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Jan. 28, 2022 | Legislative Reporter The third week of the 2022 Legislative Session ended this week and bills are moving through the committee process. Of note, SB 620E1 (Sen. Hutson), the “Local Business Protection Act”, and CS/CS/SB 280E1 (Sen. Hutson) were passed by the Senate on Jan. 27 and are in Messages to the House. To see the status of the bills being tracked by APA Florida, click here. If you would like any bills added to this report, please contact Alex Magee at fapa@floridaplanning.org. You can also view APA Florida’s legislative priorities here. The following bills of interest had action this week. Note: These summaries are based on a review of the bill language and legislative staff analysis. You are encouraged to read the actual bill language of bills that interest you.
Growth Management
Local Government: CS/SB 620E1 (Sen. Hutson) was passed with amendments by the Senate on Jan. 27. The bill, now cited as the “Local Business Protection Act,” creates s.70.91 F.S. to provide a mechanism for a Florida business owner to recover business damages related to government action. The bill applies to county and municipal ordinances or charter provisions enacted or amended on or after the effective date, which is identified as upon becoming law. The bill now states that a private, for-profit business may claim business damages from a county or municipality if: 1. the county or municipality enacts or amends an ordinance or charter that has or will cause a reduction of at least 15 percent of the business’ profit as applied on a per location basis of a business operated with the jurisdiction; and 2. the business has engaged in lawful business in the jurisdiction for the 3 years preceding the enactment of or amendment to the ordinance or charter. Jan. 28, 2022 | Legislative Reporter
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The bill states that damages may not exceed the present value of the business’s future lost profits for the lesser of seven years or the number of years the business had been in operation in the jurisdiction before the ordnance or charter provision was enacted. The bill provides that a county or municipality is not liable for business damages caused by: 1. an ordinance or a charter provision that is required to comply with, or is expressly authorized by, state or federal law; 2. emergency ordinances, declarations, or orders adopted by a county or municipality under ss.252.31252.60, the State Emergency Management Act; 3. a temporary emergency ordinance enacted pursuant to s.125.66 or s.166.041 that remains in effect for no more than 90 days; 4. an ordinance or charter provision enacted to implement: a. Part II of Chapter 163, relating to growth policy, county and municipal planning, and land development regulation, including zoning, development orders, and development permits; b. Section 553.73, relating to the Florida Building Code; c. Section 633.202, relating to the Florida Fire Prevention Code; 5. an ordinance or charter provision required to implement a contract or agreement, including, but not limited to, any federal, state, local, or private grant, or other financial assistance accepted by a county or municipal government; 6. an ordinance or charter provision relating to the issuance or refinancing of debt; or 7. an ordinance or charter provision relating to the adoption of a budget or budget amendment, including revenue sources necessary to fund the budget; 8. an ordinance or charter provision relating to procurement; or 9. an ordinance or charter provision intended to promote, enable, or facilitate economic competition. The bill provides that s.70.91 F.S. does not apply to a business that may claim business damages in an eminent domain proceeding under Chapter 73 and may not be construed to authorize double recoveries. The bill also provides that an amendment to an ordinance or charter provision after the effective date of the bill gives rise to a claim under s.70.91 F.S. only to the extent that the application of the amendatory language is the cause of the claimed impact on a business apart from the ordinance or charter provision being amended. At least 180 days before filing an action and within 180 days after the effective date of the relevant ordinance or charter provision, the business must present a written offer, with specified documentation, to settle the business’ claim of business damages to the head of the county or municipality. Within 120 days of receipt of the offer and accompanying business records, the county or municipality must accept, reject, or make a counteroffer, which may include an offer to grant a waiver to the application of the ordinance or charter provision. If a business files an action for business damages, it must be filed within one (1) year of the effective date of the relevant ordinance, ordinance amendment or charter provision. In an action for business damages, the court may award reasonable attorney fees and costs to the