Bill Text: FL S0280 | 2022 | Regular Session | Introduced


Bill Title: Local Ordinances

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2021-10-13 - Referred to Community Affairs; Judiciary; Rules [S0280 Detail]

Download: Florida-2022-S0280-Introduced.html
       Florida Senate - 2022                                     SB 280
       
       
        
       By Senator Hutson
       
       
       
       
       
       7-00478-22                                             2022280__
    1                        A bill to be entitled                      
    2         An act relating to local ordinances; amending s.
    3         57.112, F.S.; authorizing courts to assess and award
    4         attorney fees and costs and damages in certain civil
    5         actions filed against local governments; providing
    6         construction; amending s. 125.66, F.S.; requiring a
    7         board of county commissioners to prepare a business
    8         impact statement before the adoption of a proposed
    9         ordinance; specifying requirements for the posting and
   10         content of the statement; providing applicability;
   11         creating s. 125.675, F.S.; requiring a county to
   12         suspend enforcement of an ordinance that is the
   13         subject of a certain legal action if certain
   14         conditions are met; requiring courts to give priority
   15         to certain cases; specifying factors a court must
   16         consider in determining whether an ordinance is
   17         arbitrary or unreasonable; providing applicability;
   18         authorizing courts to award attorney fees and costs
   19         under certain circumstances; amending s. 166.041,
   20         F.S.; requiring a governing body of a municipality to
   21         prepare a business impact statement before the
   22         adoption of a proposed ordinance; specifying
   23         requirements for the posting and content of the
   24         statement; providing applicability; creating s.
   25         166.0411, F.S.; requiring a municipality to suspend
   26         enforcement of an ordinance that is the subject of a
   27         certain legal action if certain conditions are met;
   28         requiring courts to give priority to certain cases;
   29         specifying factors a court must consider in
   30         determining whether an ordinance is arbitrary or
   31         unreasonable; providing applicability; authorizing
   32         courts to award attorney fees and costs under certain
   33         circumstances; amending ss. 163.2517, 163.3181,
   34         163.3215, 376.80, 497.270, 562.45, and 847.0134, F.S.;
   35         conforming cross-references; providing a declaration
   36         of important state interest; providing an effective
   37         date.
   38          
   39  Be It Enacted by the Legislature of the State of Florida:
   40  
   41         Section 1. Section 57.112, Florida Statutes, is amended to
   42  read:
   43         57.112 Attorney fees and costs and damages; preempted local
   44  actions.—
   45         (1) As used in this section, the term “attorney fees and
   46  costs” means the reasonable and necessary attorney fees and
   47  costs incurred for all preparations, motions, hearings, trials,
   48  and appeals in a proceeding.
   49         (2) If a civil action is filed against a local government
   50  to challenge the adoption or enforcement of a local ordinance on
   51  the grounds that it is expressly preempted by the State
   52  Constitution or by state law, the court shall assess and award
   53  reasonable attorney fees and costs and damages to the prevailing
   54  party.
   55         (3) If a civil action is filed against a local government
   56  to challenge the adoption or enforcement of a local ordinance on
   57  the grounds that the ordinance is arbitrary or unreasonable, or
   58  is prohibited by law other than via express preemption, the
   59  court may assess and award reasonable attorney fees and costs
   60  and damages to the complainant if successful.
   61         (4) Attorney fees and costs may not be awarded pursuant to
   62  this section if:
   63         (a) The governing body of a local governmental entity
   64  receives written notice that an ordinance that has been publicly
   65  noticed or adopted is expressly preempted by the State
   66  Constitution or state law, is arbitrary or unreasonable, or is
   67  otherwise prohibited by law; and
   68         (b) The governing body of the local governmental entity
   69  withdraws the proposed ordinance within 30 days; or, in the case
   70  of an adopted ordinance, the governing body of a local
   71  government notices an intent to repeal the ordinance within 30
   72  days of receipt of the notice and repeals the ordinance within
   73  30 days thereafter.
