Bill Text: FL S0284 | 2015 | Regular Session | Comm Sub
Bill Title: Private Property Rights
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Introduced - Dead) 2015-04-27 - Laid on Table, companion bill(s) passed, see CS/CS/CS/HB 383 (Ch. 2015-142) [S0284 Detail]
Download: Florida-2015-S0284-Comm_Sub.html
Florida Senate - 2015 CS for CS for SB 284 By the Committees on Appropriations; and Environmental Preservation and Conservation; and Senator Diaz de la Portilla 576-04506-15 2015284c2 1 A bill to be entitled 2 An act relating to private property rights; amending 3 s. 70.001, F.S.; revising the terms “property owner” 4 and “real property”; authorizing a governmental entity 5 to treat a written claim as pending litigation for 6 purposes of holding certain meetings privately; 7 providing that any settlement agreement reached 8 between an owner and a governmental entity applies so 9 long as the agreement resolves all issues; providing 10 exceptions to the applicability of the Bert J. Harris, 11 Jr., Private Property Rights Protection Act; creating 12 s. 70.45, F.S.; defining terms; authorizing a property 13 owner to bring an action to recover damages caused by 14 a prohibited exaction; requiring a property owner to 15 provide written notice of such action to the relevant 16 governmental entity; authorizing the governmental 17 entity to treat such a claim as pending litigation for 18 purposes of holding certain meetings privately; 19 specifying the burden of proof imposed on the 20 governmental entity and the property owner, 21 respectively, in such an action; authorizing the award 22 of reasonable attorney fees and costs under specified 23 circumstances; waiving the state’s sovereign immunity 24 for certain causes of action; providing applicability; 25 amending s. 70.80, F.S.; specifying that an action for 26 a prohibited exaction is not to be construed in pari 27 materia with certain other actions; providing an 28 effective date. 29 30 Be It Enacted by the Legislature of the State of Florida: 31 32 Section 1. Present paragraphs (b), (c), and (d) of 33 subsection (4) of section 70.001, Florida Statutes, are 34 redesignated as paragraphs (c), (d), and (e), respectively, and 35 amended, paragraphs (f) and (g) of subsection (3) and subsection 36 (10) are amended, and a new paragraph (b) is added to subsection 37 (4) of that section, to read: 38 70.001 Private property rights protection.— 39 (3) For purposes of this section: 40 (f) The term “property owner” means the person who holds 41 legal title to the real property that is the subject of and 42 directly impacted by the action of a governmental entityat43issue. The term does not include a governmental entity. 44 (g) The term “real property” means land and includes any 45 appurtenances and improvements to the land, including any other 46 relevant real property in which the property owner hashada 47 relevant interest. The term includes only parcels that are the 48 subject of and directly impacted by the action of a governmental 49 entity. 50 (4) 51 (b) Upon receipt of a written claim, a governmental entity 52 may treat the claim as pending litigation for purposes of s. 53 286.011(8). 54 (c)(b)The governmental entity shall provide written notice 55 of the claim to all parties to any administrative action that 56 gave rise to the claim, and to owners of real property 57 contiguous to the owner’s property at the addresses listed on 58 the most recent county tax rolls. Within 15 days after the claim 59 isbeingpresented, the governmental entity shall report the 60 claim in writing to the Department of Legal Affairs, and shall 61 provide the department with the name, address, and telephone 62 number of the employee of the governmental entity from whom 63 additional information may be obtained about the claim during 64 the pendency of the claim and any subsequent judicial action. 65 (d)(c)During the 90-day-notice period or the 150-day 66 notice period, unless extended by agreement of the parties, the 67 governmental entity shall make a written settlement offer to 68 effectuate: 69 1. An adjustment of land development or permit standards or 70 other provisions controlling the development or use of land. 71 2. Increases or modifications in the density, intensity, or 72 use of areas of development. 73 3. The transfer of developmental rights. 74 4. Land swaps or exchanges. 75 5. Mitigation, including payments in lieu of onsite 76 mitigation. 77 6. Location on the least sensitive portion of the property. 78 7. Conditioning the amount of development or use permitted. 79 8. A requirement that issues be addressed on a more 80 comprehensive basis than a single proposed use or development. 81 9. Issuance of the development order, a variance, special 82 exception, or other extraordinary relief. 83 10. Purchase of the real property, or an interest therein, 84 by an appropriate governmental entity or payment of 85 compensation. 86 11. No changes to the action of the governmental entity. 87 88 If the property owner accepts athesettlement offer, either 89 before or after filing an action, the governmental entity may 90 implement the settlement offer by appropriate development 91 agreement; by issuing a variance, special exception, or other 92 extraordinary relief; or by other appropriate method, subject to 93 paragraph (e)(d). 94 (e)(d)1. WhenWhenevera governmental entity enters into a 95 settlement agreement under this section which would have the 96 effect of a modification, variance, or a special exception to 97 the application of a rule, regulation, or ordinance as it would 98 otherwise apply to the subject real property, the relief granted 99 shall protect the public interest served by the regulations at 100 issue and be the appropriate relief necessary to prevent the 101 governmental regulatory effort from inordinately burdening the 102 real property. 