May 12, 2023 | Legislative Reporter
The 2023 Legislative session ended as scheduled on May 5.
The legislature passed its $117 billion budget (SB 2500) that will now go to Gov. DeSantis, who has line-item veto powers. The spending plan includes about $46.5 billion in general revenue funding and more than $70 billion in trust fund spending that’s mostly earmarked for specific types of needs. Nearly $11 billion will be held back for future needs. Other highlights of the budget include a 5 percent pay increase for state workers, more than $350 million for grants for recovery from Hurricanes Ian and Nicole, an expansion of eligibility for children’s health insurance, more money for affordable housing and the environment, and higher spending on education. Read an overview of the budget here
Of the 1,828 bills filed, only 356 bills were passed by both chambers. An additional 319 bills were “laid on the table,” indicating their companion measure passed. Approximately 1,029 bills died either in committee or on the floor.
The Bill Tracking Report, as of May 10, can be viewed here. Please review it to see the final status of the bills that APA Florida tracked over the session.
Bills that Died:
Of interest, the following bills were among those that failed to pass this year:
• Vacation Rentals (SB 92, SB 714, HB 105)
• Everglades Protection Area (SB 192, HB 175)
• Alternative Mobility Funding Systems (SB 350, HB 235)
• Florida Main Street Program and Historic Preservation Tax Credits (SB 288, HB 499)
• Building Permits (SB 570, SB 682, HB 671, HB 765)
• Sanitary Sewer Lateral Inspection Programs (SB 1420, HB 661)
• Local Tax Referenda Requirements (SB 698, HB 731)
• Saltwater Intrusion Vulnerability Assessments (SB 734, HB 1079)
• State Renewable Energy Goals (SB 970, HB 957)
• Vertiports (SB 1122, HB 349)
• Resilience Districts (SB 1200, HB 1147)
• Local Regulation of Nonconforming or Unsafe Structures (SB 1346, HB 1317)
• Local Occupational Licensing (SB 1584, HB 1625)
• Electric Vehicle Regulation (SB 1176, HB 1591)
Bills Passed by the Legislature
Every bill passed by the legislature is presented to the governor for approval and becomes a law if the governor approves and signs it, or fails to veto it within seven consecutive days after presentation. If during that period or on the seventh day, the legislature adjourns sine die or takes a recess of more than 30 days, the governor has 15 consecutive days from the date of presentation to act on the bill. To track Governor DeSantis’s action on bills, go to flgov.com and click on “2023 Bill Actions” on the right side of the page.
The following bills of interest were among those passed by both chambers:
• Economic Programs (CS/CS/HB 5 ER, Rep. Esposito): Eliminates Enterprise Florida, Inc. and transfers all its duties and functions to the Department of Economic Opportunity; renames DEO as Department of Commerce. Effective July 1, 2023.
• Abandoned and Historic Cemeteries (CS/CS/CS/HB 49, Rep. Driskell): Creates Historic Cemeteries Program within the Division of Historical Resources and authorizes certain entities to acquire conservation easements to preserve cemeteries. Effective July 1, 2023.
• Tampa Bay Regional Transit Authority (CS/HB 155 ER, Rep. Holcomb): dissolves the Tampa Bay Regional Transit Authority. Effective July 1, 2023.
• Commercial Service Airport Transparency and Accountability (CS/CS/HB 1123 ER, Rep. GossettSeidman): Changes information that needs to be posted on the airport’s website and amends the requirements for receiving governing body approval for commodity or contractual services contracts. Effective July 1, 2023.
• Regional Transportation Planning (CS/HB 1397 ER, Rep. McClure): Requires the Florida Department of Transportation, or its consultant, to conduct a study on the potential dissolution of HART and submit a report detailing the results of the study to the Governor, the President of the Senate, and the Speaker of the House of Representatives by Jan. 1, 2024. Effective July 1, 2023.
• Public Construction (CS/CS/SB 346 ER, Sen. DiCeglie): Amends construction services contract and payment requirements between local government entity and contractor. Effective July 1, 2023.
• Disposal of Property (SB 678 ER, Sen. Powell): Provides that the Florida Department of Transportation may convey property to a governmental entity without consideration if the property is to be used for affordable housing. Effective July 1, 2023.
• Vessel Regulations (CS/CS/HB 847 ER, Rep. Stark): Allows a municipality or county to adopt an ordinance that establishes a slow speed, minimum wake boating-restricted area, if the area is within 500 feet of a sewage pumpout station at any public or private nonresidential marina if the sewage pumpout station is within 100 feet of the marked channel of the Florida Intracoastal Waterway. Effective July 1, 2023.
• Designation of Brevard Barrier Island Area as Area of Critical State Concern (CS/CS/HB 1489, Rep. Brackett): Creates the area of critical state concern designation for this area and provides the guiding principles for development within the area. Effective July 1, 2023.
The following significant bills of interest were passed by both chambers.
GROWTH MANAGEMENT
Building Construction: CS/CS/HB 89 ER (Rep. Maggard) was passed by the Legislature on May 3. The effective date in the bill is July 1, 2023. As of the date of this report, the bill has not been transmitted to Gov. DeSantis for action.
