Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. SB 1876
       
       
       
       
       
       
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                              LEGISLATIVE ACTION                        
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       The Committee on Judiciary (Albritton) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraphs (d) and (g) of subsection (3),
    6  subsections (4), (5), and (6), and paragraph (a) of subsection
    7  (11) of section 70.001, Florida Statutes, are amended to read:
    8         70.001 Private property rights protection.—
    9         (3) For purposes of this section:
   10         (d) The term “action of a governmental entity” means a
   11  specific action of a governmental entity which affects real
   12  property, including acting action on an application or permit or
   13  adopting or enforcing any ordinance, resolution, regulation,
   14  rule, or policy.
   15         (g) The term “real property” means land and includes any
   16  surface, subsurface, or mineral estates and any appurtenances
   17  and improvements to the land, including any other relevant
   18  interest in the real property in which the property owner has a
   19  relevant interest. The term includes only parcels that are the
   20  subject of and directly impacted by the action of a governmental
   21  entity.
   22         (4)(a) Not fewer less than 90 150 days before prior to
   23  filing an action under this section against a governmental
   24  entity, a property owner who seeks compensation under this
   25  section must present the claim in writing to the head of the
   26  governmental entity, except that if the property is classified
   27  as agricultural pursuant to s. 193.461, the notice period is 90
   28  days. The property owner must submit, along with the claim, a
   29  bona fide, valid appraisal that supports the claim and
   30  demonstrates the loss in fair market value to the real property.
   31  If the action of government is the culmination of a process that
   32  involves more than one governmental entity, or if a complete
   33  resolution of all relevant issues, in the view of the property
   34  owner or in the view of a governmental entity to whom a claim is
   35  presented, requires the active participation of more than one
   36  governmental entity, the property owner shall present the claim
   37  as provided in this section to each of the governmental
   38  entities.
   39         (b) The governmental entity shall provide written notice of
   40  the claim to all parties to any administrative action that gave
   41  rise to the claim, and to owners of real property contiguous to
   42  the owner’s property at the addresses listed on the most recent
   43  county tax rolls. Within 15 days after the claim is presented,
   44  the governmental entity shall report the claim in writing to the
   45  Department of Legal Affairs, and shall provide the department
   46  with the name, address, and telephone number of the employee of
   47  the governmental entity from whom additional information may be
   48  obtained about the claim during the pendency of the claim and
   49  any subsequent judicial action.
   50         (c) During the 90-day-notice period or the 150-day-notice
   51  period, unless extended by agreement of the parties, the
   52  governmental entity shall make a written settlement offer to
   53  effectuate:
   54         1. An adjustment of land development or permit standards or
   55  other provisions controlling the development or use of land.
   56         2. Increases or modifications in the density, intensity, or
   57  use of areas of development.
   58         3. The transfer of developmental rights.
   59         4. Land swaps or exchanges.
   60         5. Mitigation, including payments in lieu of onsite
   61  mitigation.
   62         6. Location on the least sensitive portion of the property.
   63         7. Conditioning the amount of development or use permitted.
   64         8. A requirement that issues be addressed on a more
   65  comprehensive basis than a single proposed use or development.
   66         9. Issuance of the development order, a variance, a special
   67  exception, or any other extraordinary relief.
   68         10. Purchase of the real property, or an interest therein,
   69  by an appropriate governmental entity or payment of
   70  compensation.
   71         11. No changes to the action of the governmental entity.
   72  
   73  If the property owner accepts a settlement offer, either before
   74  or after filing an action, the governmental entity may implement
   75  the settlement offer by appropriate development agreement; by
   76  issuing a variance, a special exception, or any other
   77  extraordinary relief; or by any other appropriate method,
   78  subject to paragraph (d).
   79         (d)1. When a governmental entity enters into a settlement
   80  agreement under this section which would have the effect of a
   81  modification, variance, or a special exception to the
   82  application of a rule, regulation, or ordinance as it would
   83  otherwise apply to the subject real property, the relief granted
   84  shall protect the public interest served by the regulations at
   85  issue and be the appropriate relief necessary to prevent the
   86  governmental regulatory effort from inordinately burdening the
   87  real property. Settlement offers made pursuant to paragraph (c)
   88  shall be presumed to protect the public interest.