prevailing party. Note that previously proposed language dealing with how attorney fees are calculated has been deleted. The bill provides that there is no liability if, within the 120-day period, the county or municipality: a. repeals the ordinance or charter provision that gave rise to the business’ claim; b. amends the ordinance or charter provision that gave rise to the business’ claim in a manner that returns the ordinance or charter provision to its form in existence before the business’ claim arose or in a manner that avoids causing a reduction of at least 15 percent of the business’s profit as applied on a per location basis within the jurisdiction; c. publishes notice of its intent to repeal or amend the ordinance that gave rise to the business’ claim and, within 30 days after publication of the notice, amends the ordinance in a manner that returns the Jan. 28, 2022 | Legislative Reporter
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ordinance to its form in existence before the business’ claim arose or in a manner that avoids causing a reduction of at least 15 percent of the business’s profit as applied on a per location basis within the jurisdiction, or repeals the ordinance; d. grants a waiver of the ordinance or charter provision to a business submitting a claim for business damages; or e. with respect to a charter provision, the county provides notice of its intent to amend or repeal the charter provision that is the basis of the business damage claim, and the charter provision is amended or repealed by the voters at an election or special election that occurs within 90 days after publication of the notice. CS/SB 620E1 is now in Messages to the House. CS/HB 569 (Rep. McClure) is in the House Local Administration & Veterans Affairs Subcommittee, its second of three committees of reference. Local Ordinances: CS/CS/SB 280E1 (Sen. Hutson) was also passed by the Senate on Jan. 27. The bill revises s.125.66 F.S. and s.166.041 F.S. to require cities and counties to prepare or cause to be prepared a business impact statement before adopting an ordinance, with exceptions. The proposed effective date of the bill is Oct. 1, 2022. The business impact statement must be posted on the jurisdiction’s website no later than the date the notice of proposed enactment is published. The business impact statement must include all of the following: 1. a summary of the proposed ordinance, including a statement of the public purpose served by the proposed ordinance, such as serving the public health, safety, morals, and welfare of the jurisdiction; 2. an estimate of the direct economic impact of the proposed ordinance on private for-profit businesses in the jurisdiction including the following, if any: • an estimate of direct compliance costs businesses may reasonably incur if the ordinance is enacted; • identification of any new charge or fee on businesses subject to the proposed ordinance or for which businesses will be financially responsible; and • an estimate of the jurisdiction’s regulatory costs, including an estimate of revenues from any new charges for fees that will be imposed on businesses to cover such costs. 3. a good faith estimate of the number of businesses likely to be impacted by the ordinance; 4. any additional information the governing body determines may be useful. The bill also provides that the local jurisdiction is not required to hire an accountant or other financial consultant to prepare the business impact statement. The bill states that this requirement does not apply to local ordinances enacted to implement the following: • part II of chapter 163; • section 553.73; • section 633.202; • sections 190.005 and 190.046; • ordinances required to comply with federal or state law or regulation; • ordinances related to the issuance or refinancing of debt; • ordinances related to the adoption of budgets or budget amendments; • ordinances required to implement a contract or an agreement, including, but not limited to, any federal, state, local, or private grant, or other financial assistance accepted by a county or municipality; or • emergency ordinances. The bill also creates s.125.675 F.S. and s.166.0411, F.S. to require a municipality or county to suspend enforcement of an ordinance that is the subject of an action challenging the ordinance’s validity on grounds that it is expressly preempted by the state constitution or state law, or is arbitrary or unreasonable. The bill language was amended on the senate floor to delete previously proposed language that would have included appeals in the actions requiring enforcement suspension. Jan. 28, 2022 | Legislative Reporter