The bill makes changes to notification requirements a local government must provide regarding the specific reasons why building plans do not comply with the Florida Building Code and other specified codes. It amends ss.553.79(2), F.S., to provide that if the building code administrator, plans examiner, or inspector requests another local enforcing agency employee or person contracted by the local enforcing agency to review the plans and such person identifies specific plan features that do not comply with applicable codes, the building code administrator, plans examiner, or inspector, must provide this information to the local enforcing agency.
After a local enforcement agency issues a permit, the local enforcing agency may not make or require any substantive changes to the plans or specifications unless the changes are required for compliance with the Florida Building Code, the Fire Prevention Code, Life Safety Code, or local amendments thereto.
If a local enforcing agency makes or requires substantive changes to the plans or specifications after a permit has been issued, the local enforcing agency:
• must identify specific parts of the plan that do not comply with the applicable codes;
• identify the specific code chapters and sections upon which the finding is based; and
• provide this information to the permitholder in writing.
A plans examiner or inspector who fails to provide the building code administrator with the reasons for making or requiring substantive changes to building plans or specifications is subject to disciplinary action against their certificate. Additionally, a building code administrator who fails to provide a permit applicant or permit holder with the reasons for making or requiring substantive changes to building plans or specifications is subject to disciplinary action against their certificate.
The bill also amends ss.633.208(2) to:
• provide that if a county, municipality, or special district determines that the building plans for a building permit application do not comply with the Florida Fire Prevention Code or Life Safety Code or local amendments thereto, the local fire official must identify the specific plan features that do not comply with the applicable codes, identify the specific code chapters and sections upon which the determination is based, and provide the information to the permit applicant;
• provide that, after a municipality, county, or special district issues a building permit, it may not make or require any substantive changes to the building plans except those required for compliance with the Florida Fire Prevention Code, Life Safety Code, or local amendments thereto. If substantive changes are made or required, the local fire official must identify the specific plan features that do not comply with the applicable codes, identify the specific code chapters and sections upon which the determination is based, and provide the information to the permit holder; and
• specify that a local fire official, who is also a certified fire safety inspector, who fails to comply with the requirements identified in the above two bullets, is subject to disciplinary action against their certificate.
Local Ordinances: CS/CS/SB 170 ER (Sen. Trumbull) was passed by the legislature on May 3. The effective date in the bill is Oct. 1, 2023, except for the amendments to s.125.66 and s.166.041, F.S., related to the continuation of consideration of an ordinance to a subsequent meeting, described in the last bullet below, which would take effect upon becoming law. As of the date of this report, the bill has not been transmitted to Governor DeSantis for his action.
The bill does the following:
• amends s.57.112 to provide that when a civil action is filed against a local government to challenge the adoption of an ordinance as arbitrary or unreasonable, the court may, but is not required to, award up to $50,000 in attorney fees and costs and damages to the prevailing plaintiff. This is not applicable where the plaintiff prevails on a separate claim regarding the same ordinance, or for fees and costs associated with litigating over attorney fees. Additionally, these provisions may not be construed to authorize double recovery if an affected person prevails on a claim brought against a local government pursuant to other applicable laws involving the same ordinance, operative acts, or transactions. The amendments to this section apply prospectively to ordinances adopted on or after Oct.1, 2023. An amendment to an ordinance enacted after Oct. 1, 2023, gives rise to a claim only to the extent that the application of the amendatory language is the cause of the claim apart from the ordinance being amended;
• amends s.125.66 and s.166.041 to require counties and cities, respectively, to prepare or cause to prepare a “business impact estimate” prior to enacting an ordinance; but specifies that this requirement should not be construed to require a county or city to hire an accountant or other financial consultant in preparing the estimate. The estimate must be posted on the government’s website no later than the date the notice of proposed enactment is published. The business impact estimate must include the following:
o a summary of the proposed ordinance, including a statement of the public purpose to be served by the proposed ordinance, such as public health, safety, morals, and welfare;
o an estimate of the direct economic impact of the proposed ordinance on private for-profit businesses in the county or city, including an estimate of direct compliance costs for businesses; an identification of new charges and fees for which businesses will be financially responsible; and an estimate of the county’s or city’s regulatory costs;
o a good faith estimate of the number of businesses likely impacted; and
o any additional information deemed useful.
• provides that a business impact estimate is not required for the following:
o emergency ordinances;
o ordinances related to Part II of Chapter 163, relating to growth policy, county and municipal planning, and land development regulation, including zoning, development orders, development agreements, and development permits;
o building code ordinances under s.553.73;
o fire prevention code ordinances under s.633.202;
o ordinances establishing or terminating Community Development Districts under ss.190.005 and 190.046;
o ordinances required to comply with federal or state law or regulation;
o ordinances relating issuance or refinancing of debt;
o ordinances related to the adoption of county or municipal budgets or budget amendments, including revenue sources necessary to fund the budget;
o ordinances required to implement a contract or agreement, including but not limited to federal, state, local, or private grants or other financial assistance accepted by a county or municipality; and
o ordinances related to procurement.
