Florida Senate - 2021                             CS for SB 1876
       
       
        
       By the Committee on Judiciary; and Senator Albritton
       
       
       
       
       
       590-03184-21                                          20211876c1
    1                        A bill to be entitled                      
    2         An act relating to relief from burdens on real
    3         property rights; amending s. 70.001, F.S.; revising
    4         the definitions of the terms “action of a governmental
    5         entity” and “real property”; revising notice of claim
    6         requirements for property owners; creating a
    7         presumption that certain settlement offers protect the
    8         public interest; specifying that property owners
    9         retain the option to have a court determine awards of
   10         compensation; authorizing property owners to bring
   11         claims against governmental entities in certain
   12         circumstances; providing that property owners are not
   13         required to submit formal development applications or
   14         proceed through formal application processes to bring
   15         claims in specified circumstances; amending s. 70.45,
   16         F.S.; defining the terms “imposed” or “imposition”;
   17         authorizing property owners to bring actions to
   18         declare prohibited exactions invalid; providing
   19         applicability; amending s. 70.51, F.S.; revising the
   20         definition of the terms “land” or “real property”;
   21         providing an effective date.
   22  
   23         WHEREAS, the Legislature enacted the Bert J. Harris, Jr.,
   24  Private Property Rights Protection Act in 1995 to create a new
   25  cause of action to protect private property rights, and
   26         WHEREAS, this state has historically defined and recognized
   27  property rights to include subsurface estates consistent with
   28  Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), and
   29         WHEREAS, this bill clarifies the definition of property in
   30  the act so that the original intent of the act is preserved and
   31  the act protects the property rights of all landowners in this
   32  state, and
   33         WHEREAS, this state has an additional interest in the
   34  timely resolution of claims which are brought under the act, and
   35         WHEREAS, landowners and governmental entities benefit
   36  equally by knowing when a claim under the act may be asserted so
   37  as to avoid unnecessary future litigation, NOW, THEREFORE,
   38  
   39  Be It Enacted by the Legislature of the State of Florida:
   40  
   41         Section 1. Paragraphs (d) and (g) of subsection (3),
   42  subsections (4), (5), and (6), and paragraph (a) of subsection
   43  (11) of section 70.001, Florida Statutes, are amended to read:
   44         70.001 Private property rights protection.—
   45         (3) For purposes of this section:
   46         (d) The term “action of a governmental entity” means a
   47  specific action of a governmental entity which affects real
   48  property, including acting action on an application or permit or
   49  adopting or enforcing any ordinance, resolution, regulation,
   50  rule, or policy.
   51         (g) The term “real property” means land and includes any
   52  surface, subsurface, or mineral estates and any appurtenances
   53  and improvements to the land, including any other relevant
   54  interest in the real property in which the property owner has a
   55  relevant interest. The term includes only parcels that are the
   56  subject of and directly impacted by the action of a governmental
   57  entity.
   58         (4)(a) Not fewer less than 90 150 days before prior to
   59  filing an action under this section against a governmental
   60  entity, a property owner who seeks compensation under this
   61  section must present the claim in writing to the head of the
   62  governmental entity, except that if the property is classified
   63  as agricultural pursuant to s. 193.461, the notice period is 90
   64  days. The property owner must submit, along with the claim, a
   65  bona fide, valid appraisal that supports the claim and
   66  demonstrates the loss in fair market value to the real property.
   67  If the action of government is the culmination of a process that
   68  involves more than one governmental entity, or if a complete
   69  resolution of all relevant issues, in the view of the property
   70  owner or in the view of a governmental entity to whom a claim is
   71  presented, requires the active participation of more than one
   72  governmental entity, the property owner shall present the claim
   73  as provided in this section to each of the governmental
   74  entities.
   75         (b) The governmental entity shall provide written notice of
   76  the claim to all parties to any administrative action that gave
   77  rise to the claim, and to owners of real property contiguous to
   78  the owner’s property at the addresses listed on the most recent
   79  county tax rolls. Within 15 days after the claim is presented,
   80  the governmental entity shall report the claim in writing to the
   81  Department of Legal Affairs, and shall provide the department
   82  with the name, address, and telephone number of the employee of
   83  the governmental entity from whom additional information may be
   84  obtained about the claim during the pendency of the claim and
   85  any subsequent judicial action.
