Florida Senate - 2009 SB 2244
By Senator Altman
24-01006B-09 20092244__
1 A bill to be entitled
2 An act relating to land used for conservation
3 purposes; creating s. 196.1962, F.S.; specifying
4 conservation purposes for which land must be used in
5 order to qualify for an ad valorem tax exemption;
6 requiring that such land be perpetually encumbered by
7 a conservation easement or other instrument; providing
8 for the assessment and ad valorem taxation of real
9 property within an area perpetually encumbered by a
10 conservation easement or other instrument which
11 contains a paved road, residence, commercial
12 structure, or other improvement; requiring land that
13 is exempt from ad valorem taxation and used for
14 agricultural or silvicultural purposes be managed
15 pursuant to certain best-management practices;
16 requiring an owner of land that is exempt from ad
17 valorem taxation to take actions to preserve the
18 perpetual effect of the conservation easement or other
19 instrument; providing that land less than a certain
20 acreage does not qualify for the ad valorem tax
21 exemption; providing exceptions; requiring the
22 Department of Revenue to adopt rules; amending s.
23 193.011, F.S.; requiring a property appraiser to
24 consider the use of property for conservation purposes
25 in determining the just value of the property;
26 amending s. 193.501, F.S.; providing for the
27 assessment of certain land used for conservation
28 purposes; defining the term “conservation purpose”;
29 providing an effective date.
30
31 Be It Enacted by the Legislature of the State of Florida:
32
33 Section 1. Section 196.1962, Florida Statutes, is created
34 to read:
35 196.1962 Exemption of real property dedicated in perpetuity
36 for conservation purposes.—
37 (1) Pursuant to s. 3(f), Art. VII of the State
38 Constitution, real property that is dedicated in perpetuity for
39 the conservation purposes specified in this section is exempt
40 from ad valorem taxation.
41 (a) Real property qualifying for the exemption shall be
42 perpetually encumbered by a valid and enforceable conservation
43 easement or other instrument that:
44 1. Requires the property to serve a conservation purpose,
45 as defined in 26 U.S.C. s. 170(h)(4)(A), which serves as the
46 basis of a qualified conservation contribution under 26 U.S.C.
47 s. 170(h); or
48 2.a. Requires the perpetual retention of the substantial
49 natural value of the property, including, but not limited to,
50 woodlands, wetlands, water courses, ponds, streams, and natural
51 open spaces or requires the restoration of the natural resources
52 of the land;
53 b. Requires the conservation of native wildlife habitat,
54 water quality enhancement, or water quantity recharge;
55 c. Prohibits subsurface excavation, billboards, trash,
56 unlawful pollutants, new paved roads, or residential or
57 commercial structures on the property and requires the property
58 to be kept in essentially its natural state;
59 d. Includes baseline documentation as to the natural values
60 to be protected on the property and may include a management
61 plan that details the management of the property so as to
62 effectuate the conservation of natural resources on the
63 property;
64 e. Is enforceable by a federal or state agency, county,
65 municipality, or water management district, or a federal or
66 state agency or nonprofit corporation designated by such
67 entities;
68 f. Allows for periodic review by any enforcing entity of
69 the provisions of the easement or instrument;
70 g. Provides for the perpetual enforcement of the provisions
71 of the easement or instrument against any present or future
72 owner of the property; and
73 h. Provides that the conservation easement or other
74 instrument is perpetual and nonrevocable.
75 (b) If real property that is perpetually encumbered by a
76 conservation easement or other instrument contains a paved road,
77 residence, commercial structure, or other improvement, but
78 otherwise satisfies the requirements of paragraph (a):
79 1. The use of the real property for a residence, commercial
80 structure, or other improvement, is not a conservation purpose.
81 Each structure, together with 1 acre of land on which the
82 structure is located is subject to ad valorem taxation as if the
83 conservation easement or other instrument does not exist.
84 2. The use of the real property for a paved road is not a
85 conservation purpose. The paved road is subject to ad valorem
86 taxation as if the conservation easement or other instrument
87 does not exist.
88
89 The balance of the property that does not contain a paved road,
90 residence, commercial structure, or other improvement is exempt
91 from ad valorem taxation.
92 (2) Real property that is exempt from ad valorem taxation
93 pursuant to this section and is used for agricultural or
94 silvicultural purposes must be maintained pursuant to the most
95 recent best-management practices established by the Division of
96 Forestry of the Department of Agriculture and Consumer Services
97 or other entity designated by the department.
