Bill Text: FL S0998 | 2011 | Regular Session | Introduced

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

---

Bill Title: Property Rights

Spectrum: Moderate Partisan Bill (Republican 10-1-1)

Status: (Introduced - Dead) 2011-04-27 - Read 2nd time -SJ 514 [S0998 Detail]

Download: Florida-2011-S0998-Introduced.html

---

       Florida Senate - 2011                                     SB 998
       
       
       
       By Senator Simmons
       
       
       
       
       22-01045-11                                            2011998__
    1                        A bill to be entitled                      
    2         An act relating to property rights; amending s.
    3         70.001, F.S.; revising a definition; shortening a
    4         notice period for certain actions; providing for the
    5         state land planning agency to receive notice of
    6         claims; revising procedures for determining a
    7         governmental entity’s final decision identifying the
    8         allowable uses for a property; providing that
    9         enactment of a law or adoption of a regulation does
   10         not constitute applying the law or regulation;
   11         providing for a waiver of sovereign immunity for
   12         liability; providing for prospective application;
   13         providing an effective date.
   14  
   15         WHEREAS, the Legislature wishes to clarify its original
   16  intent with respect to allowing appropriate compensation for
   17  unduly burdened real property and to provide a waiver of
   18  sovereign immunity under section 70.001, Florida Statutes, the
   19  Bert J. Harris, Jr., Private Property Rights Protection Act, to
   20  conform statutory language to Royal World Metropolitan, Inc. v.
   21  City of Miami Beach, 863 So.2d 320 (Fla. 3rd D.C.A. 2003), and
   22         WHEREAS, the Legislature wishes to emphasize the
   23  alternative bases under this act for determining an existing
   24  use, and to correct and to clarify that certain determinations
   25  under this act are questions of law and fact, considered in City
   26  of Jacksonville v. Coffield, 18 So.3d 589 (Fla. 1st D.C.A.
   27  2009), and
   28         WHEREAS, the Legislature wishes to correct and to clarify
   29  its original intent with respect to what constitutes the first
   30  application of a law or regulation under the act, considered in
   31  Citrus County, Florida v. Halls River Development, Inc., 8 So.3d
   32  413 (Fla. 5th D.C.A. 2009), and M & H Profit, Inc. v. City of
   33  Panama City, 28 So.3d 71 (Fla. 1st D.C.A. 2010), and
   34         WHEREAS, the Legislature wishes to make other changes to
   35  clarify provisions of this act, NOW, THEREFORE,
   36  
   37  Be It Enacted by the Legislature of the State of Florida:
   38  
   39         Section 1. Paragraphs (b) and (e) of subsection (3),
   40  paragraphs (a) and (c) of subsection (4), and subsections (5),
   41  (6), (11), and (13) of section 70.001, Florida Statutes, are
   42  amended to read:
   43         70.001 Private property rights protection.—
   44         (3) For purposes of this section:
   45         (b) The term “existing use” means:
   46         1. An actual, present use or activity on the real property,
   47  including periods of inactivity which are normally associated
   48  with, or are incidental to, the nature or type of use; or
   49         2. Activity or such reasonably foreseeable, nonspeculative
   50  land uses which are suitable for the subject real property and
   51  compatible with adjacent land uses and which have created an
   52  existing fair market value in the property greater than the fair
   53  market value of the actual, present use or activity on the real
   54  property.
   55         (e) The terms “inordinate burden” and or “inordinately
   56  burdened” mean that an action of one or more governmental
   57  entities has directly restricted or limited the use of real
   58  property such that the property owner is permanently unable to
   59  attain the reasonable, investment-backed expectation for the
   60  existing use of the real property or a vested right to a
   61  specific use of the real property with respect to the real
   62  property as a whole, or that the property owner is left with
   63  existing or vested uses that are unreasonable such that the
   64  property owner bears permanently a disproportionate share of a
   65  burden imposed for the good of the public, which in fairness
   66  should be borne by the public at large. The terms “inordinate
   67  burden” and or “inordinately burdened” do not include temporary
   68  impacts to real property; impacts to real property occasioned by
   69  governmental abatement, prohibition, prevention, or remediation
   70  of a public nuisance at common law or a noxious use of private
   71  property; or impacts to real property caused by an action of a
   72  governmental entity taken to grant relief to a property owner
   73  under this section; however, a moratorium on development, as
   74  defined in s. 380.04, that is in effect for longer than 1 year
   75  is not a temporary impact to real property and, thus, depending
   76  upon the particular circumstances, may constitute an “inordinate
   77  burden” as provided in this paragraph.
   78         (4)(a) Not less than 120 180 days prior to filing an action
   79  under this section against a governmental entity, a property
   80  owner who seeks compensation under this section must present the
   81  claim in writing to the head of the governmental entity, except
   82  that if the property is classified as agricultural pursuant to