   89         2. When a governmental entity enters into a settlement
   90  agreement under this section which would have the effect of
   91  contravening the application of a statute as it would otherwise
   92  apply to the subject real property, the governmental entity and
   93  the property owner shall jointly file an action in the circuit
   94  court where the real property is located for approval of the
   95  settlement agreement by the court to ensure that the relief
   96  granted protects the public interest served by the statute at
   97  issue and is the appropriate relief necessary to prevent the
   98  governmental regulatory effort from inordinately burdening the
   99  real property.
  100  
  101  This paragraph applies to any settlement reached between a
  102  property owner and a governmental entity regardless of when the
  103  settlement agreement was entered so long as the agreement fully
  104  resolves all claims asserted under this section.
  105         (5)(a) During the 90-day-notice period or the 150-day
  106  notice period, unless a settlement offer is accepted by the
  107  property owner, each of the governmental entities provided
  108  notice pursuant to subsection (4) paragraph (4)(a) shall issue a
  109  written statement of allowable uses identifying the allowable
  110  uses to which the subject property may be put. The failure of
  111  the governmental entity to issue a statement of allowable uses
  112  during the applicable 90-day-notice period or 150-day-notice
  113  period shall be deemed a denial for purposes of allowing a
  114  property owner to file an action in the circuit court under this
  115  section. If a written statement of allowable uses is issued, it
  116  constitutes the last prerequisite to judicial review for the
  117  purposes of the judicial proceeding created by this section,
  118  notwithstanding the availability of other administrative
  119  remedies.
  120         (b) If the property owner rejects the settlement offer and
  121  the statement of allowable uses of the governmental entity or
  122  entities, the property owner may file a claim for compensation
  123  in the circuit court, a copy of which shall be served
  124  contemporaneously on the head of each of the governmental
  125  entities that made a settlement offer and a statement of
  126  allowable uses that was rejected by the property owner. Actions
  127  under this section shall be brought only in the county where the
  128  real property is located.
  129         (6)(a) The circuit court shall determine whether an
  130  existing use of the real property or a vested right to a
  131  specific use of the real property existed and, if so, whether,
  132  considering the settlement offer and statement of allowable
  133  uses, the governmental entity or entities have inordinately
  134  burdened the real property. If the actions of more than one
  135  governmental entity, considering any settlement offers and
  136  statement of allowable uses, are responsible for the action that
  137  imposed the inordinate burden on the real property of the
  138  property owner, the court shall determine the percentage of
  139  responsibility each such governmental entity bears with respect
  140  to the inordinate burden. A governmental entity may take an
  141  interlocutory appeal of the court’s determination that the
  142  action of the governmental entity has resulted in an inordinate
  143  burden. An interlocutory appeal does not automatically stay the
  144  proceedings; however, the court may stay the proceedings during
  145  the pendency of the interlocutory appeal. If the governmental
  146  entity does not prevail in the interlocutory appeal, the court
  147  shall award to the prevailing property owner the costs and a
  148  reasonable attorney fee incurred by the property owner in the
  149  interlocutory appeal.
  150         (b) Following its determination of the percentage of
  151  responsibility of each governmental entity, and following the
  152  resolution of any interlocutory appeal, the court shall impanel
  153  a jury to determine the total amount of compensation to the
  154  property owner for the loss in value due to the inordinate
  155  burden to the real property. The property owner retains the
  156  option to forego a jury and elect to have the court determine
  157  the award of compensation. The award of compensation shall be
  158  determined by calculating the difference in the fair market
  159  value of the real property, as it existed at the time of the
  160  governmental action at issue, as though the owner had the
  161  ability to attain the reasonable investment-backed expectation
  162  or was not left with uses that are unreasonable, whichever the
  163  case may be, and the fair market value of the real property, as
  164  it existed at the time of the governmental action at issue, as
  165  inordinately burdened, considering the settlement offer together
  166  with the statement of allowable uses, of the governmental entity
  167  or entities. In determining the award of compensation,
  168  consideration may not be given to business damages relative to
  169  any development, activity, or use that the action of the
  170  governmental entity or entities, considering the settlement
  171  offer together with the statement of allowable uses has
  172  restricted, limited, or prohibited. The award of compensation
  173  shall include a reasonable award of prejudgment interest from
  174  the date the claim was presented to the governmental entity or
  175  entities as provided in subsection (4).
