Bill Text: FL S0280 | 2022 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Local Ordinances

Spectrum: Slight Partisan Bill (? 2-1)

Status: (Failed) 2022-03-14 - Died in Messages [S0280 Detail]

Download: Florida-2022-S0280-Comm_Sub.html

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       Florida Senate - 2022                              CS for SB 280
       
       
        
       By the Committee on Community Affairs; and Senator Hutson
       
       
       
       
       
       578-01973-22                                           2022280c1
    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         reasonable attorney fees and costs and damages in
    5         certain civil actions filed against local governments;
    6         specifying a limitation on awards and a restriction;
    7         providing construction and applicability; amending s.
    8         125.66, F.S.; requiring a board of county
    9         commissioners to prepare a business impact estimate
   10         before the enactment of a proposed ordinance;
   11         specifying requirements for the posting and content of
   12         the estimate; providing construction and
   13         applicability; creating s. 125.675, F.S.; requiring a
   14         county to suspend enforcement of an ordinance that is
   15         the subject of a certain legal action if certain
   16         conditions are met; requiring courts to give priority
   17         to certain cases; specifying factors a court must
   18         consider in determining whether an ordinance is
   19         arbitrary or unreasonable; providing applicability;
   20         authorizing courts to award attorney fees and costs
   21         under certain circumstances; amending s. 166.041,
   22         F.S.; requiring a governing body of a municipality to
   23         prepare a business impact estimate before the
   24         enactment of a proposed ordinance; specifying
   25         requirements for the posting and content of the
   26         estimate; providing construction and applicability;
   27         creating s. 166.0411, F.S.; requiring a municipality
   28         to suspend enforcement of an ordinance that is the
   29         subject of a certain legal action if certain
   30         conditions are met; requiring courts to give priority
   31         to certain cases; specifying factors a court must
   32         consider in determining whether an ordinance is
   33         arbitrary or unreasonable; providing applicability;
   34         authorizing courts to award attorney fees and costs
   35         under certain circumstances; amending ss. 163.2517,
   36         163.3181, 163.3215, 376.80, 497.270, 562.45, and
   37         847.0134, F.S.; conforming cross-references; providing
   38         a declaration of important state interest; providing
   39         an effective date.
   40          
   41  Be It Enacted by the Legislature of the State of Florida:
   42  
   43         Section 1. Section 57.112, Florida Statutes, is amended to
   44  read:
   45         57.112 Attorney fees and costs and damages; preempted local
   46  actions.—
   47         (1) As used in this section, the term “attorney fees and
   48  costs” means the reasonable and necessary attorney fees and
   49  costs incurred for all preparations, motions, hearings, trials,
   50  and appeals in a proceeding.
   51         (2) If a civil action is filed against a local government
   52  to challenge the adoption or enforcement of a local ordinance on
   53  the grounds that it is expressly preempted by the State
   54  Constitution or by state law, the court shall assess and award
   55  reasonable attorney fees and costs and damages to the prevailing
   56  party.
   57         (3) If a civil action is filed against a local government
   58  to challenge the adoption of a local ordinance on the grounds
   59  that the ordinance is arbitrary or unreasonable, the court may
   60  assess and award reasonable attorney fees and costs and damages
   61  to the complainant if successful. An award of reasonable
   62  attorney fees or costs and damages pursuant to this subsection
   63  may not exceed $50,000. In addition, a prevailing party may not
   64  recover any attorney fees or costs directly incurred or
   65  associated with litigation to determine an award of reasonable
   66  attorney fees or costs.
   67         (4) Attorney fees and costs may not be awarded pursuant to
   68  this section if:
   69         (a) The governing body of a local governmental entity
   70  receives written notice that an ordinance that has been publicly
   71  noticed or adopted is expressly preempted by the State
   72  Constitution or state law or is arbitrary or unreasonable; and
   73         (b) The governing body of the local governmental entity
   74  withdraws the proposed ordinance within 30 days; or, in the case
   75  of an adopted ordinance, the governing body of a local
   76  government notices an intent to repeal the ordinance within 30
   77  days of receipt of the notice and repeals the ordinance within
   78  30 days thereafter.
