Florida Senate - 2023                       CS for CS for SB 540
       
       
        
       By the Committees on Rules; and Judiciary; and Senator DiCeglie
       
       
       
       
       
       595-03702-23                                           2023540c2
    1                        A bill to be entitled                      
    2         An act relating to local government comprehensive
    3         plans; amending s. 163.3184, F.S.; providing that the
    4         prevailing party in a challenge to a plan or plan
    5         amendment is entitled to recover attorney fees and
    6         costs; amending s. 163.3187, F.S.; providing that the
    7         prevailing party in a challenge to the compliance of a
    8         small scale development order is entitled to recover
    9         attorney fees and costs; amending s. 163.3202, F.S.;
   10         providing applicability; amending s. 163.3215, F.S.;
   11         making technical changes; providing an effective date.
   12          
   13  Be It Enacted by the Legislature of the State of Florida:
   14  
   15         Section 1. Paragraph (g) is added to subsection (5) of
   16  section 163.3184, Florida Statutes, to read:
   17         163.3184 Process for adoption of comprehensive plan or plan
   18  amendment.—
   19         (5) ADMINISTRATIVE CHALLENGES TO PLANS AND PLAN
   20  AMENDMENTS.—
   21         (g)The prevailing party in a challenge filed under this
   22  subsection is entitled to recover attorney fees and costs in
   23  challenging or defending a plan or plan amendment, including
   24  reasonable appellate attorney fees and costs.
   25         Section 2. Paragraph (a) of subsection (5) of section
   26  163.3187, Florida Statutes, is amended to read:
   27         163.3187 Process for adoption of small scale comprehensive
   28  plan amendment.—
   29         (5)(a) Any affected person may file a petition with the
   30  Division of Administrative Hearings pursuant to ss. 120.569 and
   31  120.57 to request a hearing to challenge the compliance of a
   32  small scale development amendment with this act within 30 days
   33  following the local government’s adoption of the amendment and
   34  shall serve a copy of the petition on the local government. An
   35  administrative law judge shall hold a hearing in the affected
   36  jurisdiction not less than 30 days nor more than 60 days
   37  following the filing of a petition and the assignment of an
   38  administrative law judge. The parties to a hearing held pursuant
   39  to this subsection shall be the petitioner, the local
   40  government, and any intervenor. In the proceeding, the plan
   41  amendment shall be determined to be in compliance if the local
   42  government’s determination that the small scale development
   43  amendment is in compliance is fairly debatable. The state land
   44  planning agency may not intervene in any proceeding initiated
   45  pursuant to this section. The prevailing party in a challenge
   46  filed under this paragraph is entitled to recover attorney fees
   47  and costs in challenging or defending the order, including
   48  reasonable appellate attorney fees and costs.
   49         Section 3. Present subsection (6) of section 163.3202,
   50  Florida Statutes, is redesignated as subsection (7), and a new
   51  subsection (6) is added to that section to read:
   52         163.3202 Land development regulations.—
   53         (6)Land development regulations relating to any
   54  characteristic of development other than use, or intensity or
   55  density of use, do not apply to Florida College System
   56  institutions as defined in s. 1000.21(3).
   57         Section 4. Subsections (3) and (4) of section 163.3215,
   58  Florida Statutes, are amended to read:
   59         163.3215 Standing to enforce local comprehensive plans
   60  through development orders.—
   61         (3) Any aggrieved or adversely affected party may maintain
   62  a de novo action for declaratory, injunctive, or other relief
   63  against any local government to challenge any decision of such
   64  local government granting or denying an application for, or to
   65  prevent such local government from taking any action on, a
   66  development order, as defined in s. 163.3164, on the basis that
   67  the development order which materially alters the use or density
   68  or intensity of use on a particular piece of property, rendering
   69  it which is not consistent with the comprehensive plan adopted
   70  under this part. The de novo action must be filed no later than
   71  30 days following rendition of a development order or other
   72  written decision, or when all local administrative appeals, if
   73  any, are exhausted, whichever occurs later.
   74         (4) If a local government elects to adopt or has adopted an
   75  ordinance establishing, at a minimum, the requirements listed in
   76  this subsection, the sole method by which an aggrieved and
   77  adversely affected party may challenge any decision of local
   78  government granting or denying an application for a development
   79  order, as defined in s. 163.3164, which materially alters the
   80  use or density or intensity of use on a particular piece of
   81  property, on the basis that it is not consistent with the
   82  comprehensive plan adopted under this part, is by an appeal
   83  filed by a petition for writ of certiorari filed in circuit
   84  court no later than 30 days following rendition of a development
   85  order or other written decision of the local government, or when
   86  all local administrative appeals, if any, are exhausted,
   87  whichever occurs later. An action for injunctive or other relief
