Bill Text: FL H0701 | 2011 | Regular Session | Comm Sub

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Bill Title: Property Rights

Spectrum: Moderate Partisan Bill (Republican 10-2)

Status: (Engrossed - Dead) 2011-04-29 - Ordered enrolled -HJ 961 [H0701 Detail]

Download: Florida-2011-H0701-Comm_Sub.html

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CS/CS/HB 701

1	A bill to be entitled
2	An act relating to property rights; amending s. 70.001,
3	F.S.; revising definitions; shortening a notice period for
4	certain actions; revising procedures for determining a
5	governmental entity's final decision identifying the
6	allowable uses for a property; defining what constitutes
7	first application of a law or regulation; clarifying the
8	waiver of sovereign immunity for liability; providing for
9	prospective application; providing an effective date.
10
11	Be It Enacted by the Legislature of the State of Florida:
12
13	Section 1.  Paragraphs (b) and (e) of subsection (3),
14	paragraphs (a) and (c) of subsection (4), and subsections (5),
15	(6), (11), and (13) of section 70.001, Florida Statutes, are
16	amended to read:
17	70.001  Private property rights protection.-
18	(3)  For purposes of this section:
19	(b)  The term "existing use" means:
20	1.  An actual, present use or activity on the real
21	property, including periods of inactivity which are normally
22	associated with, or are incidental to, the nature or type of
23	use; or
24	2.  Activity or such reasonably foreseeable, nonspeculative
25	land uses which are suitable for the subject real property and
26	compatible with adjacent land uses and which have created an
27	existing fair market value in the property greater than the fair
28	market value of the actual, present use or activity on the real
29	property.
30	(e)  The terms "inordinate burden" and or "inordinately
31	burdened":
32	1.  Mean that an action of one or more governmental
33	entities has directly restricted or limited the use of real
34	property such that the property owner is permanently unable to
35	attain the reasonable, investment-backed expectation for the
36	existing use of the real property or a vested right to a
37	specific use of the real property with respect to the real
38	property as a whole, or that the property owner is left with
39	existing or vested uses that are unreasonable such that the
40	property owner bears permanently a disproportionate share of a
41	burden imposed for the good of the public, which in fairness
42	should be borne by the public at large.
43	2.  The terms "inordinate burden" or "inordinately
44	burdened" Do not include temporary impacts to real property;
45	impacts to real property occasioned by governmental abatement,
46	prohibition, prevention, or remediation of a public nuisance at
47	common law or a noxious use of private property; or impacts to
48	real property caused by an action of a governmental entity taken
49	to grant relief to a property owner under this section However,
50	a temporary impact on development, as defined in s. 380.04, that
51	is in effect for longer than 1 year may, depending upon the
52	circumstances, constitute an "inordinate burden" as provided in
53	this paragraph.
54
55	In determining whether reasonable, investment-backed
56	expectations are inordinately burdened, consideration may be
57	given to the factual circumstances leading to the time elapsed
58	between enactment of the law or regulation and its first
59	application to the subject property.
60	(4)(a)  Not less than 150 180 days prior to filing an
61	action under this section against a governmental entity, a
62	property owner who seeks compensation under this section must
63	present the claim in writing to the head of the governmental
64	entity, except that if the property is classified as
65	agricultural pursuant to s. 193.461, the notice period is 90
66	days. The property owner must submit, along with the claim, a
67	bona fide, valid appraisal that supports the claim and
68	demonstrates the loss in fair market value to the real property.
69	If the action of government is the culmination of a process that
70	involves more than one governmental entity, or if a complete
71	resolution of all relevant issues, in the view of the property
72	owner or in the view of a governmental entity to whom a claim is
73	presented, requires the active participation of more than one
74	governmental entity, the property owner shall present the claim
75	as provided in this section to each of the governmental
76	entities.
77	(c)  During the 90-day-notice period or the 150-day-notice
78	180-day-notice period, unless extended by agreement of the
79	parties, the governmental entity shall make a written settlement
80	offer to effectuate:
81	1.  An adjustment of land development or permit standards
82	or other provisions controlling the development or use of land.
83	2.  Increases or modifications in the density, intensity,
84	or use of areas of development.
85	3.  The transfer of developmental rights.
86	4.  Land swaps or exchanges.
87	5.  Mitigation, including payments in lieu of onsite
88	mitigation.
89	6.  Location on the least sensitive portion of the
90	property.
91	7.  Conditioning the amount of development or use
92	permitted.
93	8.  A requirement that issues be addressed on a more