   79         (5)(4) The provisions in this section are supplemental to
   80  all other sanctions or remedies available under law or court
   81  rule. However, this section may not be construed to authorize
   82  double recovery if an affected person prevails on a damages
   83  claim brought against a local government pursuant to other
   84  applicable law involving the same ordinance, operative acts, or
   85  transactions.
   86         (6)(5) This section does not apply to local ordinances
   87  adopted pursuant to part II of chapter 163, s. 553.73, or s.
   88  633.202.
   89         (7)(a)(6) Except as provided in paragraph (b), this section
   90  is intended to be prospective in nature and applies shall apply
   91  only to cases commenced on or after July 1, 2019.
   92         (b) The amendments to this section effective October 1,
   93  2022, are prospective in nature and apply only to ordinances
   94  adopted on or after October 1, 2022.
   95         Section 2. Present subsections (3) through (6) of section
   96  125.66, Florida Statutes, are redesignated as subsections (4)
   97  through (7), respectively, a new subsection (3) is added to that
   98  section, and paragraph (a) of subsection (2) of that section is
   99  amended, to read:
  100         125.66 Ordinances; enactment procedure; emergency
  101  ordinances; rezoning or change of land use ordinances or
  102  resolutions.—
  103         (2)(a) The regular enactment procedure shall be as follows:
  104  The board of county commissioners at any regular or special
  105  meeting may enact or amend any ordinance, except as provided in
  106  subsection (5) (4), if notice of intent to consider such
  107  ordinance is given at least 10 days before such meeting by
  108  publication as provided in chapter 50. A copy of such notice
  109  shall be kept available for public inspection during the regular
  110  business hours of the office of the clerk of the board of county
  111  commissioners. The notice of proposed enactment shall state the
  112  date, time, and place of the meeting; the title or titles of
  113  proposed ordinances; and the place or places within the county
  114  where such proposed ordinances may be inspected by the public.
  115  The notice shall also advise that interested parties may appear
  116  at the meeting and be heard with respect to the proposed
  117  ordinance.
  118         (3)(a) Before the enactment of a proposed ordinance, the
  119  board of county commissioners shall prepare a business impact
  120  estimate in accordance with this subsection. The business impact
  121  estimate must be posted on the county’s website on the same day
  122  the notice of proposed enactment is published pursuant to
  123  paragraph (2)(a) and must include all of the following:
  124         1. A summary of the proposed ordinance, including a
  125  statement of the public purpose to be served by the proposed
  126  ordinance, such as serving the public health, safety, morals,
  127  and welfare of the county.
  128         2. An estimate of the direct economic impact of the
  129  proposed ordinance on private for-profit businesses in the
  130  county, including the following, if any:
  131         a. An estimate of direct compliance costs businesses may
  132  reasonably incur if the ordinance is enacted.
  133         b. Identification of any new charge or fee on businesses
  134  subject to the proposed ordinance or for which businesses will
  135  be financially responsible.
  136         c. An estimate of the county’s regulatory costs, including
  137  an estimate of revenues from any new charges or fees that will
  138  be imposed on businesses to cover such costs.
  139         3. A good faith estimate of the number of businesses likely
  140  to be impacted by the ordinance.
  141         4. Any additional information the board determines may be
  142  useful.
  143         (b) This subsection may not be construed to require a
  144  county to procure an accountant or other financial consultant to
  145  prepare the business impact estimate required by this
  146  subsection.
  147         (c) This subsection does not apply to an emergency
  148  ordinance enacted pursuant to this section.
  149         Section 3. Section 125.675, Florida Statutes, is created to
  150  read:
  151         125.675 Legal challenges to certain recently enacted
  152  ordinances.—
  153         (1) A county must suspend enforcement of an ordinance that
  154  is the subject of an action, including appeals, challenging the
  155  ordinance’s validity on the grounds that it is expressly
  156  preempted by the State Constitution or by state law or is
  157  arbitrary or unreasonable if:
  158         (a) The action was filed with the court no later than 90
  159  days after the adoption of the ordinance;
  160         (b) The complainant requests suspension in the initial
  161  complaint or petition, citing this section; and
  162         (c) The county has been served with a copy of the complaint
  163  or petition.