• creates s.125.675 and 166.0411 to set conditions on lawsuits brought by any party to challenge local ordinances as preempted by the Florida State Constitution or by state law, or is arbitrary, or unreasonable. The bill requires the local government to suspend enforcement of an ordinance subject to such an action if:
o the action was filed with the court no later than 90 days after the adoption date of the ordinance;
o the plaintiff requests suspension in the initial complaint or petition, citing this new section; and
o the county or city has been served with a copy of the complaint or petition.
When a plaintiff appeals a final judgment finding that an ordinance is valid and enforceable, the county or municipality may enforce the ordinance 45 days after the entry of the order unless the plaintiff obtains a stay of the lower court’s order. The court must give those cases in which enforcement of the ordinance is suspended priority over other pending cases and render a preliminary or final decision as expeditiously as possible. The bill also provides that the court may
award attorney fees and costs, and damages as provided in s.57.112 described previously above. In filing an action, the signature of an attorney or other party certifies that it has not been filed for any frivolous or improper purposes, and may be subject to sanctions and fees if they are found to have done so. The provisions in these two new sections do not apply to the same ordinances as listed above for the business impact estimates. The bill:
• creates new provisions in s.125.66 and s.166.041 to provide that consideration of a proposed ordinance at a meeting properly noticed may be continued to a subsequent meeting if, at the scheduled meeting, the date, time, and place of the subsequent meeting are publicly stated. No further publication, mailing, or posted notice is required except that the continued consideration must be listed in an agenda or similar communication produced for the subsequent meeting. The bill further provides that this provision is remedial in nature, and is intended to clarify existing law, and shall apply retroactively.
Local Government Comprehensive Plans: CS/CS/SB 540 ER (Sen. DiCeglie) passed on May 2. The effective date identified in the bill is July 1, 2023. The bill was transmitted to Gov. DeSantis on May 9 and he has until May 24 to take action.
The bill amends ss.163.3184(5) and ss.163.3187(5) to provide that the prevailing party in administrative challenges to a comprehensive plan or amendment, including small-scale amendments, is entitled to recover attorney fees and costs in challenging or defending the order, including reasonable appellate attorney fees and costs.
The bill adds language to s.163.3202 to state that land development regulations related to any characteristic of development other than use, or intensity or density of use, do not apply to the Florida College System institutions as defined in s.1000.21.
Finally, the bill amends s.163.3215 to resolve a split among Florida district courts of appeal by clarifying that the scope of review for a challenge to a local government decision to grant or deny a development order is limited to whether the development order would materially alter the use, density, or intensity of a property in a manner not consistent with the comprehensive plan.
Local Government: CS/CS/SB 718 ER (Sen. Yarborough) passed on May 2. The effective date identified in the bill is July 1, 2023. As of the date of this report, the bill has not been transmitted to Governor DeSantis for his action.
The bill modifies ss.163.3167(8) to prohibit any initiative or referendum in regard to land development regulations.
The bill also amends the Municipal Annexation or Contraction Act in Ch. 171, F.S. The bill identifies the report a municipality must prepare prior to any annexation or contraction action as a “feasibility study,” and defines the study as an analysis conducted by qualified staff or consultants of the economic, market, technical, financial, and management feasibility of the proposed annexation or contraction, as applicable.
As it pertains to contraction, the bill removes the requirement that a municipality provide specific findings when rejecting a petition from the voters in an area desiring to be excluded from the municipal boundaries and specifies that such rejection is a legislative decision.
The bill also revises the contraction procedures in situations where more than 70 percent of the acres proposed to be contracted are owned by individuals, corporations, or legal entities that are not registered electors of such area. The bill requires in these instances that the owners of more than 50 percent of the acreage consent to such contraction. The bill includes a provision that provides that the amendments included in the bill related to contraction are intended to be prospective in nature and only apply to petitions filed on or after July 1, 2023.
Land Use and Development Regulations: CS/CS/SB 1604 ER (Sen. Ingoglia) was passed by the legislature on May 4. The bill was transmitted to Gov. DeSantis on May 5 and signed by him on that same day. The effective date of the bill is July 1, 2023, except for the provisions in the new ss.189.031(7), dealing with the review of development agreements of independent special districts, described in the last bullet below, which became effective when the bill became law.
The bill does the following:
• amends ss.163.3177(5)(a) to amend the planning periods for comprehensive plans from at least 5 and 10 years to at least 10 and 20 years;
• amends ss.163.3191(1) to specify that the notification sent by a local government to the Department of Economic Opportunity regarding an EAR determination must include a separate affidavit:
o signed by the county governing body chair or the municipality mayor, attesting that all the elements of its comprehensive plan comply with the requirements of s.163.3191(1);
o including a certification that the adopted plan contains a minimum planning period of 10 years; and
o citing the source and date of the population projections utilized in establishing the 10-year planning period.
• amends ss.163.3191(3) to:
o state that local governments are required, versus encouraged, to comprehensively evaluate and, as necessary, update comprehensive plans to reflect changes in local conditions; and
o add that updates to the required elements and optional elements must be processed in the same plan amendment cycle.
