Bill Text: FL S1730 | 2019 | Regular Session | Comm Sub

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-Comm_Sub.html

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       Florida Senate - 2019                      CS for CS for SB 1730
       
       
        
       By the Committees on Infrastructure and Security; and Community
       Affairs; and Senator Lee
       
       
       
       
       596-04073A-19                                         20191730c2
    1                        A bill to be entitled                      
    2         An act relating to community development and housing;
    3         amending s. 125.01055, F.S.; authorizing an
    4         inclusionary housing ordinance to require a developer
    5         to provide a specified number or percentage of
    6         affordable housing units to be included in a
    7         development or allow a developer to contribute to a
    8         housing fund or other alternatives; requiring a county
    9         to provide certain incentives to fully offset all
   10         costs to the developer of its affordable housing
   11         contribution; amending s. 125.022, F.S.; requiring
   12         that a county review the application for completeness
   13         and issue a certain letter within a specified period
   14         after receiving an application for approval of a
   15         development permit or development order; providing
   16         procedures for addressing deficiencies in, and for
   17         approving or denying, the application; conforming
   18         provisions to changes made by the act; defining the
   19         term “development order”; amending s. 163.3180, F.S.;
   20         revising compliance requirements for a mobility fee
   21         based funding system; requiring a local government to
   22         credit certain contributions, constructions,
   23         expansions, or payments toward any other impact fee or
   24         exaction imposed by local ordinance for public
   25         educational facilities; providing requirements for the
   26         basis of the credit; amending s. 163.31801, F.S.;
   27         adding minimum conditions that certain impact fees
   28         must satisfy; requiring a local government to credit
   29         against the collection of an impact fee any
   30         contribution related to public education facilities,
   31         subject to certain requirements; requiring the holder
   32         of certain impact fee credits to be entitled to a
   33         proportionate increase in the credit balance if a
   34         local government increases its impact fee rates;
   35         providing that the government, in certain actions, has
   36         the burden of proving by a preponderance of the
   37         evidence that the imposition or amount of certain
   38         required dollar-for-dollar credits for the payment of
   39         impact fees meets certain requirements; prohibiting
   40         the court from using a deferential standard for the
   41         benefit of the government; authorizing a county,
   42         municipality, or special district to provide an
   43         exception or waiver for an impact fee for the
   44         development or construction of housing that is
   45         affordable; providing that if a county, municipality,
   46         or special district provides such an exception or
   47         waiver, it is not required to use any revenues to
   48         offset the impact; amending s. 166.033, F.S.;
   49         requiring that a municipality review the application
   50         for completeness and issue a certain letter within a
   51         specified period after receiving an application for
   52         approval of a development permit or development order;
   53         providing procedures for addressing deficiencies in,
   54         and for approving or denying, the application;
   55         conforming provisions to changes made by the act;
   56         defining the term “development order”; amending s.
   57         166.04151, F.S.; authorizing an inclusionary housing
   58         ordinance to require a developer to provide a
   59         specified number or percentage of affordable housing
   60         units to be included in a development or allow a
   61         developer to contribute to a housing fund or other
   62         alternatives; requiring a municipality to provide
   63         certain incentives to fully offset all costs to the
   64         developer of its affordable housing contribution;
   65         amending s. 494.001, F.S.; revising the definition of
   66         the term “mortgage loan”; providing an effective date.
   67          
   68  Be It Enacted by the Legislature of the State of Florida:
   69  
   70         Section 1. Section 125.01055, Florida Statutes, is amended
   71  to read:
   72         125.01055 Affordable housing.—
   73         (1) Notwithstanding any other provision of law, a county
   74  may adopt and maintain in effect any law, ordinance, rule, or
   75  other measure that is adopted for the purpose of increasing the
   76  supply of affordable housing using land use mechanisms such as
   77  inclusionary housing ordinances.
   78         (2) An inclusionary housing ordinance may require a
   79  developer to provide a specified number or percentage of
   80  affordable housing units to be included in a development or
   81  allow a developer to contribute to a housing fund or other
   82  alternatives in lieu of building the affordable housing units.
   83  However, in exchange, a county must provide incentives to fully
   84  offset all costs to the developer of its affordable housing
   85  contribution. Such incentives may include, but are not limited
   86  to:
   87         (a) Allowing the developer density or intensity bonus
   88  incentives or more floor space than allowed under the current or
   89  proposed future land use designation or zoning;
   90         (b) Reducing or waiving fees, such as impact fees or water
   91  and sewer charges; or
   92         (c) Granting other incentives.