   86         (c) During the 90-day-notice period or the 150-day-notice
   87  period, unless extended by agreement of the parties, the
   88  governmental entity shall make a written settlement offer to
   89  effectuate:
   90         1. An adjustment of land development or permit standards or
   91  other provisions controlling the development or use of land.
   92         2. Increases or modifications in the density, intensity, or
   93  use of areas of development.
   94         3. The transfer of developmental rights.
   95         4. Land swaps or exchanges.
   96         5. Mitigation, including payments in lieu of onsite
   97  mitigation.
   98         6. Location on the least sensitive portion of the property.
   99         7. Conditioning the amount of development or use permitted.
  100         8. A requirement that issues be addressed on a more
  101  comprehensive basis than a single proposed use or development.
  102         9. Issuance of the development order, a variance, a special
  103  exception, or any other extraordinary relief.
  104         10. Purchase of the real property, or an interest therein,
  105  by an appropriate governmental entity or payment of
  106  compensation.
  107         11. No changes to the action of the governmental entity.
  108  
  109  If the property owner accepts a settlement offer, either before
  110  or after filing an action, the governmental entity may implement
  111  the settlement offer by appropriate development agreement; by
  112  issuing a variance, a special exception, or any other
  113  extraordinary relief; or by any other appropriate method,
  114  subject to paragraph (d).
  115         (d)1. When a governmental entity enters into a settlement
  116  agreement under this section which would have the effect of a
  117  modification, variance, or a special exception to the
  118  application of a rule, regulation, or ordinance as it would
  119  otherwise apply to the subject real property, the relief granted
  120  shall protect the public interest served by the regulations at
  121  issue and be the appropriate relief necessary to prevent the
  122  governmental regulatory effort from inordinately burdening the
  123  real property. Settlement offers made pursuant to paragraph (c)
  124  shall be presumed to protect the public interest.
  125         2. When a governmental entity enters into a settlement
  126  agreement under this section which would have the effect of
  127  contravening the application of a statute as it would otherwise
  128  apply to the subject real property, the governmental entity and
  129  the property owner shall jointly file an action in the circuit
  130  court where the real property is located for approval of the
  131  settlement agreement by the court to ensure that the relief
  132  granted protects the public interest served by the statute at
  133  issue and is the appropriate relief necessary to prevent the
  134  governmental regulatory effort from inordinately burdening the
  135  real property.
  136  
  137  This paragraph applies to any settlement reached between a
  138  property owner and a governmental entity regardless of when the
  139  settlement agreement was entered so long as the agreement fully
  140  resolves all claims asserted under this section.
  141         (5)(a) During the 90-day-notice period or the 150-day
  142  notice period, unless a settlement offer is accepted by the
  143  property owner, each of the governmental entities provided
  144  notice pursuant to subsection (4) paragraph (4)(a) shall issue a
  145  written statement of allowable uses identifying the allowable
  146  uses to which the subject property may be put. The failure of
  147  the governmental entity to issue a statement of allowable uses
  148  during the applicable 90-day-notice period or 150-day-notice
  149  period shall be deemed a denial for purposes of allowing a
  150  property owner to file an action in the circuit court under this
  151  section. If a written statement of allowable uses is issued, it
  152  constitutes the last prerequisite to judicial review for the
  153  purposes of the judicial proceeding created by this section,
  154  notwithstanding the availability of other administrative
  155  remedies.
  156         (b) If the property owner rejects the settlement offer and
  157  the statement of allowable uses of the governmental entity or
  158  entities, the property owner may file a claim for compensation
  159  in the circuit court, a copy of which shall be served
  160  contemporaneously on the head of each of the governmental
  161  entities that made a settlement offer and a statement of
  162  allowable uses that was rejected by the property owner. Actions
  163  under this section shall be brought only in the county where the
  164  real property is located.
  165         (6)(a) The circuit court shall determine whether an
  166  existing use of the real property or a vested right to a
  167  specific use of the real property existed and, if so, whether,
  168  considering the settlement offer and statement of allowable
  169  uses, the governmental entity or entities have inordinately
  170  burdened the real property. If the actions of more than one
  171  governmental entity, considering any settlement offers and
  172  statement of allowable uses, are responsible for the action that
  173  imposed the inordinate burden on the real property of the
  174  property owner, the court shall determine the percentage of
  175  responsibility each such governmental entity bears with respect
  176  to the inordinate burden. A governmental entity may take an
  177  interlocutory appeal of the court’s determination that the
  178  action of the governmental entity has resulted in an inordinate
  179  burden. An interlocutory appeal does not automatically stay the
  180  proceedings; however, the court may stay the proceedings during
  181  the pendency of the interlocutory appeal. If the governmental
  182  entity does not prevail in the interlocutory appeal, the court
  183  shall award to the prevailing property owner the costs and a
  184  reasonable attorney fee incurred by the property owner in the
  185  interlocutory appeal.
