Florida Senate - 2010                             CS for SB 2322
       
       
       
       By the Committee on Community Affairs; and Senator Bennett
       
       
       
       
       578-03135-10                                          20102322c1
    1                        A bill to be entitled                      
    2         An act relating to energy improvement districts;
    3         creating s. 163.08, F.S.; providing for supplemental
    4         authority to local governments regarding improvements
    5         to real property; providing legislative findings and
    6         intent; defining “local government,” “qualifying
    7         improvement,” “energy conservation and efficiency
    8         improvement,” “renewable-energy improvement,” and
    9         “wind-resistance improvement”; authorizing a local
   10         government to levy a non-ad valorem assessment to fund
   11         a qualifying improvement; authorizing a property owner
   12         to enter into a financing agreement with a local
   13         government to finance a qualifying improvement;
   14         authorizing a local government to collect for such
   15         purpose through a non-ad valorem assessment; providing
   16         exceptions; providing for discontinuance of utility
   17         service under certain circumstances if the financing
   18         agreement provides for repayment through a utility
   19         bill; authorizing a local government to enter into a
   20         partnership with one or more local governments for the
   21         purpose of providing and financing qualifying
   22         improvements; authorizing a for-profit entity or a
   23         not-for-profit organization to administer a qualifying
   24         improvement program on behalf of and at the discretion
   25         of the local government; authorizing a local
   26         government to incur debt payable from revenues
   27         received from the improved property; requiring that a
   28         local government verify past payment delinquencies and
   29         involuntary liens on the property; requiring that a
   30         qualifying improvement be affixed to an existing
   31         building or facility on the property and be performed
   32         by a properly certified or registered contractor;
   33         limiting the total amount of a non-ad valorem
   34         assessment or a municipal or county lien; providing
   35         exceptions; requiring that a property owner provide
   36         certain parties with notice of intent to enter into a
   37         financing agreement, the maximum principal amount to
   38         be financed, and the maximum annual assessment needed
   39         to repay that amount; prohibiting acceleration of a
   40         mortgage under certain circumstances; providing that
   41         certain provisions of state law do not limit or
   42         prohibit any local government from exercising certain
   43         authority; providing for statutory construction
   44         regarding a local government’s home-rule authority;
   45         providing an effective date.
   46  
   47  Be It Enacted by the Legislature of the State of Florida:
   48  
   49         Section 1. Section 163.08, Florida Statutes, is created to
   50  read:
   51         163.08Supplemental authority regarding improvements to
   52  real property.—
   53         (1)(a) The Legislature affirms its previous amendments to
   54  the energy goal of the state comprehensive plan, which provided,
   55  in part, that Florida shall reduce its energy requirements
   56  through enhanced conservation and efficiency measures in all
   57  end-use sectors and shall reduce atmospheric carbon dioxide by
   58  promoting an increased use of renewable-energy resources. The
   59  Legislature also affirms its previous declaration that it is the
   60  public policy of this state to play a leading role in developing
   61  and instituting energy management programs aimed at promoting
   62  energy conservation, energy security, and reduction of
   63  greenhouse gases. In addition to establishing policies to
   64  promote the use of renewable energy, the Legislature finds that
   65  it must continue to provide for a schedule of increases in
   66  energy performance of buildings subject to the Florida Energy
   67  Efficiency Code for Building Construction. The Legislature
   68  further finds that it must continue to adopt new energy
   69  conservation and greenhouse gas reduction comprehensive planning
   70  requirements for local governments. The Legislature acknowledges
   71  that in the General Election of 2008, the voters of this state
   72  approved a constitutional amendment authorizing the Legislature,
   73  by general law, to prohibit consideration of any change or
   74  improvement made for the purpose of improving the property’s
   75  resistance to wind damage or the installation of a renewable
   76  energy-source device in the determination of the assessed value
   77  of real property used for residential purposes.
