Bill Text: FL S1730 | 2019 | Regular Session | Introduced

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

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Bill Title: Community Development and Housing

Spectrum: Slight Partisan Bill (? 3-1)

Status: (Introduced - Dead) 2019-05-02 - Laid on Table, companion bill(s) passed, see CS/HB 207 (Ch. 2019-106), CS/CS/HB 7103 (Ch. 2019-165) [S1730 Detail]

Download: Florida-2019-S1730-Introduced.html

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       Florida Senate - 2019                                    SB 1730
       
       
        
       By Senator Lee
       
       
       
       
       
       20-01705A-19                                          20191730__
    1                        A bill to be entitled                      
    2         An act relating to growth management; amending s.
    3         125.01055, F.S.; prohibiting a county from adopting or
    4         imposing a requirement in any form relating to
    5         affordable housing which has specified effects;
    6         providing construction; amending s. 125.022, F.S.;
    7         requiring that a county review the application for
    8         completeness and issue a certain letter within a
    9         specified period after receiving an application for
   10         approval of a development permit or development order;
   11         providing procedures for addressing deficiencies in,
   12         and for approving or denying, the application;
   13         conforming provisions to changes made by the act;
   14         defining the term “development order”; amending s.
   15         163.3180, F.S.; requiring a local government to credit
   16         certain contributions, constructions, expansions, or
   17         payments toward any other impact fee or exaction
   18         imposed by local ordinance for public educational
   19         facilities; providing requirements for the basis of
   20         the credit; amending s. 163.31801, F.S.; adding
   21         minimum conditions that certain impact fees must
   22         satisfy; requiring that, under certain circumstances,
   23         a holder of certain impact fee or mobility fee credits
   24         receive the full value of the credit as of the date it
   25         was first established based on the impact fee or
   26         mobility fee rate that was in effect on such date;
   27         providing that the government, in certain actions, has
   28         the burden of proving by a preponderance of the
   29         evidence that the imposition or amount of impact fees
   30         or required dollar-for-dollar credits for the payment
   31         of impact fees meets certain requirements; prohibiting
   32         the court from using a deferential standard for the
   33         benefit of the government; authorizing the court to
   34         award attorney fees and costs to the prevailing party
   35         in any action challenging an impact fee; requiring
   36         that the court award attorney fees and costs to a
   37         prevailing property owner if the court makes specified
   38         determinations regarding the impact fee; providing
   39         applicability; prohibiting a local government from
   40         imposing concurrency mitigation conditions of any kind
   41         on a project if the government does not provide
   42         certain required credits; prohibiting a local
   43         government, beginning on a specified date, from
   44         charging an impact fee for the development or
   45         construction of housing that is affordable; amending
   46         s. 166.033, F.S.; requiring that a municipality review
   47         the application for completeness and issue a certain
   48         letter within a specified period after receiving an
   49         application for approval of a development permit or
   50         development order; providing procedures for addressing
   51         deficiencies in, and for approving or denying, the
   52         application; conforming provisions to changes made by
   53         the act; defining the term “development order”;
   54         amending s. 166.04151, F.S.; prohibiting a
   55         municipality from adopting or imposing a requirement
   56         in any form relating to affordable housing which has
   57         specified effects; providing construction; providing
   58         an effective date.
   59          
   60  Be It Enacted by the Legislature of the State of Florida:
   61  
   62         Section 1. Section 125.01055, Florida Statutes, is amended
   63  to read:
   64         125.01055 Affordable housing.—
   65         (1) Notwithstanding any other provision of law, a county
   66  may adopt and maintain in effect any law, ordinance, rule, or
   67  other measure that is adopted for the purpose of increasing the
   68  supply of affordable housing using land use mechanisms such as
   69  inclusionary housing ordinances. A county may not, however,
   70  adopt or impose a requirement in any form, including, without
   71  limitation, by way of a comprehensive plan amendment, ordinance,
   72  or land development regulation or as a condition of a
   73  development order or development permit, which has any of the
   74  following effects:
   75         (a) Mandating or establishing a maximum sales price or
   76  lease rental for privately produced dwelling units.
   77         (b) Requiring the allocation or designation, whether
   78  directly or indirectly, of privately produced dwelling units for
   79  sale or rental to any particular class or group of purchasers or
   80  tenants.
