1 | A bill to be entitled |
2 | An act relating to property rights; amending s. 70.001, |
3 | F.S., the "Bert J. Harris, Jr., Private Property Rights |
4 | Protection Act"; revising a definition; shortening a |
5 | period of notice for certain actions; providing for the |
6 | state land planning agency to receive notice of claims; |
7 | revising procedures for determining a governmental |
8 | entity's final decision identifying the allowable uses for |
9 | a property; extending a period of time for bringing a |
10 | cause of action; providing that enactment of a law or |
11 | adoption of a regulation does not constitute applying the |
12 | law or regulation; providing for a waiver of sovereign |
13 | immunity for liability; providing an effective date. |
14 |
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15 | WHEREAS, the Legislature wishes to clarify its original |
16 | intent with respect to allowing appropriate compensation for |
17 | unduly burdened real property and to provide a waiver of |
18 | sovereign immunity under section 70.001, Florida Statutes, the |
19 | Bert J. Harris, Jr., Private Property Rights Protection Act, and |
20 | WHEREAS, the Legislature wishes to make other changes to |
21 | clarify provisions of this act and to improve the reporting of |
22 | cases filed under the act, NOW, THEREFORE, |
23 |
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24 | Be It Enacted by the Legislature of the State of Florida: |
25 |
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26 | Section 1. Paragraph (e) of subsection (3), paragraphs |
27 | (a), (b), and (c) of subsection (4), paragraph (a) of subsection |
28 | (5), paragraph (c) of subsection (6), and subsections (11) and |
29 | (13) of section 70.001, Florida Statutes, are amended to read: |
30 | 70.001 Private property rights protection.-- |
31 | (3) For purposes of this section: |
32 | (e) The terms "inordinate burden" or "inordinately |
33 | burdened" mean that an action of one or more governmental |
34 | entities has directly restricted or limited the use of real |
35 | property such that the property owner is permanently unable to |
36 | attain the reasonable, investment-backed expectation for the |
37 | existing use of the real property or a vested right to a |
38 | specific use of the real property with respect to the real |
39 | property as a whole, or that the property owner is left with |
40 | existing or vested uses that are unreasonable such that the |
41 | property owner bears permanently a disproportionate share of a |
42 | burden imposed for the good of the public, which in fairness |
43 | should be borne by the public at large. The terms "inordinate |
44 | burden" or "inordinately burdened" do not include temporary |
45 | impacts to real property; impacts to real property occasioned by |
46 | governmental abatement, prohibition, prevention, or remediation |
47 | of a public nuisance at common law or a noxious use of private |
48 | property; or impacts to real property caused by an action of a |
49 | governmental entity taken to grant relief to a property owner |
50 | under this section; however, a moratorium on development, as |
51 | defined in s. 380.04, which is in effect for longer than 1 year |
52 | is not a temporary impact to real property and is included |
53 | within the terms "inordinate burden" or "inordinately burdened". |
54 | (4)(a) Not less than 120 180 days prior to filing an |
55 | action under this section against a governmental entity, a |
56 | property owner who seeks compensation under this section must |
57 | present the claim in writing to the head of the governmental |
58 | entity, except that if the property is classified as |
59 | agricultural pursuant to s. 193.461, the notice period is 90 |
60 | days. The property owner must submit, along with the claim, a |
61 | bona fide, valid appraisal that supports the claim and |
62 | demonstrates the loss in fair market value to the real property. |
63 | If the action of government is the culmination of a process that |
64 | involves more than one governmental entity, or if a complete |
65 | resolution of all relevant issues, in the view of the property |
66 | owner or in the view of a governmental entity to whom a claim is |
67 | presented, requires the active participation of more than one |
68 | governmental entity, the property owner shall present the claim |
69 | as provided in this section to each of the governmental |
70 | entities. |
71 | (b) The governmental entity shall provide written notice |
72 | of the claim to all parties to any administrative action that |
73 | gave rise to the claim, and to owners of real property |
74 | contiguous to the owner's property at the addresses listed on |
75 | the most recent county tax rolls. Within 15 days after the claim |
76 | is being presented, the governmental entity shall report the |
77 | claim in writing to the state land planning agency Department of |
78 | Legal Affairs, and shall provide the agency department with the |
79 | name, address, and telephone number of the employee of the |
80 | governmental entity from whom additional information may be |
81 | obtained about the claim during the pendency of the claim and |
82 | any subsequent judicial action. |
83 | (c) During the 90-day-notice period or the 120-day-notice |
84 | 180-day-notice period, unless extended by agreement of the |
85 | parties, the governmental entity shall make a written settlement |
86 | offer to effectuate: |
87 | 1. An adjustment of land development or permit standards |
88 | or other provisions controlling the development or use of land. |
89 | 2. Increases or modifications in the density, intensity, |
90 | or use of areas of development. |
91 | 3. The transfer of developmental rights. |
92 | 4. Land swaps or exchanges. |
93 | 5. Mitigation, including payments in lieu of onsite |
94 | mitigation. |
95 | 6. Location on the least sensitive portion of the |