   74         (5)(4) The provisions in this section are supplemental to
   75  all other sanctions or remedies available under law or court
   76  rule.
   77         (6)(5) This section does not apply to local ordinances
   78  adopted pursuant to part II of chapter 163, s. 553.73, or s.
   79  633.202.
   80         (7)(6)Subsections (1), (2), (4), (5), and (6) are This
   81  section is intended to be prospective in nature and shall apply
   82  only to cases commenced on or after July 1, 2019. Subsection (3)
   83  is intended to be prospective in nature and applies only to
   84  cases commenced on or after October 1, 2022.
   85         Section 2. Present subsections (3) through (6) of section
   86  125.66, Florida Statutes, are redesignated as subsections (4)
   87  through (7), respectively, a new subsection (3) is added to that
   88  section, and paragraph (a) of subsection (2) of that section is
   89  amended, to read:
   90         125.66 Ordinances; enactment procedure; emergency
   91  ordinances; rezoning or change of land use ordinances or
   92  resolutions.—
   93         (2)(a) The regular enactment procedure shall be as follows:
   94  The board of county commissioners at any regular or special
   95  meeting may enact or amend any ordinance, except as provided in
   96  subsection (5) (4), if notice of intent to consider such
   97  ordinance is given at least 10 days before such meeting by
   98  publication as provided in chapter 50. A copy of such notice
   99  shall be kept available for public inspection during the regular
  100  business hours of the office of the clerk of the board of county
  101  commissioners. The notice of proposed enactment shall state the
  102  date, time, and place of the meeting; the title or titles of
  103  proposed ordinances; and the place or places within the county
  104  where such proposed ordinances may be inspected by the public.
  105  The notice shall also advise that interested parties may appear
  106  at the meeting and be heard with respect to the proposed
  107  ordinance.
  108         (3)(a) Before the adoption of each proposed ordinance, the
  109  board of county commissioners shall prepare a business impact
  110  statement in accordance with this subsection. The business
  111  impact statement must be posted on the county’s website on the
  112  same day the notice of proposed enactment is published pursuant
  113  to paragraph (2)(a) and must include:
  114         1. A statement of the public purpose to be served by the
  115  proposed ordinance, such as serving the public health, safety,
  116  or welfare of the county;
  117         2. A statement of the reasonable connection between the
  118  public purpose and the expected effects of the ordinance;
  119         3. The estimated economic effect of the proposed ordinance
  120  on businesses both within and outside the county, including both
  121  adverse and beneficial effects and both direct and indirect
  122  effects;
  123         4. A good faith estimate of the number of businesses likely
  124  to be affected by the ordinance;
  125         5. An analysis of the extent to which the proposed
  126  ordinance is likely to deter or encourage the formation of new
  127  businesses within the county’s jurisdiction;
  128         6. An analysis of the extent to which the proposed
  129  ordinance will impede the ability of businesses within the
  130  county to compete with other businesses in other areas of this
  131  state or other domestic markets;
  132         7.If applicable, the scientific basis for the proposed
  133  ordinance;
  134         8.Alternatives considered by the county which would reduce
  135  the impact of the proposed ordinance on businesses; and
  136         9. Any additional information the board determines may be
  137  useful.
  138         (b) This subsection does not apply to an emergency
  139  ordinance enacted pursuant to this section.
  140         Section 3. Section 125.675, Florida Statutes, is created to
  141  read:
  142         125.675 Legal challenges to certain recently enacted
  143  ordinances.—
  144         (1) A county must suspend enforcement of an ordinance that
  145  is the subject of an action, including appeals, challenging the
  146  ordinance’s validity on the grounds that it is preempted by the
  147  State Constitution or by state law, is arbitrary or
  148  unreasonable, or is otherwise prohibited by law, if:
  149         (a) The action was filed with the court no later than 20
  150  days after the effective date of the ordinance;
  151         (b) The plaintiff or petitioner requests suspension in the
  152  initial complaint or petition, citing this section; and
  153         (c) The county has been served with a copy of the complaint
  154  or petition.