   81         (c) Requiring the provision of any on-site or off-site
   82  workforce or affordable housing units or a contribution of land
   83  or money for such housing, including, but not limited to, the
   84  payment of any flat or percentage-based fee, whether calculated
   85  on the basis of the number of approved dwelling units, the
   86  amount of approved square footage, or otherwise.
   87         (2) This section does not limit the authority of a county
   88  to create or implement a voluntary density bonus program or any
   89  other voluntary incentive-based program designed to increase the
   90  supply of workforce or affordable housing units.
   91         Section 2. Section 125.022, Florida Statutes, is amended to
   92  read:
   93         125.022 Development permits and orders.—
   94         (1) Within 30 days after receiving an application for a
   95  development permit or development order, a county must review
   96  the application for completeness and issue a letter indicating
   97  that all required information is submitted or specifying with
   98  particularity any areas that are deficient. If deficient, the
   99  applicant has 30 days to address the deficiencies by submitting
  100  the required additional information. Within 90 days after the
  101  initial submission, if complete, or the supplemental submission,
  102  whichever is later, the county shall approve, approve with
  103  conditions, or deny the application for a development permit or
  104  development order. The time periods contained in this section
  105  may be waived in writing by the applicant. An approval, approval
  106  with conditions, or denial of the application for a development
  107  permit or development order must include written findings
  108  supporting the county’s decision.
  109         (2)(1) When reviewing an application for a development
  110  permit or development order that is certified by a professional
  111  listed in s. 403.0877, a county may not request additional
  112  information from the applicant more than three times, unless the
  113  applicant waives the limitation in writing. Before a third
  114  request for additional information, the applicant must be
  115  offered a meeting to attempt to resolve outstanding issues.
  116  Except as provided in subsection (5)(4), if the applicant
  117  believes the request for additional information is not
  118  authorized by ordinance, rule, statute, or other legal
  119  authority, the county, at the applicant’s request, shall proceed
  120  to process the application for approval or denial.
  121         (3)(2) When a county denies an application for a
  122  development permit or development order, the county shall give
  123  written notice to the applicant. The notice must include a
  124  citation to the applicable portions of an ordinance, rule,
  125  statute, or other legal authority for the denial of the permit
  126  or order.
  127         (4)(3) As used in this section, the terms term “development
  128  permit” and “development order” have has the same meaning as in
  129  s. 163.3164, but do does not include building permits.
  130         (5)(4) For any development permit application filed with
  131  the county after July 1, 2012, a county may not require as a
  132  condition of processing or issuing a development permit or
  133  development order that an applicant obtain a permit or approval
  134  from any state or federal agency unless the agency has issued a
  135  final agency action that denies the federal or state permit
  136  before the county action on the local development permit.
  137         (6)(5) Issuance of a development permit or development
  138  order by a county does not in any way create any rights on the
  139  part of the applicant to obtain a permit from a state or federal
  140  agency and does not create any liability on the part of the
  141  county for issuance of the permit if the applicant fails to
  142  obtain requisite approvals or fulfill the obligations imposed by
  143  a state or federal agency or undertakes actions that result in a
  144  violation of state or federal law. A county shall attach such a
  145  disclaimer to the issuance of a development permit and shall
  146  include a permit condition that all other applicable state or
  147  federal permits be obtained before commencement of the
  148  development.
  149         (7)(6) This section does not prohibit a county from
  150  providing information to an applicant regarding what other state
  151  or federal permits may apply.
  152         Section 3. Paragraph (h) of subsection (6) of section
  153  163.3180, Florida Statutes, is amended to read:
  154         163.3180 Concurrency.—
  155         (6)
  156         (h)1. In order to limit the liability of local governments,
  157  a local government may allow a landowner to proceed with
  158  development of a specific parcel of land notwithstanding a
  159  failure of the development to satisfy school concurrency, if all
  160  the following factors are shown to exist:
  161         a. The proposed development would be consistent with the
  162  future land use designation for the specific property and with
  163  pertinent portions of the adopted local plan, as determined by
  164  the local government.
  165         b. The local government’s capital improvements element and
  166  the school board’s educational facilities plan provide for
  167  school facilities adequate to serve the proposed development,
  168  and the local government or school board has not implemented
  169  that element or the project includes a plan that demonstrates
  170  that the capital facilities needed as a result of the project
