HB 1361

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; providing
8that enactment of a law or adoption of a regulation does
9not constitute applying the law or regulation; provides a
10factor that may be considered in determining whether an
11inordinate burden has been imposed on the real property;
12providing for a waiver of sovereign immunity for
13liability; providing for prospective application;
14providing an effective date.
15
16     WHEREAS, the Legislature wishes to clarify its original
17intent with respect to allowing appropriate compensation for
18unduly burdened real property and to provide a waiver of
19sovereign immunity under section 70.001, Florida Statutes, the
20Bert J. Harris, Jr., Private Property Rights Protection Act, and
21     WHEREAS, the Legislature wishes to make other changes to
22clarify provisions of this act, NOW, THEREFORE,
23
24Be It Enacted by the Legislature of the State of Florida:
25
26     Section 1.  Paragraph (e) of subsection (3), paragraphs (a)
27and (c) of subsection (4), paragraph (a) of subsection (5),
28paragraph (c) of subsection (6), and subsections (11) and (13)
29of 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" and or "inordinately
33burdened" mean that an action of one or more governmental
34entities has directly restricted or limited the use of real
35property such that the property owner is permanently unable to
36attain the reasonable, investment-backed expectation for the
37existing use of the real property or a vested right to a
38specific use of the real property with respect to the real
39property as a whole, or that the property owner is left with
40existing or vested uses that are unreasonable such that the
41property owner bears permanently a disproportionate share of a
42burden imposed for the good of the public, which in fairness
43should be borne by the public at large. The terms "inordinate
44burden" and or "inordinately burdened" do not include temporary
45impacts to real property; impacts to real property occasioned by
46governmental abatement, prohibition, prevention, or remediation
47of a public nuisance at common law or a noxious use of private
48property; or impacts to real property caused by an action of a
49governmental entity taken to grant relief to a property owner
50under this section; however, a moratorium on development, as
51defined in s. 380.04, that is in effect for longer than 1 year
52does not necessarily constitute a temporary impact to real
53property and, thus, depending upon the particular circumstances,
54may constitute an "inordinate burden" as provided in this
55paragraph.
56     (4)(a)  Not less than 120 180 days prior to filing an
57action under this section against a governmental entity, a
58property owner who seeks compensation under this section must
59present the claim in writing to the head of the governmental
60entity, except that if the property is classified as
61agricultural pursuant to s. 193.461, the notice period is 90
62days. The property owner must submit, along with the claim, a
63bona fide, valid appraisal that supports the claim and
64demonstrates the loss in fair market value to the real property.
65If the action of government is the culmination of a process that
66involves more than one governmental entity, or if a complete
67resolution of all relevant issues, in the view of the property
68owner or in the view of a governmental entity to whom a claim is
69presented, requires the active participation of more than one
70governmental entity, the property owner shall present the claim
71as provided in this section to each of the governmental
72entities.
73     (c)  During the 90-day-notice period or the 120-day-notice
74180-day-notice period, unless extended by agreement of the
75parties, the governmental entity shall make a written settlement
76offer to effectuate:
77     1.  An adjustment of land development or permit standards
78or other provisions controlling the development or use of land.
79     2.  Increases or modifications in the density, intensity,
80or use of areas of development.
81     3.  The transfer of developmental rights.
82     4.  Land swaps or exchanges.
83     5.  Mitigation, including payments in lieu of onsite
84mitigation.
85     6.  Location on the least sensitive portion of the
86property.
87     7.  Conditioning the amount of development or use
88permitted.
89     8.  A requirement that issues be addressed on a more
90comprehensive basis than a single proposed use or development.
91     9.  Issuance of the development order, a variance, special
92exception, or other extraordinary relief.
93     10.  Purchase of the real property, or an interest therein,
94by an appropriate governmental entity or payment of
95compensation.
96     11.  No changes to the action of the governmental entity.
97
98If the property owner accepts the settlement offer, the
99governmental entity may implement the settlement offer by
100appropriate development agreement; by issuing a variance,
101special exception, or other extraordinary relief; or by other
102appropriate method, subject to paragraph (d).