  155         (2) The court shall give cases in which the enforcement of
  156  an ordinance is suspended under this section priority over other
  157  pending cases and shall render a preliminary or final decision
  158  on the validity of the ordinance as expeditiously as possible.
  159         (3)In determining whether an ordinance is arbitrary or
  160  unreasonable, the court shall consider, but is not limited to,
  161  the following factors:
  162         (a)The extent to which the ordinance protects the health,
  163  welfare, safety, and quality of life of the residents of the
  164  county;
  165         (b)The impact of the ordinance on the personal rights and
  166  privileges of the residents of the county;
  167         (c)The total economic impact of the ordinance; and
  168         (d)The business impact statement prepared by the county as
  169  required by s. 125.66(3).
  170         (4) This section does not apply to an emergency ordinance
  171  or an ordinance governed by part II of chapter 163, s. 553.73,
  172  or s. 633.202.
  173         (5) The court may award attorney fees and costs as provided
  174  in s. 57.112.
  175         Section 4. Present subsections (4) through (8) of section
  176  166.041, Florida Statutes, are redesignated as subsections (5)
  177  through (9), respectively, and a new subsection (4) is added to
  178  that section, to read:
  179         166.041 Procedures for adoption of ordinances and
  180  resolutions.—
  181         (4)(a) Before the adoption of each proposed ordinance, the
  182  governing body of a municipality shall prepare a business impact
  183  statement in accordance with this subsection. The business
  184  impact statement must be posted on the municipality’s website on
  185  the same day the notice of proposed enactment is published
  186  pursuant to paragraph (3)(a) and must include:
  187         1. A statement of the public purpose to be served by the
  188  proposed ordinance, such as serving the public health, safety,
  189  or welfare of the municipality;
  190         2. A statement of the reasonable connection between the
  191  public purpose and the expected effects of the ordinance;
  192         3. The estimated economic effect of the proposed ordinance
  193  on businesses both within and outside the municipality,
  194  including both adverse and beneficial effects and both direct
  195  and indirect effects;
  196         4. A good faith estimate of the number of businesses likely
  197  to be affected by the ordinance;
  198         5. An analysis of the extent to which the proposed
  199  ordinance is likely to deter or encourage the formation of new
  200  businesses within the municipality’s jurisdiction;
  201         6. An analysis of the extent to which the proposed
  202  ordinance will impede the ability of businesses within the
  203  municipality to compete with other businesses in other areas of
  204  this state or other domestic markets;
  205         7.If applicable, the scientific basis for the proposed
  206  ordinance;
  207         8.Alternatives considered by the municipality which would
  208  reduce the impact of the proposed ordinance on businesses; and
  209         9. Any additional information the governing body determines
  210  may be useful.
  211         (b) This subsection does not apply to an emergency
  212  ordinance enacted pursuant to this section.
  213         Section 5. Section 166.0411, Florida Statutes, is created
  214  to read:
  215         166.0411 Legal challenges to certain recently enacted
  216  ordinances.—
  217         (1) A municipality must suspend enforcement of an ordinance
  218  that is the subject of an action, including appeals, challenging
  219  the ordinance’s validity on the grounds that it is preempted by
  220  the State Constitution or by state law, is arbitrary or
  221  unreasonable, or is otherwise prohibited by law, if:
  222         (a) The action was filed with the court no later than 20
  223  days after the effective date of the ordinance;
  224         (b) The plaintiff or petitioner requests suspension in the
  225  initial complaint or petition, citing this section; and
  226         (c) The municipality has been served with a copy of the
  227  complaint or petition.
