Florida Senate - 2020                             CS for SB 1766
       By the Committee on Judiciary; and Senators Lee and Perry
       590-03113-20                                          20201766c1
    1                        A bill to be entitled                      
    2         An act relating to growth management; amending s.
    3         70.001, F.S.; revising notice of claim requirements
    4         for property owners; creating a presumption that
    5         certain settlement offers protect the public interest;
    6         specifying that property owners retain the option to
    7         have a court determine awards of compensation;
    8         authorizing property owners to bring claims against
    9         governmental entities in certain circumstances;
   10         providing that property owners are not required to
   11         submit formal development applications or proceed
   12         through formal application processes to bring claims
   13         in specified circumstances; amending s. 70.45, F.S.;
   14         defining the terms “imposed” and “imposition”;
   15         authorizing property owners to bring actions to
   16         declare prohibited exactions invalid; providing
   17         applicability; amending s. 337.25, F.S.; requiring the
   18         Department of Transportation to afford a right of
   19         first refusal to the previous property owner before
   20         disposing of property in certain circumstances;
   21         providing requirements relating to such rights of
   22         first refusal; providing an effective date.
   24  Be It Enacted by the Legislature of the State of Florida:
   26         Section 1. Subsections (4), (5), and (6) and paragraph (a)
   27  of subsection (11) of section 70.001, Florida Statutes, are
   28  amended to read:
   29         70.001 Private property rights protection.—
   30         (4)(a) Not less than 90 150 days before prior to filing an
   31  action under this section against a governmental entity, a
   32  property owner who seeks compensation under this section must
   33  present the claim in writing to the head of the governmental
   34  entity, except that if the property is classified as
   35  agricultural pursuant to s. 193.461, the notice period is 90
   36  days. The property owner must submit, along with the claim, a
   37  bona fide, valid appraisal that supports the claim and
   38  demonstrates the loss in fair market value to the real property.
   39  If the action of government is the culmination of a process that
   40  involves more than one governmental entity, or if a complete
   41  resolution of all relevant issues, in the view of the property
   42  owner or in the view of a governmental entity to whom a claim is
   43  presented, requires the active participation of more than one
   44  governmental entity, the property owner shall present the claim
   45  as provided in this section to each of the governmental
   46  entities.
   47         (b) The governmental entity shall provide written notice of
   48  the claim to all parties to any administrative action that gave
   49  rise to the claim, and to owners of real property contiguous to
   50  the owner’s property at the addresses listed on the most recent
   51  county tax rolls. Within 15 days after the claim is presented,
   52  the governmental entity shall report the claim in writing to the
   53  Department of Legal Affairs, and shall provide the department
   54  with the name, address, and telephone number of the employee of
   55  the governmental entity from whom additional information may be
   56  obtained about the claim during the pendency of the claim and
   57  any subsequent judicial action.
   58         (c) During the 90-day-notice period or the 150-day-notice
   59  period, unless extended by agreement of the parties, the
   60  governmental entity shall make a written settlement offer to
   61  effectuate:
   62         1. An adjustment of land development or permit standards or
   63  other provisions controlling the development or use of land.
   64         2. Increases or modifications in the density, intensity, or
   65  use of areas of development.
   66         3. The transfer of developmental rights.
   67         4. Land swaps or exchanges.
   68         5. Mitigation, including payments in lieu of onsite
   69  mitigation.
   70         6. Location on the least sensitive portion of the property.
   71         7. Conditioning the amount of development or use permitted.
   72         8. A requirement that issues be addressed on a more
   73  comprehensive basis than a single proposed use or development.
   74         9. Issuance of the development order, a variance, a special
   75  exception, or any other extraordinary relief.
   76         10. Purchase of the real property, or an interest therein,
   77  by an appropriate governmental entity or payment of
   78  compensation.
   79         11. No changes to the action of the governmental entity.
   81  If the property owner accepts a settlement offer, either before
   82  or after filing an action, the governmental entity may implement
   83  the settlement offer by appropriate development agreement; by
   84  issuing a variance, a special exception, or any other
   85  extraordinary relief; or by any other appropriate method,
   86  subject to paragraph (d).
   87         (d)1. When a governmental entity enters into a settlement
   88  agreement under this section which would have the effect of a
   89  modification, variance, or a special exception to the
   90  application of a rule, regulation, or ordinance as it would
   91  otherwise apply to the subject real property, the relief granted
   92  shall protect the public interest served by the regulations at
   93  issue and be the appropriate relief necessary to prevent the
   94  governmental regulatory effort from inordinately burdening the
   95  real property. Settlement offers made pursuant to paragraph (c)
   96  shall be presumed to protect the public interest.