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This requirement applies only if: • the action was filed with the court no later than 90 days after the adoption of the ordinance; • suspension of the ordinance was requested in the initial complaint or petition, citing these sections; and • the county or municipality was served with a copy of the complaint or petition. Amended into the bill on the senate floor was language to allow, when the plaintiff appeals a final judgment finding that an ordinance is valid and enforceable, the county or municipality to enforce the ordinance 30 days after the entry of the order unless the plaintiff files a motion for a stay of the lower tribunal’s order which is granted by the appellate court. The court is required to give these cases priority over other pending cases and render a preliminary or final decision on the validity of the ordinance as expeditiously as possible. Additionally, the bill provides that the signature of an attorney or party constitutes a certificate that he or she has read the pleading, motion, or other paper and that, to the best of his or her knowledge, information, and belief formed after reasonable inquiry, it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay, or for economic advantage, competitive reasons, or frivolous purposes or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the court, upon its own initiative, shall impose an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including reasonable attorney fees. These new sections do not apply to local ordinances enacted to implement: • part II of chapter 163; • section 553.73; • section 633.202; • sections 190.005 and 190.046; • ordinances required to comply with federal or state law or regulation; • ordinances related to the issuance or refinancing of debt; • ordinances related to the adoption of budgets or budget amendments; • ordinances required to implement a contract or an agreement, including, but not limited to, any federal, state, local, or private grant, or other financial assistance accepted by a county or municipality; or • emergency ordinances. The bill provides that the court may award attorney fees and costs and damages as provided in s.57.112, F.S. The amended bill also revises s.57.112 F.S. to authorize the court to assess and award reasonable attorney fees and costs and damages to a prevailing plaintiff in a civil action filed against a local government to challenge the adoption of a local ordinance on the grounds that the ordinance is arbitrary or unreasonable. Awards are capped at $50,000 and a prevailing party may not recover any attorney fees or costs directly incurred or associated with litigation to determine an award of reasonable attorney fees or costs. Additionally, this section cannot be construed to authorize double recovery if an affected person prevails on a damage claim brought against a local government pursuant to other applicable law involving the same ordinance, operative acts, or transactions. The bill also states that the amendments to this section effective Oct. 1, 2022, only apply to ordinances adopted on or after that date. Note that s.57.112 F.S. does not apply to local ordinances adopted pursuant to part II of Chapter 163, s.553.73, or s.633.202. A similar bill, HB 403 (Rep. Giallombardo) is in the House Civil Justice & Property Rights Subcommittee, its second of three committees of reference.
Jan. 28, 2022 | Legislative Reporter
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Mixed-use Residential Development Projects for Affordable Housing: CS/HB 981 (Rep. Payne), reflecting amendments by the House Local Administration & Veterans Affairs Subcommittee, amends ss.125.01055(6) and ss.166.04151(6) F.S., dealing with affordable housing. The amended bill provides that, for parcels zoned for commercial or industrial use, a local government may approve any residential development project, including a mixed-use residential development project, so long as a portion of the project is for housing that is affordable, and the sponsor of the project agrees not to apply for or receive funding under s.420.5087(State Apartment Incentive Loan Program.) These provisions are self-executing and do not require the governing body to adopt an ordinance or regulation before using this approval process. CS/HB 981 was reported favorably by the House Local Administration & Veterans Affairs Subcommittee on Jan. 25 and moves to the House State Affairs Committee, its last committee of reference. CS/SB 962 (Sen. Bradley), an identical bill, was reported favorably by the Senate Transportation Committee on Jan. 25 and moves to the Sente Rules Committee, its final committee of reference. Everglades Protection Area: HB 729 (Rep. Aloupis) requires plans and plan amendments that apply to any land within, or within two miles of, the Everglades Protection Area (EPA) to follow the State Coordinated Review process. The Department of Environmental Protection (DEP), in consultation with all federally recognized Indian tribes in the state, within 30 days of receipt, must review the plan or amendment to determine whether the plan or plan amendment, or any portion thereof, adversely impacts the EPA or statutory Everglades restoration and protection objectives. If DEP determines an adverse impact, the local government must modify that portion of the proposed plan or plan amendment to include planning