Florida Senate - 2011 SENATOR AMENDMENT
Bill No. CS for SB 998
Barcode 838082
LEGISLATIVE ACTION
Senate . House
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Floor: 2/AD/2R .
04/27/2011 10:26 AM .
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Senator Simmons moved the following:
1 Senate Amendment
2
3 Delete lines 97 - 273
4 and insert:
5 (4)(a) Not less than 150 180 days before prior to filing an
6 action under this section against a governmental entity, a
7 property owner who seeks compensation under this section must
8 present the claim in writing to the head of the governmental
9 entity, except that if the property is classified as
10 agricultural pursuant to s. 193.461, the notice period is 90
11 days. The property owner must submit, along with the claim, a
12 bona fide, valid appraisal that supports the claim and
13 demonstrates the loss in fair market value to the real property.
14 If the action of government is the culmination of a process that
15 involves more than one governmental entity, or if a complete
16 resolution of all relevant issues, in the view of the property
17 owner or in the view of a governmental entity to whom a claim is
18 presented, requires the active participation of more than one
19 governmental entity, the property owner shall present the claim
20 as provided in this section to each of the governmental
21 entities.
22 (b) The governmental entity shall provide written notice of
23 the claim to all parties to any administrative action that gave
24 rise to the claim, and to owners of real property contiguous to
25 the owner’s property at the addresses listed on the most recent
26 county tax rolls. Within 15 days after the claim being
27 presented, the governmental entity shall report the claim in
28 writing to the Department of Legal Affairs, and shall provide
29 the department with the name, address, and telephone number of
30 the employee of the governmental entity from whom additional
31 information may be obtained about the claim during the pendency
32 of the claim and any subsequent judicial action.
33 (c) During the 90-day-notice period or the 150-day-notice
34 180-day-notice period, unless extended by agreement of the
35 parties, the governmental entity shall make a written settlement
36 offer to effectuate:
37 1. An adjustment of land development or permit standards or
38 other provisions controlling the development or use of land.
39 2. Increases or modifications in the density, intensity, or
40 use of areas of development.
41 3. The transfer of developmental rights.
42 4. Land swaps or exchanges.
43 5. Mitigation, including payments in lieu of onsite
44 mitigation.
45 6. Location on the least sensitive portion of the property.
46 7. Conditioning the amount of development or use permitted.
47 8. A requirement that issues be addressed on a more
48 comprehensive basis than a single proposed use or development.
49 9. Issuance of the development order, a variance, special
50 exception, or other extraordinary relief.
51 10. Purchase of the real property, or an interest therein,
52 by an appropriate governmental entity or by payment of
53 compensation.
54 11. No changes to the action of the governmental entity.
55
56 If the property owner accepts the settlement offer, the
57 governmental entity may implement the settlement offer by
58 appropriate development agreement; by issuing a variance,
59 special exception, or other extraordinary relief; or by other
60 appropriate method, subject to paragraph (d).
61 (d)1. Whenever a governmental entity enters into a
62 settlement agreement under this section which would have the
63 effect of a modification, variance, or a special exception to
64 the application of a rule, regulation, or ordinance as it would
65 otherwise apply to the subject real property, the relief granted
66 shall protect the public interest served by the regulations at
67 issue and be the appropriate relief necessary to prevent the
68 governmental regulatory effort from inordinately burdening the
69 real property.
70 2. Whenever a governmental entity enters into a settlement
71 agreement under this section which would have the effect of
72 contravening the application of a statute as it would otherwise
73 apply to the subject real property, the governmental entity and
74 the property owner shall jointly file an action in the circuit
75 court where the real property is located for approval of the
76 settlement agreement by the court to ensure that the relief
77 granted protects the public interest served by the statute at
78 issue and is the appropriate relief necessary to prevent the
79 governmental regulatory effort from inordinately burdening the
80 real property.
81 (5)(a) During the 90-day-notice period or the 150-day
82 notice 180-day-notice period, unless a settlement offer is
83 accepted by the property owner, each of the governmental
84 entities provided notice pursuant to paragraph (4)(a) shall
85 issue a written statement of allowable uses ripeness decision
86 identifying the allowable uses to which the subject property may
87 be put. The failure of the governmental entity to issue a
88 written statement of allowable uses ripeness decision during the
89 applicable 90-day-notice period or 150-day-notice 180-day-notice
90 period shall be deemed a denial for purposes of allowing a
91 property owner to file an action in the circuit court under this
92 section. If a written statement of allowable uses is issued, it
93 to ripen the prior action of the governmental entity, and shall
94 operate as a ripeness decision that has been rejected by the
95 property owner. The ripeness decision, as a matter of law,
96 constitutes the last prerequisite to judicial review, and the
97 matter shall be deemed ripe or final for the purposes of the
98 judicial proceeding created by this section, notwithstanding the
99 availability of other administrative remedies.