98 (3) An owner of real property that is exempt from ad
99 valorem taxation pursuant to this section shall abide by the
100 requirements of the Florida Marketable Record Title Act, chapter
101 712, or any other similar law or rule to preserve the effect of
102 the qualifying conservation easement or other instrument in
103 perpetuity.
104 (4)(a) Notwithstanding subsection (1), real property that
105 is less than 40 contiguous acres is not large enough to serve a
106 conservation purpose that is sufficient to entitle the property
107 to the exemption unless the property:
108 1. Contains a natural sinkhole or a natural spring that
109 serves a significant water recharge or water production
110 function;
111 2. Contains a unique geological, archaeological,
112 historical, or cultural feature;
113 3. Provides habitat for a species that is listed as one of
114 Florida's endangered, threatened, or species of special concern
115 or listed pursuant to the federal Endangered Species Act or a
116 successor law;
117 4. Is perpetually encumbered by a conservation easement or
118 other instrument that protects a shoreline adjacent to
119 Outstanding Florida Waters, an Estuary of National Significance,
120 or an American Heritage River; or
121 5. Is perpetually encumbered by a conservation easement or
122 other instrument that protects lands adjacent to public lands
123 that are managed for conservation purposes or other private
124 lands that are perpetually encumbered by a conservation easement
125 or other instrument.
126 (b) The Department of Revenue shall adopt rules providing
127 for the administration of this subsection.
128 Section 2. Section 193.011, Florida Statutes, is amended to
129 read:
130 193.011 Factors to consider in deriving just valuation.—In
131 arriving at just valuation as required under s. 4, Art. VII of
132 the State Constitution, the property appraiser shall take into
133 consideration the following factors:
134 (1) The present cash value of the property, which is the
135 amount a willing purchaser would pay a willing seller, exclusive
136 of reasonable fees and costs of purchase, in cash or the
137 immediate equivalent thereof in a transaction at arm’s length;
138 (2) The highest and best use to which the property can be
139 expected to be put in the immediate future and the present use
140 of the property, taking into consideration the legally
141 permissible use of the property, including any applicable
142 judicial limitation, local or state land use regulation, or
143 historic preservation ordinance, and any zoning changes,
144 concurrency requirements, and permits necessary to achieve the
145 highest and best use, the use of the property for conservation
146 purposes, and considering any moratorium imposed by executive
147 order, law, ordinance, regulation, resolution, or proclamation
148 adopted by any governmental body or agency or the Governor when
149 the moratorium or judicial limitation prohibits or restricts the
150 development or improvement of property as otherwise authorized
151 by applicable law. The applicable governmental body or agency or
152 the Governor shall notify the property appraiser in writing of
153 any executive order, ordinance, regulation, resolution, or
154 proclamation it adopts imposing any such limitation, regulation,
155 or moratorium;
156 (3) The location of said property;
157 (4) The quantity or size of said property;
158 (5) The cost of said property and the present replacement
159 value of any improvements thereon;
160 (6) The condition of said property;
161 (7) The income from said property; and
162 (8) The net proceeds of the sale of the property, as
163 received by the seller, after deduction of all of the usual and
164 reasonable fees and costs of the sale, including the costs and
165 expenses of financing, and allowance for unconventional or
166 atypical terms of financing arrangements. When the net proceeds
167 of the sale of any property are utilized, directly or
168 indirectly, in the determination of just valuation of realty of
169 the sold parcel or any other parcel under the provisions of this
170 section, the property appraiser, for the purposes of such
171 determination, shall exclude any portion of such net proceeds
172 attributable to payments for household furnishings or other
173 items of personal property.
174 Section 3. Section 193.501, Florida Statutes, is amended to
175 read:
176 193.501 Assessment of lands used for conservation purposes
177 subject to a conservation easement, environmentally endangered
178 lands, or lands used for outdoor recreational or park purposes
179 when land development rights have been conveyed or conservation
180 restrictions have been covenanted.—
181 (1) The owner or owners in fee of any land subject to a
182 conservation easement as described in s. 704.06(1), which is not
183 exempt from ad valorem taxation pursuant to s. 196.1962; land
184 covenanted for conservation purposes pursuant to paragraph (b);
185 land qualified as environmentally endangered pursuant to
186 paragraph (6)(i) and so designated by formal resolution of the
187 governing board of the municipality or county within which such
188 land is located; land designated as conservation land in a
189 comprehensive plan adopted by the appropriate municipal or
190 county governing body; or any land which is used utilized for
191 outdoor recreational or park purposes may, by appropriate
192 instrument, for a term of not less than 10 years:
193 (a) Convey the development right of such land to the
194 governing board of any public agency in this state within which
195 the land is located, or to the Board of Trustees of the Internal
196 Improvement Trust Fund, or to a charitable corporation or trust
197 as described in s. 704.06(3); or
198 (b) Covenant with the governing board of any public agency
199 in this state within which the land is located, or with the
200 Board of Trustees of the Internal Improvement Trust Fund, or
201 with a charitable corporation or trust as described in s.
