Florida Senate - 2020                                    SB 1766
       By Senator Lee
       20-00931C-20                                          20201766__
    1                        A bill to be entitled                      
    2         An act relating to growth management; amending s.
    3         70.001, F.S.; revising legislative intent; revising
    4         notice of claim requirements for property owners;
    5         creating a presumption that certain settlement offers
    6         protect the public interest; creating a presumption
    7         that certain settlements of claims apply to all
    8         similarly situated residential properties within a
    9         political subdivision under certain circumstances;
   10         specifying when properties are considered similarly
   11         situated; specifying that property owners retain the
   12         option to have a court determine awards of
   13         compensation; authorizing property owners to bring
   14         claims against governmental entities in certain
   15         circumstances; providing that property owners are not
   16         required to submit formal development applications or
   17         proceed through formal application processes to bring
   18         claims in specified circumstances; amending s. 70.45,
   19         F.S.; defining the terms “imposed” and “imposition”;
   20         authorizing property owners to bring actions to
   21         declare prohibited exactions invalid; providing
   22         applicability; amending s. 337.25, F.S.; requiring the
   23         Department of Transportation to afford a right of
   24         first refusal to the previous property owner before
   25         disposing of property in certain circumstances;
   26         providing requirements relating to such rights of
   27         first refusal; providing an effective date.
   29  Be It Enacted by the Legislature of the State of Florida:
   31         Section 1. Subsections (1), (4), (5), and (6) and paragraph
   32  (a) of subsection (11) of section 70.001, Florida Statutes, are
   33  amended to read:
   34         70.001 Private property rights protection.—
   35         (1) This act may be cited as the “Bert J. Harris, Jr.,
   36  Private Property Rights Protection Act.” The Legislature
   37  recognizes that some laws, regulations, and ordinances of the
   38  state and political entities in the state, as applied, may
   39  inordinately burden, restrict, or limit private property rights
   40  without amounting to a taking under the State Constitution or
   41  the United States Constitution. The Legislature determines that
   42  there is an important state interest in protecting the interests
   43  of private property owners from such inordinate burdens. The
   44  Legislature further recognizes that it is in the public interest
   45  to ensure that all similarly situated residential properties are
   46  subject to the same rules and regulations. Therefore, it is the
   47  intent of the Legislature that, as a separate and distinct cause
   48  of action from the law of takings, the Legislature herein
   49  provides for relief, or payment of compensation, when a new law,
   50  rule, regulation, or ordinance of the state or a political
   51  entity in the state, as applied, unfairly affects real property.
   52         (4)(a) Not less than 90 150 days before prior to filing an
   53  action under this section against a governmental entity, a
   54  property owner who seeks compensation under this section must
   55  present the claim in writing to the head of the governmental
   56  entity, except that if the property is classified as
   57  agricultural pursuant to s. 193.461, the notice period is 90
   58  days. The property owner must submit, along with the claim, a
   59  bona fide, valid appraisal that supports the claim and
   60  demonstrates the loss in fair market value to the real property.
   61  If the action of government is the culmination of a process that
   62  involves more than one governmental entity, or if a complete
   63  resolution of all relevant issues, in the view of the property
   64  owner or in the view of a governmental entity to whom a claim is
   65  presented, requires the active participation of more than one
   66  governmental entity, the property owner shall present the claim
   67  as provided in this section to each of the governmental
   68  entities.
   69         (b) The governmental entity shall provide written notice of
   70  the claim to all parties to any administrative action that gave
   71  rise to the claim, and to owners of real property contiguous to
   72  the owner’s property at the addresses listed on the most recent
   73  county tax rolls. Within 15 days after the claim is presented,
   74  the governmental entity shall report the claim in writing to the
   75  Department of Legal Affairs, and shall provide the department
   76  with the name, address, and telephone number of the employee of
   77  the governmental entity from whom additional information may be
   78  obtained about the claim during the pendency of the claim and
   79  any subsequent judicial action.
   80         (c) During the 90-day-notice period or the 150-day-notice
   81  period, unless extended by agreement of the parties, the
   82  governmental entity shall make a written settlement offer to
   83  effectuate:
   84         1. An adjustment of land development or permit standards or
   85  other provisions controlling the development or use of land.
   86         2. Increases or modifications in the density, intensity, or
   87  use of areas of development.