   97         2. When a governmental entity enters into a settlement
   98  agreement under this section which would have the effect of
   99  contravening the application of a statute as it would otherwise
  100  apply to the subject real property, the governmental entity and
  101  the property owner shall jointly file an action in the circuit
  102  court where the real property is located for approval of the
  103  settlement agreement by the court to ensure that the relief
  104  granted protects the public interest served by the statute at
  105  issue and is the appropriate relief necessary to prevent the
  106  governmental regulatory effort from inordinately burdening the
  107  real property.
  109  This paragraph applies to any settlement reached between a
  110  property owner and a governmental entity regardless of when the
  111  settlement agreement was entered so long as the agreement fully
  112  resolves all claims asserted under this section.
  113         (5)(a) During the 90-day-notice period or the 150-day
  114  notice period, unless a settlement offer is accepted by the
  115  property owner, each of the governmental entities provided
  116  notice pursuant to subsection (4) paragraph (4)(a) shall issue a
  117  written statement of allowable uses identifying the allowable
  118  uses to which the subject property may be put. The failure of
  119  the governmental entity to issue a statement of allowable uses
  120  during the applicable 90-day-notice period or 150-day-notice
  121  period shall be deemed a denial for purposes of allowing a
  122  property owner to file an action in the circuit court under this
  123  section. If a written statement of allowable uses is issued, it
  124  constitutes the last prerequisite to judicial review for the
  125  purposes of the judicial proceeding created by this section,
  126  notwithstanding the availability of other administrative
  127  remedies.
  128         (b) If the property owner rejects the settlement offer and
  129  the statement of allowable uses of the governmental entity or
  130  entities, the property owner may file a claim for compensation
  131  in the circuit court, a copy of which shall be served
  132  contemporaneously on the head of each of the governmental
  133  entities that made a settlement offer and a statement of
  134  allowable uses that was rejected by the property owner. Actions
  135  under this section shall be brought only in the county where the
  136  real property is located.
  137         (6)(a) The circuit court shall determine whether an
  138  existing use of the real property or a vested right to a
  139  specific use of the real property existed and, if so, whether,
  140  considering the settlement offer and statement of allowable
  141  uses, the governmental entity or entities have inordinately
  142  burdened the real property. If the actions of more than one
  143  governmental entity, considering any settlement offers and
  144  statement of allowable uses, are responsible for the action that
  145  imposed the inordinate burden on the real property of the
  146  property owner, the court shall determine the percentage of
  147  responsibility each such governmental entity bears with respect
  148  to the inordinate burden. A governmental entity may take an
  149  interlocutory appeal of the court’s determination that the
  150  action of the governmental entity has resulted in an inordinate
  151  burden. An interlocutory appeal does not automatically stay the
  152  proceedings; however, the court may stay the proceedings during
  153  the pendency of the interlocutory appeal. If the governmental
  154  entity does not prevail in the interlocutory appeal, the court
  155  shall award to the prevailing property owner the costs and a
  156  reasonable attorney fee incurred by the property owner in the
  157  interlocutory appeal.
  158         (b) Following its determination of the percentage of
  159  responsibility of each governmental entity, and following the
  160  resolution of any interlocutory appeal, the court shall impanel
  161  a jury to determine the total amount of compensation to the
  162  property owner for the loss in value due to the inordinate
  163  burden to the real property. The property owner retains the
  164  option to forego a jury and elect to have the court determine
  165  the award of compensation. The award of compensation shall be
  166  determined by calculating the difference in the fair market
  167  value of the real property, as it existed at the time of the
  168  governmental action at issue, as though the owner had the
  169  ability to attain the reasonable investment-backed expectation
  170  or was not left with uses that are unreasonable, whichever the
  171  case may be, and the fair market value of the real property, as
  172  it existed at the time of the governmental action at issue, as
  173  inordinately burdened, considering the settlement offer together
  174  with the statement of allowable uses, of the governmental entity
  175  or entities. In determining the award of compensation,
  176  consideration may not be given to business damages relative to
  177  any development, activity, or use that the action of the
  178  governmental entity or entities, considering the settlement
  179  offer together with the statement of allowable uses has
  180  restricted, limited, or prohibited. The award of compensation
  181  shall include a reasonable award of prejudgment interest from
  182  the date the claim was presented to the governmental entity or
  183  entities as provided in subsection (4).
  184         (c)1. In any action filed pursuant to this section, the
  185  property owner is entitled to recover reasonable costs and
  186  attorney fees incurred by the property owner, from the
  187  governmental entity or entities, according to their
  188  proportionate share as determined by the court, from the date of
  189  the filing of the circuit court action, if the property owner
  190  prevails in the action and the court determines that the
  191  settlement offer, including the statement of allowable uses, of
  192  the governmental entity or entities did not constitute a bona
  193  fide offer to the property owner which reasonably would have
  194  resolved the claim, based upon the knowledge available to the
  195  governmental entity or entities and the property owner during
  196  the 90-day-notice period or the 150-day-notice period.