   88  may be joined with the petition for certiorari. Principles of
   89  judicial or administrative res judicata and collateral estoppel
   90  apply to these proceedings. Minimum components of the local
   91  process are as follows:
   92         (a) The local process must make provision for notice of an
   93  application for a development order that materially alters the
   94  use or density or intensity of use on a particular piece of
   95  property, including notice by publication or mailed notice
   96  consistent with the provisions of ss. 125.66(4)(b)2. and 3. and
   97  166.041(3)(c)2.b. and c., and must require prominent posting at
   98  the job site. The notice must be given within 10 days after the
   99  filing of an application for a development order; however,
  100  notice under this subsection is not required for an application
  101  for a building permit or any other official action of local
  102  government which does not materially alter the use or density or
  103  intensity of use on a particular piece of property. The notice
  104  must clearly delineate that an aggrieved or adversely affected
  105  person has the right to request a quasi-judicial hearing before
  106  the local government for which the application is made, must
  107  explain the conditions precedent to the appeal of any
  108  development order ultimately rendered upon the application, and
  109  must specify the location where written procedures can be
  110  obtained that describe the process, including how to initiate
  111  the quasi-judicial process, the timeframes for initiating the
  112  process, and the location of the hearing. The process may
  113  include an opportunity for an alternative dispute resolution.
  114         (b) The local process must provide a clear point of entry
  115  consisting of a written preliminary decision, at a time and in a
  116  manner to be established in the local ordinance, with the time
  117  to request a quasi-judicial hearing running from the issuance of
  118  the written preliminary decision; the local government, however,
  119  is not bound by the preliminary decision. A party may request a
  120  hearing to challenge or support a preliminary decision.
  121         (c) The local process must provide an opportunity for
  122  participation in the process by an aggrieved or adversely
  123  affected party, allowing a reasonable time for the party to
  124  prepare and present a case for the quasi-judicial hearing.
  125         (d) The local process must provide, at a minimum, an
  126  opportunity for the disclosure of witnesses and exhibits prior
  127  to hearing and an opportunity for the depositions of witnesses
  128  to be taken.
  129         (e) The local process may not require that a party be
  130  represented by an attorney in order to participate in a hearing.
  131         (f) The local process must provide for a quasi-judicial
  132  hearing before an impartial special master who is an attorney
  133  who has at least 5 years’ experience and who shall, at the
  134  conclusion of the hearing, recommend written findings of fact
  135  and conclusions of law. The special master shall have the power
  136  to swear witnesses and take their testimony under oath, to issue
  137  subpoenas and other orders regarding the conduct of the
  138  proceedings, and to compel entry upon the land. The standard of
  139  review applied by the special master in determining whether a
  140  proposed development order is consistent with the comprehensive
  141  plan shall be strict scrutiny in accordance with Florida law.
  142         (g) At the quasi-judicial hearing, all parties must have
  143  the opportunity to respond, to present evidence and argument on
  144  all issues involved which are related to the development order,
  145  and to conduct cross-examination and submit rebuttal evidence.
  146  Public testimony must be allowed.
  147         (h) The local process must provide for a duly noticed
  148  public hearing before the local government at which public
  149  testimony is allowed. At the quasi-judicial hearing, the local
  150  government is bound by the special master’s findings of fact
  151  unless the findings of fact are not supported by competent
  152  substantial evidence. The governing body may modify the
  153  conclusions of law if it finds that the special master’s
  154  application or interpretation of law is erroneous. The governing
  155  body may make reasonable legal interpretations of its
  156  comprehensive plan and land development regulations without
  157  regard to whether the special master’s interpretation is labeled
  158  as a finding of fact or a conclusion of law. The local
  159  government’s final decision must be reduced to writing,
  160  including the findings of fact and conclusions of law, and is
  161  not considered rendered or final until officially date-stamped
  162  by the city or county clerk.
  163         (i) An ex parte communication relating to the merits of the
  164  matter under review may not be made to the special master. An ex
  165  parte communication relating to the merits of the matter under
  166  review may not be made to the governing body after a time to be
  167  established by the local ordinance, which time must be no later
  168  than receipt of the special master’s recommended order by the
  169  governing body.
  170         (j) At the option of the local government, the process may
  171  require actions to challenge the consistency of a development
  172  order with land development regulations to be brought in the
  173  same proceeding.
  174         Section 5. This act shall take effect July 1, 2023.