  228         (2) The court shall give cases in which the enforcement of
  229  an ordinance is suspended under this section priority over other
  230  pending cases and shall render a preliminary or final decision
  231  on the validity of the ordinance as expeditiously as possible.
  232         (3)In determining whether an ordinance is arbitrary or
  233  unreasonable, the court shall consider, but is not limited to,
  234  the following factors:
  235         (a)The extent to which the ordinance protects the health,
  236  welfare, safety, and quality of life of the residents of the
  237  municipality;
  238         (b)The impact of the ordinance on the personal rights and
  239  privileges of the residents of the municipality;
  240         (c)The total economic impact of the ordinance; and
  241         (d)The business impact statement prepared by the
  242  municipality as required by s. 166.041(4).
  243         (4) This section does not apply to an emergency ordinance
  244  or an ordinance governed by part II of chapter 163, s. 553.73,
  245  or s. 633.202.
  246         (5) The court may award attorney fees and costs as provided
  247  in s. 57.112.
  248         Section 6. Subsection (5) of section 163.2517, Florida
  249  Statutes, is amended to read:
  250         163.2517 Designation of urban infill and redevelopment
  251  area.—
  252         (5) After the preparation of an urban infill and
  253  redevelopment plan or designation of an existing plan, the local
  254  government shall adopt the plan by ordinance. Notice for the
  255  public hearing on the ordinance must be in the form established
  256  in s. 166.041(3)(c)2. for municipalities, and s. 125.66(5)(b)2.
  257  s. 125.66(4)(b)2. for counties.
  258         Section 7. Paragraph (a) of subsection (3) of section
  259  163.3181, Florida Statutes, is amended to read:
  260         163.3181 Public participation in the comprehensive planning
  261  process; intent; alternative dispute resolution.—
  262         (3) A local government considering undertaking a publicly
  263  financed capital improvement project may elect to use the
  264  procedures set forth in this subsection for the purpose of
  265  allowing public participation in the decision and resolution of
  266  disputes. For purposes of this subsection, a publicly financed
  267  capital improvement project is a physical structure or
  268  structures, the funding for construction, operation, and
  269  maintenance of which is financed entirely from public funds.
  270         (a) Prior to the date of a public hearing on the decision
  271  on whether to proceed with the proposed project, the local
  272  government shall publish public notice of its intent to decide
  273  the issue according to the notice procedures described by s.
  274  125.66(5)(b)2. s. 125.66(4)(b)2. for a county or s.
  275  166.041(3)(c)2.b. for a municipality.
  276         Section 8. Paragraph (a) of subsection (4) of section
  277  163.3215, Florida Statutes, is amended to read:
  278         163.3215 Standing to enforce local comprehensive plans
  279  through development orders.—
  280         (4) If a local government elects to adopt or has adopted an
  281  ordinance establishing, at a minimum, the requirements listed in
  282  this subsection, the sole method by which an aggrieved and
  283  adversely affected party may challenge any decision of local
  284  government granting or denying an application for a development
  285  order, as defined in s. 163.3164, which materially alters the
  286  use or density or intensity of use on a particular piece of
  287  property, on the basis that it is not consistent with the
  288  comprehensive plan adopted under this part, is by an appeal
  289  filed by a petition for writ of certiorari filed in circuit
  290  court no later than 30 days following rendition of a development
  291  order or other written decision of the local government, or when
  292  all local administrative appeals, if any, are exhausted,
  293  whichever occurs later. An action for injunctive or other relief
  294  may be joined with the petition for certiorari. Principles of
  295  judicial or administrative res judicata and collateral estoppel
  296  apply to these proceedings. Minimum components of the local
  297  process are as follows:
  298         (a) The local process must make provision for notice of an
  299  application for a development order that materially alters the
  300  use or density or intensity of use on a particular piece of
  301  property, including notice by publication or mailed notice
  302  consistent with the provisions of ss. 125.66(5)(b)2. and 3. and
  303  166.041(3)(c)2.b. and c. ss. 125.66(4)(b)2. and 3. and
  304  166.041(3)(c)2.b. and c., and must require prominent posting at
  305  the job site. The notice must be given within 10 days after the
  306  filing of an application for a development order; however,
  307  notice under this subsection is not required for an application
  308  for a building permit or any other official action of local
  309  government which does not materially alter the use or density or
  310  intensity of use on a particular piece of property. The notice
  311  must clearly delineate that an aggrieved or adversely affected
  312  person has the right to request a quasi-judicial hearing before
  313  the local government for which the application is made, must
  314  explain the conditions precedent to the appeal of any
  315  development order ultimately rendered upon the application, and
  316  must specify the location where written procedures can be
  317  obtained that describe the process, including how to initiate
  318  the quasi-judicial process, the timeframes for initiating the
  319  process, and the location of the hearing. The process may
  320  include an opportunity for an alternative dispute resolution.
