Bill Text: FL S1876 | 2021 | Regular Session | Comm Sub
Bill Title: Relief from Burdens on Real Property Rights
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Introduced - Dead) 2021-04-26 - Laid on Table, companion bill(s) passed, see CS/CS for HB 421 & HB 1101 (Ch. 2021-203) [S1876 Detail]
Download: Florida-2021-S1876-Comm_Sub.html
Florida Senate - 2021 CS for CS for SB 1876 By the Committees on Rules; and Judiciary; and Senator Albritton 595-04559-21 20211876c2 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 actingactionon 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 fewerlessthan 90150days beforeprior to59 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 classified63as agricultural pursuant to s. 193.461, the notice period is 9064days. The property owner must submit, along with the claim, a 65 writtenbona fide, validappraisal report, as that term is 66 described in s. 475.611(1)(e), that supports the claim and 67 demonstrates the loss in fair market value to the real property. 68 If the action of government is the culmination of a process that 69 involves more than one governmental entity, or if a complete 70 resolution of all relevant issues, in the view of the property 71 owner or in the view of a governmental entity to whom a claim is 72 presented, requires the active participation of more than one 73 governmental entity, the property owner shall present the claim 74 as provided in this section to each of the governmental 75 entities. 76 (b) The governmental entity shall provide written notice of 77 the claim to all parties to any administrative action that gave 78 rise to the claim, and to owners of real property contiguous to 79 the owner’s property at the addresses listed on the most recent 80 county tax rolls. Within 15 days after the claim is presented, 81 the governmental entity shall report the claim in writing to the 82 Department of Legal Affairs, and shall provide the department 83 with the name, address, and telephone number of the employee of 84 the governmental entity from whom additional information may be 85 obtained about the claim during the pendency of the claim and 86 any subsequent judicial action. 87 (c) During the 90-day-notice periodor the 150-day-notice88period, unless extended by agreement of the parties, the 89 governmental entity shall make a written settlement offer to 90 effectuate: 91 1. An adjustment of land development or permit standards or 92 other provisions controlling the development or use of land. 93 2. Increases or modifications in the density, intensity, or 94 use of areas of development. 95 3. The transfer of developmental rights. 96 4. Land swaps or exchanges. 97 5. Mitigation, including payments in lieu of onsite 98 mitigation. 99 6. Location on the least sensitive portion of the property. 100 7. Conditioning the amount of development or use permitted. 101 8. A requirement that issues be addressed on a more 102 comprehensive basis than a single proposed use or development. 103 9. Issuance of the development order, a variance, a special 104 exception, or any other extraordinary relief. 105 10. Purchase of the real property, or an interest therein, 106 by an appropriate governmental entity or payment of 107 compensation. 108 11. No changes to the action of the governmental entity. 109 110 If the property owner accepts a settlement offer,eitherbefore 111 or after filing an action, the governmental entity may implement 112 the settlement offer by appropriate development agreement; by 113 issuing a variance, a special exception, or any other 114 extraordinary relief; or by any other appropriate method, 115 subject to paragraph (d). 116 (d)1. When a governmental entity enters into a settlement 117 agreement under this section which would have the effect of a 118 modification, variance, or a special exception to the 119 application of a rule, regulation, or ordinance as it would 120 otherwise apply to the subject real property, the relief granted 121 shall protect the public interest served by the regulations at 122 issue and be the appropriate relief necessary to prevent the 123 governmental regulatory effort from inordinately burdening the 124 real property. Settlement offers made pursuant to paragraph (c) 125 shall be presumed to protect the public interest. 126 2. When a governmental entity enters into a settlement 127 agreement under this section which would have the effect of 128 contravening the application of a statute as it would otherwise 129 apply to the subject real property, the governmental entity and 130 the property owner shall jointly file an action in the circuit 131 court where the real property is located for approval of the 132 settlement agreement by the court to ensure that the relief 133 granted protects the public interest served by the statute at 134 issue and is the appropriate relief necessary to prevent the 135 governmental regulatory effort from inordinately burdening the 136 real property. 137 138 This paragraph applies to any settlement reached between a 139 property owner and a governmental entity regardless of when the 140 settlement agreement was entered so long as the agreement fully 141 resolves all claims asserted under this section. 142 (5)(a) During the 90-day-notice periodor the 150-day143notice period, unless a settlement offer is accepted by the 144 property owner, each of the governmental entities provided 145 notice pursuant to subsection (4)paragraph (4)(a)shall issue a 146 written statement of allowable uses identifying the allowable 147 uses to which the subject property may be put. The failure of 148 the governmental entity to issue a statement of allowable uses 149 during theapplicable90-day-notice periodor 150-day-notice150periodshall be deemed a denial for purposes of allowing a 151 property owner to file an action in the circuit court under this 152 section. If a written statement of allowable uses is issued, it 153 constitutes the last prerequisite to judicial review for the 154 purposes of the judicial proceeding created by this section, 155 notwithstanding the availability of other administrative 156 remedies. 