   93         Section 2. Section 125.022, Florida Statutes, is amended to
   94  read:
   95         125.022 Development permits and orders.—
   96         (1) Within 30 days after receiving an application for
   97  approval of a development permit or development order, a county
   98  must review the application for completeness and issue a letter
   99  indicating that all required information is submitted or
  100  specifying with particularity any areas that are deficient. If
  101  the application is deficient, the applicant has 30 days to
  102  address the deficiencies by submitting the required additional
  103  information. Within 120 days after the county has deemed the
  104  application complete, the county must approve, approve with
  105  conditions, or deny the application for a development permit or
  106  development order. The time periods contained in this section
  107  may be waived in writing by the applicant. An approval, approval
  108  with conditions, or denial of the application for a development
  109  permit or development order must include written findings
  110  supporting the county’s decision.
  111         (2)(1) When reviewing an application for a development
  112  permit or development order that is certified by a professional
  113  listed in s. 403.0877, a county may not request additional
  114  information from the applicant more than three times, unless the
  115  applicant waives the limitation in writing. Before a third
  116  request for additional information, the applicant must be
  117  offered a meeting to attempt to resolve outstanding issues.
  118  Except as provided in subsection (5)(4), if the applicant
  119  believes the request for additional information is not
  120  authorized by ordinance, rule, statute, or other legal
  121  authority, the county, at the applicant’s request, shall proceed
  122  to process the application for approval or denial.
  123         (3)(2) When a county denies an application for a
  124  development permit or development order, the county shall give
  125  written notice to the applicant. The notice must include a
  126  citation to the applicable portions of an ordinance, rule,
  127  statute, or other legal authority for the denial of the permit
  128  or order.
  129         (4)(3) As used in this section, the terms term “development
  130  permit” and “development order” have has the same meaning as in
  131  s. 163.3164, but do does not include building permits.
  132         (5)(4) For any development permit application filed with
  133  the county after July 1, 2012, a county may not require as a
  134  condition of processing or issuing a development permit or
  135  development order that an applicant obtain a permit or approval
  136  from any state or federal agency unless the agency has issued a
  137  final agency action that denies the federal or state permit
  138  before the county action on the local development permit.
  139         (6)(5) Issuance of a development permit or development
  140  order by a county does not in any way create any rights on the
  141  part of the applicant to obtain a permit from a state or federal
  142  agency and does not create any liability on the part of the
  143  county for issuance of the permit if the applicant fails to
  144  obtain requisite approvals or fulfill the obligations imposed by
  145  a state or federal agency or undertakes actions that result in a
  146  violation of state or federal law. A county shall attach such a
  147  disclaimer to the issuance of a development permit and shall
  148  include a permit condition that all other applicable state or
  149  federal permits be obtained before commencement of the
  150  development.
  151         (7)(6) This section does not prohibit a county from
  152  providing information to an applicant regarding what other state
  153  or federal permits may apply.
  154         Section 3. Paragraph (i) of subsection (5) and paragraph
  155  (h) of subsection (6) of section 163.3180, Florida Statutes, are
  156  amended to read:
  157         163.3180 Concurrency.—
  158         (5)
  159         (i) If a local government elects to repeal transportation
  160  concurrency, it is encouraged to adopt an alternative mobility
  161  funding system that uses one or more of the tools and techniques
  162  identified in paragraph (f). Any alternative mobility funding
  163  system adopted may not be used to deny, time, or phase an
  164  application for site plan approval, plat approval, final
  165  subdivision approval, building permits, or the functional
  166  equivalent of such approvals provided that the developer agrees
  167  to pay for the development’s identified transportation impacts
  168  via the funding mechanism implemented by the local government.
  169  The revenue from the funding mechanism used in the alternative
  170  system must be used to implement the needs of the local
  171  government’s plan which serves as the basis for the fee imposed.
  172  A mobility fee-based funding system must comply with s.
  173  163.31801 governing the dual rational nexus test applicable to
  174  impact fees. An alternative system that is not mobility fee
  175  based shall not be applied in a manner that imposes upon new
  176  development any responsibility for funding an existing
  177  transportation deficiency as defined in paragraph (h).
