Florida Senate - 2019                        COMMITTEE AMENDMENT
       Bill No. SB 1730
       
       
       
       
       
       
                                Ì191038*Î191038                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/21/2019           .                                
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       The Committee on Community Affairs (Lee) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 125.01055, Florida Statutes, is amended
    6  to read:
    7         125.01055 Affordable housing.—
    8         (1) Notwithstanding any other provision of law, a county
    9  may adopt and maintain in effect any law, ordinance, rule, or
   10  other measure that is adopted for the purpose of increasing the
   11  supply of affordable housing using land use mechanisms such as
   12  inclusionary housing ordinances. A county may not, however,
   13  adopt or impose a requirement in any form, including, without
   14  limitation, by way of a comprehensive plan amendment, ordinance,
   15  or land development regulation or as a condition of a
   16  development order or development permit, which has any of the
   17  following effects:
   18         (a) Mandating or establishing a maximum sales price or
   19  lease rental for privately produced dwelling units.
   20         (b) Requiring the allocation or designation, whether
   21  directly or indirectly, of privately produced dwelling units for
   22  sale or rental to any particular class or group of purchasers or
   23  tenants.
   24         (c) Requiring the provision of any onsite or offsite
   25  workforce or affordable housing units or a contribution of land
   26  or money for such housing, including, but not limited to, the
   27  payment of any flat or percentage-based fee, whether calculated
   28  on the basis of the number of approved dwelling units, the
   29  amount of approved square footage, or otherwise.
   30         (2) This section does not limit the authority of a county
   31  to create or implement a voluntary density bonus program or any
   32  other voluntary incentive-based program designed to increase the
   33  supply of workforce or affordable housing units.
   34         Section 2. Section 125.022, Florida Statutes, is amended to
   35  read:
   36         125.022 Development permits and orders.—
   37         (1) Within 30 days after receiving an application for a
   38  development permit or development order, a county must review
   39  the application for completeness and issue a letter indicating
   40  that all required information is submitted or specifying with
   41  particularity any areas that are deficient. If deficient, the
   42  applicant has 30 days to address the deficiencies by submitting
   43  the required additional information. Within 90 days after the
   44  initial submission, if complete, or the supplemental submission,
   45  whichever is later, the county shall approve, approve with
   46  conditions, or deny the application for a development permit or
   47  development order. The time periods contained in this section
   48  may be waived in writing by the applicant. An approval, approval
   49  with conditions, or denial of the application for a development
   50  permit or development order must include written findings
   51  supporting the county’s decision.
   52         (2)(1) When reviewing an application for a development
   53  permit or development order that is certified by a professional
   54  listed in s. 403.0877, a county may not request additional
   55  information from the applicant more than three times, unless the
   56  applicant waives the limitation in writing. Before a third
   57  request for additional information, the applicant must be
   58  offered a meeting to attempt to resolve outstanding issues.
   59  Except as provided in subsection (5)(4), if the applicant
   60  believes the request for additional information is not
   61  authorized by ordinance, rule, statute, or other legal
   62  authority, the county, at the applicant’s request, shall proceed
   63  to process the application for approval or denial.
   64         (3)(2) When a county denies an application for a
   65  development permit or development order, the county shall give
   66  written notice to the applicant. The notice must include a
   67  citation to the applicable portions of an ordinance, rule,
   68  statute, or other legal authority for the denial of the permit
   69  or order.
   70         (4)(3) As used in this section, the terms term “development
   71  permit” and “development order” have has the same meaning as in
   72  s. 163.3164, but do does not include building permits.
   73         (5)(4) For any development permit application filed with
   74  the county after July 1, 2012, a county may not require as a
   75  condition of processing or issuing a development permit or
   76  development order that an applicant obtain a permit or approval
   77  from any state or federal agency unless the agency has issued a
   78  final agency action that denies the federal or state permit
   79  before the county action on the local development permit.
   80         (6)(5) Issuance of a development permit or development
   81  order by a county does not in any way create any rights on the
   82  part of the applicant to obtain a permit from a state or federal
   83  agency and does not create any liability on the part of the
   84  county for issuance of the permit if the applicant fails to
   85  obtain requisite approvals or fulfill the obligations imposed by
   86  a state or federal agency or undertakes actions that result in a
   87  violation of state or federal law. A county shall attach such a
   88  disclaimer to the issuance of a development permit and shall
   89  include a permit condition that all other applicable state or
   90  federal permits be obtained before commencement of the
   91  development.
