Senate Bill sb1880c1
CODING: Words stricken are deletions; words underlined are additions.
    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
                                  1
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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  
                                  2
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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
                                  3
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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
                                  4
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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  
                                  5
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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  
                                  6
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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  
                                  7
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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  
                                  8
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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
                                  9
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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.
                                  10
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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.
                                  11
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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
                                  12
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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  
                                  13
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                           CS for SB 1880
    575-1963-06
 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.
13  
14  
15  
16  
17  
18  
19  
20  
21  
22  
23  
24  
25  
26  
27  
28  
29  
30  
31  
                                  14
CODING: Words stricken are deletions; words underlined are additions.