  197         2. In any action filed pursuant to this section, the
  198  governmental entity or entities are entitled to recover
  199  reasonable costs and attorney fees incurred by the governmental
  200  entity or entities from the date of the filing of the circuit
  201  court action, if the governmental entity or entities prevail in
  202  the action and the court determines that the property owner did
  203  not accept a bona fide settlement offer, including the statement
  204  of allowable uses, which reasonably would have resolved the
  205  claim fairly to the property owner if the settlement offer had
  206  been accepted by the property owner, based upon the knowledge
  207  available to the governmental entity or entities and the
  208  property owner during the 90-day-notice period or the 150-day
  209  notice period.
  210         3. The determination of total reasonable costs and attorney
  211  fees pursuant to this paragraph shall be made by the court and
  212  not by the jury. Any proposed settlement offer or any proposed
  213  decision, except for the final written settlement offer or the
  214  final written statement of allowable uses, and any negotiations
  215  or rejections in regard to the formulation either of the
  216  settlement offer or the statement of allowable uses, are
  217  inadmissible in the subsequent proceeding established by this
  218  section except for the purposes of the determination pursuant to
  219  this paragraph.
  220         (d) Within 15 days after the execution of any settlement
  221  pursuant to this section, or the issuance of any judgment
  222  pursuant to this section, the governmental entity shall provide
  223  a copy of the settlement or judgment to the Department of Legal
  224  Affairs.
  225         (11) A cause of action may not be commenced under this
  226  section if the claim is presented more than 1 year after a law
  227  or regulation is first applied by the governmental entity to the
  228  property at issue.
  229         (a) For purposes of determining when this 1-year claim
  230  period accrues:
  231         1.a. A law or regulation is first applied upon enactment
  232  and notice as provided for in this sub-subparagraph subparagraph
  233  if the impact of the law or regulation on the real property is
  234  clear and unequivocal in its terms and notice is provided by
  235  mail to the affected property owner or registered agent at the
  236  address referenced in the jurisdiction’s most current ad valorem
  237  tax records. The fact that the law or regulation could be
  238  modified, varied, or altered under any other process or
  239  procedure does not preclude the impact of the law or regulation
  240  on a property from being clear or unequivocal pursuant to this
  241  sub-subparagraph subparagraph. Any notice under this sub
  242  subparagraph subparagraph shall be provided after the enactment
  243  of the law or regulation and shall inform the property owner or
  244  registered agent that the law or regulation may impact the
  245  property owner’s existing property rights and that the property
  246  owner may have only 1 year from receipt of the notice to pursue
  247  any rights established under this section.
  248         b.If the notice required in sub-subparagraph a. is not
  249  provided to the property owner, the property owner may at any
  250  time after enactment notify the governmental entity in writing
  251  that the property owner deems the impact of the law or
  252  regulation on the property owner’s real property to be clear and
  253  unequivocal in its terms and, as such, restrictive of uses
  254  allowed on the property before the enactment. Within 45 days
  255  after receipt of a notice under this sub-subparagraph, the
  256  governmental entity in receipt of the notice must respond in
  257  writing to state whether the law or regulation is applicable to
  258  the real property in question and provide a description of the
  259  limitations imposed on the property by the law or regulation. If
  260  the governmental entity concludes that the law or regulation is
  261  applicable by imposing new limitations on the uses of the
  262  property, the property owner is not required to formally pursue
  263  an application for a development order, development permit, or
  264  building permit, as such will be deemed a waste of resources and
  265  shall not be a prerequisite to bringing a claim pursuant to
  266  paragraph (4)(a). However, any such claim must be filed within 1
  267  year after the date of the property owner’s receipt of the
  268  notice from the governmental entity of the limitations on use
  269  imposed on the real property.
  270         2. Otherwise, the law or regulation is first applied to the
  271  property when there is a formal denial of a written request for
  272  development or variance.
  273         Section 2. Paragraphs (c) through (e) of subsection (1) of
  274  section 70.45, Florida Statutes, are redesignated as paragraphs
  275  (d) through (f), respectively, a new paragraph (c) is added to
  276  that subsection, and subsections (2), (4), and (5) of that
  277  section are amended, to read:
  278         70.45 Governmental exactions.—
  279         (1) As used in this section, the term:
  280         (c)“Imposed” or “imposition” as it relates to a prohibited
  281  exaction or condition of approval refers to the time at which
  282  the property owner must comply with the prohibited exaction or
  283  condition of approval.
