F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 421 2021
1 A bill to be entitled
2 An act relating to governmental actions affecting
3 private property rights; amending s. 70.001, F.S.;
4 revising notice of claim requirements for property
5 owners; creating a presumption that certain settlement
6 offers protect the public interest; specifying that
7 property owners retain the option to have a court
8 determine awards of compensation; authorizing property
9 owners to bring claims against governmental entities
10 in certain circumstances; providing that property
11 owners are not required to submit formal development
12 applications or proceed through formal application
13 processes to bring claims in specified circumstances;
14 amending s. 70.45, F.S.; defining the term "imposed"
15 or "imposition"; authorizing property owners to bring
16 actions to declare prohibited exactions invalid;
17 providing applicability; amending s. 70.51, F.S.;
18 providing and revising definitions; providing for
19 resolution of disputes concerning comprehensive plan
20 amendments under the Florida Land Use and
21 Environmental Dispute Resolution Act; revising
22 requirements for initiating a proceeding under the
23 act; providing for an award of attorney fees and costs
24 to property owners who successfully bring actions to
25 compel a governmental entity to participate in certain
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26 proceedings; revising provisions related to the
27 tolling of certain administrative proceedings;
28 revising the time periods for a governmental entity to
29 respond to a request for relief; requiring mediations
30 to be conducted according to specified provisions;
31 requiring the governmental entity's conduct in dispute
32 resolution to be considered in determining whether
33 regulatory efforts were unreasonable or unfairly
34 burdened use of the property; revising the deadline
35 for a magistrate to prepare and file a written
36 recommendation; revising provisions related to
37 settlement agreements; specifying that a governmental
38 entity has authority to rehear and reconsider certain
39 actions pursuant to a special magistrate's
40 recommendation; providing requirements for such
41 rehearing and reconsideration; revising provisions
42 related to other remedies that may be pursued by a
43 property owner; providing requirements for guidelines
44 adopted by governmental entities for dispute
45 resolution proceedings; specifying that certain
46 settlement discussions are confidential; requiring
47 that actions on proposed settlements be taken at open
48 meetings; deleting obsolete language; amending s.
49 163.3181, F.S.; conforming provisions to changes made
50 by the act; providing an effective date.
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51
52 Be It Enacted by the Legislature of the State of Florida:
53
54 Section 1. Subsections (4), (5), and (6) and paragraph (a)
55 of subsection (11) of section 70.001, Florida Statutes, are
56 amended to read:
57 70.001 Private property rights protection.—
58 (4)(a) Not fewer less than 90 150 days before prior to
59 filing an action under this section against a governmental
60 entity, a property owner who seeks compensation under this
61 section must present the claim in writing to the head of the
62 governmental entity, except that if the property is classified
63 as agricultural pursuant to s. 193.461, the notice period is 90
64 days. The property owner must submit, along with the claim, a
65 bona fide, valid appraisal that supports the claim and
66 demonstrates the loss in fair market value to the real property.
67 If the action of government is the culmination of a process that
68 involves more than one governmental entity, or if a complete
69 resolution of all relevant issues, in the view of the property
70 owner or in the view of a governmental entity to whom a claim is
71 presented, requires the active participation of more than one
72 governmental entity, the property owner shall present the claim
73 as provided in this section to each of the governmental
74 entities.
75 (b) The governmental entity shall provide written notice
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76 of the claim to all parties to any administrative action that
77 gave rise to the claim, and to owners of real property
78 contiguous to the owner's property at the addresses listed on
79 the most recent county tax rolls. Within 15 days after the claim
80 is presented, the governmental entity shall report the claim in
81 writing to the Department of Legal Affairs, and shall provide
82 the department with the name, address, and telephone number of
83 the employee of the governmental entity from whom additional
84 information may be obtained about the claim during the pendency
85 of the claim and any subsequent judicial action.
86 (c) During the 90-day-notice period or the 150-day-notice
87 period, unless extended by agreement of the parties, the
88 governmental entity shall make a written settlement offer to
89 effectuate:
90 1. An adjustment of land development or permit standards
91 or other provisions controlling the development or use of land.
92 2. Increases or modifications in the density, intensity,
93 or use of areas of development.
94 3. The transfer of developmental rights.
95 4. Land swaps or exchanges.
96 5. Mitigation, including payments in lieu of onsite
97 mitigation.
98 6. Location on the least sensitive portion of the
99 property.
100 7. Conditioning the amount of development or use
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101 permitted.
102 8. A requirement that issues be addressed on a more
103 comprehensive basis than a single proposed use or development.
104 9. Issuance of the development order, a variance, a
105 special exception, or any other extraordinary relief.
106 10. Purchase of the real property, or an interest therein,
107 by an appropriate governmental entity or payment of
108 compensation.
109 11. No changes to the action of the governmental entity.