• amends ss.163.3191(4) and adds a new subsection (5) to provide that if a local government fails to provide its EAR notification and affidavit or fails to transmit its plan update within a year of transmitting the notification, it may not initiate or adopt any publicly initiated plan amendments until it complies, unless otherwise required by general law:
o this prohibition does not apply to privately initiated plan amendments;
o the failure of a local government to update its plan in a timely manner is not the basis for the denial of a privately initiated comprehensive plan amendment;
o if a local government fails to update its comprehensive plan, the state land planning agency must provide the required population projections that must be used by the local government and the local government must initiate an update within three months of receipt and transmit the update within 12 months;
o if the state land planning agency finds the update is not in compliance, it must establish a timeline to address the deficiencies, not to exceed an additional 12-month period;
o if the update is challenged by a third party, the local government may seek approval from the state land planning agency to process publicly initiated plan amendments that are necessary to accommodate the population growth during the pendency of the litigation; and
o during the update process, the local government can provide alternative population projections based on professionally acceptable methodologies, but only if they exceed the ones provided by the state land planning agencies and only if the update is completed in the timeframe.
• amends ss.163.3202(5) to:
o revise the application of building design element regulations to single- or two-family dwellings located in a planned unit development or a master-planned community to those planned unit developments or master-planned communities that were created before July 1, 2023; and
o revise the provision regarding the application of building design regulations to single- or two-family dwellings within a local government that has a design review board or architectural review board to require that the board has to have been created before January 1, 2020.
• amends s.163.3208 dealing with electric substation approval, to:
o modify the term “distribution electric substation” to refer to electric substations and to include accessory administration or maintenance buildings and related accessory uses and structures, which take electricity from the transmission grid and convert it to another voltage or lower voltage so it can be distributed to customers through one or more lines;
o removes the current kilovolt limitation in the definition, allowing the application of local regulations to electric substations of all sizes, except for substations identified in s. 163.3205(2)(c) that deals with the approval of solar facilities;
o make the electric substation approval process applicable to existing substations as well as new ones; and
o provides that existing, as well as new, electric substations shall be a permitted use in all land use categories and zoning districts.
• adds a new ss.189.031 (7) dealing with the review of development agreements of independent special districts, and appears on its face to be aimed at the Walt Disney Co. The new language provides that an independent special district is precluded from complying with the terms of any development agreement executed within the three months preceding the effective date of a law modifying the manner of selecting the members of the district’s governing body from elected to appointed or vice versa. The new governing body has four months after taking office to review any development agreement or any other agreement for which the development agreement serves in whole or in part as consideration, and vote on whether to seek readoption of such agreement. This applies to any development agreement that is in effect on, or is executed after, the effective date of this new section which is stated to be upon becoming law. This new subsection expires July 1, 2028 unless reenacted by the legislature.
Natural Emergencies: CS/CS/SB 250 ER (Sen. Martin) passed on May 1. The effective date identified in the bill is July 1, 2023, unless otherwise provided (see ninth bullet below). As of the date of this report, the bill has not been transmitted to Gov. DeSantis for his action.
The bill makes various changes throughout Florida Statutes regarding the preparation and response activities of state and local government when natural emergencies impact the state. Specifically, it:
• requires the Division of Emergency Management to post on its website a model debris removal contract for the benefit of local governments;
• encourages local governments to create emergency financial plans in preparation for major natural disasters;
• provides that counties and municipalities cannot prohibit a resident from placing a temporary residential structure on their property for up to 36 months following a natural emergency under certain circumstances;
• authorizes local governments to create specialized building inspection teams following a natural disaster and encourages interlocal agreements for additional building inspection services during a state of emergency;
• following a state of emergency declaration for a natural disaster, local governments are required to approve special permitting processes to expedite the issuance of permits that do not require technical review, including, but not limited to, roof repairs, reroofing, electrical repairs, service changes, or the replacement of one window or one door;
• amends s.252.363 (1)(a) to increase the extension of specified permits and authorizations following a declaration of a state of emergency from six to 24 months and caps such extension at 48 months in the event of multiple natural emergencies; provides that the tolling and extension of permits and other authorizations applies retroactively to Sept. 28, 2022;
• prohibits counties and municipalities within the disaster declaration for Hurricane Ian or Hurricane Nicole from increasing building inspection fees until Oct. 1, 2024; this provision expires June 30, 2025;
• allows registered contractors to engage in contracting only for the types of work covered by their registration within areas for which a state of emergency has been declared;
• prohibits counties and municipalities located entirely or partially within 100 miles of where either Hurricane Ian or Hurricane Nicole made landfall from proposing or adopting before Oct. 1, 2024:
o a moratorium on construction, reconstruction, or redevelopment of property damaged by the hurricane;
o more restrictive or burdensome procedures to its comprehensive plan or land development regulations; or
o procedures concerning review, approval, or issuance of a site plan, development permit, or development order.
This provision applies retroactively to Sept. 28, 2022, and any such action is null and void. This provision takes effect upon the bill becoming law.
