| 1 | A bill to be entitled |
| 2 | An act relating to property rights; amending s. 70.001, |
| 3 | F.S.; revising a definition; shortening a notice period |
| 4 | for certain actions; providing for the state land planning |
| 5 | agency to receive notice of claims; revising procedures |
| 6 | for determining a governmental entity's final decision |
| 7 | identifying the allowable uses for a property; providing |
| 8 | that enactment of a law or adoption of a regulation does |
| 9 | not constitute applying the law or regulation; provides a |
| 10 | factor that may be considered in determining whether an |
| 11 | inordinate burden has been imposed on the real property; |
| 12 | providing for a waiver of sovereign immunity for |
| 13 | liability; providing for prospective application; |
| 14 | providing an effective date. |
| 15 |
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| 16 | WHEREAS, the Legislature wishes to clarify its original |
| 17 | intent with respect to allowing appropriate compensation for |
| 18 | unduly burdened real property and to provide a waiver of |
| 19 | sovereign immunity under section 70.001, Florida Statutes, the |
| 20 | Bert J. Harris, Jr., Private Property Rights Protection Act, and |
| 21 | WHEREAS, the Legislature wishes to make other changes to |
| 22 | clarify provisions of this 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 (a) |
| 27 | and (c) of subsection (4), paragraph (a) of subsection (5), |
| 28 | paragraph (c) of subsection (6), and subsections (11) and (13) |
| 29 | 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" and 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" and 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, that is in effect for longer than 1 year |
| 52 | does not necessarily constitute a temporary impact to real |
| 53 | property and, thus, depending upon the particular circumstances, |
| 54 | may constitute an "inordinate burden" as provided in this |
| 55 | paragraph. |
| 56 | (4)(a) Not less than 120 180 days prior to filing an |
| 57 | action under this section against a governmental entity, a |
| 58 | property owner who seeks compensation under this section must |
| 59 | present the claim in writing to the head of the governmental |
| 60 | entity, except that if the property is classified as |
| 61 | agricultural pursuant to s. 193.461, the notice period is 90 |
| 62 | days. The property owner must submit, along with the claim, a |
| 63 | bona fide, valid appraisal that supports the claim and |
| 64 | demonstrates the loss in fair market value to the real property. |
| 65 | If the action of government is the culmination of a process that |
| 66 | involves more than one governmental entity, or if a complete |
| 67 | resolution of all relevant issues, in the view of the property |
| 68 | owner or in the view of a governmental entity to whom a claim is |
| 69 | presented, requires the active participation of more than one |
| 70 | governmental entity, the property owner shall present the claim |
| 71 | as provided in this section to each of the governmental |
| 72 | entities. |
| 73 | (c) During the 90-day-notice period or the 120-day-notice |
| 74 | 180-day-notice period, unless extended by agreement of the |
| 75 | parties, the governmental entity shall make a written settlement |
| 76 | offer to effectuate: |
| 77 | 1. An adjustment of land development or permit standards |
| 78 | or other provisions controlling the development or use of land. |
| 79 | 2. Increases or modifications in the density, intensity, |
| 80 | or 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 |
| 84 | mitigation. |
| 85 | 6. Location on the least sensitive portion of the |
| 86 | property. |
| 87 | 7. Conditioning the amount of development or use |
| 88 | permitted. |
| 89 | 8. A requirement that issues be addressed on a more |
| 90 | comprehensive basis than a single proposed use or development. |
| 91 | 9. Issuance of the development order, a variance, special |
| 92 | exception, or other extraordinary relief. |
| 93 | 10. Purchase of the real property, or an interest therein, |
| 94 | by an appropriate governmental entity or payment of |
| 95 | compensation. |
| 96 | 11. No changes to the action of the governmental entity. |
| 97 |
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| 98 | If the property owner accepts the settlement offer, the |
| 99 | governmental entity may implement the settlement offer by |
| 100 | appropriate development agreement; by issuing a variance, |
| 101 | special exception, or other extraordinary relief; or by other |
| 102 | appropriate method, subject to paragraph (d). |
| 103 | (5)(a) During the 90-day-notice period or the 120-day- |
| 104 | notice 180-day-notice period, unless a settlement offer is |
| 105 | accepted by the property owner, each of the governmental |
| 106 | entities provided notice pursuant to paragraph (4)(a) shall |
| 107 | issue a written ripeness decision identifying the allowable uses |
| 108 | to which the subject property may be put. The failure of the |
| 109 | governmental entity to issue such a written ripeness decision |
| 110 | during the applicable 90-day-notice period or 120-day-notice |