  164         (2) The court shall give cases in which the enforcement of
  165  an ordinance is suspended under this section priority over other
  166  pending cases and shall render a preliminary or final decision
  167  on the validity of the ordinance as expeditiously as possible.
  168         (3) In determining whether an ordinance is arbitrary or
  169  unreasonable, the court shall consider, but is not limited to,
  170  the following factors:
  171         (a) The extent to which the ordinance protects the health,
  172  welfare, safety, and quality of life of the residents of the
  173  county;
  174         (b) The impact of the ordinance on the personal rights and
  175  privileges of the residents of the county;
  176         (c) The total economic impact of the ordinance; and
  177         (d) The business impact estimate prepared by the county as
  178  required by s. 125.66(3).
  179         (4) This section does not apply to local ordinances enacted
  180  to implement the following:
  181         (a) Part II of chapter 163;
  182         (b) Section 553.73;
  183         (c) Section 633.202;
  184         (d) Ordinances required to comply with federal or state law
  185  or regulation;
  186         (e) Ordinances related to the issuance or refinancing of
  187  debt;
  188         (f) Ordinances related to the adoption of budgets or budget
  189  amendments; or
  190         (g) Ordinances required to implement a contract or an
  191  agreement, including, but not limited to, any federal, state,
  192  local, or private grant, or other financial assistance accepted
  193  by a county government.
  194         (5) The court may award attorney fees and costs as provided
  195  in s. 57.112.
  196         Section 4. Present subsections (4) through (8) of section
  197  166.041, Florida Statutes, are redesignated as subsections (5)
  198  through (9), respectively, and a new subsection (4) is added to
  199  that section, to read:
  200         166.041 Procedures for adoption of ordinances and
  201  resolutions.—
  202         (4)(a) Before the enactment of a proposed ordinance, the
  203  governing body of a municipality shall prepare a business impact
  204  estimate in accordance with this subsection. The business impact
  205  estimate must be posted on the municipality’s website on the
  206  same day the notice of proposed enactment is published pursuant
  207  to paragraph (3)(a) and must include all of the following:
  208         1. A summary of the proposed ordinance, including a
  209  statement of the public purpose to be served by the proposed
  210  ordinance, such as serving the public health, safety, morals,
  211  and welfare of the municipality.
  212         2. An estimate of the direct economic impact of the
  213  proposed ordinance on private for-profit businesses in the
  214  municipality, including the following, if any:
  215         a. An estimate of direct compliance costs businesses may
  216  reasonably incur if the ordinance is enacted;
  217         b. Identification of any new charge or fee on businesses
  218  subject to the proposed ordinance, or for which businesses will
  219  be financially responsible; and
  220         c. An estimate of the municipality’s regulatory costs,
  221  including an estimate of revenues from any new charges or fees
  222  that will be imposed on businesses to cover such costs.
  223         3. A good faith estimate of the number of businesses likely
  224  to be impacted by the ordinance.
  225         4. Any additional information the governing body determines
  226  may be useful.
  227         (b) This subsection may not be construed to require a
  228  municipality to procure an accountant or other financial
  229  consultant to prepare the business impact estimate required by
  230  this subsection.
  231         (c) This subsection does not apply to an emergency
  232  ordinance enacted pursuant to this section.
  233         Section 5. Section 166.0411, Florida Statutes, is created
  234  to read:
  235         166.0411 Legal challenges to certain recently enacted
  236  ordinances.—
  237         (1) A municipality must suspend enforcement of an ordinance
  238  that is the subject of an action, including appeals, challenging
  239  the ordinance’s validity on the grounds that it is expressly
  240  preempted by the State Constitution or by state law or is
  241  arbitrary or unreasonable if:
  242         (a) The action was filed with the court no later than 90
  243  days after the adoption of the ordinance;
  244         (b) The complainant requests suspension in the initial
  245  complaint or petition, citing this section; and
  246         (c) The municipality has been served with a copy of the
  247  complaint or petition.