157 (b) If the property owner rejects the settlement offer and 158 the statement of allowable uses of the governmental entity or 159 entities, the property owner may file a claim for compensation 160 in the circuit court, a copy of which shall be served 161 contemporaneously on the head of each of the governmental 162 entities that made a settlement offer and a statement of 163 allowable uses that was rejected by the property owner. Actions 164 under this section shall be brought only in the county where the 165 real property is located. 166 (6)(a) The circuit court shall determine whether an 167 existing use of the real property or a vested right to a 168 specific use of the real property existed and, if so, whether, 169 considering the settlement offer and statement of allowable 170 uses, the governmental entity or entities have inordinately 171 burdened the real property. If the actions of more than one 172 governmental entity, considering any settlement offers and 173 statement of allowable uses, are responsible for the action that 174 imposed the inordinate burden on the real property of the 175 property owner, the court shall determine the percentage of 176 responsibility each such governmental entity bears with respect 177 to the inordinate burden. A governmental entity may take an 178 interlocutory appeal of the court’s determination that the 179 action of the governmental entity has resulted in an inordinate 180 burden. An interlocutory appeal does not automatically stay the 181 proceedings; however, the court may stay the proceedings during 182 the pendency of the interlocutory appeal. If the governmental 183 entity does not prevail in the interlocutory appeal, the court 184 shall award to the prevailing property owner the costs and a 185 reasonable attorney fee incurred by the property owner in the 186 interlocutory appeal. 187 (b) Following its determination of the percentage of 188 responsibility of each governmental entity, and following the 189 resolution of any interlocutory appeal, the court shall impanel 190 a jury to determine the total amount of compensation to the 191 property owner for the loss in value due to the inordinate 192 burden to the real property. The property owner retains the 193 option to forego a jury and elect to have the court determine 194 the award of compensation. The award of compensation shall be 195 determined by calculating the difference in the fair market 196 value of the real property, as it existed at the time of the 197 governmental action at issue, as though the owner had the 198 ability to attain the reasonable investment-backed expectation 199 or was not left with uses that are unreasonable, whichever the 200 case may be, and the fair market value of the real property, as 201 it existed at the time of the governmental action at issue, as 202 inordinately burdened, considering the settlement offer together 203 with the statement of allowable uses, of the governmental entity 204 or entities. In determining the award of compensation, 205 consideration may not be given to business damages relative to 206 any development, activity, or use that the action of the 207 governmental entity or entities, considering the settlement 208 offer together with the statement of allowable uses has 209 restricted, limited, or prohibited. The award of compensation 210 shall include a reasonable award of prejudgment interest from 211 the date the claim was presented to the governmental entity or 212 entities as provided in subsection (4). 213 (c)1. In any action filed pursuant to this section, the 214 property owner is entitled to recover reasonable costs and 215 attorney fees incurred by the property owner, from the 216 governmental entity or entities, according to their 217 proportionate share as determined by the court, from the date of 218 the presentation of the claim to the head of the governmental 219 entity pursuant to paragraph (4)(a)the filing of the circuit220court action, if the property owner prevails in the actionand221the court determines that the settlement offer, including the222statement of allowable uses, of the governmental entity or223entities did not constitute a bona fide offer to the property224owner which reasonably would have resolved the claim, based upon225the knowledge available to the governmental entity or entities226and the property owner during the 90-day-notice period or the227150-day-notice period. 228 2. In any action filed pursuant to this section, the 229 governmental entity or entities are entitled to recover 230 reasonable costs and attorney fees incurred by the governmental 231 entity or entities from the date of the filing of the circuit 232 court action, if the governmental entity or entities prevail in 233 the action and the court determines that the property owner did 234 not accept a bona fide settlement offer, including the statement 235 of allowable uses, which reasonably would have resolved the 236 claim fairly to the property owner if the settlement offer had 237 been accepted by the property owner, based upon the knowledge 238 available to the governmental entity or entities and the 239 property owner during the 90-day-notice periodor the 150-day240notice period. 241 3. The determination of total reasonable costs and attorney 242 fees pursuant to this paragraph shall be made by the court and 243 not by the jury. Any proposed settlement offer or any proposed 244 decision, except for the final written settlement offer or the 245 final written statement of allowable uses, and any negotiations 246 or rejections in regard to the formulation either of the 247 settlement offer or the statement of allowable uses, are 248 inadmissible in the subsequent proceeding established by this 249 section except for the purposes of the determination pursuant to 250 this paragraph. 