Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1876
Ì296194DÎ296194
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/23/2021 .
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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,