94	comprehensive basis than a single proposed use or development.
95	9.  Issuance of the development order, a variance, special
96	exception, or other extraordinary relief.
97	10.  Purchase of the real property, or an interest therein,
98	by an appropriate governmental entity or payment of
99	compensation.
100	11.  No changes to the action of the governmental entity.
101
102	If the property owner accepts the settlement offer, the
103	governmental entity may implement the settlement offer by
104	appropriate development agreement; by issuing a variance,
105	special exception, or other extraordinary relief; or by other
106	appropriate method, subject to paragraph (d).
107	(5)(a)  During the 90-day-notice period or the 150-day-
108	notice 180-day-notice period, unless a settlement offer is
109	accepted by the property owner, each of the governmental
110	entities provided notice pursuant to paragraph (4)(a) shall
111	issue a written statement of allowable uses ripeness decision
112	identifying the allowable uses to which the subject property may
113	be put. The failure of the governmental entity to issue a
114	statement of allowable uses written ripeness decision during the
115	applicable 90-day-notice period or 150-day-notice 180-day-notice
116	period shall be deemed a denial for purposes of allowing a
117	property owner to file an action in the circuit court under this
118	section. If a written statement of allowable uses is issued, it
119	to ripen the prior action of the governmental entity, and shall
120	operate as a ripeness decision that has been rejected by the
121	property owner. The ripeness decision, as a matter of law,
122	constitutes the last prerequisite to judicial review, and the
123	matter shall be deemed ripe or final for the purposes of the
124	judicial proceeding created by this section, notwithstanding the
125	availability of other administrative remedies.
126	(b)  If the property owner rejects the settlement offer and
127	the statement of allowable uses ripeness decision of the
128	governmental entity or entities, the property owner may file a
129	claim for compensation in the circuit court, a copy of which
130	shall be served contemporaneously on the head of each of the
131	governmental entities that made a settlement offer and a
132	statement of allowable uses ripeness decision that was rejected
133	by the property owner. Actions under this section shall be
134	brought only in the county where the real property is located.
135	(6)(a)  The circuit court shall determine whether an
136	existing use of the real property or a vested right to a
137	specific use of the real property existed and, if so, whether,
138	considering the settlement offer and statement of allowable uses
139	ripeness decision, the governmental entity or entities have
140	inordinately burdened the real property. If the actions of more
141	than one governmental entity, considering any settlement offers
142	and statement of allowable uses ripeness decisions, are
143	responsible for the action that imposed the inordinate burden on
144	the real property of the property owner, the court shall
145	determine the percentage of responsibility each such
146	governmental entity bears with respect to the inordinate burden.
147	A governmental entity may take an interlocutory appeal of the
148	court's determination that the action of the governmental entity
149	has resulted in an inordinate burden. An interlocutory appeal
150	does not automatically stay the proceedings; however, the court
151	may stay the proceedings during the pendency of the
152	interlocutory appeal. If the governmental entity does not
153	prevail in the interlocutory appeal, the court shall award to
154	the prevailing property owner the costs and a reasonable
155	attorney fee incurred by the property owner in the interlocutory
156	appeal.
157	(b)  Following its determination of the percentage of
158	responsibility of each governmental entity, and following the
159	resolution of any interlocutory appeal, the court shall impanel
160	a jury to determine the total amount of compensation to the
161	property owner for the loss in value due to the inordinate
162	burden to the real property. The award of compensation shall be
163	determined by calculating the difference in the fair market
164	value of the real property, as it existed at the time of the
165	governmental action at issue, as though the owner had the
166	ability to attain the reasonable investment-backed expectation
167	or was not left with uses that are unreasonable, whichever the
168	case may be, and the fair market value of the real property, as
169	it existed at the time of the governmental action at issue, as
170	inordinately burdened, considering the settlement offer together
171	with the statement of allowable uses ripeness decision, of the
172	governmental entity or entities. In determining the award of
173	compensation, consideration may not be given to business damages
174	relative to any development, activity, or use that the action of
175	the governmental entity or entities, considering the settlement
176	offer together with the statement of allowable uses ripeness
177	decision has restricted, limited, or prohibited. The award of
178	compensation shall include a reasonable award of prejudgment
