (e)  Does not exceed 2,560 acres; however, if the

14  property has been determined to be urban or suburban by the

15  state land planning agency, the parcel may not exceed 5,120

16  acres.

17         Section 4.  Section 259.047, Florida Statutes, is

18  created to read:

19         259.047  Acquisition of land on which an agricultural

20  lease exists.--

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

22  acquired in fee simple pursuant to this chapter or chapter

23  375, the existing agricultural lease may continue in force for

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

25  managing lands acquired under this section must consider

26  existing agricultural leases in the development of a land

27  management plan required under s. 253.034.

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

29  property was acquired, the state or acquiring entity shall

30  make reasonable efforts to keep lands in agricultural

31  

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 1  production which are in agricultural production at the time of

 2  acquisition.

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

 4  373.0361, Florida Statutes, is amended to read:

 5         373.0361  Regional water supply planning.--

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

 7  at least a 20-year planning period and shall include, but need

 8  not be limited to:

 9         (a)  A water supply development component for each

10  water supply planning region identified by the district which

11  includes:

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

13  existing and future reasonable-beneficial uses within the

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

15  associated with identifying the water supply needs of existing

16  and future reasonable-beneficial uses shall be based upon

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

18  Population projections used for determining public water

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

20  determining the best available data, the district shall

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

22  Business Research (BEBR) medium population projections and any

23  population projection data and analysis submitted by a local

24  government pursuant to the public workshop described in

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

26  government's comprehensive plan. Any adjustment of or

27  deviation from the BEBR projections must be fully described,

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

29  adjusted data.

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

31  including traditional and alternative water supply project

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

 2  privately owned utilities, regional water supply authorities,

 3  multijurisdictional water supply entities, self-suppliers, and

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

 5  projects listed by the district, such users may propose

 6  specific projects for inclusion in the list of alternative

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

 8  listed as an alternative water supply project, the district

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

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

11  the projects included in the plan shall exceed the needs

12  identified in subparagraph 1. and shall take into account

13  water conservation and other demand management measures, as

14  well as water resources constraints, including adopted minimum

15  flows and levels and water reservations. Where the district

16  determines it is appropriate, the plan should specifically

17  identify the need for multijurisdictional approaches to

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

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

20  such analysis, appear to be permittable and financially and

21  technically feasible. The list of water supply development

22  options must contain provisions that recognize that

23  alternative water supply options for agricultural

24  self-suppliers are limited.

25         3.  For each project option identified in subparagraph

26  2., the following shall be provided:

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

28  available through the project.

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

30  implemented and the estimated planning-level costs for capital

31  investment and operating and maintaining the project.

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 1         c.  An analysis of funding needs and sources of

 2  possible funding options. For alternative water supply

 3  projects the water management districts shall provide funding

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

 5         d.  Identification of the entity that should implement

 6  each project option and the current status of project

 7  implementation.

 8         Section 6.  Section 373.2234, Florida Statutes, is

 9  amended to read:

10         373.2234  Preferred water supply sources.--The

11  governing board of a water management district is authorized

12  to adopt rules that identify preferred water supply sources

13  for consumptive uses for which there is sufficient data to

14  establish that a preferred source will provide a substantial

15  new water supply to meet the existing and projected

16  reasonable-beneficial uses of a water supply planning region

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

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

19  such rules must contain a description of the preferred water

20  supply source and an assessment of the water the preferred

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

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

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

24  proposed use of a preferred water supply source must be

25  considered by a water management district when determining

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

27  consistent with the public interest pursuant to s.

28  373.223(1)(c). A consumptive use permit issued for the use of

29  a preferred water supply source must be granted, when

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

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

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 1  373.236(4)(3). Nothing in this section shall be construed to

 2  exempt the use of preferred water supply sources from the

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

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

 5  nonpreferred water supply source must be issued for a duration

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

 7  supply source is not consistent with the public interest.

 8  Additionally, nothing in this section shall be interpreted to

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

10  restrict or prohibit the use of a nonpreferred water supply

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

12  management district to implement this section shall specify

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

14  required and that the use of a nonpreferred water supply

15  source is not restricted or prohibited.

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

17  373.236, Florida Statutes, are renumbered as subsections (3)

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

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

20  to that section, to read:

21         373.236  Duration of permits; compliance reports.--

22         (2)  The Legislature finds that some agricultural

23  landowners remain unaware of their ability to request a

24  20-year consumptive use permit under subsection (1) for

25  initial permits or for renewals. Therefore, the water

26  management districts shall inform agricultural applicants of

27  this option in the application form.

28         (5)(4)  Permits approved for the development of

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

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

31  construction of the project, upon request of the permittee

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

 2  extended for such additional time as is required for the

 3  retirement of bonds, not including any refunding or

 4  refinancing of such bonds, provided that the governing board

 5  determines that the use will continue to meet the conditions

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

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

 8         Section 8.  Section 373.407, Florida Statutes, is

 9  created to read:

10         373.407  Memorandum of agreement for an

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

12  the Department of Agriculture and Consumer Services and each

13  water management district shall enter into a memorandum of

14  agreement under which the Department of Agricultural and

15  Consumer Services shall assist in a determination by a water

16  management district as to whether an existing or proposed

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

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

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

20  Agriculture and Consumer Services shall conduct a nonbinding

21  review as to whether an existing or proposed activity

22  qualifies for an agricultural-related exemption in s.

23  373.406(2). The memorandum of agreement shall provide

24  processes and procedures by which the Department of

25  Agriculture and Consumer Services shall undertake this review

26  effectively and efficiently and issue a recommendation.

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

28  law.

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 1880

 3                                 

 4  Committee Substitute for Senate Bill 1880 differs from the
    original bill as follows:
 5  
    1.   Does away with two different procedures to amend a local
 6       government comprehensive plan for an agricultural enclave
         resulting in all amendments for an enclave being subject
 7       to a 180 day negotiation period for the landowner and
         local government to try to work out a consensus.
 8  
    2.   Eliminates a 640 acre parcel of land as an agricultural
 9       enclave while retaining a 2,560 acre parcel which may be
         as large as 5,120 acres if the property has been
10       determined to be urban or suburban by the state land
         planning agency.
11  
    3.   Mandates that public services required to meet the
12       definition of an agricultural enclave must be consistent
         with concurrency provisions of s. 163.3180,F.S.
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