100 (b) If the property owner rejects the settlement offer and
101 the statement of allowable uses ripeness decision of the
102 governmental entity or entities, the property owner may file a
103 claim for compensation in the circuit court, a copy of which
104 shall be served contemporaneously on the head of each of the
105 governmental entities that made a settlement offer and a
106 statement of allowable uses ripeness decision that was rejected
107 by the property owner. Actions under this section shall be
108 brought only in the county where the real property is located.
109 (6)(a) The circuit court shall determine whether an
110 existing use of the real property or a vested right to a
111 specific use of the real property existed and, if so, whether,
112 considering the settlement offer and statement of allowable uses
113 ripeness decision, the governmental entity or entities have
114 inordinately burdened the real property. If the actions of more
115 than one governmental entity, considering any settlement offers
116 and statements of allowable uses ripeness decisions, are
117 responsible for the action that imposed the inordinate burden on
118 the real property of the property owner, the court shall
119 determine the percentage of responsibility each such
120 governmental entity bears with respect to the inordinate burden.
121 A governmental entity may take an interlocutory appeal of the
122 court’s determination that the action of the governmental entity
123 has resulted in an inordinate burden. An interlocutory appeal
124 does not automatically stay the proceedings; however, the court
125 may stay the proceedings during the pendency of the
126 interlocutory appeal. If the governmental entity does not
127 prevail in the interlocutory appeal, the court shall award to
128 the prevailing property owner the costs and a reasonable
129 attorney fee incurred by the property owner in the interlocutory
130 appeal.
131 (b) Following its determination of the percentage of
132 responsibility of each governmental entity, and following the
133 resolution of any interlocutory appeal, the court shall impanel
134 a jury to determine the total amount of compensation to the
135 property owner for the loss in value due to the inordinate
136 burden to the real property. The award of compensation shall be
137 determined by calculating the difference in the fair market
138 value of the real property, as it existed at the time of the
139 governmental action at issue, as though the owner had the
140 ability to attain the reasonable investment-backed expectation
141 or was not left with uses that are unreasonable, whichever the
142 case may be, and the fair market value of the real property, as
143 it existed at the time of the governmental action at issue, as
144 inordinately burdened, considering the settlement offer together
145 with the statement of allowable uses ripeness decision, of the
146 governmental entity or entities. In determining the award of
147 compensation, consideration may not be given to business damages
148 relative to any development, activity, or use that the action of
149 the governmental entity or entities, considering the settlement
150 offer together with the statement of allowable uses ripeness
151 decision has restricted, limited, or prohibited. The award of
152 compensation shall include a reasonable award of prejudgment
153 interest from the date the claim was presented to the
154 governmental entity or entities as provided in subsection (4).
155 (c)1. In any action filed pursuant to this section, the
156 property owner is entitled to recover reasonable costs and
157 attorney fees incurred by the property owner, from the
158 governmental entity or entities, according to their
159 proportionate share as determined by the court, from the date of
160 the filing of the circuit court action, if the property owner
161 prevails in the action and the court determines that the
162 settlement offer, including the statement of allowable uses
163 ripeness decision, of the governmental entity or entities did
164 not constitute a bona fide offer to the property owner which
165 reasonably would have resolved the claim, based upon the
166 knowledge available to the governmental entity or entities and
167 the property owner during the 90-day-notice period or the 150
168 day-notice 180-day-notice period.
169 2. In any action filed pursuant to this section, the
170 governmental entity or entities are entitled to recover
171 reasonable costs and attorney fees incurred by the governmental
172 entity or entities from the date of the filing of the circuit
173 court action, if the governmental entity or entities prevail in
174 the action and the court determines that the property owner did
175 not accept a bona fide settlement offer, including the statement
176 of allowable uses ripeness decision, which reasonably would have
177 resolved the claim fairly to the property owner if the
178 settlement offer had been accepted by the property owner, based
179 upon the knowledge available to the governmental entity or
180 entities and the property owner during the 90-day-notice period
181 or the 150-day-notice 180-day-notice period.