   88         3. The transfer of developmental rights.
   89         4. Land swaps or exchanges.
   90         5. Mitigation, including payments in lieu of onsite
   91  mitigation.
   92         6. Location on the least sensitive portion of the property.
   93         7. Conditioning the amount of development or use permitted.
   94         8. A requirement that issues be addressed on a more
   95  comprehensive basis than a single proposed use or development.
   96         9. Issuance of the development order, a variance, a special
   97  exception, or any other extraordinary relief.
   98         10. Purchase of the real property, or an interest therein,
   99  by an appropriate governmental entity or payment of
  100  compensation.
  101         11. No changes to the action of the governmental entity.
  103  If the property owner accepts a settlement offer, either before
  104  or after filing an action, the governmental entity may implement
  105  the settlement offer by appropriate development agreement; by
  106  issuing a variance, a special exception, or any other
  107  extraordinary relief; or by any other appropriate method,
  108  subject to paragraph (d).
  109         (d)1. When a governmental entity enters into a settlement
  110  agreement under this section which would have the effect of a
  111  modification, variance, or a special exception to the
  112  application of a rule, regulation, or ordinance as it would
  113  otherwise apply to the subject real property, the relief granted
  114  shall protect the public interest served by the regulations at
  115  issue and be the appropriate relief necessary to prevent the
  116  governmental regulatory effort from inordinately burdening the
  117  real property. Settlement offers made pursuant to paragraph (c)
  118  shall be presumed to protect the public interest.
  119         2. When a governmental entity enters into a settlement
  120  agreement under this section which would have the effect of
  121  contravening the application of a statute as it would otherwise
  122  apply to the subject real property, the governmental entity and
  123  the property owner shall jointly file an action in the circuit
  124  court where the real property is located for approval of the
  125  settlement agreement by the court to ensure that the relief
  126  granted protects the public interest served by the statute at
  127  issue and is the appropriate relief necessary to prevent the
  128  governmental regulatory effort from inordinately burdening the
  129  real property.
  130         3.When a residential property owner submits a claim under
  131  this section which is based on a governmental entity’s
  132  application of a regulation or ordinance to more than one
  133  residential parcel, and the governmental entity reaches a
  134  settlement of such claim or the property owner secures a
  135  judgment declaring an inordinate burden under paragraph (6)(a),
  136  there shall be a presumption, rebuttable only by clear and
  137  convincing evidence, that similarly situated residential
  138  parcels, as evaluated on a parcel-by-parcel basis, have been
  139  inordinately burdened and are entitled to equivalent terms of
  140  settlement or a judicial determination of an inordinate burden.
  141  In such cases, the similarly situated residential property
  142  owners must submit the appraisal specified in paragraph (a) not
  143  less than 120 days before a trial on the merits of the damages
  144  portion of the proceedings pursuant to paragraph (6)(b). During
  145  the 90-day-notice period of such claims, the governmental entity
  146  shall negotiate terms of settlement consistent with settlement
  147  agreements for similarly situated residential parcels. For the
  148  purposes of this subparagraph, properties are similarly situated
  149  only if improvements authorized under zoning code and use
  150  restrictions have been constructed on the property and the
  151  governing body has issued a certificate of occupancy and if the
  152  properties are proximate in location and are subject to
  153  identical zoning code and use restrictions.
  155  This paragraph applies to any settlement reached between a
  156  property owner and a governmental entity regardless of when the
  157  settlement agreement was entered so long as the agreement fully
  158  resolves all claims asserted under this section.
  159         (5)(a) During the 90-day-notice period or the 150-day
  160  notice period, unless a settlement offer is accepted by the
  161  property owner, each of the governmental entities provided
  162  notice pursuant to subsection (4) paragraph (4)(a) shall issue a
  163  written statement of allowable uses identifying the allowable
  164  uses to which the subject property may be put. The failure of
  165  the governmental entity to issue a statement of allowable uses
  166  during the applicable 90-day-notice period or 150-day-notice
  167  period shall be deemed a denial for purposes of allowing a
  168  property owner to file an action in the circuit court under this
  169  section. If a written statement of allowable uses is issued, it
  170  constitutes the last prerequisite to judicial review for the
  171  purposes of the judicial proceeding created by this section,
  172  notwithstanding the availability of other administrative
  173  remedies.