• extends the date for independent special fire control districts located partially or wholly within 50 miles of where Hurricane Ian made landfall to submit the statutorily-required performance reviews to July 1, 2024;
• amends the Consultants’ Competitive Negotiation Act to allow for additional disaster-related construction projects relating to Hurricane Ian to utilize the “continuing contracts” provision through Dec. 31, 2023; this provision expires on Jan. 1, 2024;
• makes the Local Government Emergency Bridge Loan Program a revolving program and makes funds available for local governments impacted by federally declared disasters until July 1, 2038. Additionally, the bill appropriates $50 million in nonrecurring funds from the General Revenue Fund to the program for FY 2023-24;
• provides clarification regarding the 45-day grace period following a hurricane in which owners must bring a derelict vessel into compliance before being charged with a violation;
• directs the Division of Emergency Management to administer a revolving loan program for local government hazard mitigation projects, appropriates $1,000,000 in nonrecurring funds from the General Revenue Fund and $10,000,000 in nonrecurring funds from the Federal Grants Trust Fund for such activity for FY 2023-24. Such funds will be held in reserve, contingent upon FEMA approval and release by the Legislative Budget Commission; and
• provides that a public utility is not liable for damages in whole or in part on changes in the reliability, continuity, or quality of utility services that arise in any way out of an emergency or disaster.
ECONOMIC DEVELOPMENT
Rural Development: CS/CS/CS/HB 1209 ER (Rep. Shoaf) was passed by the legislature on May 4. The effective date identified in the bill is July 1, 2023. As of the date of this report, the bill has not been transmitted to Governor DeSantis for his action.
This bill was significantly reduced in scope on the Senate floor, with subsequent House concurrence. Previously proposed amendments related to the Florida Development Finance Corporation, Triumph Gulf Coast, Inc., and the Everglades Restoration Agricultural Community Employment Training Program were deleted.
The bill amends s.215.97 to require agency agreements that provide state or federal financial assistance to a county or municipality that is a rural community or rural area of opportunity to include a provision allowing for the payment of certain invoices to the county, municipality, or rural area of opportunity for verified and eligible performance completed in accordance with the agreement.
The bill also makes a number of changes related to the Rural Infrastructure Fund in s.288.0655 to:
• allow DEO to award grants for up to 75 percent of the total infrastructure project cost, an increase from 50 percent;
• allow DEO to award grants for up to 100 percent of the total infrastructure project cost for a project located in a rural community located in a fiscally constrained county or a rural area of opportunity;
• remove the requirement that eligible projects must be related to specific job creation or job opportunities;
• remove projects related to broadband internet services from those eligible for funding;
• allow DEO to award grants of up to $300,000 for infrastructure feasibility studies, design and engineering activities, or other infrastructure planning and preparation activities; and
• provide that project grants in rural areas of opportunity for surveys, feasibility studies, and other activities related to the identification and preclearance review of land do not require a match of local funds.
ENVIRONMENT AND NATURAL RESOURCES
Environmental Protection: CS/CS/HB 1379 ER (Rep. Steele) passed on May 3. The effective date identified in the bill is July 1, 2023. As of the date of this report, the bill had not been transmitted to Governor DeSantis for his action
The major topics in this extensive bill include wastewater treatment, onsite sewage treatment and disposal systems (OSTDSs), sanitary sewer services, basin management action plans (BMAPs), the wastewater grant program, the Indian River Lagoon (IRL). Please review the bill for an overview of those changes. This review focuses on amendments impacting local plans and environmental land acquisition.
The bill contains provisions that impact local government comprehensive plans as follows:
• amends ss.163.3177(3)(a) to include that, where applicable, the capital improvements schedule must include a list of projects necessary to achieve the pollutant load reduction attributable to the local government, as established in a basin management action plan pursuant to s.403.067(7);
• amends ss.163.3177(6)(c) to require that the sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element addresses coordinating the treatment or upgrade in treatment of facilities to meet future needs, and prioritizing advanced waste treatment for increased capacity;
• creates ss.163.3177(6)(c)(3) to require that in the sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element, for any development of more than 50 residential lots, built or unbuilt, with more than one onsite sewage treatment and disposal system per one acre, the element must:
o consider the feasibility of providing sanitary sewer services within a 10-year planning horizon;
o an onsite sewage treatment and disposal system is presumed to exist on a parcel if sanitary sewer services are not available at or adjacent to the parcel boundary;
o must identify the name and location of the intended wastewater facility to receive sanitary sewer flows after connection; the capacity of the facility and any associated transmission facilities; the projected wastewater flow at that facility for the next 20 years, inclusive of expected future new construction and connections of onsite sewage treatment and disposal systems to sanitary sewer; and a timeline for the construction of the sanitary sewer system;
o be updated in the comprehensive plan to include this information by July 1, 2024; and
o these new requirements do not apply to a local government designated as a rural area of opportunity.