96 | property. |
97 | 7. Conditioning the amount of development or use |
98 | permitted. |
99 | 8. A requirement that issues be addressed on a more |
100 | comprehensive basis than a single proposed use or development. |
101 | 9. Issuance of the development order, a variance, special |
102 | exception, or other extraordinary relief. |
103 | 10. Purchase of the real property, or an interest therein, |
104 | by an appropriate governmental entity or payment of |
105 | compensation. |
106 | 11. No changes to the action of the governmental entity. |
107 |
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108 | If the property owner accepts the settlement offer, the |
109 | governmental entity may implement the settlement offer by |
110 | appropriate development agreement; by issuing a variance, |
111 | special exception, or other extraordinary relief; or by other |
112 | appropriate method, subject to paragraph (d). |
113 | (5)(a) During the 90-day-notice period or the 120-day- |
114 | notice 180-day-notice period, unless a settlement offer is |
115 | accepted by the property owner, each of the governmental |
116 | entities provided notice pursuant to paragraph (4)(a) shall |
117 | issue a written ripeness decision identifying the allowable uses |
118 | to which the subject property may be put. The failure of the |
119 | governmental entity to issue such a written ripeness decision |
120 | during the applicable 90-day-notice period or 120-day-notice |
121 | 180-day-notice period shall cause be deemed to ripen the prior |
122 | action of the governmental entity to become its final decision, |
123 | for purposes of the act, identifying the uses for the subject |
124 | property, and shall operate as a ripeness decision that has been |
125 | rejected by the property owner. Whether rendered by submission |
126 | of a written decision during the 120-day-notice period or by |
127 | failure to submit such a written decision, the final decision of |
128 | the governmental entity produced under this paragraph operates |
129 | as a final decision that has been rejected by the property |
130 | owner. This final The ripeness decision, as a matter of law, |
131 | constitutes the last prerequisite to judicial review of the |
132 | merits, and the matter shall be deemed ripe or final for the |
133 | purposes of the judicial proceeding created by this section, |
134 | notwithstanding the availability of other administrative |
135 | remedies. |
136 | (6) |
137 | (c)1. In any action filed pursuant to this section, the |
138 | property owner is entitled to recover reasonable costs and |
139 | attorney fees incurred by the property owner, from the |
140 | governmental entity or entities, according to their |
141 | proportionate share as determined by the court, from the date of |
142 | the filing of the circuit court action, if the property owner |
143 | prevails in the action and the court determines that the |
144 | settlement offer, including the ripeness decision, of the |
145 | governmental entity or entities did not constitute a bona fide |
146 | offer to the property owner which reasonably would have resolved |
147 | the claim, based upon the knowledge available to the |
148 | governmental entity or entities and the property owner during |
149 | the 90-day-notice period or the 120-day-notice 180-day-notice |
150 | period. |
151 | 2. In any action filed pursuant to this section, the |
152 | governmental entity or entities are entitled to recover |
153 | reasonable costs and attorney fees incurred by the governmental |
154 | entity or entities from the date of the filing of the circuit |
155 | court action, if the governmental entity or entities prevail in |
156 | the action and the court determines that the property owner did |
157 | not accept a bona fide settlement offer, including the ripeness |
158 | decision, which reasonably would have resolved the claim fairly |
159 | to the property owner if the settlement offer had been accepted |
160 | by the property owner, based upon the knowledge available to the |
161 | governmental entity or entities and the property owner during |
162 | the 90-day-notice period or the 120-day-notice 180-day-notice |
163 | period. |
164 | 3. The determination of total reasonable costs and |
165 | attorney fees pursuant to this paragraph shall be made by the |
166 | court and not by the jury. Any proposed settlement offer or any |
167 | proposed ripeness decision, except for the final written |
168 | settlement offer or the final written ripeness decision, and any |
169 | negotiations or rejections in regard to the formulation either |
170 | of the settlement offer or the ripeness decision, are |
171 | inadmissible in the subsequent proceeding established by this |
172 | section except for the purposes of the determination pursuant to |
173 | this paragraph. |
174 | (11) A cause of action may not be commenced under this |
175 | section if the claim is presented more than 2 years 1 year after |
176 | a law or regulation is first applied by the governmental entity |
177 | to the property at issue. Enacting a law or adopting a |
178 | regulation does not constitute applying the law or regulation to |
179 | a property. If an owner seeks relief from the governmental |
180 | action through lawfully available administrative or judicial |
181 | proceedings, the time for bringing an action under this section |
182 | is tolled until the conclusion of such proceedings. |
183 | (13) In accordance with s. 13, Art. X of the State |
184 | Constitution, the state, for itself and for its agencies or |
185 | political subdivisions, waives sovereign immunity for liability |
186 | for actions subject to this section, but only to the extent |
187 | specified in this section. This section does not affect the |
188 | sovereign immunity of government. |
189 | Section 2. This act shall take effect July 1, 2007. |