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A bill to be entitled

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An act relating to property rights; amending s. 70.001,

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F.S.; revising a definition; shortening a notice period

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for certain actions; providing for the state land planning

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agency to receive notice of claims; revising procedures

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for determining a governmental entity's final decision

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identifying the allowable uses for a property; extending a

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period of time for bringing an action; providing that

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enactment of a law or adoption of a regulation does not

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constitute applying the law or regulation; providing for a

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waiver of sovereign immunity for liability; providing for

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prospective application; providing an effective date.

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     WHEREAS, the Legislature wishes to clarify its original

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intent with respect to allowing appropriate compensation for

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unduly burdened real property and to provide a waiver of

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sovereign immunity under s. 70.001, Florida Statutes, the Bert J.

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Harris, Jr., Private Property Rights Protection Act, and

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     WHEREAS, the Legislature wishes to make other changes to

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clarify provisions of this act, NOW, THEREFORE,

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Paragraph (e) of subsection (3), paragraphs (a)

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and (c) of subsection (4), paragraph (a) of subsection (5),

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paragraph (c) of subsection (6), and subsections (11) and (13) of

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section 70.001, Florida Statutes, are amended to read:

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     70.001  Private property rights protection.--

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     (3)  For purposes of this section:

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     (e) The terms "inordinate burden" and or "inordinately

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burdened" mean that an action of one or more governmental

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entities has directly restricted or limited the use of real

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property such that the property owner is permanently unable to

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attain the reasonable, investment-backed expectation for the

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existing use of the real property or a vested right to a specific

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use of the real property with respect to the real property as a

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whole, or that the property owner is left with existing or vested

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uses that are unreasonable such that the property owner bears

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permanently a disproportionate share of a burden imposed for the

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good of the public, which in fairness should be borne by the

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public at large. The terms "inordinate burden" and or

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"inordinately burdened" do not include temporary impacts to real

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property; impacts to real property occasioned by governmental

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abatement, prohibition, prevention, or remediation of a public

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nuisance at common law or a noxious use of private property; or

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impacts to real property caused by an action of a governmental

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entity taken to grant relief to a property owner under this

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section; however, a moratorium on development, as defined in s.

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380.04, that is in effect for longer than 1 year is not a

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temporary impact to real property and, thus, is included in the

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terms "inordinate burden" and "inordinately burdened."

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     (4)(a) Not less than 120 180 days prior to filing an action

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under this section against a governmental entity, a property

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owner who seeks compensation under this section must present the

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claim in writing to the head of the governmental entity, except

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that if the property is classified as agricultural pursuant to s.

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193.461, the notice period is 90 days. The property owner must

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submit, along with the claim, a bona fide, valid appraisal that

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supports the claim and demonstrates the loss in fair market value

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to the real property. If the action of government is the

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culmination of a process that involves more than one governmental

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entity, or if a complete resolution of all relevant issues, in

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the view of the property owner or in the view of a governmental

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entity to whom a claim is presented, requires the active

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participation of more than one governmental entity, the property

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owner shall present the claim as provided in this section to each

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of the governmental entities.

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     (c) During the 90-day-notice period or the 120-day-notice

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

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parties, the governmental entity shall make a written settlement

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offer to effectuate:

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     1.  An adjustment of land development or permit standards or

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other provisions controlling the development or use of land.

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     2.  Increases or modifications in the density, intensity, or

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use of areas of development.

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     3.  The transfer of developmental rights.

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     4.  Land swaps or exchanges.

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     5.  Mitigation, including payments in lieu of onsite

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mitigation.

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     6.  Location on the least sensitive portion of the property.

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     7.  Conditioning the amount of development or use permitted.

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     8.  A requirement that issues be addressed on a more

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comprehensive basis than a single proposed use or development.

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

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exception, or other extraordinary relief.

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

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by an appropriate governmental entity, or payment of

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compensation.

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     11.  No changes to the action of the governmental entity.

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If the property owner accepts the settlement offer, the

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governmental entity may implement the settlement offer by

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appropriate development agreement; by issuing a variance, special

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exception, or other extraordinary relief; or by other appropriate

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method, subject to paragraph (d).

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     (5)(a) During the 90-day-notice period or the 120-day-

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

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accepted by the property owner, each of the governmental entities

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

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written ripeness decision identifying the allowable uses to which

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the subject property may be put. The failure of the governmental

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entity to issue such a written ripeness decision during the

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applicable 90-day-notice period or 120-day-notice 180-day-notice

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

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governmental entity to become its final decision, for purposes of

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this section, identifying the uses for the subject property, and

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shall operate as a ripeness decision that has been rejected by

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the property owner. Whether rendered by submission of a written

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decision during the 120-day-notice period or by failure to submit

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such a written decision, the final decision of the governmental

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entity produced under this paragraph operates as a final decision

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that has been rejected by the property owner. This final The

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

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prerequisite to judicial review on the merits, and the matter

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shall be deemed ripe or final for the purposes of the judicial

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proceeding created by this section, notwithstanding the

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availability of other administrative remedies.

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     (6)

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

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property owner is entitled to recover reasonable costs and

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attorney fees incurred by the property owner, from the

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governmental entity or entities, according to their proportionate

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share as determined by the court, from the date of the filing of

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the circuit court action, if the property owner prevails in the

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action and the court determines that the settlement offer,

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including the ripeness decision, of the governmental entity or

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entities did not constitute a bona fide offer to the property

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owner which reasonably would have resolved the claim, based upon

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the knowledge available to the governmental entity or entities

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and the property owner during the 90-day-notice period or the

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120-day-notice 180-day-notice period.

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

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governmental entity or entities are entitled to recover

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reasonable costs and attorney fees incurred by the governmental

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entity or entities from the date of the filing of the circuit

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court action, if the governmental entity or entities prevail in

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the action and the court determines that the property owner did

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not accept a bona fide settlement offer, including the ripeness

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decision, which reasonably would have resolved the claim fairly

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to the property owner if the settlement offer had been accepted

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by the property owner, based upon the knowledge available to the

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governmental entity or entities and the property owner during the

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90-day-notice period or the 120-day-notice 180-day-notice period.

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     3.  The determination of total reasonable costs and attorney

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fees pursuant to this paragraph shall be made by the court and

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not by the jury. Any proposed settlement offer or any proposed

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ripeness decision, except for the final written settlement offer

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or the final written ripeness decision, and any negotiations or

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rejections in regard to the formulation either of the settlement

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offer or the ripeness decision, are inadmissible in the

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subsequent proceeding established by this section except for the

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purposes of the determination pursuant to this paragraph.

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     (11)  A cause of action may not be commenced under this

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section if the claim is presented more than 2 years 1 year after

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a law or regulation is first applied by the governmental entity

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to the property at issue. For purposes of this section, enacting

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a law or adopting a regulation does not constitute applying the

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law or regulation to a property. If an owner seeks relief from

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the governmental action through lawfully available administrative

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or judicial proceedings, the time for bringing an action under

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this section is tolled until the conclusion of such proceedings.

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     (13) In accordance with s. 13, Art. X of the State

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Constitution, the state, for itself and for its agencies or

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political subdivisions, waives sovereign immunity for liability

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for actions subject to this section, but only to the extent

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specified in this section This section does not affect the

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sovereign immunity of government.

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     Section 2. The amendments to s. 70.001, Florida Statutes,

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by this act shall apply prospectively only, and shall not apply

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to any claim or action filed under s. 70.001, Florida Statutes,

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which is pending upon the effective date of this act.

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     Section 3.  This act shall take effect July 1, 2008.