Among the provisions related to the acquisition of state lands, the bill does the following:
• amends s.253.025 to:
o require purchase agreements be submitted to the Board of Trustees (Board) of the Internal Improvement Trust for approval only if the purchase price exceeds $5 million, increased from the current $1 million and deletes the current requirement that initial acquisition purchases in a Florida Forever project require approval of the Board;
o revise the appraisal requirements to increase the appraisal amount that requires a second appraisal from $1 million to $5 million and allows; if both appraisals of a parcel exceed $5 million and differ significantly, a third appraisal may be conducted;
o require the Florida Department of Environmental Protection (DEP) to disclose appraisal reports to private landowners or their representatives during negotiations; and
o clarify that the Board may or, when applicable, DEP may acquire parcels of land pursuant to Ch. 253 and Ch. 259, for the full value of that parcel as determined by the highest approved appraisal.
• amends s.259.032 to specify that the Board is authorized to acquire lands that complete critical linkages through fee or less-than-fee acquisition that will help preserve and protect the green and blue infrastructure and vital habitat for wide-ranging wildlife, such as the Florida panther, within the Florida wildlife corridor as defined in s.259.1055(4).
With respect to the Florida Forever Act, the bill amends s.259.105 to do the following:
• require the Department of Agriculture and Consumer Services, by March 1, 2024, to submit an updated priority list to the Acquisition and Restoration Council (ARC) and specifies that any acquisitions for which funds have been obligated prior to July 1, 2023, to pay for an appraisal may not be impacted by the updated priority list;
• require ARC to give increased priority to projects in imminent danger of development, loss of significant natural attributes or recreational open space, or subdivision, which would result in multiple ownership and make the acquisition of the project costly or less likely to be accomplished; and
• require ARC to give lands located within the Florida wildlife corridor increased priority.
The bill also amends s.375.041 to dedicate $100 million annually to DEP from the Land Acquisition Trust Fund for the acquisition of lands through the Florida Forever Program. The bill also amends s.570.71, and s.570.715 related to conservation easements and agreements, to:
• allow DEP to give preference to lands in imminent danger of development or degradation, or lands within the Florida Wildlife Corridor;
• require that a purchase agreement only be submitted to the Board for approval if the price exceeds $5 million;
• revise the appraisal requirements to increase the appraisal amount that requires a second appraisal from $1 million to $5 million and allows; if both appraisals of a parcel exceed $5 million and differ significantly, a third appraisal may be conducted; and
• require the Florida Department of Environmental Protection (DEP) to disclose appraisal reports to private landowners or their representatives during negotiations.
Flooding and Sea Level Rise Vulnerability Studies: CS/HB 111 ER (Rep. Hunschofsky) was passed by the legislature on April 1. The effective date identified in the bill is July 1, 2023. As of the date of this report, the bill has not been transmitted to Gov. DeSantis for his action.
The bill expands the Resilient Florida Grant Program, in ss.380.093(3), to include funding for:
• municipalities and counties for feasibility studies and permitting costs for nature-based solutions that reduce the impact of flooding and sea level rise; and
• water management districts to support local government adaptation planning, which may be conducted by the water management district or by a third party on behalf of the water management district. These grants must be used for the express purpose of supporting the Florida Flood Hub for Applied Research and Innovation and DEP through data creation and collection, modeling, and the implementation of statewide standards. Priority must be given to filling critical data gaps identified by the Florida Flood Hub.
The bill creates s.380.0937 to deal with the public financing of construction projects within areas at risk due to sea level rise. Beginning July 1, 2024, a state-financed constructor may not commence construction of a potentially-atrisk structure or infrastructure without:
• conducting a sea level impact projection (SLIP) study that meets FDEP requirements;
• submitting the study to DEP; and
• receiving notification from DEP that the study was received and published on the department’s website for at least 30 days.
The state-financier constructor is solely responsible for ensuring that the study submitted to DEP meets the study requirements. The DEP is required to publish and maintain a copy of each SLIP study on its website for at least ten years after the date it is received. The bill defines a number of terms, including:
• “potentially at-risk structure or infrastructure” means any of the following when within an area at risk due to sea level rise:
o a critical asset as defined in 380.93(2)(a)1-3; and
o a historical or cultural asset.
• “area at risk due to sea level rise” means any location that is projected to be below the threshold for tidal flooding within the next 50 years by adding sea level rise using the highest of the sea level rise projections required by s.380.093(3)(d)3.b; with the threshold for tidal flooding being 2 feet above mean high water;
• “state-financed constructor” means a public entity that commissions or manages a construction project using funds appropriated from the state; and
• “public entity” means the state or any of its political subdivisions, or any municipality, county, agency, special district, authority, or other public body corporate of the state which is demonstrated to perform a public function or to serve a governmental purpose that could properly be performed or served by an appropriate governmental unit.
The bill requires DEP to develop by rule the standard by which the SLIP studies must be conducted and may require that a professional engineer sign off on the study. The bill states that this rule would only apply to projects not yet
commenced as of the date the rule is finalized, and may not apply retroactively. It also provides that a single SLIP study may be provided if multiple potentially at-risk structures or infrastructure are to be built concurrently within one project. The bill requires, at a minimum, the SLIP study standard must require the state-financed constructor to do all of the following:
• use a systematic, interdisciplinary, and scientifically accepted approach in the natural sciences and construction design in conducting the study;
• assess the flooding, inundation, and wave action damage risks relating to the potentially at-risk structure or infrastructure over its expected life or 50 years, whichever is less;
• provide alternatives for the design and siting of the potentially at-risk structure or infrastructure and analyze how such alternatives would impact the risks, as well as the risk and cost associated with maintaining, repairing, and constructing the potentially at-risk structure or infrastructure; and
• provide a list of flood mitigation strategies evaluated as part of the design of the structure or infrastructure, and identify appropriate flood mitigation strategies for consideration as part of the structure or infrastructure design.