| 111 | 180-day-notice period shall cause be deemed to ripen the prior |
| 112 | action of the governmental entity to become its final decision, |
| 113 | for purposes of this section, identifying the uses for the |
| 114 | subject property, and shall operate as a ripeness decision that |
| 115 | has been rejected by the property owner. Whether rendered by |
| 116 | submission of a written decision during the 120-day-notice |
| 117 | period or by failure to submit such a written decision, the |
| 118 | final decision of the governmental entity produced under this |
| 119 | paragraph operates as a final decision that has been rejected by |
| 120 | the property owner. This final The ripeness decision, as a |
| 121 | matter of law, constitutes the last prerequisite to judicial |
| 122 | review on the merits, and the matter shall be deemed ripe or |
| 123 | final for the purposes of the judicial proceeding created by |
| 124 | this section, notwithstanding the availability of other |
| 125 | administrative remedies. |
| 126 | (6) |
| 127 | (c)1. In any action filed pursuant to this section, the |
| 128 | property owner is entitled to recover reasonable costs and |
| 129 | attorney fees incurred by the property owner, from the |
| 130 | governmental entity or entities, according to their |
| 131 | proportionate share as determined by the court, from the date of |
| 132 | the filing of the circuit court action, if the property owner |
| 133 | prevails in the action and the court determines that the |
| 134 | settlement offer, including the ripeness decision, of the |
| 135 | governmental entity or entities did not constitute a bona fide |
| 136 | offer to the property owner which reasonably would have resolved |
| 137 | the claim, based upon the knowledge available to the |
| 138 | governmental entity or entities and the property owner during |
| 139 | the 90-day-notice period or the 120-day-notice 180-day-notice |
| 140 | period. |
| 141 | 2. In any action filed pursuant to this section, the |
| 142 | governmental entity or entities are entitled to recover |
| 143 | reasonable costs and attorney fees incurred by the governmental |
| 144 | entity or entities from the date of the filing of the circuit |
| 145 | court action, if the governmental entity or entities prevail in |
| 146 | the action and the court determines that the property owner did |
| 147 | not accept a bona fide settlement offer, including the ripeness |
| 148 | decision, which reasonably would have resolved the claim fairly |
| 149 | to the property owner if the settlement offer had been accepted |
| 150 | by the property owner, based upon the knowledge available to the |
| 151 | governmental entity or entities and the property owner during |
| 152 | the 90-day-notice period or the 120-day-notice 180-day-notice |
| 153 | period. |
| 154 | 3. The determination of total reasonable costs and |
| 155 | attorney fees pursuant to this paragraph shall be made by the |
| 156 | court and not by the jury. Any proposed settlement offer or any |
| 157 | proposed ripeness decision, except for the final written |
| 158 | settlement offer or the final written ripeness decision, and any |
| 159 | negotiations or rejections in regard to the formulation either |
| 160 | of the settlement offer or the ripeness decision, are |
| 161 | inadmissible in the subsequent proceeding established by this |
| 162 | section except for the purposes of the determination pursuant to |
| 163 | this paragraph. |
| 164 | (11) A cause of action may not be commenced under this |
| 165 | section if the claim is presented more than 1 year after a law |
| 166 | or regulation is first applied by the governmental entity to the |
| 167 | property at issue. For purposes of this section, enacting a law |
| 168 | or adopting a regulation does not constitute applying the law or |
| 169 | regulation to a property; however, in determining whether an |
| 170 | inordinate burden has been imposed on the real property as |
| 171 | provided for in this section, consideration may be given to the |
| 172 | length of time that has elapsed since the enactment of a law or |
| 173 | the adoption of a rule, regulation, or ordinance and its |
| 174 | application. If an owner seeks relief from the governmental |
| 175 | action through lawfully available administrative or judicial |
| 176 | proceedings, the time for bringing an action under this section |
| 177 | is tolled until the conclusion of such proceedings. |
| 178 | (13) In accordance with s. 13, Art. X of the State |
| 179 | Constitution, the state, for itself and for its agencies or |
| 180 | political subdivisions, waives sovereign immunity for causes of |
| 181 | action based upon the application of any law, regulation, or |
| 182 | ordinance subject to this section, but only to the extent |
| 183 | specified in this section This section does not affect the |
| 184 | sovereign immunity of government. |
| 185 | Section 2. The amendments to s. 70.001, Florida Statutes, |
| 186 | made by this act apply prospectively only and do not apply to |
| 187 | any claim or action filed under s. 70.001, Florida Statutes, |
| 188 | which is pending on the effective date of this act. |
| 189 | Section 3. This act shall take effect July 1, 2009. |