110
111 If the property owner accepts a settlement offer, either before
112 or after filing an action, the governmental entity may implement
113 the settlement offer by appropriate development agreement; by
114 issuing a variance, a special exception, or any other
115 extraordinary relief; or by any other appropriate method,
116 subject to paragraph (d).
117 (d)1. When a governmental entity enters into a settlement
118 agreement under this section which would have the effect of a
119 modification, variance, or a special exception to the
120 application of a rule, regulation, or ordinance as it would
121 otherwise apply to the subject real property, the relief granted
122 shall protect the public interest served by the regulations at
123 issue and be the appropriate relief necessary to prevent the
124 governmental regulatory effort from inordinately burdening the
125 real property. Settlement offers made pursuant to paragraph (c)
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126 shall be presumed to protect the public interest.
127 2. When a governmental entity enters into a settlement
128 agreement under this section which would have the effect of
129 contravening the application of a statute as it would otherwise
130 apply to the subject real property, the governmental entity and
131 the property owner shall jointly file an action in the circuit
132 court where the real property is located for approval of the
133 settlement agreement by the court to ensure that the relief
134 granted protects the public interest served by the statute at
135 issue and is the appropriate relief necessary to prevent the
136 governmental regulatory effort from inordinately burdening the
137 real property.
138
139 This paragraph applies to any settlement reached between a
140 property owner and a governmental entity regardless of when the
141 settlement agreement was entered so long as the agreement fully
142 resolves all claims asserted under this section.
143 (5)(a) During the 90-day-notice period or the 150-day-
144 notice period, unless a settlement offer is accepted by the
145 property owner, each of the governmental entities provided
146 notice pursuant to subsection (4) paragraph (4)(a) shall issue a
147 written statement of allowable uses identifying the allowable
148 uses to which the subject property may be put. The failure of
149 the governmental entity to issue a statement of allowable uses
150 during the applicable 90-day-notice period or 150-day-notice
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151 period shall be deemed a denial for purposes of allowing a
152 property owner to file an action in the circuit court under this
153 section. If a written statement of allowable uses is issued, it
154 constitutes the last prerequisite to judicial review for the
155 purposes of the judicial proceeding created by this section,
156 notwithstanding the availability of other administrative
157 remedies.
158 (b) If the property owner rejects the settlement offer and
159 the statement of allowable uses of the governmental entity or
160 entities, the property owner may file a claim for compensation
161 in the circuit court, a copy of which shall be served
162 contemporaneously on the head of each of the governmental
163 entities that made a settlement offer and a statement of
164 allowable uses that was rejected by the property owner. Actions
165 under this section shall be brought only in the county where the
166 real property is located.
167 (6)(a) The circuit court shall determine whether an
168 existing use of the real property or a vested right to a
169 specific use of the real property existed and, if so, whether,
170 considering the settlement offer and statement of allowable
171 uses, the governmental entity or entities have inordinately
172 burdened the real property. If the actions of more than one
173 governmental entity, considering any settlement offers and
174 statement of allowable uses, are responsible for the action that
175 imposed the inordinate burden on the real property of the
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176 property owner, the court shall determine the percentage of
177 responsibility each such governmental entity bears with respect
178 to the inordinate burden. A governmental entity may take an
179 interlocutory appeal of the court's determination that the
180 action of the governmental entity has resulted in an inordinate
181 burden. An interlocutory appeal does not automatically stay the
182 proceedings; however, the court may stay the proceedings during
183 the pendency of the interlocutory appeal. If the governmental
184 entity does not prevail in the interlocutory appeal, the court
185 shall award to the prevailing property owner the costs and a
186 reasonable attorney fee incurred by the property owner in the
187 interlocutory appeal.
188 (b) Following its determination of the percentage of
189 responsibility of each governmental entity, and following the
190 resolution of any interlocutory appeal, the court shall impanel
191 a jury to determine the total amount of compensation to the
192 property owner for the loss in value due to the inordinate
193 burden to the real property. The property owner retains the
194 option to forego a jury and elect to have the court determine
195 the award of compensation. The award of compensation shall be
196 determined by calculating the difference in the fair market
197 value of the real property, as it existed at the time of the
198 governmental action at issue, as though the owner had the
199 ability to attain the reasonable investment-backed expectation
200 or was not left with uses that are unreasonable, whichever the
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201 case may be, and the fair market value of the real property, as
202 it existed at the time of the governmental action at issue, as
203 inordinately burdened, considering the settlement offer together
204 with the statement of allowable uses, of the governmental entity
205 or entities. In determining the award of compensation,
206 consideration may not be given to business damages relative to
207 any development, activity, or use that the action of the
208 governmental entity or entities, considering the settlement
209 offer together with the statement of allowable uses has
210 restricted, limited, or prohibited. The award of compensation
211 shall include a reasonable award of prejudgment interest from
212 the date the claim was presented to the governmental entity or
213 entities as provided in subsection (4).
214 (c)1. In any action filed pursuant to this section,