  248         (2) The court shall give cases in which the enforcement of
  249  an ordinance is suspended under this section priority over other
  250  pending cases and shall render a preliminary or final decision
  251  on the validity of the ordinance as expeditiously as possible.
  252         (3) In determining whether an ordinance is arbitrary or
  253  unreasonable, the court shall consider, but is not limited to,
  254  the following factors:
  255         (a) The extent to which the ordinance protects the health,
  256  welfare, safety, and quality of life of the residents of the
  257  municipality;
  258         (b) The impact of the ordinance on the personal rights and
  259  privileges of the residents of the municipality;
  260         (c) The total economic impact of the ordinance; and
  261         (d) The business impact estimate prepared by the
  262  municipality as required by s. 166.041(4).
  263         (4) This section does not apply to local ordinances enacted
  264  to implement the following:
  265         (a) Part II of chapter 163;
  266         (b) Section 553.73;
  267         (c) Section 633.202;
  268         (d) Ordinances required to comply with federal or state law
  269  or regulation;
  270         (e) Ordinances related to the issuance or refinancing of
  271  debt;
  272         (f) Ordinances related to the adoption of budgets or budget
  273  amendments; or
  274         (g) Ordinances required to implement a contract or
  275  agreement, including, but not limited to, any federal, state,
  276  local, or private grant, or other financial assistance accepted
  277  by a municipal government.
  278         (5) The court may award attorney fees and costs as provided
  279  in s. 57.112.
  280         Section 6. Subsection (5) of section 163.2517, Florida
  281  Statutes, is amended to read:
  282         163.2517 Designation of urban infill and redevelopment
  283  area.—
  284         (5) After the preparation of an urban infill and
  285  redevelopment plan or designation of an existing plan, the local
  286  government shall adopt the plan by ordinance. Notice for the
  287  public hearing on the ordinance must be in the form established
  288  in s. 166.041(3)(c)2. for municipalities, and s. 125.66(5)(b)2.
  289  s. 125.66(4)(b)2. for counties.
  290         Section 7. Paragraph (a) of subsection (3) of section
  291  163.3181, Florida Statutes, is amended to read:
  292         163.3181 Public participation in the comprehensive planning
  293  process; intent; alternative dispute resolution.—
  294         (3) A local government considering undertaking a publicly
  295  financed capital improvement project may elect to use the
  296  procedures set forth in this subsection for the purpose of
  297  allowing public participation in the decision and resolution of
  298  disputes. For purposes of this subsection, a publicly financed
  299  capital improvement project is a physical structure or
  300  structures, the funding for construction, operation, and
  301  maintenance of which is financed entirely from public funds.
  302         (a) Prior to the date of a public hearing on the decision
  303  on whether to proceed with the proposed project, the local
  304  government shall publish public notice of its intent to decide
  305  the issue according to the notice procedures described by s.
  306  125.66(5)(b)2. s. 125.66(4)(b)2. for a county or s.
  307  166.041(3)(c)2.b. for a municipality.