  171  can be reasonably provided.
  172         c. The local government and school board have provided a
  173  means by which the landowner will be assessed a proportionate
  174  share of the cost of providing the school facilities necessary
  175  to serve the proposed development.
  176         2. If a local government applies school concurrency, it may
  177  not deny an application for site plan, final subdivision
  178  approval, or the functional equivalent for a development or
  179  phase of a development authorizing residential development for
  180  failure to achieve and maintain the level-of-service standard
  181  for public school capacity in a local school concurrency
  182  management system where adequate school facilities will be in
  183  place or under actual construction within 3 years after the
  184  issuance of final subdivision or site plan approval, or the
  185  functional equivalent. School concurrency is satisfied if the
  186  developer executes a legally binding commitment to provide
  187  mitigation proportionate to the demand for public school
  188  facilities to be created by actual development of the property,
  189  including, but not limited to, the options described in sub
  190  subparagraph a. Options for proportionate-share mitigation of
  191  impacts on public school facilities must be established in the
  192  comprehensive plan and the interlocal agreement pursuant to s.
  193  163.31777.
  194         a. Appropriate mitigation options include the contribution
  195  of land; the construction, expansion, or payment for land
  196  acquisition or construction of a public school facility; the
  197  construction of a charter school that complies with the
  198  requirements of s. 1002.33(18); or the creation of mitigation
  199  banking based on the construction of a public school facility in
  200  exchange for the right to sell capacity credits. Such options
  201  must include execution by the applicant and the local government
  202  of a development agreement that constitutes a legally binding
  203  commitment to pay proportionate-share mitigation for the
  204  additional residential units approved by the local government in
  205  a development order and actually developed on the property,
  206  taking into account residential density allowed on the property
  207  prior to the plan amendment that increased the overall
  208  residential density. The district school board must be a party
  209  to such an agreement. As a condition of its entry into such a
  210  development agreement, the local government may require the
  211  landowner to agree to continuing renewal of the agreement upon
  212  its expiration.
  213         b. If the interlocal agreement and the local government
  214  comprehensive plan authorize a contribution of land; the
  215  construction, expansion, or payment for land acquisition; the
  216  construction or expansion of a public school facility, or a
  217  portion thereof; or the construction of a charter school that
  218  complies with the requirements of s. 1002.33(18), as
  219  proportionate-share mitigation, the local government shall
  220  credit such a contribution, construction, expansion, or payment
  221  toward any other impact fee or exaction imposed by local
  222  ordinance for public educational facilities the same need, on a
  223  dollar-for-dollar basis at fair market value. The credit must be
  224  based on the total impact fee assessed and not upon the impact
  225  fee for any particular type of school.
  226         c. Any proportionate-share mitigation must be directed by
  227  the school board toward a school capacity improvement identified
  228  in the 5-year school board educational facilities plan that
  229  satisfies the demands created by the development in accordance
  230  with a binding developer’s agreement.
  231         3. This paragraph does not limit the authority of a local
  232  government to deny a development permit or its functional
  233  equivalent pursuant to its home rule regulatory powers, except
  234  as provided in this part.
  235         Section 4. Section 163.31801, Florida Statutes, is amended
  236  to read:
  237         163.31801 Impact fees; short title; intent; minimum
  238  requirements; audits; challenges definitions; ordinances levying
  239  impact fees.—
  240         (1) This section may be cited as the “Florida Impact Fee
  241  Act.”
  242         (2) The Legislature finds that impact fees are an important
  243  source of revenue for a local government to use in funding the
  244  infrastructure necessitated by new growth. The Legislature
  245  further finds that impact fees are an outgrowth of the home rule
  246  power of a local government to provide certain services within
  247  its jurisdiction. Due to the growth of impact fee collections
  248  and local governments’ reliance on impact fees, it is the intent
  249  of the Legislature to ensure that, when a county or municipality
  250  adopts an impact fee by ordinance or a special district adopts
  251  an impact fee by resolution, the governing authority complies
  252  with this section.
  253         (3) At a minimum, an impact fee adopted by ordinance of a
  254  county or municipality or by resolution of a special district
  255  must satisfy all of the following conditions, at minimum:
  256         (a) Require that The calculation of the impact fee must be
  257  based on the most recent and localized data.
  258         (b) The local government must provide for accounting and
  259  reporting of impact fee collections and expenditures. If a local
  260  governmental entity imposes an impact fee to address its