   83  s. 193.461, the notice period is 90 days. The property owner
   84  must submit, along with the claim, a bona fide, valid appraisal
   85  that supports the claim and demonstrates the loss in fair market
   86  value to the real property. If the action of government is the
   87  culmination of a process that involves more than one
   88  governmental entity, or if a complete resolution of all relevant
   89  issues, in the view of the property owner or in the view of a
   90  governmental entity to whom a claim is presented, requires the
   91  active participation of more than one governmental entity, the
   92  property owner shall present the claim as provided in this
   93  section to each of the governmental entities.
   94         (c) During the 90-day-notice period or the 120-day-notice
   95  180-day-notice period, unless extended by agreement of the
   96  parties, the governmental entity shall make a written settlement
   97  offer to effectuate:
   98         1. An adjustment of land development or permit standards or
   99  other provisions controlling the development or use of land.
  100         2. Increases or modifications in the density, intensity, or
  101  use of areas of development.
  102         3. The transfer of developmental rights.
  103         4. Land swaps or exchanges.
  104         5. Mitigation, including payments in lieu of onsite
  105  mitigation.
  106         6. Location on the least sensitive portion of the property.
  107         7. Conditioning the amount of development or use permitted.
  108         8. A requirement that issues be addressed on a more
  109  comprehensive basis than a single proposed use or development.
  110         9. Issuance of the development order, a variance, special
  111  exception, or other extraordinary relief.
  112         10. Purchase of the real property, or an interest therein,
  113  by an appropriate governmental entity or payment of
  114  compensation.
  115         11. No changes to the action of the governmental entity.
  116  
  117  If the property owner accepts the settlement offer, the
  118  governmental entity may implement the settlement offer by
  119  appropriate development agreement; by issuing a variance,
  120  special exception, or other extraordinary relief; or by other
  121  appropriate method, subject to paragraph (d).
  122         (5)(a) During the 90-day-notice period or the 120-day
  123  notice 180-day-notice period, unless a settlement offer is
  124  accepted by the property owner, each of the governmental
  125  entities provided notice pursuant to paragraph (4)(a) shall
  126  issue a written ripeness decision identifying the allowable uses
  127  to which the subject property may be put. The failure of the
  128  governmental entity to issue such a written ripeness decision
  129  during the applicable 90-day-notice period or 120-day-notice
  130  180-day-notice period shall cause be deemed to ripen the prior
  131  action of the governmental entity to become its final decision,
  132  for purposes of this section, identifying the uses for the
  133  subject property, and shall operate as a ripeness decision that
  134  has been rejected by the property owner. Whether rendered by
  135  submission of a written decision during the 120-day-notice
  136  period or by failure to submit such a written decision, the
  137  final decision of the governmental entity produced under this
  138  paragraph operates as a final decision that has been rejected by
  139  the property owner. This final The ripeness decision, as a
  140  matter of law, constitutes the last prerequisite to judicial
  141  review on the merits, and the matter shall be deemed ripe or
  142  final for the purposes of the judicial proceeding created by
  143  this section, notwithstanding the availability of other
  144  administrative remedies.
  145         (b) If the property owner rejects the settlement offer and
  146  the final ripeness decision of the governmental entity or
  147  entities, the property owner may file a claim for compensation
  148  in the circuit court, a copy of which shall be served
  149  contemporaneously on the head of each of the governmental
  150  entities that made a settlement offer and a final ripeness
  151  decision that was rejected by the property owner. Actions under
  152  this section shall be brought only in the county where the real
  153  property is located.
  154         (6)(a) The circuit court shall determine whether an
  155  existing use of the real property or a vested right to a
  156  specific use of the real property existed and, if so, whether,
  157  considering the settlement offer and final ripeness decision,
  158  the governmental entity or entities have inordinately burdened
  159  the real property. If the actions of more than one governmental
  160  entity, considering any settlement offers and final ripeness
  161  decisions, are responsible for the action that imposed the
  162  inordinate burden on the real property of the property owner,
  163  the court shall determine the percentage of responsibility each
  164  such governmental entity bears with respect to the inordinate
  165  burden. A governmental entity may take an interlocutory appeal
  166  of the court’s determination that the action of the governmental
  167  entity has resulted in an inordinate burden. An interlocutory
  168  appeal does not automatically stay the proceedings; however, the
  169  court may stay the proceedings during the pendency of the
  170  interlocutory appeal. If the governmental entity does not
  171  prevail in the interlocutory appeal, the court shall award to
  172  the prevailing property owner the costs and a reasonable