  176         (c)1. In any action filed pursuant to this section, the
  177  property owner is entitled to recover reasonable costs and
  178  attorney fees incurred by the property owner, from the
  179  governmental entity or entities, according to their
  180  proportionate share as determined by the court, from the date of
  181  the presentation of the claim to the head of the governmental
  182  entity pursuant to paragraph (4)(a) the filing of the circuit
  183  court action, if the property owner prevails in the action and
  184  the court determines that the settlement offer, including the
  185  statement of allowable uses, of the governmental entity or
  186  entities did not constitute a bona fide offer to the property
  187  owner which reasonably would have resolved the claim, based upon
  188  the knowledge available to the governmental entity or entities
  189  and the property owner during the 90-day-notice period or the
  190  150-day-notice period.
  191         2. In any action filed pursuant to this section, the
  192  governmental entity or entities are entitled to recover
  193  reasonable costs and attorney fees incurred by the governmental
  194  entity or entities from the date of the filing of the circuit
  195  court action, if the governmental entity or entities prevail in
  196  the action and the court determines that the property owner did
  197  not accept a bona fide settlement offer, including the statement
  198  of allowable uses, which reasonably would have resolved the
  199  claim fairly to the property owner if the settlement offer had
  200  been accepted by the property owner, based upon the knowledge
  201  available to the governmental entity or entities and the
  202  property owner during the 90-day-notice period or the 150-day
  203  notice period.
  204         3. The determination of total reasonable costs and attorney
  205  fees pursuant to this paragraph shall be made by the court and
  206  not by the jury. Any proposed settlement offer or any proposed
  207  decision, except for the final written settlement offer or the
  208  final written statement of allowable uses, and any negotiations
  209  or rejections in regard to the formulation either of the
  210  settlement offer or the statement of allowable uses, are
  211  inadmissible in the subsequent proceeding established by this
  212  section except for the purposes of the determination pursuant to
  213  this paragraph.
  214         (d) Within 15 days after the execution of any settlement
  215  pursuant to this section, or the issuance of any judgment
  216  pursuant to this section, the governmental entity shall provide
  217  a copy of the settlement or judgment to the Department of Legal
  218  Affairs.
  219         (11) A cause of action may not be commenced under this
  220  section if the claim is presented more than 1 year after a law
  221  or regulation is first applied by the governmental entity to the
  222  property at issue.
  223         (a) For purposes of determining when this 1-year claim
  224  period accrues:
  225         1.a. A law or regulation is first applied upon enactment
  226  and notice as provided for in this sub-subparagraph subparagraph
  227  if the impact of the law or regulation on the real property is
  228  clear and unequivocal in its terms and notice is provided by
  229  mail to the affected property owner or registered agent at the
  230  address referenced in the jurisdiction’s most current ad valorem
  231  tax records. The fact that the law or regulation could be
  232  modified, varied, or altered under any other process or
  233  procedure does not preclude the impact of the law or regulation
  234  on a property from being clear or unequivocal pursuant to this
  235  sub-subparagraph subparagraph. Any notice under this sub
  236  subparagraph subparagraph shall be provided after the enactment
  237  of the law or regulation and shall inform the property owner or
  238  registered agent that the law or regulation may impact the
  239  property owner’s existing property rights and that the property
  240  owner may have only 1 year after from receipt of the notice to
  241  pursue any rights established under this section.
  242         b. If the notice required in sub-subparagraph a. is not
  243  provided to the property owner, the property owner may at any
  244  time after enactment notify the head of the governmental entity
  245  in writing via certified mail and, if available, e-mail that the
  246  property owner deems the impact of the law or regulation on the
  247  property owner’s real property to be clear and unequivocal in
  248  its terms and, as such, restrictive of uses allowed on the
  249  property before the enactment. Within 45 days after receipt of a
  250  notice under this sub-subparagraph, the governmental entity in
  251  receipt of the notice must respond in writing via certified mail
  252  and, if available, e-mail to describe the limitations imposed on
  253  the property by the law or regulation. The property owner is not
  254  required to formally pursue an application for a development
  255  order, development permit, or building permit, as such will be
  256  deemed a waste of resources and shall not be a prerequisite to
  257  bringing a claim pursuant to paragraph (4)(a). However, any such
  258  claim must be filed within 1 year after the date of the property
  259  owner’s receipt of the notice from the governmental entity of
  260  the limitations on use imposed on the real property.
  261         2. Otherwise, the law or regulation is first applied to the
  262  property when there is a formal denial of a written request for
  263  development or variance.