  284         (2) In addition to other remedies available in law or
  285  equity, a property owner may bring an action in a court of
  286  competent jurisdiction under this section to declare a
  287  prohibited exaction invalid and recover damages caused by a
  288  prohibited exaction. Such action may not be brought until a
  289  prohibited exaction is actually imposed or required in writing
  290  as a final condition of approval for the requested use of real
  291  property. The right to bring an action under this section may
  292  not be waived. This section does not apply to impact fees
  293  adopted under s. 163.31801 or non-ad valorem assessments as
  294  defined in s. 197.3632.
  295         (4) For each claim filed under this section, the
  296  governmental entity has the burden of proving that the
  297  challenged exaction has an essential nexus to a legitimate
  298  public purpose and is roughly proportionate to the impacts of
  299  the proposed use that the governmental entity is seeking to
  300  avoid, minimize, or mitigate. The property owner has the burden
  301  of proving damages that result from a prohibited exaction.
  302         (5) The court may award attorney fees and costs to the
  303  prevailing party; however, if the court determines that the
  304  challenged exaction which is the subject of the claim lacks an
  305  essential nexus to a legitimate public purpose, the court shall
  306  award attorney fees and costs to the property owner.
  307         Section 3. The amendments made by this act to ss. 70.001
  308  and 70.45, Florida Statutes, apply to claims made in response to
  309  actions taken by governmental entities on or after July 1, 2020.
  310         Section 4. Subsection (4) of section 337.25, Florida
  311  Statutes, is amended to read:
  312         337.25 Acquisition, lease, and disposal of real and
  313  personal property.—
  314         (4) The department may convey, in the name of the state,
  315  any land, building, or other property, real or personal, which
  316  was acquired under subsection (1) and which the department has
  317  determined is not needed for the construction, operation, and
  318  maintenance of a transportation facility. When such a
  319  determination has been made, property may be disposed of through
  320  negotiations, sealed competitive bids, auctions, or any other
  321  means the department deems to be in its best interest, with due
  322  advertisement for property valued by the department at greater
  323  than $10,000. A sale may not occur at a price less than the
  324  department’s current estimate of value, except as provided in
  325  paragraphs (a)-(d). The department may afford a right of first
  326  refusal to the local government or other political subdivision
  327  in the jurisdiction in which the parcel is situated, except in a
  328  conveyance transacted under paragraph (a), paragraph (c), or
  329  paragraph (e). Notwithstanding any provision of this section to
  330  the contrary, before any conveyance under this subsection may be
  331  made, except a conveyance under paragraph (a) or paragraph (c),
  332  the department shall first afford a right of first refusal to
  333  the previous property owner for the department’s current
  334  estimate of value of the property. The right of first refusal
  335  shall be made in writing and sent to the previous owner via
  336  certified mail or hand delivery, effective upon receipt. The
  337  right of first refusal shall provide the previous owner with a
  338  minimum of 15 days to exercise the right in writing and be sent
  339  to the originator of the offer via certified mail or hand
  340  delivery, effective upon dispatch. The previous owner shall have
  341  a minimum of 60 days after exercising its right of first refusal
  342  to close. If the previous owner does not exercise its right of
  343  first refusal, the department may not deviate in any material
  344  respect from the offer made to the previous owner unless it
  345  first provides the previous owner with the right of first
  346  refusal under the new terms. The same procedure shall apply to
  347  any subsequent iterations of the sale terms.
  348         (a) If the property has been donated to the state for
  349  transportation purposes and a transportation facility has not
  350  been constructed for at least 5 years, plans have not been
  351  prepared for the construction of such facility, and the property
  352  is not located in a transportation corridor, the governmental
  353  entity may authorize reconveyance of the donated property for no
  354  consideration to the original donor or the donor’s heirs,
  355  successors, assigns, or representatives.
  356         (b) If the property is to be used for a public purpose, the
  357  property may be conveyed without consideration to a governmental
  358  entity.
  359         (c) If the property was originally acquired specifically to
  360  provide replacement housing for persons displaced by
  361  transportation projects, the department may negotiate for the
  362  sale of such property as replacement housing. As compensation,
  363  the state shall receive at least its investment in such property
  364  or the department’s current estimate of value, whichever is
  365  lower. It is expressly intended that this benefit be extended
  366  only to persons actually displaced by the project. Dispositions
  367  to any other person must be for at least the department’s
  368  current estimate of value.
  369         (d) If the department determines that the property requires
  370  significant costs to be incurred or that continued ownership of
  371  the property exposes the department to significant liability
  372  risks, the department may use the projected maintenance costs
  373  over the next 10 years to offset the property’s value in
  374  establishing a value for disposal of the property, even if that
  375  value is zero.
  376         (e) If, at the discretion of the department, a sale to a
  377  person other than an abutting property owner would be
  378  inequitable, the property may be sold to the abutting owner for
  379  the department’s current estimate of value.
  380         Section 5. This act shall take effect July 1, 2020.