  178         (6)
  179         (h)1. In order to limit the liability of local governments,
  180  a local government may allow a landowner to proceed with
  181  development of a specific parcel of land notwithstanding a
  182  failure of the development to satisfy school concurrency, if all
  183  the following factors are shown to exist:
  184         a. The proposed development would be consistent with the
  185  future land use designation for the specific property and with
  186  pertinent portions of the adopted local plan, as determined by
  187  the local government.
  188         b. The local government’s capital improvements element and
  189  the school board’s educational facilities plan provide for
  190  school facilities adequate to serve the proposed development,
  191  and the local government or school board has not implemented
  192  that element or the project includes a plan that demonstrates
  193  that the capital facilities needed as a result of the project
  194  can be reasonably provided.
  195         c. The local government and school board have provided a
  196  means by which the landowner will be assessed a proportionate
  197  share of the cost of providing the school facilities necessary
  198  to serve the proposed development.
  199         2. If a local government applies school concurrency, it may
  200  not deny an application for site plan, final subdivision
  201  approval, or the functional equivalent for a development or
  202  phase of a development authorizing residential development for
  203  failure to achieve and maintain the level-of-service standard
  204  for public school capacity in a local school concurrency
  205  management system where adequate school facilities will be in
  206  place or under actual construction within 3 years after the
  207  issuance of final subdivision or site plan approval, or the
  208  functional equivalent. School concurrency is satisfied if the
  209  developer executes a legally binding commitment to provide
  210  mitigation proportionate to the demand for public school
  211  facilities to be created by actual development of the property,
  212  including, but not limited to, the options described in sub
  213  subparagraph a. Options for proportionate-share mitigation of
  214  impacts on public school facilities must be established in the
  215  comprehensive plan and the interlocal agreement pursuant to s.
  216  163.31777.
  217         a. Appropriate mitigation options include the contribution
  218  of land; the construction, expansion, or payment for land
  219  acquisition or construction of a public school facility; the
  220  construction of a charter school that complies with the
  221  requirements of s. 1002.33(18); or the creation of mitigation
  222  banking based on the construction of a public school facility in
  223  exchange for the right to sell capacity credits. Such options
  224  must include execution by the applicant and the local government
  225  of a development agreement that constitutes a legally binding
  226  commitment to pay proportionate-share mitigation for the
  227  additional residential units approved by the local government in
  228  a development order and actually developed on the property,
  229  taking into account residential density allowed on the property
  230  prior to the plan amendment that increased the overall
  231  residential density. The district school board must be a party
  232  to such an agreement. As a condition of its entry into such a
  233  development agreement, the local government may require the
  234  landowner to agree to continuing renewal of the agreement upon
  235  its expiration.
  236         b. If the interlocal agreement and the local government
  237  comprehensive plan authorize a contribution of land; the
  238  construction, expansion, or payment for land acquisition; the
  239  construction or expansion of a public school facility, or a
  240  portion thereof; or the construction of a charter school that
  241  complies with the requirements of s. 1002.33(18), as
  242  proportionate-share mitigation, the local government shall
  243  credit such a contribution, construction, expansion, or payment
  244  toward any other impact fee or exaction imposed by local
  245  ordinance for public educational facilities the same need, on a
  246  dollar-for-dollar basis at fair market value. The credit must be
  247  based on the total impact fee assessed and not on the impact fee
  248  for any particular type of school.
  249         c. Any proportionate-share mitigation must be directed by
  250  the school board toward a school capacity improvement identified
  251  in the 5-year school board educational facilities plan that
  252  satisfies the demands created by the development in accordance
  253  with a binding developer’s agreement.
  254         3. This paragraph does not limit the authority of a local
  255  government to deny a development permit or its functional
  256  equivalent pursuant to its home rule regulatory powers, except
  257  as provided in this part.
  258         Section 4. Section 163.31801, Florida Statutes, is amended
  259  to read:
  260         163.31801 Impact fees; short title; intent; minimum
  261  requirements; audits; challenges definitions; ordinances levying
  262  impact fees.—
  263         (1) This section may be cited as the “Florida Impact Fee
  264  Act.”
  265         (2) The Legislature finds that impact fees are an important
  266  source of revenue for a local government to use in funding the
  267  infrastructure necessitated by new growth. The Legislature
  268  further finds that impact fees are an outgrowth of the home rule
  269  power of a local government to provide certain services within
  270  its jurisdiction. Due to the growth of impact fee collections
  271  and local governments’ reliance on impact fees, it is the intent
  272  of the Legislature to ensure that, when a county or municipality
  273  adopts an impact fee by ordinance or a special district adopts
  274  an impact fee by resolution, the governing authority complies
  275  with this section.