  173  attorney fee incurred by the property owner in the interlocutory
  174  appeal.
  175         (b) Following its determination of the percentage of
  176  responsibility of each governmental entity, and following the
  177  resolution of any interlocutory appeal, the court shall impanel
  178  a jury to determine the total amount of compensation to the
  179  property owner for the loss in value due to the inordinate
  180  burden to the real property. The award of compensation shall be
  181  determined by calculating the difference in the fair market
  182  value of the real property, as it existed at the time of the
  183  governmental action at issue, as though the owner had the
  184  ability to attain the reasonable investment-backed expectation
  185  or was not left with uses that are unreasonable, whichever the
  186  case may be, and the fair market value of the real property, as
  187  it existed at the time of the governmental action at issue, as
  188  inordinately burdened, considering the settlement offer together
  189  with the final ripeness decision, of the governmental entity or
  190  entities. In determining the award of compensation,
  191  consideration may not be given to business damages relative to
  192  any development, activity, or use that the action of the
  193  governmental entity or entities, considering the settlement
  194  offer together with the final ripeness decision, has restricted,
  195  limited, or prohibited. The award of compensation shall include
  196  a reasonable award of prejudgment interest from the date the
  197  claim was presented to the governmental entity or entities as
  198  provided in subsection (4).
  199         (c)1. In any action filed pursuant to this section, the
  200  property owner is entitled to recover reasonable costs and
  201  attorney fees incurred by the property owner, from the
  202  governmental entity or entities, according to their
  203  proportionate share as determined by the court, from the date of
  204  the filing of the circuit court action, if the property owner
  205  prevails in the action and the court determines that the
  206  settlement offer, including the final ripeness decision, of the
  207  governmental entity or entities did not constitute a bona fide
  208  offer to the property owner which reasonably would have resolved
  209  the claim, based upon the knowledge available to the
  210  governmental entity or entities and the property owner during
  211  the 90-day-notice period or the 120-day-notice 180-day-notice
  212  period.
  213         2. In any action filed pursuant to this section, the
  214  governmental entity or entities are entitled to recover
  215  reasonable costs and attorney fees incurred by the governmental
  216  entity or entities from the date of the filing of the circuit
  217  court action, if the governmental entity or entities prevail in
  218  the action and the court determines that the property owner did
  219  not accept a bona fide settlement offer, including the final
  220  ripeness decision, which reasonably would have resolved the
  221  claim fairly to the property owner if the settlement offer had
  222  been accepted by the property owner, based upon the knowledge
  223  available to the governmental entity or entities and the
  224  property owner during the 90-day-notice period or the 120-day
  225  notice 180-day-notice period.
  226         3. The determination of total reasonable costs and attorney
  227  fees pursuant to this paragraph shall be made by the court and
  228  not by the jury. Any proposed settlement offer or any proposed
  229  ripeness decision, except for the final written settlement offer
  230  or the final written ripeness decision, and any negotiations or
  231  rejections in regard to the formulation either of the settlement
  232  offer or the final ripeness decision, are inadmissible in the
  233  subsequent proceeding established by this section except for the
  234  purposes of the determination pursuant to this paragraph.
  235         (d) Within 15 days after the execution of any settlement
  236  pursuant to this section, or the issuance of any judgment
  237  pursuant to this section, the governmental entity shall provide
  238  a copy of the settlement or judgment to the Department of Legal
  239  Affairs.
  240         (11) A cause of action may not be commenced under this
  241  section if the claim is presented more than 1 year after a law
  242  or regulation is first applied by the governmental entity to the
  243  property at issue. For purposes of this section, enacting a law
  244  or adopting a regulation does not constitute applying the law or
  245  regulation to a property. If an owner seeks relief from the
  246  governmental action through lawfully available administrative or
  247  judicial proceedings, the time for bringing an action under this
  248  section is tolled until the conclusion of such proceedings.
  249         (13) In accordance with s. 13, Art. X of the State
  250  Constitution, the state, for itself and for its agencies or
  251  political subdivisions, waives sovereign immunity for causes of
  252  action based upon the application of any law, regulation, or
  253  ordinance subject to this section, but only to the extent
  254  specified in this section. This section does not affect the
  255  sovereign immunity of government.
  256         Section 2. The amendments to s. 70.001, Florida Statutes,
  257  made by this act apply prospectively only and do not apply to
  258  any claim or action filed under s. 70.001, Florida Statutes,
  259  which is pending on the effective date of this act.
  260         Section 3. This act shall take effect July 1, 2011.