Florida Senate - 2018 SENATOR AMENDMENT
Bill No. CS/HB 631, 1st Eng.
Ì2963265Î296326
LEGISLATIVE ACTION
Senate . House
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Floor: 1/AD/2R . Floor: C
03/05/2018 10:44 AM . 03/08/2018 02:05 PM
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Senator Passidomo moved the following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 347 - 358
4 and insert:
5 163.035 Establishment of recreational customary use.—
6 (1) DEFINITION.—The term “governmental entity” includes an
7 agency of the state, a regional or a local government created by
8 the State Constitution or by general or special act, any county
9 or municipality, or any other entity that independently
10 exercises governmental authority.
11 (2) ORDINANCES AND RULES RELATING TO CUSTOMARY USE.—A
12 governmental entity may not adopt or keep in effect an ordinance
13 or rule that finds, determines, relies on, or is based upon
14 customary use of any portion of a beach above the mean high
15 water line, as defined in s. 177.27, unless such ordinance or
16 rule is based on a judicial declaration affirming recreational
17 customary use on such beach.
18 (3) NOTICE OF INTENT TO AFFIRM RECREATION PUBLIC USE ON
19 PRIVATE PROPERTY; JUDICIAL DETERMINATION.—A governmental entity
20 that seeks to affirm the existence of a recreational customary
21 use on private property must follow the procedures set forth in
22 this subsection.
23 (a) Notice.—The governing board of a governmental entity
24 must, at a public hearing, adopt a formal notice of intent to
25 affirm the existence of a recreational customary use on private
26 property. The notice of intent must specifically identify the
27 following:
28 1. The specific parcels of property, or the specific
29 portions thereof, upon which a customary use affirmation is
30 sought;
31 2. The detailed, specific, and individual use or uses of
32 the parcels of property to which a customary use affirmation is
33 sought; and
34 3. Each source of evidence that the governmental entity
35 would rely upon to prove a recreational customary use has been
36 ancient, reasonable, without interruption, and free from
37 dispute.
38
39 The governmental entity must provide notice of the public
40 hearing to the owner of each parcel of property subject to the
41 notice of intent at the address reflected in the county property
42 appraiser’s records no later than 30 days before the public
43 meeting. Such notice must be provided by certified mail with
44 return receipt requested, publication in a newspaper of general
45 circulation in the area where the parcels of property are
46 located, and posting on the governmental entity’s website.
47 (b) Judicial determination.—
48 1. Within 60 days after the adoption of the notice of
49 intent at the public hearing, the governmental entity must file
50 a Complaint for Declaration of Recreational Customary Use with
51 the circuit court in the county in which the properties subject
52 to the notice of intent are located. The governmental entity
53 must provide notice of the filing of the complaint to the owner
54 of each parcel of property subject to the complaint in the same
55 manner as is required for the notice of intent in paragraph (a).
56 The notice must allow the owner receiving the notice to
57 intervene in the proceeding within 45 days after receiving the
58 notice. The governmental entity must provide verification of the
59 service of the notice to the property owners required in this
60 paragraph to the court so that the court may establish a
61 schedule for the judicial proceedings.
62 2. All proceedings under this paragraph shall be de novo.
63 The court must determine whether the evidence presented
64 demonstrates that the recreational customary use for the use or
65 uses identified in the notice of intent have been ancient,
66 reasonable, without interruption, and free from dispute. There
67 is no presumption regarding the existence of a recreational
68 customary use with respect to any parcel of property, and the
69 governmental entity has the burden of proof to show that a
70 recreational customary use exists. An owner of a parcel of
71 property that is subject to the complaint has the right to
72 intervene as a party defendant in such proceeding.
73 (4) APPLICABILITY.—This section does not apply to a
74 governmental entity with an ordinance or rule that was adopted
75 and in effect on or before January 1, 2016, and does not deprive
76 a governmental entity from raising customary use as an
77 affirmative defense in any proceeding challenging an ordinance
78 or rule adopted before July 1, 2018.
79
80 ================= T I T L E A M E N D M E N T ================
81 And the title is amended as follows:
82 Delete lines 30 - 57
83 and insert:
84 advance the cause on the calendar; transferring,
85 renumbering, and amending s. 82.045, F.S.; conforming
86 provisions to changes made by the act; amending s.
87 82.04, F.S.; requiring that the court determine the
88 right of possession and damages; prohibiting the court
89 from determining question of title unless necessary;
90 amending s. 82.05, F.S.; requiring that the summons
91 and complaint be attached to the real property after
92 two unsuccessful attempts to serve a defendant;
93 requiring a plaintiff to provide the clerk of the
94 court with prestamped envelopes and additional copies
95 of the summons and complaint if the defendant is
96 served by attaching the summons and complaint to the
97 real property; requiring the clerk to immediately mail
98 copies of the summons and complaint and note the fact
99 of mailing in the docket; specifying that service is
100 effective on the date of posting or mailing; requiring
101 that 5 days elapse after the date of service before
102 the entry of a judgment; amending s. 82.091, F.S.;
103 providing requirements after a judgment is entered for
104 the plaintiff or the defendant; amending s. 82.101,
105 F.S.; adding quiet title to the types of future
106 actions for which a judgment is not conclusive as to
107 certain facts; providing that the judgment may be
108 superseded by a subsequent judgment; creating s.
109 163.035, F.S.; defining the term “governmental
110 entity”; prohibiting a governmental entity from
111 adopting or keeping in effect certain ordinances and
112 rules based upon customary use; providing an
113 exception; requiring a governmental entity seeking to
114 affirm the existence of a recreational customary use
115 on private property to follow certain procedures;
116 providing notice requirements for a governmental
117 entity seeking to affirm such recreational customary
118 use; requiring the governmental entity to file a
119 specified complaint with a certain circuit court
120 within a certain time; providing notice requirements
121 for the filing of such complaint; specifying that
122 proceedings resulting from such complaint are de novo;
123 requiring the court to consider specific factors when
124 determining whether a recreational customary use
125 exists; specifying that the governmental entity has
126 the burden of proof; specifying that an owner of a
127 parcel of property subject to the complaint has the
128 right to intervene in the proceeding; providing
129 applicability;