Senate Bill sb1880c3
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Florida Senate - 2006 CS for CS for CS for SB 1880
By the Committees on Environmental Preservation; Community
Affairs; Agriculture; and Senator Argenziano
592-2440-06
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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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.
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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 and intensities of use of the industrial, commercial, or
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1 residential areas that surround the parcel. Each application
2 for a comprehensive plan amendment under this subsection for a
3 parcel larger than 640 acres must include appropriate new
4 urbanism concepts such as clustering, mixed-use development,
5 the creation of rural village and city centers, and the
6 transfer of development rights in order to discourage urban
7 sprawl while protecting landowner rights.
8 (a) The local government and the owner of a parcel of
9 land that is the subject of an application for an amendment
10 shall have 180 days following the date that the local
11 government receives a complete application to negotiate in
12 good faith to reach consensus on the land uses and intensities
13 of use that are consistent with the uses and intensities of
14 use of the industrial, commercial, or residential areas that
15 surround the parcel. Within 30 days after the local
16 government's receipt of such application, the local government
17 and owner must agree in writing to a schedule for information
18 submittal, public hearings, negotiations, and final action on
19 the amendment, which schedule may thereafter be altered only
20 with the written consent of the local government and the
21 owner. Compliance with the schedule in the written agreement
22 constitutes good-faith negotiations for purposes of paragraph
23 (c).
24 (b) Upon conclusion of good-faith negotiations under
25 paragraph (a), regardless of whether the local government and
26 owner reach consensus on the land uses and intensities of use
27 that are consistent with the uses and intensities of use of
28 the industrial, commercial, or residential areas that surround
29 the parcel, the amendment must be transmitted to the state
30 land planning agency for review pursuant to s. 163.3184. If
31 the local government fails to transmit the amendment within
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1 180 days after receipt of a complete application, the
2 amendment must be immediately transferred to the state land
3 planning agency for such review at the first available
4 transmittal cycle. The state land planning agency may not use
5 any provision of rule 9J-5.006(5), Florida Administrative
6 Code, as a factor in determining compliance of an amendment.
7 (c) If the owner fails to negotiate in good faith,
8 rule 9J-5.006(5), Florida Administrative Code, shall apply
9 throughout the negotiation and amendment process.
10 (d) Nothing within this subsection relating to
11 agricultural enclaves shall preempt or replace any protection
12 currently existing for any property located within the
13 boundaries of the following areas:
14 1. The Wekiva Study Area, as described in s. 369.316;
15 or
16 2. The Everglades Protection Area, as defined in s.
17 373.4592(2).
18 Section 3. Subsection (33) is added to section
19 163.3164, Florida Statutes, to read:
20 163.3164 Local Government Comprehensive Planning and
21 Land Development Regulation Act; definitions.--As used in this
22 act:
23 (33) "Agricultural enclave" means an unincorporated,
24 undeveloped parcel that:
25 (a) Is owned by a single person or entity;
26 (b) Has been in continuous use for bona fide
27 agricultural purposes, as defined by s. 193.461, for a period
28 of 5 years prior to the date of any comprehensive plan
29 amendment application;
30 (c) Is surrounded on at least 75 percent of its
31 perimeter by:
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1 1. Property that has existing industrial, commercial,
2 or residential development; or
3 2. Property that the local government has designated,
4 in the local government's comprehensive plan, zoning map, and
5 future land use map, as land that is to be developed for
6 industrial, commercial, or residential purposes, and at least
7 75 percent of such property is existing industrial,
8 commercial, or residential development;
9 (d) Has public services, including water, wastewater,
10 transportation, schools, and recreation facilities, available
11 or such public services are scheduled in the capital
12 improvements element to be provided by the local government or
13 can be provided by an alternative provider of local government
14 infrastructure in order to ensure consistency with applicable
15 concurrency provisions of s. 163.3180; and
16 (e) Does not exceed 1,280 acres; however, if the
17 property is surrounded by existing or authorized residential
18 development that will result in a density at buildout of at
19 least 1,000 residents per square mile, the area shall be
20 determined to be urban and the parcel may not exceed 5,120
21 acres.