  308         Section 8. Paragraph (a) of subsection (4) of section
  309  163.3215, Florida Statutes, is amended to read:
  310         163.3215 Standing to enforce local comprehensive plans
  311  through development orders.—
  312         (4) If a local government elects to adopt or has adopted an
  313  ordinance establishing, at a minimum, the requirements listed in
  314  this subsection, the sole method by which an aggrieved and
  315  adversely affected party may challenge any decision of local
  316  government granting or denying an application for a development
  317  order, as defined in s. 163.3164, which materially alters the
  318  use or density or intensity of use on a particular piece of
  319  property, on the basis that it is not consistent with the
  320  comprehensive plan adopted under this part, is by an appeal
  321  filed by a petition for writ of certiorari filed in circuit
  322  court no later than 30 days following rendition of a development
  323  order or other written decision of the local government, or when
  324  all local administrative appeals, if any, are exhausted,
  325  whichever occurs later. An action for injunctive or other relief
  326  may be joined with the petition for certiorari. Principles of
  327  judicial or administrative res judicata and collateral estoppel
  328  apply to these proceedings. Minimum components of the local
  329  process are as follows:
  330         (a) The local process must make provision for notice of an
  331  application for a development order that materially alters the
  332  use or density or intensity of use on a particular piece of
  333  property, including notice by publication or mailed notice
  334  consistent with the provisions of ss. 125.66(5)(b)2. and 3. and
  335  166.041(3)(c)2.b. and c. ss. 125.66(4)(b)2. and 3. and
  336  166.041(3)(c)2.b. and c., and must require prominent posting at
  337  the job site. The notice must be given within 10 days after the
  338  filing of an application for a development order; however,
  339  notice under this subsection is not required for an application
  340  for a building permit or any other official action of local
  341  government which does not materially alter the use or density or
  342  intensity of use on a particular piece of property. The notice
  343  must clearly delineate that an aggrieved or adversely affected
  344  person has the right to request a quasi-judicial hearing before
  345  the local government for which the application is made, must
  346  explain the conditions precedent to the appeal of any
  347  development order ultimately rendered upon the application, and
  348  must specify the location where written procedures can be
  349  obtained that describe the process, including how to initiate
  350  the quasi-judicial process, the timeframes for initiating the
  351  process, and the location of the hearing. The process may
  352  include an opportunity for an alternative dispute resolution.
  353         Section 9. Paragraph (c) of subsection (1) of section
  354  376.80, Florida Statutes, is amended to read:
  355         376.80 Brownfield program administration process.—
  356         (1) The following general procedures apply to brownfield
  357  designations:
  358         (c) Except as otherwise provided, the following provisions
  359  apply to all proposed brownfield area designations:
  360         1. Notification to department following adoption.—A local
  361  government with jurisdiction over the brownfield area must
  362  notify the department, and, if applicable, the local pollution
  363  control program under s. 403.182, of its decision to designate a
  364  brownfield area for rehabilitation for the purposes of ss.
  365  376.77-376.86. The notification must include a resolution
  366  adopted by the local government body. The local government shall
  367  notify the department, and, if applicable, the local pollution
  368  control program under s. 403.182, of the designation within 30
  369  days after adoption of the resolution.
  370         2. Resolution adoption.—The brownfield area designation
  371  must be carried out by a resolution adopted by the
  372  jurisdictional local government, which includes a map adequate
  373  to clearly delineate exactly which parcels are to be included in
  374  the brownfield area or alternatively a less-detailed map
  375  accompanied by a detailed legal description of the brownfield
  376  area. For municipalities, the governing body shall adopt the
  377  resolution in accordance with the procedures outlined in s.
  378  166.041, except that the procedures for the public hearings on
  379  the proposed resolution must be in the form established in s.
  380  166.041(3)(c)2. For counties, the governing body shall adopt the
  381  resolution in accordance with the procedures outlined in s.
  382  125.66, except that the procedures for the public hearings on
  383  the proposed resolution shall be in the form established in s.
  384  125.66(5)(b) s. 125.66(4)(b).
  385         3. Right to be removed from proposed brownfield area.—If a
  386  property owner within the area proposed for designation by the
  387  local government requests in writing to have his or her property
  388  removed from the proposed designation, the local government
  389  shall grant the request.
  390         4. Notice and public hearing requirements for designation
  391  of a proposed brownfield area outside a redevelopment area or by
  392  a nongovernmental entity. Compliance with the following
  393  provisions is required before designation of a proposed
  394  brownfield area under paragraph (2)(a) or paragraph (2)(c):
  395         a. At least one of the required public hearings shall be
  396  conducted as closely as is reasonably practicable to the area to
  397  be designated to provide an opportunity for public input on the
  398  size of the area, the objectives for rehabilitation, job
  399  opportunities and economic developments anticipated,
  400  neighborhood residents’ considerations, and other relevant local
  401  concerns.
  402         b. Notice of a public hearing must be made in a newspaper
  403  of general circulation in the area, must be made in ethnic
  404  newspapers or local community bulletins, must be posted in the
  405  affected area, and must be announced at a scheduled meeting of
  406  the local governing body before the actual public hearing.