  321         Section 9. Paragraph (c) of subsection (1) of section
  322  376.80, Florida Statutes, is amended to read:
  323         376.80 Brownfield program administration process.—
  324         (1) The following general procedures apply to brownfield
  325  designations:
  326         (c) Except as otherwise provided, the following provisions
  327  apply to all proposed brownfield area designations:
  328         1. Notification to department following adoption.—A local
  329  government with jurisdiction over the brownfield area must
  330  notify the department, and, if applicable, the local pollution
  331  control program under s. 403.182, of its decision to designate a
  332  brownfield area for rehabilitation for the purposes of ss.
  333  376.77-376.86. The notification must include a resolution
  334  adopted by the local government body. The local government shall
  335  notify the department, and, if applicable, the local pollution
  336  control program under s. 403.182, of the designation within 30
  337  days after adoption of the resolution.
  338         2. Resolution adoption.—The brownfield area designation
  339  must be carried out by a resolution adopted by the
  340  jurisdictional local government, which includes a map adequate
  341  to clearly delineate exactly which parcels are to be included in
  342  the brownfield area or alternatively a less-detailed map
  343  accompanied by a detailed legal description of the brownfield
  344  area. For municipalities, the governing body shall adopt the
  345  resolution in accordance with the procedures outlined in s.
  346  166.041, except that the procedures for the public hearings on
  347  the proposed resolution must be in the form established in s.
  348  166.041(3)(c)2. For counties, the governing body shall adopt the
  349  resolution in accordance with the procedures outlined in s.
  350  125.66, except that the procedures for the public hearings on
  351  the proposed resolution shall be in the form established in s.
  352  125.66(5)(b) s. 125.66(4)(b).
  353         3. Right to be removed from proposed brownfield area.—If a
  354  property owner within the area proposed for designation by the
  355  local government requests in writing to have his or her property
  356  removed from the proposed designation, the local government
  357  shall grant the request.
  358         4. Notice and public hearing requirements for designation
  359  of a proposed brownfield area outside a redevelopment area or by
  360  a nongovernmental entity. Compliance with the following
  361  provisions is required before designation of a proposed
  362  brownfield area under paragraph (2)(a) or paragraph (2)(c):
  363         a. At least one of the required public hearings shall be
  364  conducted as closely as is reasonably practicable to the area to
  365  be designated to provide an opportunity for public input on the
  366  size of the area, the objectives for rehabilitation, job
  367  opportunities and economic developments anticipated,
  368  neighborhood residents’ considerations, and other relevant local
  369  concerns.
  370         b. Notice of a public hearing must be made in a newspaper
  371  of general circulation in the area, must be made in ethnic
  372  newspapers or local community bulletins, must be posted in the
  373  affected area, and must be announced at a scheduled meeting of
  374  the local governing body before the actual public hearing.