22 Section 4. Section 259.047, Florida Statutes, is
23 created to read:
24 259.047 Acquisition of land on which an agricultural
25 lease exists.--
26 (1) When land with an existing agricultural lease is
27 acquired in fee simple pursuant to this chapter or chapter
28 375, the existing agricultural lease may continue in force for
29 the actual time remaining on the lease agreement. Any entity
30 managing lands acquired under this section must consider
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1 existing agricultural leases in the development of a land
2 management plan required under s. 253.034.
3 (2) Where consistent with the purposes for which the
4 property was acquired, the state or acquiring entity shall
5 make reasonable efforts to keep lands in agricultural
6 production which are in agricultural production at the time of
7 acquisition.
8 Section 5. Paragraph (a) of subsection (2) of section
9 373.0361, Florida Statutes, is amended to read:
10 373.0361 Regional water supply planning.--
11 (2) Each regional water supply plan shall be based on
12 at least a 20-year planning period and shall include, but need
13 not be limited to:
14 (a) A water supply development component for each
15 water supply planning region identified by the district which
16 includes:
17 1. A quantification of the water supply needs for all
18 existing and future reasonable-beneficial uses within the
19 planning horizon. The level-of-certainty planning goal
20 associated with identifying the water supply needs of existing
21 and future reasonable-beneficial uses shall be based upon
22 meeting those needs for a 1-in-10-year drought event.
23 Population projections used for determining public water
24 supply needs must be based upon the best available data. In
25 determining the best available data, the district shall
26 consider the University of Florida's Bureau of Economic and
27 Business Research (BEBR) medium population projections and any
28 population projection data and analysis submitted by a local
29 government pursuant to the public workshop described in
30 subsection (1) if the data and analysis support the local
31 government's comprehensive plan. Any adjustment of or
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1 deviation from the BEBR projections must be fully described,
2 and the original BEBR data must be presented along with the
3 adjusted data.
4 2. A list of water supply development project options,
5 including traditional and alternative water supply project
6 options, from which local government, government-owned and
7 privately owned utilities, regional water supply authorities,
8 multijurisdictional water supply entities, self-suppliers, and
9 others may choose for water supply development. In addition to
10 projects listed by the district, such users may propose
11 specific projects for inclusion in the list of alternative
12 water supply projects. If such users propose a project to be
13 listed as an alternative water supply project, the district
14 shall determine whether it meets the goals of the plan, and,
15 if so, it shall be included in the list. The total capacity of
16 the projects included in the plan shall exceed the needs
17 identified in subparagraph 1. and shall take into account
18 water conservation and other demand management measures, as
19 well as water resources constraints, including adopted minimum
20 flows and levels and water reservations. Where the district
21 determines it is appropriate, the plan should specifically
22 identify the need for multijurisdictional approaches to
23 project options that, based on planning level analysis, are
24 appropriate to supply the intended uses and that, based on
25 such analysis, appear to be permittable and financially and
26 technically feasible. The list of water supply development
27 options must contain provisions that recognize that
28 alternative water supply options for agricultural
29 self-suppliers are limited.
30 3. For each project option identified in subparagraph
31 2., the following shall be provided:
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1 a. An estimate of the amount of water to become
2 available through the project.
3 b. The timeframe in which the project option should be
4 implemented and the estimated planning-level costs for capital
5 investment and operating and maintaining the project.
6 c. An analysis of funding needs and sources of
7 possible funding options. For alternative water supply
8 projects the water management districts shall provide funding
9 assistance in accordance with s. 373.1961(3).
10 d. Identification of the entity that should implement
11 each project option and the current status of project
12 implementation.