  186         (b) Following its determination of the percentage of
  187  responsibility of each governmental entity, and following the
  188  resolution of any interlocutory appeal, the court shall impanel
  189  a jury to determine the total amount of compensation to the
  190  property owner for the loss in value due to the inordinate
  191  burden to the real property. The property owner retains the
  192  option to forego a jury and elect to have the court determine
  193  the award of compensation. The award of compensation shall be
  194  determined by calculating the difference in the fair market
  195  value of the real property, as it existed at the time of the
  196  governmental action at issue, as though the owner had the
  197  ability to attain the reasonable investment-backed expectation
  198  or was not left with uses that are unreasonable, whichever the
  199  case may be, and the fair market value of the real property, as
  200  it existed at the time of the governmental action at issue, as
  201  inordinately burdened, considering the settlement offer together
  202  with the statement of allowable uses, of the governmental entity
  203  or entities. In determining the award of compensation,
  204  consideration may not be given to business damages relative to
  205  any development, activity, or use that the action of the
  206  governmental entity or entities, considering the settlement
  207  offer together with the statement of allowable uses has
  208  restricted, limited, or prohibited. The award of compensation
  209  shall include a reasonable award of prejudgment interest from
  210  the date the claim was presented to the governmental entity or
  211  entities as provided in subsection (4).
  212         (c)1. In any action filed pursuant to this section, the
  213  property owner is entitled to recover reasonable costs and
  214  attorney fees incurred by the property owner, from the
  215  governmental entity or entities, according to their
  216  proportionate share as determined by the court, from the date of
  217  the presentation of the claim to the head of the governmental
  218  entity pursuant to paragraph (4)(a) the filing of the circuit
  219  court action, if the property owner prevails in the action and
  220  the court determines that the settlement offer, including the
  221  statement of allowable uses, of the governmental entity or
  222  entities did not constitute a bona fide offer to the property
  223  owner which reasonably would have resolved the claim, based upon
  224  the knowledge available to the governmental entity or entities
  225  and the property owner during the 90-day-notice period or the
  226  150-day-notice period.
  227         2. In any action filed pursuant to this section, the
  228  governmental entity or entities are entitled to recover
  229  reasonable costs and attorney fees incurred by the governmental
  230  entity or entities from the date of the filing of the circuit
  231  court action, if the governmental entity or entities prevail in
  232  the action and the court determines that the property owner did
  233  not accept a bona fide settlement offer, including the statement
  234  of allowable uses, which reasonably would have resolved the
  235  claim fairly to the property owner if the settlement offer had
  236  been accepted by the property owner, based upon the knowledge
  237  available to the governmental entity or entities and the
  238  property owner during the 90-day-notice period or the 150-day
  239  notice period.
  240         3. The determination of total reasonable costs and attorney
  241  fees pursuant to this paragraph shall be made by the court and
  242  not by the jury. Any proposed settlement offer or any proposed
  243  decision, except for the final written settlement offer or the
  244  final written statement of allowable uses, and any negotiations
  245  or rejections in regard to the formulation either of the
  246  settlement offer or the statement of allowable uses, are
  247  inadmissible in the subsequent proceeding established by this
  248  section except for the purposes of the determination pursuant to
  249  this paragraph.
  250         (d) Within 15 days after the execution of any settlement
  251  pursuant to this section, or the issuance of any judgment
  252  pursuant to this section, the governmental entity shall provide
  253  a copy of the settlement or judgment to the Department of Legal
  254  Affairs.
  255         (11) A cause of action may not be commenced under this
  256  section if the claim is presented more than 1 year after a law
  257  or regulation is first applied by the governmental entity to the
  258  property at issue.