251 (d) Within 15 days after the execution of any settlement 252 pursuant to this section, or the issuance of any judgment 253 pursuant to this section, the governmental entity shall provide 254 a copy of the settlement or judgment to the Department of Legal 255 Affairs. 256 (11) A cause of action may not be commenced under this 257 section if the claim is presented more than 1 year after a law 258 or regulation is first applied by the governmental entity to the 259 property at issue. 260 (a) For purposes of determining when this 1-year claim 261 period accrues: 262 1.a. A law or regulation is first applied upon enactment 263 and notice as provided for in this sub-subparagraphsubparagraph264 if the impact of the law or regulation on the real property is 265 clear and unequivocal in its terms and notice is provided by 266 mail to the affected property owner or registered agent at the 267 address referenced in the jurisdiction’s most current ad valorem 268 tax records. The fact that the law or regulation could be 269 modified, varied, or altered under any other process or 270 procedure does not preclude the impact of the law or regulation 271 on a property from being clear or unequivocal pursuant to this 272 sub-subparagraphsubparagraph. Any notice under this sub 273 subparagraphsubparagraphshall be provided after the enactment 274 of the law or regulation and shall inform the property owner or 275 registered agent that the law or regulation may impact the 276 property owner’s existing property rights and that the property 277 owner may have only 1 year afterfromreceipt of the notice to 278 pursue any rights established under this section. 279 b. If the notice required in sub-subparagraph a. is not 280 provided to the property owner, the property owner may at any 281 time after enactment notify the head of the governmental entity 282 in writing via certified mail and, if available, e-mail that the 283 property owner deems the impact of the law or regulation on the 284 property owner’s real property to be clear and unequivocal in 285 its terms and, as such, restrictive of uses allowed on the 286 property before the enactment. Within 45 days after receipt of a 287 notice under this sub-subparagraph, the governmental entity in 288 receipt of the notice must respond in writing via certified mail 289 and, if available, e-mail to describe the limitations imposed on 290 the property by the law or regulation. The property owner is not 291 required to formally pursue an application for a development 292 order, development permit, or building permit, as such will be 293 deemed a waste of resources and shall not be a prerequisite to 294 bringing a claim pursuant to paragraph (4)(a). However, any such 295 claim must be filed within 1 year after the date of the property 296 owner’s receipt of the notice from the governmental entity of 297 the limitations on use imposed on the real property. 298 2. Otherwise, the law or regulation is first applied to the 299 property when there is a formal denial of a written request for 300 development or variance. 301 Section 2. Present paragraphs (c), (d), and (e) of 302 subsection (1) of section 70.45, Florida Statutes, are 303 redesignated as paragraphs (d), (e), and (f), respectively, a 304 new paragraph (c) is added to that subsection, and subsections 305 (2), (4), and (5) of that section are amended, to read: 306 70.45 Governmental exactions.— 307 (1) As used in this section, the term: 308 (c) “Imposed” or “imposition” as it relates to a prohibited 309 exaction or condition of approval refers to the time at which 310 the property owner must comply with the prohibited exaction or 311 condition of approval. 312 (2) In addition to other remedies available in law or 313 equity, a property owner may bring an action in a court of 314 competent jurisdiction under this section to declare a 315 prohibited exaction invalid and recover damages caused by a 316 prohibited exaction. Such action maynotbe brought by a 317 property owner at the property owner’s discretion whenuntila 318 prohibited exaction is actually imposed or when it is required 319 in writing as a final condition of approval for the requested 320 use of real property. The right to bring an action under this 321 section may not be waived. This section does not apply to impact 322 fees adopted under s. 163.31801 or non-ad valorem assessments as 323 defined in s. 197.3632. 324 (4) For each claim filed under this section, the 325 governmental entity has the burden of proving that the 326 challenged exaction has an essential nexus to a legitimate 327 public purpose and is roughly proportionate to the impacts of 328 the proposed use that the governmental entity is seeking to 329 avoid, minimize, or mitigate. The property owner has the burden 330 of proving damages that result from a prohibited exaction. 331 (5) The court may award attorney fees and costs to the 332 prevailing party; however, if the court determines that the 333 challenged exaction which is the subject of the claim lacks an 334 essential nexus to a legitimate public purpose, the court shall 335 award attorney fees and costs to the property owner. 336 Section 3. The amendments made by this act to ss. 337 70.001(4), (5), (6) and (11) and 70.45, Florida Statutes, apply 338 only to claims made in response to actions taken by governmental 339 entities on or after July 1, 2021. 340 Section 4. Paragraph (g) of subsection (2) of section 341 70.51, Florida Statutes, is amended to read: 342 70.51 Land use and environmental dispute resolution.— 343 (2) As used in this section, the term: 344 (g) “Land” or “real property” has the same meaning as in s. 345 70.001(3)(g)means land and includes any appurtenances and346improvements to the land, including any other relevant real347property in which the owner had a relevant interest. 348 Section 5. This act shall take effect October 1, 2021.