HB 881

1
A bill to be entitled
2An act relating to property rights; amending s. 70.001,
3F.S.; revising a definition; shortening a notice period
4for certain actions; providing for the state land planning
5agency to receive notice of claims; revising procedures
6for determining a governmental entity's final decision
7identifying the allowable uses for a property; extending a
8period of time for bringing an action; providing that
9enactment of a law or adoption of a regulation does not
10constitute applying the law or regulation; providing for a
11waiver of sovereign immunity for liability; providing for
12prospective application; providing an effective date.
13
14     WHEREAS, the Legislature wishes to clarify its original
15intent with respect to allowing appropriate compensation for
16unduly burdened real property and to provide a waiver of
17sovereign immunity under section 70.001, Florida Statutes, the
18Bert J. Harris, Jr., Private Property Rights Protection Act, and
19     WHEREAS, the Legislature wishes to make other changes to
20clarify provisions of this act, NOW, THEREFORE,
21
22Be It Enacted by the Legislature of the State of Florida:
23
24     Section 1.  Paragraph (e) of subsection (3), paragraphs (a)
25and (c) of subsection (4), paragraph (a) of subsection (5),
26paragraph (c) of subsection (6), and subsections (11) and (13)
27of section 70.001, Florida Statutes, are amended to read:
28     70.001  Private property rights protection.--
29     (3)  For purposes of this section:
30     (e)  The terms "inordinate burden" and or "inordinately
31burdened" mean that an action of one or more governmental
32entities has directly restricted or limited the use of real
33property such that the property owner is permanently unable to
34attain the reasonable, investment-backed expectation for the
35existing use of the real property or a vested right to a
36specific use of the real property with respect to the real
37property as a whole, or that the property owner is left with
38existing or vested uses that are unreasonable such that the
39property owner bears permanently a disproportionate share of a
40burden imposed for the good of the public, which in fairness
41should be borne by the public at large. The terms "inordinate
42burden" and or "inordinately burdened" do not include temporary
43impacts to real property; impacts to real property occasioned by
44governmental abatement, prohibition, prevention, or remediation
45of a public nuisance at common law or a noxious use of private
46property; or impacts to real property caused by an action of a
47governmental entity taken to grant relief to a property owner
48under this section; however, a moratorium on development, as
49defined in s. 380.04, that is in effect for longer than 1 year
50is not a temporary impact to real property and, thus, is
51included in the terms "inordinate burden" and "inordinately
52burdened."
53     (4)(a)  Not less than 120 180 days prior to filing an
54action under this section against a governmental entity, a
55property owner who seeks compensation under this section must
56present the claim in writing to the head of the governmental
57entity, except that if the property is classified as
58agricultural pursuant to s. 193.461, the notice period is 90
59days. The property owner must submit, along with the claim, a
60bona fide, valid appraisal that supports the claim and
61demonstrates the loss in fair market value to the real property.
62If the action of government is the culmination of a process that
63involves more than one governmental entity, or if a complete
64resolution of all relevant issues, in the view of the property
65owner or in the view of a governmental entity to whom a claim is
66presented, requires the active participation of more than one
67governmental entity, the property owner shall present the claim
68as provided in this section to each of the governmental
69entities.
70     (c)  During the 90-day-notice period or the 120-day-notice
71180-day-notice period, unless extended by agreement of the
72parties, the governmental entity shall make a written settlement
73offer to effectuate:
74     1.  An adjustment of land development or permit standards
75or other provisions controlling the development or use of land.
76     2.  Increases or modifications in the density, intensity,
77or use of areas of development.
78     3.  The transfer of developmental rights.
79     4.  Land swaps or exchanges.
80     5.  Mitigation, including payments in lieu of onsite
81mitigation.
82     6.  Location on the least sensitive portion of the
83property.
84     7.  Conditioning the amount of development or use
85permitted.
86     8.  A requirement that issues be addressed on a more
87comprehensive basis than a single proposed use or development.
88     9.  Issuance of the development order, a variance, special
89exception, or other extraordinary relief.
90     10.  Purchase of the real property, or an interest therein,
91by an appropriate governmental entity, or payment of
92compensation.
93     11.  No changes to the action of the governmental entity.