  259         (a) For purposes of determining when this 1-year claim
  260  period accrues:
  261         1.a. A law or regulation is first applied upon enactment
  262  and notice as provided for in this sub-subparagraph subparagraph
  263  if the impact of the law or regulation on the real property is
  264  clear and unequivocal in its terms and notice is provided by
  265  mail to the affected property owner or registered agent at the
  266  address referenced in the jurisdiction’s most current ad valorem
  267  tax records. The fact that the law or regulation could be
  268  modified, varied, or altered under any other process or
  269  procedure does not preclude the impact of the law or regulation
  270  on a property from being clear or unequivocal pursuant to this
  271  sub-subparagraph subparagraph. Any notice under this sub
  272  subparagraph subparagraph shall be provided after the enactment
  273  of the law or regulation and shall inform the property owner or
  274  registered agent that the law or regulation may impact the
  275  property owner’s existing property rights and that the property
  276  owner may have only 1 year after from receipt of the notice to
  277  pursue any rights established under this section.
  278         b. If the notice required in sub-subparagraph a. is not
  279  provided to the property owner, the property owner may at any
  280  time after enactment notify the head of the governmental entity
  281  in writing via certified mail and, if available, e-mail that the
  282  property owner deems the impact of the law or regulation on the
  283  property owner’s real property to be clear and unequivocal in
  284  its terms and, as such, restrictive of uses allowed on the
  285  property before the enactment. Within 45 days after receipt of a
  286  notice under this sub-subparagraph, the governmental entity in
  287  receipt of the notice must respond in writing via certified mail
  288  and, if available, e-mail to describe the limitations imposed on
  289  the property by the law or regulation. The property owner is not
  290  required to formally pursue an application for a development
  291  order, development permit, or building permit, as such will be
  292  deemed a waste of resources and shall not be a prerequisite to
  293  bringing a claim pursuant to paragraph (4)(a). However, any such
  294  claim must be filed within 1 year after the date of the property
  295  owner’s receipt of the notice from the governmental entity of
  296  the limitations on use imposed on the real property.
  297         2. Otherwise, the law or regulation is first applied to the
  298  property when there is a formal denial of a written request for
  299  development or variance.
  300         Section 2. Present paragraphs (c), (d), and (e) of
  301  subsection (1) of section 70.45, Florida Statutes, are
  302  redesignated as paragraphs (d), (e), and (f), respectively, a
  303  new paragraph (c) is added to that subsection, and subsections
  304  (2), (4), and (5) of that section are amended, to read:
  305         70.45 Governmental exactions.—
  306         (1) As used in this section, the term:
  307         (c) “Imposed” or “imposition” as it relates to a prohibited
  308  exaction or condition of approval refers to the time at which
  309  the property owner must comply with the prohibited exaction or
  310  condition of approval.
  311         (2) In addition to other remedies available in law or
  312  equity, a property owner may bring an action in a court of
  313  competent jurisdiction under this section to declare a
  314  prohibited exaction invalid and recover damages caused by a
  315  prohibited exaction. Such action may not be brought by a
  316  property owner at the property owner’s discretion when until a
  317  prohibited exaction is actually imposed or when it is required
  318  in writing as a final condition of approval for the requested
  319  use of real property. The right to bring an action under this
  320  section may not be waived. This section does not apply to impact
  321  fees adopted under s. 163.31801 or non-ad valorem assessments as
  322  defined in s. 197.3632.
  323         (4) For each claim filed under this section, the
  324  governmental entity has the burden of proving that the
  325  challenged exaction has an essential nexus to a legitimate
  326  public purpose and is roughly proportionate to the impacts of
  327  the proposed use that the governmental entity is seeking to
  328  avoid, minimize, or mitigate. The property owner has the burden
  329  of proving damages that result from a prohibited exaction.
  330         (5) The court may award attorney fees and costs to the
  331  prevailing party; however, if the court determines that the
  332  challenged exaction which is the subject of the claim lacks an
  333  essential nexus to a legitimate public purpose, the court shall
  334  award attorney fees and costs to the property owner.
  335         Section 3. The amendments made by this act to ss.
  336  70.001(4), (5), (6) and (11) and 70.45, Florida Statutes, apply
  337  only to claims made in response to actions taken by governmental
  338  entities on or after July 1, 2021.
  339         Section 4. Paragraph (g) of subsection (2) of section
  340  70.51, Florida Statutes, is amended to read:
  341         70.51 Land use and environmental dispute resolution.—
  342         (2) As used in this section, the term:
  343         (g) “Land” or “real property” has the same meaning as in s.
  344  70.001(3)(g) means land and includes any appurtenances and
  345  improvements to the land, including any other relevant real
  346  property in which the owner had a relevant interest.
  347         Section 5. This act shall take effect July 1, 2021.