13 Section 6. Section 373.2234, Florida Statutes, is
14 amended to read:
15 373.2234 Preferred water supply sources.--The
16 governing board of a water management district is authorized
17 to adopt rules that identify preferred water supply sources
18 for consumptive uses for which there is sufficient data to
19 establish that a preferred source will provide a substantial
20 new water supply to meet the existing and projected
21 reasonable-beneficial uses of a water supply planning region
22 identified pursuant to s. 373.0361(1), while sustaining
23 existing water resources and natural systems. At a minimum,
24 such rules must contain a description of the preferred water
25 supply source and an assessment of the water the preferred
26 source is projected to produce. If an applicant proposes to
27 use a preferred water supply source, that applicant's proposed
28 water use is subject to s. 373.223(1), except that the
29 proposed use of a preferred water supply source must be
30 considered by a water management district when determining
31 whether a permit applicant's proposed use of water is
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1 consistent with the public interest pursuant to s.
2 373.223(1)(c). A consumptive use permit issued for the use of
3 a preferred water supply source must be granted, when
4 requested by the applicant, for at least a 20-year period and
5 may be subject to the compliance reporting provisions of s.
6 373.236(4)(3). Nothing in this section shall be construed to
7 exempt the use of preferred water supply sources from the
8 provisions of ss. 373.016(4) and 373.223(2) and (3), or be
9 construed to provide that permits issued for the use of a
10 nonpreferred water supply source must be issued for a duration
11 of less than 20 years or that the use of a nonpreferred water
12 supply source is not consistent with the public interest.
13 Additionally, nothing in this section shall be interpreted to
14 require the use of a preferred water supply source or to
15 restrict or prohibit the use of a nonpreferred water supply
16 source. Rules adopted by the governing board of a water
17 management district to implement this section shall specify
18 that the use of a preferred water supply source is not
19 required and that the use of a nonpreferred water supply
20 source is not restricted or prohibited.
21 Section 7. Present subsections (2) and (3) of section
22 373.236, Florida Statutes, are renumbered as subsections (3)
23 and (4), respectively, present subsection (4) is renumbered as
24 subsection (5) and amended, and a new subsection (2) is added
25 to that section, to read:
26 373.236 Duration of permits; compliance reports.--
27 (2) The Legislature finds that some agricultural
28 landowners remain unaware of their ability to request a
29 20-year consumptive use permit under subsection (1) for
30 initial permits or for renewals. Therefore, the water
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1 management districts shall inform agricultural applicants of
2 this option in the application form.
3 (5)(4) Permits approved for the development of
4 alternative water supplies shall be granted for a term of at
5 least 20 years. However, if the permittee issues bonds for the
6 construction of the project, upon request of the permittee
7 prior to the expiration of the permit, that permit shall be
8 extended for such additional time as is required for the
9 retirement of bonds, not including any refunding or
10 refinancing of such bonds, provided that the governing board
11 determines that the use will continue to meet the conditions
12 for the issuance of the permit. Such a permit is subject to
13 compliance reports under subsection (4) (3).
14 Section 8. Section 373.407, Florida Statutes, is
15 created to read:
16 373.407 Memorandum of agreement for an
17 agricultural-related exemption.--No later than July 1, 2007,
18 the Department of Agriculture and Consumer Services and each
19 water management district shall enter into a memorandum of
20 agreement under which the Department of Agricultural and
21 Consumer Services shall assist in a determination by a water
22 management district as to whether an existing or proposed
23 activity qualifies for the exemption in s. 373.406(2). The
24 memorandum of agreement shall provide a process by which, upon
25 the request of a water management district, the Department of
26 Agriculture and Consumer Services shall conduct a nonbinding
27 review as to whether an existing or proposed activity
28 qualifies for an agricultural-related exemption in s.
29 373.406(2). The memorandum of agreement shall provide
30 processes and procedures by which the Department of
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1 Agriculture and Consumer Services shall undertake this review
2 effectively and efficiently and issue a recommendation.
3 Section 9. This act shall take effect upon becoming a
4 law.
5
6 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
7 CS for CS for Senate Bill 1880
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9 This committee substitute for committee substitute for
committee substitute reduces the acreage requirement for an
10 agricultural enclave designation from 2,560 acres to 1,280
acres, but still provides that if the property is surrounded
11 by or will be surrounded by a residential density of at least
1,000 residents per square mile, the acreage threshold is
12 capped at 5,120 acres.
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