   92         (7)(6) This section does not prohibit a county from
   93  providing information to an applicant regarding what other state
   94  or federal permits may apply.
   95         Section 3. Paragraph (h) of subsection (6) of section
   96  163.3180, Florida Statutes, is amended to read:
   97         163.3180 Concurrency.—
   98         (6)
   99         (h)1. In order to limit the liability of local governments,
  100  a local government may allow a landowner to proceed with
  101  development of a specific parcel of land notwithstanding a
  102  failure of the development to satisfy school concurrency, if all
  103  the following factors are shown to exist:
  104         a. The proposed development would be consistent with the
  105  future land use designation for the specific property and with
  106  pertinent portions of the adopted local plan, as determined by
  107  the local government.
  108         b. The local government’s capital improvements element and
  109  the school board’s educational facilities plan provide for
  110  school facilities adequate to serve the proposed development,
  111  and the local government or school board has not implemented
  112  that element or the project includes a plan that demonstrates
  113  that the capital facilities needed as a result of the project
  114  can be reasonably provided.
  115         c. The local government and school board have provided a
  116  means by which the landowner will be assessed a proportionate
  117  share of the cost of providing the school facilities necessary
  118  to serve the proposed development.
  119         2. If a local government applies school concurrency, it may
  120  not deny an application for site plan, final subdivision
  121  approval, or the functional equivalent for a development or
  122  phase of a development authorizing residential development for
  123  failure to achieve and maintain the level-of-service standard
  124  for public school capacity in a local school concurrency
  125  management system where adequate school facilities will be in
  126  place or under actual construction within 3 years after the
  127  issuance of final subdivision or site plan approval, or the
  128  functional equivalent. School concurrency is satisfied if the
  129  developer executes a legally binding commitment to provide
  130  mitigation proportionate to the demand for public school
  131  facilities to be created by actual development of the property,
  132  including, but not limited to, the options described in sub
  133  subparagraph a. Options for proportionate-share mitigation of
  134  impacts on public school facilities must be established in the
  135  comprehensive plan and the interlocal agreement pursuant to s.
  136  163.31777.
  137         a. Appropriate mitigation options include the contribution
  138  of land; the construction, expansion, or payment for land
  139  acquisition or construction of a public school facility; the
  140  construction of a charter school that complies with the
  141  requirements of s. 1002.33(18); or the creation of mitigation
  142  banking based on the construction of a public school facility in
  143  exchange for the right to sell capacity credits. Such options
  144  must include execution by the applicant and the local government
  145  of a development agreement that constitutes a legally binding
  146  commitment to pay proportionate-share mitigation for the
  147  additional residential units approved by the local government in
  148  a development order and actually developed on the property,
  149  taking into account residential density allowed on the property
  150  prior to the plan amendment that increased the overall
  151  residential density. The district school board must be a party
  152  to such an agreement. As a condition of its entry into such a
  153  development agreement, the local government may require the
  154  landowner to agree to continuing renewal of the agreement upon
  155  its expiration.
  156         b. If the interlocal agreement and the local government
  157  comprehensive plan authorize a contribution of land; the
  158  construction, expansion, or payment for land acquisition; the
  159  construction or expansion of a public school facility, or a
  160  portion thereof; or the construction of a charter school that
  161  complies with the requirements of s. 1002.33(18), as
  162  proportionate-share mitigation, the local government shall
  163  credit such a contribution, construction, expansion, or payment
  164  toward any other impact fee or exaction imposed by local
  165  ordinance for public educational facilities the same need, on a
  166  dollar-for-dollar basis at fair market value. The credit must be
  167  based on the total impact fee assessed and not upon the impact
  168  fee for any particular type of school.
  169         c. Any proportionate-share mitigation must be directed by
  170  the school board toward a school capacity improvement identified
  171  in the 5-year school board educational facilities plan that
  172  satisfies the demands created by the development in accordance
  173  with a binding developer’s agreement.
  174         3. This paragraph does not limit the authority of a local
  175  government to deny a development permit or its functional
  176  equivalent pursuant to its home rule regulatory powers, except
  177  as provided in this part.