  276         (3) At a minimum, an impact fee adopted by ordinance of a
  277  county or municipality or by resolution of a special district
  278  must satisfy all of the following conditions, at minimum:
  279         (a) Require that The calculation of the impact fee must be
  280  based on the most recent and localized data.
  281         (b) The local government must provide for accounting and
  282  reporting of impact fee collections and expenditures. If a local
  283  governmental entity imposes an impact fee to address its
  284  infrastructure needs, the entity must shall account for the
  285  revenues and expenditures of such impact fee in a separate
  286  accounting fund.
  287         (c) Limit Administrative charges for the collection of
  288  impact fees must be limited to actual costs.
  289         (d) The local government must provide Require that notice
  290  not be provided no less than 90 days before the effective date
  291  of an ordinance or resolution imposing a new or increased impact
  292  fee. A county or municipality is not required to wait 90 days to
  293  decrease, suspend, or eliminate an impact fee.
  294         (e) Collection of the impact fee may not be required to
  295  occur earlier than the date of issuance of the building permit
  296  for the property that is subject to the fee.
  297         (f) The impact fee must be proportional and reasonably
  298  connected to, or have a rational nexus with, the need for
  299  additional capital facilities and the increased impact generated
  300  by the new residential or commercial construction.
  301         (g) The impact fee must be proportional and reasonably
  302  connected to, or have a rational nexus with, the expenditures of
  303  the funds collected and the benefits accruing to the new
  304  residential or nonresidential construction.
  305         (h) The local government must specifically earmark funds
  306  collected under the impact fee for use in acquiring,
  307  constructing, or improving capital facilities to benefit new
  308  users.
  309         (i) Revenues generated by the impact fee may not be used,
  310  in whole or in part, to pay existing debt or for previously
  311  approved projects unless the expenditure is reasonably connected
  312  to, or has a rational nexus with, the increased impact generated
  313  by the new residential or nonresidential construction.
  314         (4) The local government must credit against the collection
  315  of the impact fee any contribution, whether identified in a
  316  proportionate share agreement or other form of exaction, related
  317  to public education facilities, including land dedication, site
  318  planning and design, or construction. Any contribution must be
  319  applied to reduce impact fees on a dollar-for-dollar basis at
  320  fair market value.
  321         (5) If a local government increases its impact fee rates,
  322  the holder of any impact fee credits, whether such credits are
  323  granted under s. 163.3180, s. 380.06, or otherwise, which were
  324  in existence prior to the increase, is entitled to a
  325  proportionate increase in the credit balance.
  326         (6)(4) Audits of financial statements of local governmental
  327  entities and district school boards which are performed by a
  328  certified public accountant pursuant to s. 218.39 and submitted
  329  to the Auditor General must include an affidavit signed by the
  330  chief financial officer of the local governmental entity or
  331  district school board stating that the local governmental entity
  332  or district school board has complied with this section.
  333         (7)(5) In any action challenging an impact fee or the
  334  government’s failure to provide required dollar-for-dollar
  335  credits for the payment of impact fees as provided in s.
  336  163.3180(6)(h)2.b., the government has the burden of proving by
  337  a preponderance of the evidence that the imposition or amount of
  338  the fee or credit meets the requirements of state legal
  339  precedent and or this section. The court may not use a
  340  deferential standard for the benefit of the government.
  341         (8) A county, municipality, or special district may provide
  342  an exception or waiver for an impact fee for the development or
  343  construction of housing that is affordable, as defined in s.
  344  420.9071. If a county, municipality, or special district
  345  provides such an exception or waiver, it is not required to use
  346  any revenues to offset the impact.
  347         Section 5. Section 166.033, Florida Statutes, is amended to
  348  read:
  349         166.033 Development permits and orders.—
  350         (1) Within 30 days after receiving an application for
  351  approval of a development permit or development order, a
  352  municipality must review the application for completeness and
  353  issue a letter indicating that all required information is
  354  submitted or specifying with particularity any areas that are
  355  deficient. If the application is deficient, the applicant has 30
  356  days to address the deficiencies by submitting the required
  357  additional information. Within 120 days after the municipality
  358  has deemed the application complete, the municipality must
  359  approve, approve with conditions, or deny the application for a
  360  development permit or development order. The time periods
  361  contained in this subsection may be waived in writing by the
  362  applicant. An approval, approval with conditions, or denial of
  363  the application for a development permit or development order
  364  must include written findings supporting the municipality’s
  365  decision.