strategies or measures to eliminate or mitigate such adverse impacts before adopting the proposed plan or plan amendment or that portion of the proposed plan or plan amendment may not be adopted. The bill prohibits a proposed amendment impacting property located in whole or in part within, or within two miles of, the EPA from being considered a small-scale development amendment. HB 729 was reported favorably by the House Environment, Agriculture & Flooding Subcommittee on Jan. 25 and now moves to the Agriculture & Natural Resources Appropriations Subcommittee, its second of three committees of reference. SB 932 (Sen. Rodriguez), an identical bill, is in the Senate Environment and Natural Resources, its first committee of reference. School Concurrency: CS/SB 706 (Sen. Perry), reflecting amendments by the Senate Community Affairs Committee, deletes previously proposed language that would require school concurrency, if adopted, to be applied on a districtwide basis. The revised bill amends s.163.3180 F.S. to state that school concurrency is satisfied if the developer in good faith offers to execute a legally binding commitment to provide mitigation proportionate to the demand for public school facilities to be created by actual development of the property. Currently the law requires the developer to execute said commitment. Additionally, the statue currently requires that any proportionate-share mitigation must be directed toward school capacity improvement identified in the 5-year school board educational facilities plan that satisfies the demands created by the development. This bill adds a provision that if this is not done, the mitigation must be set aside and not spent until such an improvement has been identified. CS/SB 706 was reported favorably by the Senate Community Affairs Committee on Jan. 25 and is scheduled to be heard in the Senate Education Committee, its second of two committees of reference, on Feb. 1. A similar bill, CS/HB 851 (Rep. McClain) is in the House Education & Employment Committee, its second of three committees of reference. Vacation Rentals: CS/HB 325 (Rep. Fischer) would preempt the regulation of advertising platforms used for vacation rentals to the state. The bill also preempts the licensing of public lodging facilities and public food service establishments to the state. Jan. 28, 2022 | Legislative Reporter
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The bill amends s.509.032(7) (b)1 F.S. to allow local governments to adopt a vacation rental registration program and impose a fine for failure to register under this program. However, a local government must waive the fine if the vacation rental is registered within 30 days after receiving notice of the fine and deficiency. The bill allows local governments to charge a fee for processing a registration application only if they have adopted vacation rental registration fees on or before the effective date of the act and these fees may not be increased. Local governments may not require renewal of registration more than once per year. The bill also allows local vacation rental laws, ordinances or regulations adopted on or before June 1, 2011, to be amended to be less restrictive or to require the registration of vacation rentals with a local vacation registration program. As a condition of registration, the local law, ordinance, or regulation may only require the owner or operator of a vacation rental to: a. submit identifying information about the owner or the owner’s agents and the subject vacation rental property; b. obtain a license as a transient public lodging establishment issued by the division within 60 days after local registration; c. obtain all required tax registrations, receipts, or certificates issued by the Department of Revenue, a county, or a municipal government; d. update required information on a continuing basis to ensure it is current; e. comply with parking standards and solid waste handling and containment requirements, so long as such standards and requirements are not imposed solely on vacation rentals; f. designate and maintain at all times a responsible party who is capable of responding to complaints and other immediate problems related to the vacation rental, including being available by telephone at a listed phone number; g. pay in full all recorded municipal or county code liens against the subject property. The local government may withdraw its acceptance of a registration on the basis of an unsatisfied recorded municipal or county code lien. The bill identifies the process and timeframes for reviewing applications for local registration. CS/HB 325 was reported favorably by the House Regulatory Reform Subcommittee on Jan. 27 and moves to the House Ways & Means Committee, its second of three committees of reference. SB 512 (Sen. Burgess), a similar bill, is in the Senate Community Affairs Committee, its second of three committees of reference. Private Property Rights to Prune, Trim, and Remove Trees: HB 1555 (Rep. McClain) amends