202 704.06(3), that such land be used for subject to one or more of
203 the conservation purposes or restrictions provided in s.
204 704.06(1) or not be used by the owner for any purpose other than
205 outdoor recreational or park purposes. If land is covenanted and
206 used for an outdoor recreational purpose, the normal use and
207 maintenance of the land for that purpose, consistent with the
208 covenant, shall not be restricted. Covenants requiring land to
209 be used for conservation purposes may prohibit the use of the
210 land for:
211 1. Construction or placing of buildings, roads, signs,
212 billboards or other advertising, utilities, or other structures
213 on or above the ground.
214 2. Dumping or placing of soil or other substance or
215 material as landfill or dumping or placing of trash, waste, or
216 unsightly or offensive materials.
217 3. Removal or destruction of trees, shrubs, or other
218 vegetation.
219 4. Excavation, dredging, or removal of loam, peat, gravel,
220 soil, rock, or other material substance in such manner as to
221 affect the surface.
222 5. Surface use except for purposes that permit the land or
223 water area to remain predominantly in its natural condition.
224 6. Activities detrimental to drainage, flood control, water
225 conservation, erosion control, soil conservation, or fish and
226 wildlife habitat preservation.
227 7. Acts or uses detrimental to such retention of land or
228 water areas.
229 8. Acts or uses detrimental to the preservation of the
230 structural integrity or physical appearance of sites or
231 properties of historical, architectural, archaeological, or
232 cultural significance.
233 (2) The governing board of any public agency in this state,
234 or the Board of Trustees of the Internal Improvement Trust Fund,
235 or a charitable corporation or trust as described in s.
236 704.06(3), is authorized and empowered in its discretion to
237 accept any and all instruments conveying the development right
238 of any such land or establishing a covenant to use the land for
239 conservation purposes pursuant to subsection (1), and if
240 accepted by the board or charitable corporation or trust, the
241 instrument shall be promptly filed with the appropriate officer
242 for recording in the same manner as any other instrument
243 affecting the title to real property.
244 (3) When, pursuant to subsections (1) and (2), the
245 development right in real property has been conveyed to the
246 governing board of any public agency of this state, to the Board
247 of Trustees of the Internal Improvement Trust Fund, or to a
248 charitable corporation or trust as described in s. 704.06(2), or
249 a covenant has been executed and accepted by the board or
250 charitable corporation or trust, the lands which are the subject
251 of such conveyance or covenant shall be thereafter assessed as
252 provided herein:
253 (a) If the covenant or conveyance extends for a period of
254 not less than 10 years from January 1 in the year such
255 assessment is made, the property appraiser, in valuing such land
256 for tax purposes, shall consider no factors other than those
257 relative to its value for the present use, as restricted by any
258 conveyance or covenant under this section.
259 (b) If the covenant or conveyance extends for a period less
260 than 10 years, the land shall be assessed under the provisions
261 of s. 193.011, recognizing the nature and length thereof of any
262 restriction placed on the use of the land under the provisions
263 of subsection (1).
264 (4) After making a conveyance of the development right or
265 executing a covenant pursuant to this section, or conveying a
266 conservation easement pursuant to this section and s. 704.06,
267 the owner of the land shall not use the land in any manner not
268 consistent with the development right voluntarily conveyed, or
269 with the restrictions voluntarily imposed, or with the terms of
270 the conservation easement or shall not change the use of the
271 land from outdoor recreational or park purposes during the term
272 of such conveyance or covenant without first obtaining a written
273 instrument from the board or charitable corporation or trust,
274 which instrument reconveys all or part of the development right
275 to the owner or releases the owner from the terms of the
276 covenant and which instrument must be promptly recorded in the
277 same manner as any other instrument affecting the title to real
278 property. Upon obtaining approval for reconveyance or release,
279 the reconveyance or release shall be made to the owner upon
280 payment of the deferred tax liability. Any payment of the
281 deferred tax liability shall be payable to the county tax
282 collector within 90 days of the date of approval by the board or
283 charitable corporation or trust of the reconveyance or release.