If a state-financed constructor commences construction of a potentially at-risk structure or infrastructure without complying with the SLIP study requirement, the FDEP can bring a civil action to:
• seek injunctive relief to cease further construction or to enforce compliance with this requirement or rules adopted pursuant to this section; and
• seek recovery of all or a portion of the state funds expended if the potentially at-risk structure or infrastructure has been completed or substantially completed.
The bill states that this section does not create a cause of action for damages or otherwise authorize the imposition of penalties by a public entity for failure to implement what is contained in the SLIP study. It also sunsets, as of July 1, 2024, the provisions of s.161.55, which require SLIP studies for state-financed structures within the coastal building zone, as these structures will be subject to the requirements of this bill.
HOUSING
Housing: CS/SB 102 ER (Sen. Calatayud), a priority of Senate President Passidomo, was passed by the legislature on March 24 and approved by Gov. DeSantis on March 29. The effective date of the bill is July 1, 2023, unless otherwise provided.
Cited as the “Live Local Act”, the bill makes various changes and additions to affordable housing-related programs and policies at both the state and local levels. Much of the bill involves the Florida Housing Finance Corporation, a public-private entity that administers the two largest statewide affordable housing programs: the State Apartment Incentive Loan (SAIL) program and the State Housing Initiatives Partnership (SHIP) program. Among the changes, the bill provides up to $150 million annually to the SAIL program to be used for certain specified projects as identified in the newly created s.420.50871. This provision sunsets July 1, 2033. The bill also significantly amends the state housing strategy delineated in s.420.0003. The bill also creates s.420.50872, “Live Local Program”, a new program to allow taxpayers to direct contributions, up to a total of $100 million annually, to help fund the SAIL program, and creates s.220.1878 and s.624.51058 to provide a tax credit for contributions to the Live Local Program. However, the bill also includes several changes that impact local government. Specifically, the bill does the following:
Rent Control
• amend s.125.0103 and s.166.043 to remove the authority of local government to enact ordinances controlling the price of rents.
Expedited Development Projects for Affordable Housing
• amend s.125.01055(6) and 166.04151(6) to provide that a county or municipality may approve the development of affordable housing, including but not limited to a mixed-use development, on any parcel zoned for commercial or industrial use, so long as at least 10 percent of the housing units in the project are affordable. This provision is self-executing and does not require the local government to adopt an ordinance
or regulation. (This amended language deletes current statutory language that included parcels zoned for residential, and required that the developer of the project agree not to seek funding under the SAIL program.)
Comprehensive Plans/Zoning Regulations
• create ss.125.01055(7) and ss.166.04151(7) to:
o require counties and municipalities to authorize multifamily and mixed-use residential as allowable uses in any area zoned for commercial, industrial, or mixed-use if at least 40 percent of the residential units in a proposed multifamily rental development are, for a period of at least 30 years, affordable as defined in s.420.0004;
o prohibit a county or municipality from requiring the proposed multifamily development to get a zoning or land use change, special exception, conditional use approval, variance or comprehensive plan amendment for the building height, zoning, and densities;
o require that at least 65 percent of the total square footage in a mixed-use residential project must be used for residential purposes;
o prohibit a county or municipality from restricting the density of a proposed development authorized under these subsections below the highest allowed density on county unincorporated land or land within the municipality, respectively, where residential development is allowed;
o prohibit a county or municipality from restricting the height of a proposed development authorized under these subsections below the highest currently allowed height for commercial or residential development in its jurisdiction within 1 mile of the proposed development or three stories, whichever is higher;
o require that a proposed development authorized under these subsections must be administratively approved and no further action required if the development satisfies the local land development regulations (including but not limited to regulations relating to setbacks and parking requirements) for multifamily developments in areas zoned for such use and is otherwise consistent with the comprehensive plan, with the exception of provisions establishing allowable densities, height, and land use;
o require that counties and municipalities must consider reducing parking requirements if the proposed development is located within one-half mile of a major transit stop, as defined in the land development code, and the major transit stop is accessible from the development;
o provide that for proposed multifamily developments in an unincorporated area zoned for commercial or industrial use that is within the boundaries of a multicounty independent special district that was created to provide municipal services and is not authorized to levy ad valorem taxes, and less than 20 percent of the land area within such district is designated for commercial or industrial use, the county must authorize such development only if it is mixed-use residential;
o provide that a municipality that designates less than 20 percent of its land for commercial or industrial use must authorize a proposed multifamily development in areas zoned for commercial or industrial only if it is mixed-use residential;
o specify that except as otherwise provided in these subsections, a development authorized under these provisions must comply with all applicable state and local laws and regulations;
o specifies that these subsections do not apply to property defined as recreational and commercial working waterfront in s.342.201(2)(b) in any area zoned as industrial; and
o state that these subsections expire on Oct. 1, 2033.
