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: 51 163.08 Supplemental 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.