  261  infrastructure needs, the entity must shall account for the
  262  revenues and expenditures of such impact fee in a separate
  263  accounting fund.
  264         (c) Limit Administrative charges for the collection of
  265  impact fees must be limited to actual costs.
  266         (d) The local government must provide Require that notice
  267  not be provided no less than 90 days before the effective date
  268  of an ordinance or resolution imposing a new or increased impact
  269  fee. A county or municipality is not required to wait 90 days to
  270  decrease, suspend, or eliminate an impact fee.
  271         (e) Collection of the impact fee may not be required to
  272  occur earlier than the date of issuance of the building permit
  273  for the property that is subject to the fee.
  274         (f) The impact fee must be proportional and reasonably
  275  connected to, or have a rational nexus with, the need for
  276  additional capital facilities and the increased impact generated
  277  by the new residential or commercial construction.
  278         (g) The impact fee must be proportional and reasonably
  279  connected to, or have a rational nexus with, the expenditures of
  280  the funds collected and the benefits accruing to the new
  281  residential or nonresidential construction.
  282         (h) The local government must specifically earmark funds
  283  collected under the impact fee for use in acquiring,
  284  constructing, or improving capital facilities to benefit new
  285  users.
  286         (i) Revenues generated by the impact fee may not be used,
  287  in whole or in part, to pay existing debt or for previously
  288  approved projects unless the expenditure is reasonably connected
  289  to, or has a rational nexus with, the increased impact generated
  290  by the new residential or nonresidential construction.
  291         (j) The local government must credit against the collection
  292  of the impact fee any contributions related to public
  293  educational facilities, including, but not limited to, land
  294  dedication, site planning and design, and construction, whether
  295  provided in a proportionate share agreement or any other form of
  296  exaction. Any such contributions must be applied to reduce
  297  impact fees on a dollar-for-dollar basis at fair market value.
  298  If the local government adjusts the amount of impact fees
  299  assessed, outstanding and unused credits must be adjusted
  300  accordingly.
  301         (4) If the holder of impact fee or mobility fee credits
  302  granted by a local government, whether granted under this
  303  section, s. 380.06, or otherwise, uses such credits in lieu of
  304  the actual payment of an impact fee or mobility fee, the holder
  305  of those credits must, whenever they are utilized, receive the
  306  full value of the credit as of the date on which it was first
  307  established based on the impact fee or mobility fee rate that
  308  was in effect on such date.
  309         (5)(4) Audits of financial statements of local governmental
  310  entities and district school boards which are performed by a
  311  certified public accountant pursuant to s. 218.39 and submitted
  312  to the Auditor General must include an affidavit signed by the
  313  chief financial officer of the local governmental entity or
  314  district school board stating that the local governmental entity
  315  or district school board has complied with this section.
  316         (6)(a)(5) In any action challenging an impact fee or the
  317  government’s failure to provide required dollar-for-dollar
  318  credits for the payment of impact fees as provided in s.
  319  163.3180(6)(h)2.b, the government has the burden of proving by a
  320  preponderance of the evidence that the imposition or amount of
  321  the fee or credit meets the requirements of state legal
  322  precedent or and this section. The court may not use a
  323  deferential standard for the benefit of the government.
  324         (b) In any action challenging an impact fee, the court may
  325  award attorney fees and costs to the prevailing party. However,
  326  the court must award attorney fees and costs to a prevailing
  327  property owner if the court determines that the impact fee is
  328  not:
  329         1. Reasonably connected to, or does not have a rational
  330  nexus with, the need for additional capital facilities and the
  331  increased impact generated by the new residential or
  332  nonresidential construction;
  333         2. Reasonably connected to, or does not have a rational
  334  nexus with, the expenditures of the funds collected and the
  335  benefits accruing to the new residential or nonresidential
  336  construction; or
  337         3. Proportionate to and exceeds the impacts of the proposed
  338  use that the governmental entity seeks to avoid, minimize, or
  339  mitigate.
  340         (7) This section applies to mobility fees adopted pursuant
  341  to s. 163.3180(5)(i).
  342         (8) Notwithstanding anything to the contrary in this
  343  chapter, if a local government does not provide the credit
  344  required in subsection (3)(j) for a project, then the local
  345  government may not impose concurrency mitigation conditions of
  346  any kind on the project.
  347         (9) Beginning July 1, 2019, a local government may not
  348  charge an impact fee for the development or construction of
  349  housing that is affordable, as defined in s. 420.9071.
  350         Section 5. Section 166.033, Florida Statutes, is amended to
  351  read:
  352         166.033 Development permits and orders.—
  353         (1) Within 30 days after receiving an application for