  264         Section 2. Present paragraphs (c), (d), and (e) of
  265  subsection (1) of section 70.45, Florida Statutes, are
  266  redesignated as paragraphs (d), (e), and (f), respectively, a
  267  new paragraph (c) is added to that subsection, and subsections
  268  (2), (4), and (5) of that section are amended, to read:
  269         70.45 Governmental exactions.—
  270         (1) As used in this section, the term:
  271         (c) “Imposed” or “imposition” as it relates to a prohibited
  272  exaction or condition of approval refers to the time at which
  273  the property owner must comply with the prohibited exaction or
  274  condition of approval.
  275         (2) In addition to other remedies available in law or
  276  equity, a property owner may bring an action in a court of
  277  competent jurisdiction under this section to declare a
  278  prohibited exaction invalid and recover damages caused by a
  279  prohibited exaction. Such action may not be brought by a
  280  property owner at the property owner’s discretion when until a
  281  prohibited exaction is actually imposed or when it is required
  282  in writing as a final condition of approval for the requested
  283  use of real property. The right to bring an action under this
  284  section may not be waived. This section does not apply to impact
  285  fees adopted under s. 163.31801 or non-ad valorem assessments as
  286  defined in s. 197.3632.
  287         (4) For each claim filed under this section, the
  288  governmental entity has the burden of proving that the
  289  challenged exaction has an essential nexus to a legitimate
  290  public purpose and is roughly proportionate to the impacts of
  291  the proposed use that the governmental entity is seeking to
  292  avoid, minimize, or mitigate. The property owner has the burden
  293  of proving damages that result from a prohibited exaction.
  294         (5) The court may award attorney fees and costs to the
  295  prevailing party; however, if the court determines that the
  296  challenged exaction which is the subject of the claim lacks an
  297  essential nexus to a legitimate public purpose, the court shall
  298  award attorney fees and costs to the property owner.
  299         Section 3. The amendments made by this act to ss.
  300  70.001(4), (5), (6) and (11) and 70.45, Florida Statutes, apply
  301  only to claims made in response to actions taken by governmental
  302  entities on or after July 1, 2021.
  303         Section 4. Paragraph (g) of subsection (2) of section
  304  70.51, Florida Statutes, is amended to read:
  305         70.51 Land use and environmental dispute resolution.—
  306         (2) As used in this section, the term:
  307         (g) “Land” or “real property” has the same meaning as in s.
  308  70.001(3)(g) means land and includes any appurtenances and
  309  improvements to the land, including any other relevant real
  310  property in which the owner had a relevant interest.
  311         Section 5. This act shall take effect July 1, 2021.
  312  
  313  ================= T I T L E  A M E N D M E N T ================
  314  And the title is amended as follows:
  315         Delete everything before the enacting clause
  316  and insert:
  317                        A bill to be entitled                      
  318         An act relating to relief from burdens on real
  319         property rights; amending s. 70.001, F.S.; revising
  320         the definitions of the terms “action of a governmental
  321         entity” and “real property”; revising notice of claim
  322         requirements for property owners; creating a
  323         presumption that certain settlement offers protect the
  324         public interest; specifying that property owners
  325         retain the option to have a court determine awards of
  326         compensation; authorizing property owners to bring
  327         claims against governmental entities in certain
  328         circumstances; providing that property owners are not
  329         required to submit formal development applications or
  330         proceed through formal application processes to bring
  331         claims in specified circumstances; amending s. 70.45,
  332         F.S.; defining the terms “imposed” or “imposition”;
  333         authorizing property owners to bring actions to
  334         declare prohibited exactions invalid; providing
  335         applicability; amending s. 70.51, F.S.; revising the
  336         definition of the terms “land” or “real property”;
  337         providing an effective date.
  338  
  339         WHEREAS, the Legislature enacted the Bert J. Harris, Jr.,
  340  Private Property Rights Protection Act in 1995 to create a new
  341  cause of action to protect private property rights, and
  342         WHEREAS, this state has historically defined and recognized
  343  property rights to include subsurface estates consistent with
  344  Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), and
  345         WHEREAS, this bill clarifies the definition of property in
  346  the act so that the original intent of the act is preserved and
  347  the act protects the property rights of all landowners in this
  348  state, and
  349         WHEREAS, this state has an additional interest in the
  350  timely resolution of claims which are brought under the act, and
  351         WHEREAS, landowners and governmental entities benefit
  352  equally by knowing when a claim under the act may be asserted so
  353  as to avoid unnecessary future litigation, NOW, THEREFORE,