103     (5)(a)  During the 90-day-notice period or the 120-day-
104notice 180-day-notice period, unless a settlement offer is
105accepted by the property owner, each of the governmental
106entities provided notice pursuant to paragraph (4)(a) shall
107issue a written ripeness decision identifying the allowable uses
108to which the subject property may be put. The failure of the
109governmental entity to issue such a written ripeness decision
110during the applicable 90-day-notice period or 120-day-notice
111180-day-notice period shall cause be deemed to ripen the prior
112action of the governmental entity to become its final decision,
113for purposes of this section, identifying the uses for the
114subject property, and shall operate as a ripeness decision that
115has been rejected by the property owner. Whether rendered by
116submission of a written decision during the 120-day-notice
117period or by failure to submit such a written decision, the
118final decision of the governmental entity produced under this
119paragraph operates as a final decision that has been rejected by
120the property owner. This final The ripeness decision, as a
121matter of law, constitutes the last prerequisite to judicial
122review on the merits, and the matter shall be deemed ripe or
123final for the purposes of the judicial proceeding created by
124this section, notwithstanding the availability of other
125administrative remedies.
126     (6)
127     (c)1.  In any action filed pursuant to this section, the
128property owner is entitled to recover reasonable costs and
129attorney fees incurred by the property owner, from the
130governmental entity or entities, according to their
131proportionate share as determined by the court, from the date of
132the filing of the circuit court action, if the property owner
133prevails in the action and the court determines that the
134settlement offer, including the ripeness decision, of the
135governmental entity or entities did not constitute a bona fide
136offer to the property owner which reasonably would have resolved
137the claim, based upon the knowledge available to the
138governmental entity or entities and the property owner during
139the 90-day-notice period or the 120-day-notice 180-day-notice
140period.
141     2.  In any action filed pursuant to this section, the
142governmental entity or entities are entitled to recover
143reasonable costs and attorney fees incurred by the governmental
144entity or entities from the date of the filing of the circuit
145court action, if the governmental entity or entities prevail in
146the action and the court determines that the property owner did
147not accept a bona fide settlement offer, including the ripeness
148decision, which reasonably would have resolved the claim fairly
149to the property owner if the settlement offer had been accepted
150by the property owner, based upon the knowledge available to the
151governmental entity or entities and the property owner during
152the 90-day-notice period or the 120-day-notice 180-day-notice
153period.
154     3.  The determination of total reasonable costs and
155attorney fees pursuant to this paragraph shall be made by the
156court and not by the jury. Any proposed settlement offer or any
157proposed ripeness decision, except for the final written
158settlement offer or the final written ripeness decision, and any
159negotiations or rejections in regard to the formulation either
160of the settlement offer or the ripeness decision, are
161inadmissible in the subsequent proceeding established by this
162section except for the purposes of the determination pursuant to
163this paragraph.
164     (11)  A cause of action may not be commenced under this
165section if the claim is presented more than 1 year after a law
166or regulation is first applied by the governmental entity to the
167property at issue. For purposes of this section, enacting a law
168or adopting a regulation does not constitute applying the law or
169regulation to a property; however, in determining whether an
170inordinate burden has been imposed on the real property as
171provided for in this section, consideration may be given to the
172length of time that has elapsed since the enactment of a law or
173the adoption of a rule, regulation, or ordinance and its
174application. If an owner seeks relief from the governmental
175action through lawfully available administrative or judicial
176proceedings, the time for bringing an action under this section
177is tolled until the conclusion of such proceedings.
178     (13)  In accordance with s. 13, Art. X of the State
179Constitution, the state, for itself and for its agencies or
180political subdivisions, waives sovereign immunity for causes of
181action based upon the application of any law, regulation, or
182ordinance subject to this section, but only to the extent
183specified in this section This section does not affect the
184sovereign immunity of government.
185     Section 2.  The amendments to s. 70.001, Florida Statutes,
186made by this act apply prospectively only and do not apply to
187any claim or action filed under s. 70.001, Florida Statutes,
188which is pending on the effective date of this act.
189     Section 3.  This act shall take effect July 1, 2009.


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