  375         Section 10. Paragraph (a) of subsection (3) of section
  376  497.270, Florida Statutes, is amended to read:
  377         497.270 Minimum acreage; sale or disposition of cemetery
  378  lands.—
  379         (3)(a) If the property to be sold, conveyed, or disposed of
  380  under subsection (2) has been or is being used for the permanent
  381  interment of human remains, the applicant for approval of such
  382  sale, conveyance, or disposition shall cause to be published, at
  383  least once a week for 4 consecutive weeks, a notice meeting the
  384  standards of publication set forth in s. 125.66(5)(b)2. s.
  385  125.66(4)(b)2. The notice shall describe the property in
  386  question and the proposed noncemetery use and shall advise
  387  substantially affected persons that they may file a written
  388  request for a hearing pursuant to chapter 120, within 14 days
  389  after the date of last publication of the notice, with the
  390  department if they object to granting the applicant’s request to
  391  sell, convey, or dispose of the subject property for noncemetery
  392  uses.
  393         Section 11. Paragraph (a) of subsection (2) of section
  394  562.45, Florida Statutes, is amended to read:
  395         562.45 Penalties for violating Beverage Law; local
  396  ordinances; prohibiting regulation of certain activities or
  397  business transactions; requiring nondiscriminatory treatment;
  398  providing exceptions.—
  399         (2)(a) Nothing contained in the Beverage Law shall be
  400  construed to affect or impair the power or right of any county
  401  or incorporated municipality of the state to enact ordinances
  402  regulating the hours of business and location of place of
  403  business, and prescribing sanitary regulations therefor, of any
  404  licensee under the Beverage Law within the county or corporate
  405  limits of such municipality. However, except for premises
  406  licensed on or before July 1, 1999, and except for locations
  407  that are licensed as restaurants, which derive at least 51
  408  percent of their gross revenues from the sale of food and
  409  nonalcoholic beverages, pursuant to chapter 509, a location for
  410  on-premises consumption of alcoholic beverages may not be
  411  located within 500 feet of the real property that comprises a
  412  public or private elementary school, middle school, or secondary
  413  school unless the county or municipality approves the location
  414  as promoting the public health, safety, and general welfare of
  415  the community under proceedings as provided in s. 125.66(5) s.
  416  125.66(4), for counties, and s. 166.041(3)(c), for
  417  municipalities. This restriction shall not, however, be
  418  construed to prohibit the issuance of temporary permits to
  419  certain nonprofit organizations as provided for in s. 561.422.
  420  The division may not issue a change in the series of a license
  421  or approve a change of a licensee’s location unless the licensee
  422  provides documentation of proper zoning from the appropriate
  423  county or municipal zoning authorities.
  424         Section 12. Subsection (1) of section 847.0134, Florida
  425  Statutes, is amended to read:
  426         847.0134 Prohibition of adult entertainment establishment
  427  that displays, sells, or distributes materials harmful to minors
  428  within 2,500 feet of a school.—
  429         (1) Except for those establishments that are legally
  430  operating or have been granted a permit from a local government
  431  to operate as adult entertainment establishments on or before
  432  July 1, 2001, an adult entertainment establishment that sells,
  433  rents, loans, distributes, transmits, shows, or exhibits any
  434  obscene material, as described in s. 847.0133, or presents live
  435  entertainment or a motion picture, slide, or other exhibit that,
  436  in whole or in part, depicts nudity, sexual conduct, sexual
  437  excitement, sexual battery, sexual bestiality, or
  438  sadomasochistic abuse and that is harmful to minors, as
  439  described in s. 847.001, may not be located within 2,500 feet of
  440  the real property that comprises a public or private elementary
  441  school, middle school, or secondary school unless the county or
  442  municipality approves the location under proceedings as provided
  443  in s. 125.66(5) s. 125.66(4) for counties or s. 166.041(3)(c)
  444  for municipalities.
  445         Section 13. The Legislature finds and declares that this
  446  act fulfills an important state interest.
  447         Section 14. This act shall take effect October 1, 2022.

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