s.163.045 F.S. that prohibits a local government from requiring a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from a certified arborist or a licensed landscape architect, that the tree presents a danger to persons or property. The bill amends this section to provide that a local government may not require a notice, application, approval, permit, fee, or mitigation if the property owner possesses documentation that the tree poses an unacceptable risk to persons or property. A tree poses an unacceptable risk if removal is the only means of practically mitigating its risk below moderate, as determined by the tree risk assessment procedures outlined in Best Management Practices - Tree Risk Assessment, Second Edition (2017). The bill also adds a definition of “documentation” to mean an onsite tree risk assessment performed in accordance with the tree risk assessment procedures outlined in Best Management Practices - Tree Risk Assessment, Second Edition (2017). Documentation must be conducted and signed by an arborist certified by the International Society of Arboriculture (ISA) or a Florida licensed landscape architect. Jan. 28, 2022 | Legislative Reporter
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Additionally, the bill defines “residential property” as a single-family, detached building located on a lot that is actively used for single-family residential purposes and that is either a conforming use or a legally recognized nonconforming use in accordance with the local jurisdiction’s applicable land development regulations. HB 1555 was reported favorably by the House Civil Justice & Property Rights Subcommittee on Jan. 27 and moves to the House Local Administration & Veterans Affairs Subcommittee, its second of two committees of reference. CS/SB 518 (Sen. Brodeur), an identical bill, is in the Senate Governmental Oversight and Accountability Committee, its second of three committees of reference. Floating Solar Facilities: HB 1411 (Rep. Avila) would require that a floating solar facility be a permitted use in the appropriate land use categories in each local government’s comprehensive plan and that each local government amend its land development regulations to promote the expanded use of floating solar facilities. The bill defines these to mean a solar facility as defined in s.163.3205(2) F.S. that is located on a wastewater treatment pond, abandoned limerock mine, or other manmade water storage area. The bill provides that a county may adopt an ordinance specifying buffer and landscaping requirements for floating solar facilities. The requirements may not exceed the requirements for similar uses involving the construction of other solar facilities that are permitted uses in agricultural land use categories and zoning districts. A floating solar facility may not be constructed in the Lake Belt Area or an Everglades Agricultural Area reservoir project if the local governments involved with the area or project determine that the floating solar facility will have a negative impact on that area or project. Also, the Office of Energy within the Department of Agriculture and Consumer Services shall develop and submit recommendations to the legislature by Dec. 31, 2022, to provide a regulatory framework for private and public sector entities that implement floating solar facilities. HB 1411 was reported favorably by the House Tourism, Infrastructure & Energy Subcommittee on Jan. 25 and moves to the House Local Administration & Veterans Affairs Subcommittee, its second of three committees of reference. SB 1338 (Sen. Diaz), an identical bill, is scheduled to be heard in the Senate Regulated Industries Committee, its first committee of reference, on Feb. 1. Local Tax Referenda Requirements: CS/HB 777 (Rep. Robinson), reflecting amendments by the House Ways and Means Committee, would require referenda authorizing certain optional local taxes to be held at a general election. The affected taxes are: • tourist development tax; • areas of critical state concern tourist impact tax; • children’s services independent special district tax; • county temporary excess ad valorem millage; • municipal temporary excess ad valorem millage; • county transportation motor fuel tax; • local option fuel taxes; • school district millages. The committee amendment deleted previously proposed language that amended ss.255.0992(3)(b) F.S. The bill was reported favorably by the House Ways and Means Committee on Jan. 24 and moves to the House State Affairs Committee, its last committee of reference. CS/SB 1194 (Sen. Boyd), an identical bill, was reported favorably by the Senate Finance and Tax Committee on Jan. 27 and moves to the Senate Appropriations Committee, its final committee of reference. Broadband Infrastructure: CS/SB 1800 (Sen. Boyd) creates the Broadband Pole Replacement Program, to be administered by the Office of Broadband (Office) within the Department of Economic Opportunity Jan. 28, 2022 | Legislative Reporter