284 The collector shall distribute the payment to each governmental
285 unit in the proportion that its millage bears to the total
286 millage levied on the parcel for the years in which such
287 conveyance or covenant was in effect.
288 (5) The governing board of any public agency or the Board
289 of Trustees of the Internal Improvement Trust Fund or a
290 charitable corporation or trust which holds title to a
291 development right pursuant to this section may not convey that
292 development right to anyone other than the governing board of
293 another public agency or a charitable corporation or trust, as
294 described in s. 704.06(3), or the record owner of the fee
295 interest in the land to which the development right attaches.
296 The conveyance from the governing board of a public agency or
297 the Board of Trustees of the Internal Improvement Trust Fund to
298 the owner of the fee shall be made only after a determination by
299 the board that such conveyance would not adversely affect the
300 interest of the public. Section 125.35 does not apply to such
301 sales, but any public agency accepting any instrument conveying
302 a development right pursuant to this section shall forthwith
303 adopt appropriate regulations and procedures governing the
304 disposition of same. These regulations and procedures must
305 provide in part that the board may not convey a development
306 right to the owner of the fee without first holding a public
307 hearing and unless notice of the proposed conveyance and the
308 time and place at which the public hearing is to be held is
309 published once a week for at least 2 weeks in some newspaper of
310 general circulation in the county involved prior to the hearing.
311 (6) The following terms whenever used as referred to in
312 this section have the following meanings unless a different
313 meaning is clearly indicated by the context:
314 (a) “Board” is the governing board of any city, county, or
315 other public agency of the state or the Board of Trustees of the
316 Internal Improvement Trust Fund.
317 (b) “Conservation purpose restriction” means protecting the
318 natural, scenic, or open space values of real property; ensuring
319 the availability of real property for wildlife habitat and
320 recreational or open space use, including scenic enjoyment;
321 protecting natural resources; maintaining or enhancing air or
322 water quality or wetlands; or preserving sites or properties of
323 a historical, archaeological, or cultural significance a
324 limitation on a right to the use of land for purposes of
325 conserving or preserving land or water areas predominantly in
326 their natural, scenic, open, agricultural, or wooded condition.
327 The limitation on rights to the use of land may involve or
328 pertain to any of the activities enumerated in s. 704.06(1).
329 (c) “Conservation easement” means that property right
330 described in s. 704.06.
331 (d) “Covenant” is a covenant running with the land.
332 (e) “Deferred tax liability” means an amount equal to the
333 difference between the total amount of taxes that would have
334 been due in March in each of the previous years in which the
335 conveyance or covenant was in effect if the property had been
336 assessed under the provisions of s. 193.011 and the total amount
337 of taxes actually paid in those years when the property was
338 assessed under the provisions of this section, plus interest on
339 that difference computed as provided in s. 212.12(3).
340 (f) “Development right” is the right of the owner of the
341 fee interest in the land to change the use of the land.
342 (g) “Outdoor recreational or park purposes” includes, but
343 is not necessarily limited to, boating, golfing, camping,
344 swimming, horseback riding, and archaeological, scenic, or
345 scientific sites and applies only to land which is open to the
346 general public.
347 (h) “Present use” is the manner in which the land is
348 utilized on January 1 of the year in which the assessment is
349 made.
350 (i) “Qualified as environmentally endangered” means land
351 that has unique ecological characteristics, rare or limited
352 combinations of geological formations, or features of a rare or
353 limited nature constituting habitat suitable for fish, plants,
354 or wildlife, and which, if subject to a development moratorium
355 or one or more conservation easements or development
356 restrictions appropriate to retaining such land or water areas
357 predominantly in their natural state, would be consistent with
358 the conservation, recreation and open space, and, if applicable,
359 coastal protection elements of the comprehensive plan adopted by
360 formal action of the local governing body pursuant to s.
361 163.3161, the Local Government Comprehensive Planning and Land
362 Development Regulation Act; or surface waters and wetlands, as
363 determined by the methodology ratified in s. 373.4211.
364 (7)(a) The property appraiser shall report to the
365 department showing the just value and the classified use value
366 of property that is subject to a conservation easement under s.
367 704.06, property assessed as environmentally endangered land
368 pursuant to this section, and property assessed as outdoor
369 recreational or park land.
370 (b) The tax collector shall annually report to the
371 department the amount of deferred tax liability collected
372 pursuant to this section.
373 Section 4. This act shall take effect July 1, 2009, and
374 applies to property tax assessments made on or after January 1,
375 2010.