  174         (b) If the property owner rejects the settlement offer and
  175  the statement of allowable uses of the governmental entity or
  176  entities, the property owner may file a claim for compensation
  177  in the circuit court, a copy of which shall be served
  178  contemporaneously on the head of each of the governmental
  179  entities that made a settlement offer and a statement of
  180  allowable uses that was rejected by the property owner. Actions
  181  under this section shall be brought only in the county where the
  182  real property is located.
  183         (6)(a) The circuit court shall determine whether an
  184  existing use of the real property or a vested right to a
  185  specific use of the real property existed and, if so, whether,
  186  considering the settlement offer and statement of allowable
  187  uses, the governmental entity or entities have inordinately
  188  burdened the real property. If the actions of more than one
  189  governmental entity, considering any settlement offers and
  190  statement of allowable uses, are responsible for the action that
  191  imposed the inordinate burden on the real property of the
  192  property owner, the court shall determine the percentage of
  193  responsibility each such governmental entity bears with respect
  194  to the inordinate burden. A governmental entity may take an
  195  interlocutory appeal of the court’s determination that the
  196  action of the governmental entity has resulted in an inordinate
  197  burden. An interlocutory appeal does not automatically stay the
  198  proceedings; however, the court may stay the proceedings during
  199  the pendency of the interlocutory appeal. If the governmental
  200  entity does not prevail in the interlocutory appeal, the court
  201  shall award to the prevailing property owner the costs and a
  202  reasonable attorney fee incurred by the property owner in the
  203  interlocutory appeal.
  204         (b) Following its determination of the percentage of
  205  responsibility of each governmental entity, and following the
  206  resolution of any interlocutory appeal, the court shall impanel
  207  a jury to determine the total amount of compensation to the
  208  property owner for the loss in value due to the inordinate
  209  burden to the real property. The property owner retains the
  210  option to forego a jury and elect to have the court determine
  211  the award of compensation. The award of compensation shall be
  212  determined by calculating the difference in the fair market
  213  value of the real property, as it existed at the time of the
  214  governmental action at issue, as though the owner had the
  215  ability to attain the reasonable investment-backed expectation
  216  or was not left with uses that are unreasonable, whichever the
  217  case may be, and the fair market value of the real property, as
  218  it existed at the time of the governmental action at issue, as
  219  inordinately burdened, considering the settlement offer together
  220  with the statement of allowable uses, of the governmental entity
  221  or entities. In determining the award of compensation,
  222  consideration may not be given to business damages relative to
  223  any development, activity, or use that the action of the
  224  governmental entity or entities, considering the settlement
  225  offer together with the statement of allowable uses has
  226  restricted, limited, or prohibited. The award of compensation
  227  shall include a reasonable award of prejudgment interest from
  228  the date the claim was presented to the governmental entity or
  229  entities as provided in subsection (4).
  230         (c)1. In any action filed pursuant to this section, the
  231  property owner is entitled to recover reasonable costs and
  232  attorney fees incurred by the property owner, from the
  233  governmental entity or entities, according to their
  234  proportionate share as determined by the court, from the date of
  235  the filing of the circuit court action, if the property owner
  236  prevails in the action and the court determines that the
  237  settlement offer, including the statement of allowable uses, of
  238  the governmental entity or entities did not constitute a bona
  239  fide offer to the property owner which reasonably would have
  240  resolved the claim, based upon the knowledge available to the
  241  governmental entity or entities and the property owner during
  242  the 90-day-notice period or the 150-day-notice period.
  243         2. In any action filed pursuant to this section, the
  244  governmental entity or entities are entitled to recover
  245  reasonable costs and attorney fees incurred by the governmental
  246  entity or entities from the date of the filing of the circuit
  247  court action, if the governmental entity or entities prevail in
  248  the action and the court determines that the property owner did
  249  not accept a bona fide settlement offer, including the statement
  250  of allowable uses, which reasonably would have resolved the
  251  claim fairly to the property owner if the settlement offer had
  252  been accepted by the property owner, based upon the knowledge
  253  available to the governmental entity or entities and the
  254  property owner during the 90-day-notice period or the 150-day
  255  notice period.