  178         Section 4. Section 163.31801, Florida Statutes, is amended
  179  to read:
  180         163.31801 Impact fees; short title; intent; minimum
  181  requirements; audits; challenges definitions; ordinances levying
  182  impact fees.—
  183         (1) This section may be cited as the “Florida Impact Fee
  184  Act.”
  185         (2) The Legislature finds that impact fees are an important
  186  source of revenue for a local government to use in funding the
  187  infrastructure necessitated by new growth. The Legislature
  188  further finds that impact fees are an outgrowth of the home rule
  189  power of a local government to provide certain services within
  190  its jurisdiction. Due to the growth of impact fee collections
  191  and local governments’ reliance on impact fees, it is the intent
  192  of the Legislature to ensure that, when a county or municipality
  193  adopts an impact fee by ordinance or a special district adopts
  194  an impact fee by resolution, the governing authority complies
  195  with this section.
  196         (3) At a minimum, an impact fee adopted by ordinance of a
  197  county or municipality or by resolution of a special district
  198  must satisfy all of the following conditions, at minimum:
  199         (a) Require that The calculation of the impact fee must be
  200  based on the most recent and localized data.
  201         (b) The local government must provide for accounting and
  202  reporting of impact fee collections and expenditures. If a local
  203  governmental entity imposes an impact fee to address its
  204  infrastructure needs, the entity must shall account for the
  205  revenues and expenditures of such impact fee in a separate
  206  accounting fund.
  207         (c) Limit Administrative charges for the collection of
  208  impact fees must be limited to actual costs.
  209         (d) The local government must provide Require that notice
  210  not be provided no less than 90 days before the effective date
  211  of an ordinance or resolution imposing a new or increased impact
  212  fee. A county or municipality is not required to wait 90 days to
  213  decrease, suspend, or eliminate an impact fee.
  214         (e) Collection of the impact fee may not be required to
  215  occur earlier than the date of issuance of the building permit
  216  for the property that is subject to the fee.
  217         (f) The impact fee must be proportional and reasonably
  218  connected to, or have a rational nexus with, the need for
  219  additional capital facilities and the increased impact generated
  220  by the new residential or commercial construction.
  221         (g) The impact fee must be proportional and reasonably
  222  connected to, or have a rational nexus with, the expenditures of
  223  the funds collected and the benefits accruing to the new
  224  residential or nonresidential construction.
  225         (h) The local government must specifically earmark funds
  226  collected under the impact fee for use in acquiring,
  227  constructing, or improving capital facilities to benefit new
  228  users.
  229         (i) Revenues generated by the impact fee may not be used,
  230  in whole or in part, to pay existing debt or for previously
  231  approved projects unless the expenditure is reasonably connected
  232  to, or has a rational nexus with, the increased impact generated
  233  by the new residential or nonresidential construction.
  234         (j) The local government must credit against the collection
  235  of the impact fee any contributions related to public
  236  educational facilities, including, but not limited to, land
  237  dedication, site planning and design, and construction, whether
  238  provided in a proportionate share agreement or any other form of
  239  exaction. Any such contributions must be applied to reduce
  240  impact fees on a dollar-for-dollar basis at fair market value.
  241         (4) If the holder of impact fee or mobility fee credits
  242  granted by a local government, whether granted under this
  243  section, s. 380.06, or otherwise, uses such credits in lieu of
  244  the actual payment of an impact fee or mobility fee and the
  245  impact fee or mobility fee is greater than the rate that was in
  246  effect when such credits were first established, the holder of
  247  those credits must, whenever they are utilized, receive the full
  248  value of the credits as of the date on which they were first
  249  established based on the impact fee or mobility fee rate that
  250  was in effect on such date.
  251         (5)(4) Audits of financial statements of local governmental
  252  entities and district school boards which are performed by a
  253  certified public accountant pursuant to s. 218.39 and submitted
  254  to the Auditor General must include an affidavit signed by the
  255  chief financial officer of the local governmental entity or
  256  district school board stating that the local governmental entity
  257  or district school board has complied with this section.
  258         (6)(5) In any action challenging an impact fee or the
  259  government’s failure to provide required dollar-for-dollar
  260  credits for the payment of impact fees as provided in s.