  354  approval of a development permit or development order, a
  355  municipality must review the application for completeness and
  356  issue a letter indicating that all required information is
  357  submitted or specifying with particularity any areas that are
  358  deficient. If deficient, the applicant has 30 days to address
  359  the deficiencies by submitting the required additional
  360  information. Within 90 days of the initial submission, if
  361  complete, or the supplemental submission, whichever is later,
  362  the municipality must approve, approve with conditions, or deny
  363  the application for a development permit or development order.
  364  The time periods contained in this subsection may be waived in
  365  writing by the applicant. An approval, approval with conditions,
  366  or denial of the application for a development permit or
  367  development order must include written findings supporting the
  368  municipality’s decision.
  369         (2)(1) When reviewing an application for a development
  370  permit or development order that is certified by a professional
  371  listed in s. 403.0877, a municipality may not request additional
  372  information from the applicant more than three times, unless the
  373  applicant waives the limitation in writing. Before a third
  374  request for additional information, the applicant must be
  375  offered a meeting to attempt to resolve outstanding issues.
  376  Except as provided in subsection (5)(4), if the applicant
  377  believes the request for additional information is not
  378  authorized by ordinance, rule, statute, or other legal
  379  authority, the municipality, at the applicant’s request, shall
  380  proceed to process the application for approval or denial.
  381         (3)(2) When a municipality denies an application for a
  382  development permit or development order, the municipality shall
  383  give written notice to the applicant. The notice must include a
  384  citation to the applicable portions of an ordinance, rule,
  385  statute, or other legal authority for the denial of the permit
  386  or order.
  387         (4)(3) As used in this section, the terms term “development
  388  permit” and “development order” have has the same meaning as in
  389  s. 163.3164, but do does not include building permits.
  390         (5)(4) For any development permit application filed with
  391  the municipality after July 1, 2012, a municipality may not
  392  require as a condition of processing or issuing a development
  393  permit or development order that an applicant obtain a permit or
  394  approval from any state or federal agency unless the agency has
  395  issued a final agency action that denies the federal or state
  396  permit before the municipal action on the local development
  397  permit.
  398         (6)(5) Issuance of a development permit or development
  399  order by a municipality does not in any way create any right on
  400  the part of an applicant to obtain a permit from a state or
  401  federal agency and does not create any liability on the part of
  402  the municipality for issuance of the permit if the applicant
  403  fails to obtain requisite approvals or fulfill the obligations
  404  imposed by a state or federal agency or undertakes actions that
  405  result in a violation of state or federal law. A municipality
  406  shall attach such a disclaimer to the issuance of development
  407  permits and shall include a permit condition that all other
  408  applicable state or federal permits be obtained before
  409  commencement of the development.
  410         (7)(6) This section does not prohibit a municipality from
  411  providing information to an applicant regarding what other state
  412  or federal permits may apply.
  413         Section 6. Section 166.04151, Florida Statutes, is amended
  414  to read:
  415         166.04151 Affordable housing.—
  416         (1) Notwithstanding any other provision of law, a
  417  municipality may adopt and maintain in effect any law,
  418  ordinance, rule, or other measure that is adopted for the
  419  purpose of increasing the supply of affordable housing using
  420  land use mechanisms such as inclusionary housing ordinances. A
  421  municipality may not, however, adopt or impose a requirement in
  422  any form, including, without limitation, by way of a
  423  comprehensive plan amendment, ordinance, or land development
  424  regulation or as a condition of a development order or
  425  development permit, which has any of the following effects:
  426         (a) Mandating or establishing a maximum sales price or
  427  lease rental for privately produced dwelling units.
  428         (b) Requiring the allocation or designation, whether
  429  directly or indirectly, of privately produced dwelling units for
  430  sale or rental to any particular class or group of purchasers or
  431  tenants.
  432         (c) Requiring the provision of any on-site or off-site
  433  workforce or affordable housing units or a contribution of land
  434  or money for such housing, including, but not limited to, the
  435  payment of any flat or percentage-based fee whether calculated
  436  on the basis of the number of approved dwelling units, the
  437  amount of approved square footage, or otherwise.
  438         (2) This section does not limit the authority of a
  439  municipality to create or implement a voluntary density bonus
  440  program or any other voluntary incentive-based program designed
  441  to increase the supply of workforce or affordable housing units.
  442         Section 7. This act shall take effect upon becoming a law.