179	interest from the date the claim was presented to the
180	governmental entity or entities as provided in subsection (4).
181	(c)1.  In any action filed pursuant to this section, the
182	property owner is entitled to recover reasonable costs and
183	attorney fees incurred by the property owner, from the
184	governmental entity or entities, according to their
185	proportionate share as determined by the court, from the date of
186	the filing of the circuit court action, if the property owner
187	prevails in the action and the court determines that the
188	settlement offer, including the statement of allowable uses
189	ripeness decision, of the governmental entity or entities did
190	not constitute a bona fide offer to the property owner which
191	reasonably would have resolved the claim, based upon the
192	knowledge available to the governmental entity or entities and
193	the property owner during the 90-day-notice period or the 150-
194	day-notice 180-day-notice period.
195	2.  In any action filed pursuant to this section, the
196	governmental entity or entities are entitled to recover
197	reasonable costs and attorney fees incurred by the governmental
198	entity or entities from the date of the filing of the circuit
199	court action, if the governmental entity or entities prevail in
200	the action and the court determines that the property owner did
201	not accept a bona fide settlement offer, including the statement
202	of allowable uses ripeness decision, which reasonably would have
203	resolved the claim fairly to the property owner if the
204	settlement offer had been accepted by the property owner, based
205	upon the knowledge available to the governmental entity or
206	entities and the property owner during the 90-day-notice period
207	or the 150-day-notice 180-day-notice period.
208	3.  The determination of total reasonable costs and
209	attorney fees pursuant to this paragraph shall be made by the
210	court and not by the jury. Any proposed settlement offer or any
211	proposed ripeness decision, except for the final written
212	settlement offer or the final written statement of allowable
213	uses ripeness decision, and any negotiations or rejections in
214	regard to the formulation either of the settlement offer or the
215	statement of allowable uses ripeness decision, are inadmissible
216	in the subsequent proceeding established by this section except
217	for the purposes of the determination pursuant to this
218	paragraph.
219	(d)  Within 15 days after the execution of any settlement
220	pursuant to this section, or the issuance of any judgment
221	pursuant to this section, the governmental entity shall provide
222	a copy of the settlement or judgment to the Department of Legal
223	Affairs.
224	(11)  A cause of action may not be commenced under this
225	section if the claim is presented more than 1 year after a law
226	or regulation is first applied by the governmental entity to the
227	property at issue.
228	(a)  For purposes of determining when this 1-year claim
229	period accrues:
230	1.  A law or regulation is first applied upon enactment and
231	notice as provided for in this subparagraph, if the impact of
232	the law or regulation on the real property is clear and
233	unequivocal in its terms and notice is provided by mail to the
234	affected property owner or registered agent at the address
235	referenced in the jurisdiction's most current ad valorem tax
236	records. The fact that the law or regulation could be modified,
237	varied, or altered under any other process or procedure does not
238	preclude the impact of the law or regulation on a property from
239	being clear or unequivocal pursuant to this subparagraph. Any
240	notice under this subparagraph shall be provided after the
241	enactment of the law or regulation and shall inform the property
242	owner or registered agent that the law or regulation may impact
243	the property owner's existing property rights and that the
244	property owner may have only 1 year from receipt of the notice
245	to pursue any rights established under this section.
246	2.  Otherwise, the law or regulation is first applied to
247	the property when there is a formal denial of a written request
248	for development or variance.
249	(b)  If an owner seeks relief from the governmental action
250	through lawfully available administrative or judicial
251	proceedings, the time for bringing an action under this section
252	is tolled until the conclusion of such proceedings.
253	(13)  In accordance with s. 13, Art. X of the State
254	Constitution, the state, for itself and for its agencies or
255	political subdivisions, waives sovereign immunity for causes of
256	action based upon the application of any law, regulation, or
257	ordinance subject to this section, but only to the extent
258	specified in this section This section does not affect the
259	sovereign immunity of government.
260	Section 2.  The amendments to s. 70.001, Florida Statutes,
261	made by this act apply prospectively only and do not apply to
262	any claim or action filed under s. 70.001, Florida Statutes,
263	which is pending on the effective date of this act.
264	Section 3.  This act shall take effect July 1, 2011.

CODING: Words stricken are deletions; words underlined are additions.