  261  163.3180(6)(h)2.b, the government has the burden of proving by a
  262  preponderance of the evidence that the imposition or amount of
  263  the fee or credit meets the requirements of state legal
  264  precedent or and this section. The court may not use a
  265  deferential standard for the benefit of the government.
  266         (7) This section applies to mobility fees adopted pursuant
  267  to s. 163.3180(5)(i).
  268         (8) A county, municipality, or special district may provide
  269  an exception or waiver for an impact fee for the development or
  270  construction of housing that is affordable, as defined in s.
  271  420.9071. If a county, municipality, or special district
  272  provides such an exception or waiver, it is not required to use
  273  any revenues to offset the impact.
  274         Section 5. Section 166.033, Florida Statutes, is amended to
  275  read:
  276         166.033 Development permits and orders.—
  277         (1) Within 30 days after receiving an application for
  278  approval of a development permit or development order, a
  279  municipality must review the application for completeness and
  280  issue a letter indicating that all required information is
  281  submitted or specifying with particularity any areas that are
  282  deficient. If deficient, the applicant has 30 days to address
  283  the deficiencies by submitting the required additional
  284  information. Within 90 days of the initial submission, if
  285  complete, or the supplemental submission, whichever is later,
  286  the municipality must approve, approve with conditions, or deny
  287  the application for a development permit or development order.
  288  The time periods contained in this subsection may be waived in
  289  writing by the applicant. An approval, approval with conditions,
  290  or denial of the application for a development permit or
  291  development order must include written findings supporting the
  292  county’s decision.
  293         (2)(1) When reviewing an application for a development
  294  permit or development order that is certified by a professional
  295  listed in s. 403.0877, a municipality may not request additional
  296  information from the applicant more than three times, unless the
  297  applicant waives the limitation in writing. Before a third
  298  request for additional information, the applicant must be
  299  offered a meeting to attempt to resolve outstanding issues.
  300  Except as provided in subsection (5)(4), if the applicant
  301  believes the request for additional information is not
  302  authorized by ordinance, rule, statute, or other legal
  303  authority, the municipality, at the applicant’s request, shall
  304  proceed to process the application for approval or denial.
  305         (3)(2) When a municipality denies an application for a
  306  development permit or development order, the municipality shall
  307  give written notice to the applicant. The notice must include a
  308  citation to the applicable portions of an ordinance, rule,
  309  statute, or other legal authority for the denial of the permit
  310  or order.
  311         (4)(3) As used in this section, the terms term “development
  312  permit” and “development order” have has the same meaning as in
  313  s. 163.3164, but do does not include building permits.
  314         (5)(4) For any development permit application filed with
  315  the municipality after July 1, 2012, a municipality may not
  316  require as a condition of processing or issuing a development
  317  permit or development order that an applicant obtain a permit or
  318  approval from any state or federal agency unless the agency has
  319  issued a final agency action that denies the federal or state
  320  permit before the municipal action on the local development
  321  permit.
  322         (6)(5) Issuance of a development permit or development
  323  order by a municipality does not in any way create any right on
  324  the part of an applicant to obtain a permit from a state or
  325  federal agency and does not create any liability on the part of
  326  the municipality for issuance of the permit if the applicant
  327  fails to obtain requisite approvals or fulfill the obligations
  328  imposed by a state or federal agency or undertakes actions that
  329  result in a violation of state or federal law. A municipality
  330  shall attach such a disclaimer to the issuance of development
  331  permits and shall include a permit condition that all other
  332  applicable state or federal permits be obtained before
  333  commencement of the development.
  334         (7)(6) This section does not prohibit a municipality from
  335  providing information to an applicant regarding what other state
  336  or federal permits may apply.
  337         Section 6. Section 166.04151, Florida Statutes, is amended
  338  to read:
  339         166.04151 Affordable housing.—
  340         (1) Notwithstanding any other provision of law, a
  341  municipality may adopt and maintain in effect any law,
  342  ordinance, rule, or other measure that is adopted for the
  343  purpose of increasing the supply of affordable housing using
  344  land use mechanisms such as inclusionary housing ordinances. A
  345  municipality may not, however, adopt or impose a requirement in
  346  any form, including, without limitation, by way of a
  347  comprehensive plan amendment, ordinance, or land development
  348  regulation or as a condition of a development order or
  349  development permit, which has any of the following effects:
  350         (a) Mandating or establishing a maximum sales price or
  351  lease rental for privately produced dwelling units.