  256         3. The determination of total reasonable costs and attorney
  257  fees pursuant to this paragraph shall be made by the court and
  258  not by the jury. Any proposed settlement offer or any proposed
  259  decision, except for the final written settlement offer or the
  260  final written statement of allowable uses, and any negotiations
  261  or rejections in regard to the formulation either of the
  262  settlement offer or the statement of allowable uses, are
  263  inadmissible in the subsequent proceeding established by this
  264  section except for the purposes of the determination pursuant to
  265  this paragraph.
  266         (d) Within 15 days after the execution of any settlement
  267  pursuant to this section, or the issuance of any judgment
  268  pursuant to this section, the governmental entity shall provide
  269  a copy of the settlement or judgment to the Department of Legal
  270  Affairs.
  271         (11) A cause of action may not be commenced under this
  272  section if the claim is presented more than 1 year after a law
  273  or regulation is first applied by the governmental entity to the
  274  property at issue.
  275         (a) For purposes of determining when this 1-year claim
  276  period accrues:
  277         1.a. A law or regulation is first applied upon enactment
  278  and notice as provided for in this sub-subparagraph subparagraph
  279  if the impact of the law or regulation on the real property is
  280  clear and unequivocal in its terms and notice is provided by
  281  mail to the affected property owner or registered agent at the
  282  address referenced in the jurisdiction’s most current ad valorem
  283  tax records. The fact that the law or regulation could be
  284  modified, varied, or altered under any other process or
  285  procedure does not preclude the impact of the law or regulation
  286  on a property from being clear or unequivocal pursuant to this
  287  sub-subparagraph subparagraph. Any notice under this sub
  288  subparagraph subparagraph shall be provided after the enactment
  289  of the law or regulation and shall inform the property owner or
  290  registered agent that the law or regulation may impact the
  291  property owner’s existing property rights and that the property
  292  owner may have only 1 year from receipt of the notice to pursue
  293  any rights established under this section.
  294         b.If the notice required in sub-subparagraph a. is not
  295  provided to the property owner, the property owner may at any
  296  time after enactment notify the governmental entity in writing
  297  that the property owner deems the impact of the law or
  298  regulation on the property owner’s real property to be clear and
  299  unequivocal in its terms and, as such, restrictive of uses
  300  allowed on the property before the enactment. Within 45 days
  301  after receipt of a notice under this sub-subparagraph, the
  302  governmental entity in receipt of the notice must respond in
  303  writing to state whether the law or regulation is applicable to
  304  the real property in question and provide a description of the
  305  limitations imposed on the property by the law or regulation. If
  306  the governmental entity concludes that the law or regulation is
  307  applicable by imposing new limitations on the uses of the
  308  property, the property owner is not required to formally pursue
  309  an application for a development order, development permit, or
  310  building permit, as such will be deemed a waste of resources and
  311  shall not be a prerequisite to bringing a claim pursuant to
  312  paragraph (4)(a). However, any such claim must be filed within 1
  313  year after the date of the property owner’s receipt of the
  314  notice from the governmental entity of the limitations on use
  315  imposed on the real property.
  316         2. Otherwise, the law or regulation is first applied to the
  317  property when there is a formal denial of a written request for
  318  development or variance.
  319         Section 2. Paragraphs (c) through (e) of subsection (1) of
  320  section 70.45, Florida Statutes, are redesignated as paragraphs
  321  (d) through (f), respectively, a new paragraph (c) is added to
  322  that subsection, and subsections (2), (4), and (5) of that
  323  section are amended, to read:
  324         70.45 Governmental exactions.—
  325         (1) As used in this section, the term:
  326         (c)“Imposed” or “imposition” as it relates to a prohibited
  327  exaction or condition of approval refers to the time at which
  328  the property owner must comply with the prohibited exaction or
  329  condition of approval.
  330         (2) In addition to other remedies available in law or
  331  equity, a property owner may bring an action in a court of
  332  competent jurisdiction under this section to declare a
  333  prohibited exaction invalid and recover damages caused by a
  334  prohibited exaction. Such action may not be brought until a
  335  prohibited exaction is actually imposed or required in writing
  336  as a final condition of approval for the requested use of real
  337  property. The right to bring an action under this section may
  338  not be waived. This section does not apply to impact fees
  339  adopted under s. 163.31801 or non-ad valorem assessments as
  340  defined in s. 197.3632.