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(Department). The program will reimburse eligible broadband Internet service providers for their costs incurred for the removal and replacement of existing utility poles, for the purpose of providing qualifying broadband service access, in areas of Florida that are unserved by broadband Internet service. Reimbursements under the program are limited to 50 percent of the broadband Internet service provider’s eligible pole replacement costs, or $5,000 — whichever is less, in addition to their administrative costs related to the preparation and submission of the application for reimbursement. The bill directs the Secretary of the Department to apply for $100 million in federal funding from the Coronavirus Capital Projects Fund and directs any such funds received to be placed into the Broadband Pole Replacement Trust Fund, which is created by linked bill, SB 1802. For the 2022-23 fiscal year, the bill appropriates $400 million in nonrecurring funds from the General Revenue Fund to the Department for the purpose of administering the Broadband Opportunity Program established in s.288.9962, F.S. CS/SB 1800 takes effect upon becoming law if SB 1802, or similar legislation, is adopted in the same legislative session or an extension thereof and becomes law. CS/SB 1802 creates the Broadband Pole Replacement Trust Fund within the Department of Economic Opportunity. CS/SB 1800 was reported favorably by the Senate Commerce and Tourism Committee on Jan. 24 and moves to the Senate Appropriations Subcommittee on Transportation, Tourism, and Economic Development committee, its second of three committees of reference. HB 1543 (Rep. Tomkow), a similar bill, is in the House Tourism, Infrastructure & Energy Subcommittee, its first committee of reference.
Environment and Natural Resources
Land Acquisition Trust Fund: SB 1816 (Sen. Stewart) extends the retirement date of Land Acquisition Trust Fund (LATF) bonds issued to fund the Florida Forever Act until December 31, 2054. It appropriates $100 million annually from the LATF to the Florida Forever Trust Fund. The bill also provides that LATF funds may not be used for costs associated with the following budget entities: • executive direction and support services and the Office of Technology and Information Services within the Department of Environmental Protection; • executive direction and support services and the Office of Agricultural Technology Services within the Department of Agriculture and Consumer Services; • the Office of Executive Direction and Administrative Support Services within the Fish and Wildlife Conservation Commission; • executive direction and support services within the Department of State. SB 1816 was reported favorably by the Senate Environment and Natural Resources Committee on Jan. 24 and moves to the Senate Appropriations Subcommittee on Agriculture, Environment, and General Government, its second of three committees of reference. HB 1377 (Rep. Roth), a similar bill, is in the House Agriculture & Natural Resources Appropriations Subcommittee, its first of three committees of reference. Inventories of Critical Wetlands: SB 882 (Sen. Brodeur) and HB 761 (Rep. Truenow) are identical bills that would require each water management district, as part of its district water management plan and in cooperation with local governments, to develop a list of critical wetlands to be acquired using funds from the Land Acquisition Trust Fund. The bills also specify the criteria that the water management district must consider in designating such wetlands as follows: • the ecological value of the wetland as determined by the physical and biological components of the environmental system; • the effect of the wetland on water quality and flood mitigation; Jan. 28, 2022 | Legislative Reporter
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the ecosystem restoration value of the wetland; and the inherent susceptibility of the wetland to development due to its geographical locations or natural aesthetics.
SB 882 is in the Senate Community Affairs Committee, its second of three committees of reference. HB 761 was reported favorably by the House Agriculture & Nature Resources Appropriations Subcommittee on Jan. 25 and moves to the House State Affairs Committee, its last committee of reference.
News Articles
Vacation rental preemption bill clear first House committee Scott Powers | Florida Politics | Jan.27 Businesses gain power to fight local governments under measures passed by Florida Senate John Kennedy | Capital Bureau, USA Today Network – Florida | Jan. 27 Senate panel advances environmental funding bill despite opposition from advocates Renzo Downey | Florida Politics | Jan. 26 New Florida House boundaries approved, but draw fire over minority districts John Kennedy | Capital Bureau, USA Today Network – Florida | Jan. 26 Senate committee OKs bill to secure land conservation funding Jason Delgado | Florida Politics | Jan. 24
Jan. 28, 2022 | Legislative Reporter
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