  352         (b) Requiring the allocation or designation, whether
  353  directly or indirectly, of privately produced dwelling units for
  354  sale or rental to any particular class or group of purchasers or
  355  tenants.
  356         (c) Requiring the provision of any on-site or off-site
  357  workforce or affordable housing units or a contribution of land
  358  or money for such housing, including, but not limited to, the
  359  payment of any flat or percentage-based fee whether calculated
  360  on the basis of the number of approved dwelling units, the
  361  amount of approved square footage, or otherwise.
  362         (2) This section does not limit the authority of a
  363  municipality to create or implement a voluntary density bonus
  364  program or any other voluntary incentive-based program designed
  365  to increase the supply of workforce or affordable housing units.
  366         Section 7. Subsection (24) of section 494.001, Florida
  367  Statues, is amended to read:
  368         494.001 Definitions.—As used in this chapter, the term:
  369         (24) “Mortgage loan” means any:
  370         (a) Residential loan that primarily for personal, family,
  371  or household use which is secured by a mortgage, deed of trust,
  372  or other equivalent consensual security interest on a dwelling,
  373  as defined in s. 103(w) s. 103(v) of the federal Truth in
  374  Lending Act, or for the purchase of residential real estate upon
  375  which a dwelling is to be constructed;
  376         (b) Loan on commercial real property if the borrower is an
  377  individual or the lender is a noninstitutional investor; or
  378         (c) Loan on improved real property consisting of five or
  379  more dwelling units if the borrower is an individual or the
  380  lender is a noninstitutional investor.
  381         Section 8. This act shall take effect upon becoming a law.
  382  
  383  ================= T I T L E  A M E N D M E N T ================
  384  And the title is amended as follows:
  385         Delete everything before the enacting clause
  386  and insert:
  387                        A bill to be entitled                      
  388         An act relating to community development and housing;
  389         amending s. 125.01055, F.S.; prohibiting a county from
  390         adopting or imposing a requirement in any form
  391         relating to affordable housing which has specified
  392         effects; providing construction; amending s. 125.022,
  393         F.S.; requiring that a county review the application
  394         for completeness and issue a certain letter within a
  395         specified period after receiving an application for
  396         approval of a development permit or development order;
  397         providing procedures for addressing deficiencies in,
  398         and for approving or denying, the application;
  399         conforming provisions to changes made by the act;
  400         defining the term “development order”; amending s.
  401         163.3180, F.S.; requiring a local government to credit
  402         certain contributions, constructions, expansions, or
  403         payments toward any other impact fee or exaction
  404         imposed by local ordinance for public educational
  405         facilities; providing requirements for the basis of
  406         the credit; amending s. 163.31801, F.S.; adding
  407         minimum conditions that certain impact fees must
  408         satisfy; requiring that, under certain circumstances,
  409         a holder of certain impact fee or mobility fee credits
  410         receive the full value of the credits as of the date
  411         they were first established based on the impact fee or
  412         mobility fee rate that was in effect on such date;
  413         providing that the government, in certain actions, has
  414         the burden of proving by a preponderance of the
  415         evidence that the imposition or amount of impact fees
  416         or required dollar-for-dollar credits for the payment
  417         of impact fees meets certain requirements; prohibiting
  418         the court from using a deferential standard for the
  419         benefit of the government; providing applicability;
  420         authorizing a county, municipality, or special
  421         district to provide an exception or waiver for an
  422         impact fee for the development or construction of
  423         housing that is affordable; providing that if a
  424         county, municipality, or special district provides
  425         such an exception or waiver, it is not required to use
  426         any revenues to offset the impact; amending s.
  427         166.033, F.S.; requiring that a municipality review
  428         the application for completeness and issue a certain
  429         letter within a specified period after receiving an
  430         application for approval of a development permit or
  431         development order; providing procedures for addressing
  432         deficiencies in, and for approving or denying, the
  433         application; conforming provisions to changes made by
  434         the act; defining the term “development order”;
  435         amending s. 166.04151, F.S.; prohibiting a
  436         municipality from adopting or imposing a requirement
  437         in any form relating to affordable housing which has
  438         specified effects; providing construction; amending s.
  439         494.001, F.S.; revising the definition of the term
  440         “mortgage loan”; providing an effective date.