   78         (b) All energy-consuming improved properties not using
   79  energy-conservation strategies contribute to the burden
   80  affecting all improved property resulting from fossil fuel
   81  energy production. Improved property that has been retrofitted
   82  with energy-related qualifying improvements receives the special
   83  benefit of alleviating the property’s burden from energy
   84  consumption. All improved properties not protected from wind
   85  damage by wind-resistance improvements contribute to the burden
   86  affecting all improved property resulting from potential wind
   87  damage. Improved property that has been retrofitted with wind
   88  resistance qualifying improvements receives the special benefit
   89  of reducing the property’s burden from potential wind damage.
   90  Further, the installation and operation of qualifying
   91  improvements not only benefit the affected properties for which
   92  the improvements are made, but also assist in fulfilling the
   93  goals of the state’s energy and hurricane mitigation policies.
   94  To make qualifying improvements more affordable and assist
   95  property owners who wish to undertake them, there is a
   96  compelling state interest in enabling property owners, on a
   97  voluntary basis, to finance such improvements with local
   98  government assistance.
   99         (c)The Legislature finds that the actions authorized under
  100  this section, including the financing therein of qualifying
  101  improvements through the execution of financing agreements and
  102  the related imposition of voluntary assessments or charges, are
  103  reasonable and necessary to serve and achieve a compelling state
  104  interest and for the prosperity and welfare of the state and its
  105  property owners and inhabitants.
  106         (2) For purposes of this section, the term:
  107         (a)“Local government” means a county, a municipality, or a
  108  special district.
  109         (b)“Qualifying improvement” includes any of the following:
  110         1. “Energy conservation and efficiency improvement,” which
  111  means a measure to reduce consumption, through conservation or
  112  more efficient use, of electricity, natural gas, propane, or
  113  other forms of energy on the property, including, but not
  114  limited to, air sealing, installation of insulation,
  115  installation of energy-efficient heating, cooling, or
  116  ventilation systems, building modifications to increase the use
  117  of daylighting, replacement of windows, installation of energy
  118  controls or energy-recovery systems, and installation of
  119  efficient lighting equipment, provided that, to be covered by an
  120  agreement with a property owner and financed under this section,
  121  such improvement must be affixed to a building or facility that
  122  is part of the property.
  123         2.“Renewable-energy improvement,” which means the
  124  installation of any system whereby electrical, mechanical, or
  125  thermal energy is produced from a method that uses one or more
  126  of the following fuels or energy sources: hydrogen, solar
  127  energy, geothermal energy, bioenergy, or wind energy.
  128         3.“Wind-resistance improvement,” which includes, but is
  129  not limited to:
  130         a.Improving the strength of the roof deck attachment;
  131         b.Creating a secondary water barrier to prevent water
  132  intrusion;
  133         c.Installing wind-resistant shingles;
  134         d.Installing gable-end bracing;
  135         e.Reinforcing roof-to-wall connections;
  136         f.Installing storm shutters; and
  137         g.Installing opening protections.
  138         (3)A local government may levy a non-ad valorem assessment
  139  to fund a qualifying improvement.
  140         (4)Subject to local government ordinance or resolution, a
  141  property owner may apply to the local government for funding to
  142  finance a qualifying improvement and enter into a financing
  143  agreement with the local government. Costs incurred by the local
  144  government for such purpose may be collected as a non-ad valorem
  145  assessment or a municipal or county lien, or may be collected
  146  pursuant to any other lawful method.
  147         (a)A non-ad valorem assessment shall be collected pursuant
  148  s. 197.3632. However, the notice and adoption requirements of s.
  149  197.3632(4) do not apply if the provisions of this section are
  150  used and complied with, and the initial resolution, publication
  151  of notice, and mailed notices to the property appraiser, tax
  152  collector, and Department of Revenue required by s.
  153  197.3632(3)(a) are provided on or before August 15 in
  154  conjunction with any non-ad valorem assessment authorized by
  155  this section if the property appraiser, tax collector, and local
  156  government agree.
  157         (b) If the financing agreement provides for repayment
  158  through a surcharge on a utility or other municipal service bill
  159  in the form of a municipal lien, the utility provider may
  160  discontinue the delivery of all utility service if the surcharge
  161  is not paid. However, the financing agreement must set forth the
  162  terms and costs of such discontinuance, including the period
  163  after which discontinuance will be imposed.