  407         Section 10. Paragraph (a) of subsection (3) of section
  408  497.270, Florida Statutes, is amended to read:
  409         497.270 Minimum acreage; sale or disposition of cemetery
  410  lands.—
  411         (3)(a) If the property to be sold, conveyed, or disposed of
  412  under subsection (2) has been or is being used for the permanent
  413  interment of human remains, the applicant for approval of such
  414  sale, conveyance, or disposition shall cause to be published, at
  415  least once a week for 4 consecutive weeks, a notice meeting the
  416  standards of publication set forth in s. 125.66(5)(b)2. s.
  417  125.66(4)(b)2. The notice shall describe the property in
  418  question and the proposed noncemetery use and shall advise
  419  substantially affected persons that they may file a written
  420  request for a hearing pursuant to chapter 120, within 14 days
  421  after the date of last publication of the notice, with the
  422  department if they object to granting the applicant’s request to
  423  sell, convey, or dispose of the subject property for noncemetery
  424  uses.
  425         Section 11. Paragraph (a) of subsection (2) of section
  426  562.45, Florida Statutes, is amended to read:
  427         562.45 Penalties for violating Beverage Law; local
  428  ordinances; prohibiting regulation of certain activities or
  429  business transactions; requiring nondiscriminatory treatment;
  430  providing exceptions.—
  431         (2)(a) Nothing contained in the Beverage Law shall be
  432  construed to affect or impair the power or right of any county
  433  or incorporated municipality of the state to enact ordinances
  434  regulating the hours of business and location of place of
  435  business, and prescribing sanitary regulations therefor, of any
  436  licensee under the Beverage Law within the county or corporate
  437  limits of such municipality. However, except for premises
  438  licensed on or before July 1, 1999, and except for locations
  439  that are licensed as restaurants, which derive at least 51
  440  percent of their gross revenues from the sale of food and
  441  nonalcoholic beverages, pursuant to chapter 509, a location for
  442  on-premises consumption of alcoholic beverages may not be
  443  located within 500 feet of the real property that comprises a
  444  public or private elementary school, middle school, or secondary
  445  school unless the county or municipality approves the location
  446  as promoting the public health, safety, and general welfare of
  447  the community under proceedings as provided in s. 125.66(5) s.
  448  125.66(4), for counties, and s. 166.041(3)(c), for
  449  municipalities. This restriction shall not, however, be
  450  construed to prohibit the issuance of temporary permits to
  451  certain nonprofit organizations as provided for in s. 561.422.
  452  The division may not issue a change in the series of a license
  453  or approve a change of a licensee’s location unless the licensee
  454  provides documentation of proper zoning from the appropriate
  455  county or municipal zoning authorities.
  456         Section 12. Subsection (1) of section 847.0134, Florida
  457  Statutes, is amended to read:
  458         847.0134 Prohibition of adult entertainment establishment
  459  that displays, sells, or distributes materials harmful to minors
  460  within 2,500 feet of a school.—
  461         (1) Except for those establishments that are legally
  462  operating or have been granted a permit from a local government
  463  to operate as adult entertainment establishments on or before
  464  July 1, 2001, an adult entertainment establishment that sells,
  465  rents, loans, distributes, transmits, shows, or exhibits any
  466  obscene material, as described in s. 847.0133, or presents live
  467  entertainment or a motion picture, slide, or other exhibit that,
  468  in whole or in part, depicts nudity, sexual conduct, sexual
  469  excitement, sexual battery, sexual bestiality, or
  470  sadomasochistic abuse and that is harmful to minors, as
  471  described in s. 847.001, may not be located within 2,500 feet of
  472  the real property that comprises a public or private elementary
  473  school, middle school, or secondary school unless the county or
  474  municipality approves the location under proceedings as provided
  475  in s. 125.66(5) s. 125.66(4) for counties or s. 166.041(3)(c)
  476  for municipalities.
  477         Section 13. The Legislature finds and declares that this
  478  act fulfills an important state interest.
  479         Section 14. This act shall take effect October 1, 2022.