  341         (4) For each claim filed under this section, the
  342  governmental entity has the burden of proving that the
  343  challenged exaction has an essential nexus to a legitimate
  344  public purpose and is roughly proportionate to the impacts of
  345  the proposed use that the governmental entity is seeking to
  346  avoid, minimize, or mitigate. The property owner has the burden
  347  of proving damages that result from a prohibited exaction.
  348         (5) The court may award attorney fees and costs to the
  349  prevailing party; however, if the court determines that the
  350  challenged exaction which is the subject of the claim lacks an
  351  essential nexus to a legitimate public purpose, the court shall
  352  award attorney fees and costs to the property owner.
  353         Section 3. The amendments made by this act to ss. 70.001
  354  and 70.45, Florida Statutes, apply to claims made in response to
  355  actions taken by governmental entities on or after July 1, 2020.
  356         Section 4. Subsection (4) of section 337.25, Florida
  357  Statutes, is amended to read:
  358         337.25 Acquisition, lease, and disposal of real and
  359  personal property.—
  360         (4) The department may convey, in the name of the state,
  361  any land, building, or other property, real or personal, which
  362  was acquired under subsection (1) and which the department has
  363  determined is not needed for the construction, operation, and
  364  maintenance of a transportation facility. When such a
  365  determination has been made, property may be disposed of through
  366  negotiations, sealed competitive bids, auctions, or any other
  367  means the department deems to be in its best interest, with due
  368  advertisement for property valued by the department at greater
  369  than $10,000. A sale may not occur at a price less than the
  370  department’s current estimate of value, except as provided in
  371  paragraphs (a)-(d). The department may afford a right of first
  372  refusal to the local government or other political subdivision
  373  in the jurisdiction in which the parcel is situated, except in a
  374  conveyance transacted under paragraph (a), paragraph (c), or
  375  paragraph (e). Notwithstanding any provision of this section to
  376  the contrary, before any conveyance under this subsection may be
  377  made, except a conveyance under paragraph (a) or paragraph (c),
  378  the department shall first afford a right of first refusal to
  379  the previous property owner for the department’s current
  380  estimate of value of the property. The right of first refusal
  381  shall be made in writing and sent to the previous owner via
  382  certified mail or hand delivery, effective upon receipt. The
  383  right of first refusal shall provide the previous owner with a
  384  minimum of 15 days to exercise the right in writing and be sent
  385  to the originator of the offer via certified mail or hand
  386  delivery, effective upon dispatch. The previous owner shall have
  387  a minimum of 60 days after exercising its right of first refusal
  388  to close. If the previous owner does not exercise its right of
  389  first refusal, the department may not deviate in any material
  390  respect from the offer made to the previous owner unless it
  391  first provides the previous owner with the right of first
  392  refusal under the new terms. The same procedure shall apply to
  393  any subsequent iterations of the sale terms.
  394         (a) If the property has been donated to the state for
  395  transportation purposes and a transportation facility has not
  396  been constructed for at least 5 years, plans have not been
  397  prepared for the construction of such facility, and the property
  398  is not located in a transportation corridor, the governmental
  399  entity may authorize reconveyance of the donated property for no
  400  consideration to the original donor or the donor’s heirs,
  401  successors, assigns, or representatives.
  402         (b) If the property is to be used for a public purpose, the
  403  property may be conveyed without consideration to a governmental
  404  entity.
  405         (c) If the property was originally acquired specifically to
  406  provide replacement housing for persons displaced by
  407  transportation projects, the department may negotiate for the
  408  sale of such property as replacement housing. As compensation,
  409  the state shall receive at least its investment in such property
  410  or the department’s current estimate of value, whichever is
  411  lower. It is expressly intended that this benefit be extended
  412  only to persons actually displaced by the project. Dispositions
  413  to any other person must be for at least the department’s
  414  current estimate of value.
  415         (d) If the department determines that the property requires
  416  significant costs to be incurred or that continued ownership of
  417  the property exposes the department to significant liability
  418  risks, the department may use the projected maintenance costs
  419  over the next 10 years to offset the property’s value in
  420  establishing a value for disposal of the property, even if that
  421  value is zero.
  422         (e) If, at the discretion of the department, a sale to a
  423  person other than an abutting property owner would be
  424  inequitable, the property may be sold to the abutting owner for
  425  the department’s current estimate of value.
  426         Section 5. This act shall take effect July 1, 2020.