  366         (2)(1) When reviewing an application for a development
  367  permit or development order that is certified by a professional
  368  listed in s. 403.0877, a municipality may not request additional
  369  information from the applicant more than three times, unless the
  370  applicant waives the limitation in writing. Before a third
  371  request for additional information, the applicant must be
  372  offered a meeting to attempt to resolve outstanding issues.
  373  Except as provided in subsection (5)(4), if the applicant
  374  believes the request for additional information is not
  375  authorized by ordinance, rule, statute, or other legal
  376  authority, the municipality, at the applicant’s request, shall
  377  proceed to process the application for approval or denial.
  378         (3)(2) When a municipality denies an application for a
  379  development permit or development order, the municipality shall
  380  give written notice to the applicant. The notice must include a
  381  citation to the applicable portions of an ordinance, rule,
  382  statute, or other legal authority for the denial of the permit
  383  or order.
  384         (4)(3) As used in this section, the terms term “development
  385  permit” and “development order” have has the same meaning as in
  386  s. 163.3164, but do does not include building permits.
  387         (5)(4) For any development permit application filed with
  388  the municipality after July 1, 2012, a municipality may not
  389  require as a condition of processing or issuing a development
  390  permit or development order that an applicant obtain a permit or
  391  approval from any state or federal agency unless the agency has
  392  issued a final agency action that denies the federal or state
  393  permit before the municipal action on the local development
  394  permit.
  395         (6)(5) Issuance of a development permit or development
  396  order by a municipality does not in any way create any right on
  397  the part of an applicant to obtain a permit from a state or
  398  federal agency and does not create any liability on the part of
  399  the municipality for issuance of the permit if the applicant
  400  fails to obtain requisite approvals or fulfill the obligations
  401  imposed by a state or federal agency or undertakes actions that
  402  result in a violation of state or federal law. A municipality
  403  shall attach such a disclaimer to the issuance of development
  404  permits and shall include a permit condition that all other
  405  applicable state or federal permits be obtained before
  406  commencement of the development.
  407         (7)(6) This section does not prohibit a municipality from
  408  providing information to an applicant regarding what other state
  409  or federal permits may apply.
  410         Section 6. Section 166.04151, Florida Statutes, is amended
  411  to read:
  412         166.04151 Affordable housing.—
  413         (1) Notwithstanding any other provision of law, a
  414  municipality may adopt and maintain in effect any law,
  415  ordinance, rule, or other measure that is adopted for the
  416  purpose of increasing the supply of affordable housing using
  417  land use mechanisms such as inclusionary housing ordinances.
  418         (2) An inclusionary housing ordinance may require a
  419  developer to provide a specified number or percentage of
  420  affordable housing units to be included in a development or
  421  allow a developer to contribute to a housing fund or other
  422  alternatives in lieu of building the affordable housing units.
  423  However, in exchange, a municipality must provide incentives to
  424  fully offset all costs to the developer of its affordable
  425  housing contribution. Such incentives may include, but are not
  426  limited to:
  427         (a) Allowing the developer density or intensity bonus
  428  incentives or more floor space than allowed under the current or
  429  proposed future land use designation or zoning;
  430         (b) Reducing or waiving fees, such as impact fees or water
  431  and sewer charges; or
  432         (c) Granting other incentives.
  433         Section 7. Subsection (24) of section 494.001, Florida
  434  Statues, is amended to read:
  435         494.001 Definitions.—As used in this chapter, the term:
  436         (24) “Mortgage loan” means any:
  437         (a) Residential loan that primarily for personal, family,
  438  or household use which is secured by a mortgage, deed of trust,
  439  or other equivalent consensual security interest on a dwelling,
  440  as defined in s. 103(w) s. 103(v) of the federal Truth in
  441  Lending Act, or for the purchase of residential real estate upon
  442  which a dwelling is to be constructed;
  443         (b) Loan on commercial real property if the borrower is an
  444  individual or the lender is a noninstitutional investor; or
  445         (c) Loan on improved real property consisting of five or
  446  more dwelling units if the borrower is an individual or the
  447  lender is a noninstitutional investor.
  448         Section 8. This act shall take effect upon becoming a law.