94
95If the property owner accepts the settlement offer, the
96governmental entity may implement the settlement offer by
97appropriate development agreement; by issuing a variance,
98special exception, or other extraordinary relief; or by other
99appropriate method, subject to paragraph (d).
100     (5)(a)  During the 90-day-notice period or the 120-day-
101notice 180-day-notice period, unless a settlement offer is
102accepted by the property owner, each of the governmental
103entities provided notice pursuant to paragraph (4)(a) shall
104issue a written ripeness decision identifying the allowable uses
105to which the subject property may be put. The failure of the
106governmental entity to issue such a written ripeness decision
107during the applicable 90-day-notice period or 120-day-notice
108180-day-notice period shall cause be deemed to ripen the prior
109action of the governmental entity to become its final decision,
110for purposes of this section, identifying the uses for the
111subject property, and shall operate as a ripeness decision that
112has been rejected by the property owner. Whether rendered by
113submission of a written decision during the 120-day-notice
114period or by failure to submit such a written decision, the
115final decision of the governmental entity produced under this
116paragraph operates as a final decision that has been rejected by
117the property owner. This final The ripeness decision, as a
118matter of law, constitutes the last prerequisite to judicial
119review on the merits, and the matter shall be deemed ripe or
120final for the purposes of the judicial proceeding created by
121this section, notwithstanding the availability of other
122administrative remedies.
123     (6)
124     (c)1.  In any action filed pursuant to this section, the
125property owner is entitled to recover reasonable costs and
126attorney fees incurred by the property owner, from the
127governmental entity or entities, according to their
128proportionate share as determined by the court, from the date of
129the filing of the circuit court action, if the property owner
130prevails in the action and the court determines that the
131settlement offer, including the ripeness decision, of the
132governmental entity or entities did not constitute a bona fide
133offer to the property owner which reasonably would have resolved
134the claim, based upon the knowledge available to the
135governmental entity or entities and the property owner during
136the 90-day-notice period or the 120-day-notice 180-day-notice
137period.
138     2.  In any action filed pursuant to this section, the
139governmental entity or entities are entitled to recover
140reasonable costs and attorney fees incurred by the governmental
141entity or entities from the date of the filing of the circuit
142court action, if the governmental entity or entities prevail in
143the action and the court determines that the property owner did
144not accept a bona fide settlement offer, including the ripeness
145decision, which reasonably would have resolved the claim fairly
146to the property owner if the settlement offer had been accepted
147by the property owner, based upon the knowledge available to the
148governmental entity or entities and the property owner during
149the 90-day-notice period or the 120-day-notice 180-day-notice
150period.
151     3.  The determination of total reasonable costs and
152attorney fees pursuant to this paragraph shall be made by the
153court and not by the jury. Any proposed settlement offer or any
154proposed ripeness decision, except for the final written
155settlement offer or the final written ripeness decision, and any
156negotiations or rejections in regard to the formulation either
157of the settlement offer or the ripeness decision, are
158inadmissible in the subsequent proceeding established by this
159section except for the purposes of the determination pursuant to
160this paragraph.
161     (11)  A cause of action may not be commenced under this
162section if the claim is presented more than 2 years 1 year after
163a law or regulation is first applied by the governmental entity
164to the property at issue. For purposes of this section, enacting
165a law or adopting a regulation does not constitute applying the
166law or regulation to a property. If an owner seeks relief from
167the governmental action through lawfully available
168administrative or judicial proceedings, the time for bringing an
169action under this section is tolled until the conclusion of such
170proceedings.
171     (13)  In accordance with s. 13, Art. X of the State
172Constitution, the state, for itself and for its agencies or
173political subdivisions, waives sovereign immunity for liability
174for actions subject to this section, but only to the extent
175specified in this section This section does not affect the
176sovereign immunity of government.
177     Section 2.  The amendments to s. 70.001, Florida Statutes,
178by this act shall apply prospectively only, and shall not apply
179to any claim or action filed under s. 70.001, Florida Statutes,
180that is pending upon the effective date of this act.
181     Section 3.  This act shall take effect July 1, 2008.


CODING: Words stricken are deletions; words underlined are additions.