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.
28
29 Be It Enacted by the Legislature of the State of Florida:
30
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.
102
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.
154
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.