103 2. WhenWhenevera governmental entity enters into a 104 settlement agreement under this section which would have the 105 effect of contravening the application of a statute as it would 106 otherwise apply to the subject real property, the governmental 107 entity and the property owner shall jointly file an action in 108 the circuit court where the real property is located for 109 approval of the settlement agreement by the court to ensure that 110 the relief granted protects the public interest served by the 111 statute at issue and is the appropriate relief necessary to 112 prevent the governmental regulatory effort from inordinately 113 burdening the real property. 114 115 This paragraph applies to any settlement reached between a 116 property owner and a governmental entity regardless of when the 117 settlement agreement was entered so long as the agreement fully 118 resolves all claims asserted under this section. 119 (10)(a) This section does not apply to any actions taken by 120 a governmental entity which relate to the operation, 121 maintenance, or expansion of transportation facilities, and this 122 section does not affect existing law regarding eminent domain 123 relating to transportation. 124 (b) This section does not apply to any actions taken by a 125 county with respect to the adoption of a Flood Insurance Rate 126 Map issued by the Federal Emergency Management Agency for the 127 purpose of participating in the National Flood Insurance 128 Program, unless such adoption incorrectly applies an aspect of 129 the Flood Insurance Rate Map to the property in such a way as 130 to, but not limited to, incorrectly assess the elevation of the 131 property. 132 Section 2. Section 70.45, Florida Statutes, is created to 133 read: 134 70.45 Governmental exactions.— 135 (1) As used in this section, the term: 136 (a) “Damages” means, in addition to the right to injunctive 137 relief, the reduction in fair market value of the real property 138 or the amount of the fee or infrastructure cost that exceeds 139 what would be permitted under this section. 140 (b) “Governmental entity” has the same meaning as provided 141 in s. 70.001(3)(c). 142 (c) “Prohibited exaction” means any condition imposed by a 143 governmental entity on a property owner’s proposed use of real 144 property that lacks an essential nexus to a legitimate public 145 purpose and is not roughly proportionate to the impacts of the 146 proposed use that the governmental entity seeks to avoid, 147 minimize, or mitigate. 148 (d) “Property owner” has the same meaning as provided in s. 149 70.001(3)(f). 150 (e) “Real property” has the same meaning as provided in s. 151 70.001(3)(g). 152 (2) In addition to other remedies available in law or 153 equity, a property owner may bring an action in a court of 154 competent jurisdiction under this section to recover damages 155 caused by a prohibited exaction. Such action may not be brought 156 until a prohibited exaction is actually imposed or required in 157 writing as a final condition of approval for the requested use 158 of real property. The right to bring an action under this 159 section may not be waived. This section does not apply to impact 160 fees adopted under s. 163.31801 or non-ad valorem assessments as 161 defined in s. 197.3632. 162 (3) At least 90 days before filing an action under this 163 section, but no later than 180 days after imposition of the 164 prohibited exaction, the property owner shall provide to the 165 relevant governmental entity written notice of the proposed 166 action. This written notice must identify the exaction that the 167 property owner believes is prohibited, briefly explain why the 168 property owner believes the exaction is prohibited, and provide 169 an estimate of the damages. Upon receipt of the property owner’s 170 written notice, the governmental entity may treat the claim as 171 pending litigation for purposes of s. 286.011(8). 172 (a) Upon receipt of the written notice, the governmental 173 entity shall review the notice of claim and respond in writing 174 to the property owner by identifying the basis for the exaction 175 and explaining why the governmental entity maintains that the 176 exaction is proportionate to the harm created by the proposed 177 use of real property, or by proposing to remove all or a portion 178 of the exaction. 179 (b) The written response may not be used against the 180 governmental entity in subsequent litigation other than for 181 purposes of assessing attorney fees and costs under subsection 182 (5). 183 (4) For each claim filed under this section, the 184 governmental entity has the burden of proving that the exaction 185 has an essential nexus to a legitimate public purpose and is 186 roughly proportionate to the impacts of the proposed use that 187 the governmental entity is seeking to avoid, minimize, or 188 mitigate. The property owner has the burden of proving damages 189 that result from a prohibited exaction. 190 (5) The court may award attorney fees and costs to the 191 prevailing party; however, if the court determines that the 192 exaction which is the subject of the claim lacks an essential 193 nexus to a legitimate public purpose and is not roughly 194 proportionate to the impacts of the proposed use, the court 195 shall award attorney fees and costs to the property owner. 196 (6) To ensure that courts may assess damages for claims 197 filed under this section in accordance with s. 13, Art. X of the 198 State Constitution, the state, for itself and its agencies or 199 political subdivisions, waives sovereign immunity for causes of 200 action based upon the application of this section. Such waiver 201 is limited only to actions brought under this section. 202 (7) This section applies to any prohibited exaction imposed 203 or required in writing on or after October 1, 2015, as a final 204 condition of approval for the requested use of real property. 205 Section 3. Section 70.80, Florida Statutes, is amended to 206 read: 207 70.80 Construction of ss. 70.001, 70.45, and 70.51.—It is 208 the express declaration of the Legislature that ss. 70.001, 209 70.45, and 70.51 have separate and distinct bases, objectives, 210 applications, and processes. It is therefore the intent of the 211 Legislature that ss. 70.001, 70.45, and 70.51 are not to be 212 construed in pari materia. 213 Section 4. This act shall take effect October 1, 2015.