  164         (5)Pursuant to this section, other applicable law, or its
  165  home rule power, a local government may enter into a partnership
  166  with one or more local governments for the purpose of providing
  167  and financing qualifying improvements.
  168         (6)A qualifying improvement program may be administered by
  169  a for-profit entity or a not-for-profit organization on behalf
  170  of and at the discretion of the local government.
  171         (7)A local government may incur debt for the purpose of
  172  providing such improvements, payable from revenues received from
  173  the improved property or any other available revenue source as
  174  authorized by law.
  175         (8)A local government may enter into a financing agreement
  176  only with the owner of record of the affected property.
  177         (9) Before entering into a financing agreement, the local
  178  government shall reasonably verify that all property taxes and
  179  any other assessments levied on the same bill as property taxes
  180  have been paid and have not been delinquent for the past 3 years
  181  or the property owner’s period of ownership, whichever is less;
  182  that there are no involuntary liens such as construction liens
  183  on the property; that no notices of default or other evidence of
  184  property-based debt delinquency have been recorded during the
  185  past 3 years or the property owner’s period of ownership,
  186  whichever is less; and that the property owner is current on all
  187  mortgage debt on the property.
  188         (10)A qualifying improvement shall be affixed to an
  189  existing building or facility that is part of the property and
  190  shall constitute an improvement to the building or facility or a
  191  fixture thereto. An agreement between a local government and a
  192  qualifying property owner may not cover projects in buildings or
  193  facilities under new construction or construction for which a
  194  certificate of occupancy or similar evidence of substantial
  195  completion of new construction or improvement has not been
  196  issued.
  197         (11)Any work requiring a license under any applicable law
  198  to make a qualifying improvement shall be performed by a
  199  contractor properly certified or registered pursuant to part I
  200  or part II of chapter 489.
  201         (12)Without the consent of the holders or loan servicers
  202  of any mortgage encumbering or otherwise secured by the
  203  property, the total amount of any non-ad valorem assessment or
  204  municipal or county lien for a property under this section may
  205  not exceed 20 percent of the just value of the property as
  206  determined by the county property appraiser.
  207         (a)Notwithstanding any other provision of law, a non-ad
  208  valorem assessment or municipal or county lien for a qualifying
  209  improvement defined in subparagraph (2)(b)1. or 2. which is
  210  supported by an energy audit is not subject to the limits in
  211  this subsection if the audit demonstrates that the annual energy
  212  savings from the qualified improvement equals or exceeds the
  213  annual repayment amount of the non-ad valorem assessment or
  214  municipal or county lien.
  215         (b)A local government may adopt alternate parameters to
  216  those specified in this subsection to conform to local needs and
  217  conditions after conducting a public hearing resulting in a
  218  finding of the need for such changes due to local needs and
  219  conditions.
  220         (13)At least 30 days before entering into a financing
  221  agreement, the property owner shall provide to the holders or
  222  loan servicers of any existing mortgages encumbering or
  223  otherwise secured by the property notice of intent to enter into
  224  a financing agreement, together with the maximum principal
  225  amount to be financed and the maximum annual assessment
  226  necessary to repay such amount. A provision of any agreement
  227  between a mortgagee or other lienholder and a property owner or
  228  otherwise now or hereafter binding upon a property owner
  229  allowing for acceleration of payment of the mortgage, note, or
  230  lien or other unilateral modification solely as a result of
  231  entering into a financing agreement, as provided for in this
  232  section, is not enforceable. This subsection does not limit the
  233  authority of the holder or loan servicer to increase the
  234  required monthly escrow by an amount necessary to annually pay
  235  the qualifying improvement assessment.
  236         (14) A provision of any agreement between a local
  237  government and a public or private power or energy provider, or
  238  other utility provider, may not limit or prohibit any local
  239  government from exercising its authority under this section.
  240         (15)This section shall be construed to be additional and
  241  supplemental to county and municipal home-rule authority and not
  242  in derogation thereof or a limitation thereon.
  243         Section 2. This act shall take effect July 1, 2010.