Building Permits
• amend ss.553.792(1)(a) to require that a local government must maintain on its website a policy containing the procedures and expectations for expedited processing of those building permits and development orders required by law to be expedited.
Local Government-Owned Property
• amend s.125.379 and s.166.0451 to:
o provide that counties and cities must produce their real property inventory list identifying property that is appropriate for affordable housing by Oct. 1, 2023, and every three years after;
o require that the list be made publicly available on the applicable county or city website;
o require that counties and cities must include real property owned by dependent special districts within their boundaries on the inventory lists;
o provide that acceptable uses of property identified as appropriate for affordable housing includes utilization through a long-term land lease requiring the development and maintenance of affordable housing; and
o encourage counties and cities to adopt best practices for surplus land programs, with the bill providing examples.
Ad Valorem Tax Exemptions
• amend s.196.1978 to provide two new property tax exemptions:
o nonprofit land lease exemption for land that is leased for at least 99 years for the purpose of, and predominately used for, providing affordable housing and is owned entirely by a nonprofit entity that is a corporation not for profit that meets other specified conditions – first applies to the 2024 tax roll and is repealed on Dec. 31, 2059; and
o tax exemption that applies to rent-restricted units within newly constructed or substantially rehabilitated developments setting aside at least 70 units for affordable housing for households earning 120 percent of area median income – first applies to the 2024 tax roll and is repealed on December 31, 2059.
• create s.196.1979 to authorize a county or municipality to adopt a local ordinance to exempt those portions of property used to provide affordable housing meeting certain requirements – first applies to the 2024 tax roll and expires the fourth January 1 after adoption; however, governing body may adopt a new ordinance to renew the exemption.
Keys Workforce Housing Initiative
• provide that the Department of Economic Opportunity’s Keys Workforce Housing Initiative, approved by the Administration Commission on June 13, 2018, is considered an exception to the evacuation time constraints of s.380.0552(9)(a)2 by requiring deed-restrictive affordable workforce housing properties receiving permit allocations to agree to evacuate at least 48 hours in advance of hurricane landfall. A comprehensive plan amendment approved by DEO to implement the initiative is considered valid and the respective local governments may adopt local ordinances or regulations to implement such plan amendment.
TRANSPORTATION
Department of Transportation: CS/CS/CS/HB 1305 ER (Rep. Abbott) passed on May 3. The effective date identified in the bill is July 1, 2023, unless otherwise provided. The bill was transmitted to Gov. DeSantis on May 9 and he has until May 24 to take action.
This bill relates to the Florida Department of Transportation and does the following:
• increases the maximum debt service coverage level for the State Transportation Trust Fund from $350 million to $425 million;
• increases the term from 12 to 18 years for state bonds for federal aid highway construction;
• allows the FDOT to provide 100 percent of project costs, under the Intermodal Logistics Center Infrastructure Support Program, for eligible projects in rural areas of opportunity
• authorizes the Florida Development Finance Corporation to finance certain DOT-related public private partnership projects;
• authorizes installation of automated license plate recognition systems within the rights-of-way of the State Highway System at FDOT’s discretion when installed at the request of a law enforcement agency for the purpose of collecting active criminal intelligence or investigative information;
• provides that FDOT may not, when granting airport site approval, require a written memorandum of understanding or letter of agreement with other airport sites regarding air traffic pattern separation procedures unless it is required by the FAA or is deemed necessary by FDOT;
• allows the FDOT to fund up to 100 percent of eligible project costs of all of the following at a publicly owned, publicly operated airport located in a rural community as defined in s.288.0656 that does not have any scheduled commercial service:
o capital cost of runway and taxiway projects that add capacity. Such projects must be prioritized based on the amount of available nonstate matching funds; and
o economic development transportation projects pursuant to s.339.2821 F.S.
• amends the definition of a temporary airport and provides that site approval shall be granted for a temporary airport only after receipt of documentation in the form and manner FDOT deems necessary to satisfy specified conditions; this documentation must be included with the application for a temporary airport registration, and the bill specifies notice and review requirements for the registration application;
• authorizes FDOT to acquire promotional items and materials to promote electric vehicle use and charging and autonomous vehicles;
• authorizes FDOT, at its discretion, to expend funds for training, testing, and licensing for full-time FDOT employees who are required to have a valid Class A or Class B commercial driver license as a condition of employment with FDOT;
• increases from $120 million to $200 million the cap on innovative transportation project contracts that FDOT may annually award, and deletes the cap exemption for low-bid design build milling and resurfacing contracts;
• increases FDOT’s contracting cap where it is not required to receive competitive bids in certain circumstance from $250,000 to $500,000;
• expands the potential use of phased design-build by FDOT by authorizing them for any FDOT project, not just specified ones, and providing options for phased design-build contracts;
• requires that, by Dec. 31, 2023, the MPOs serving Hillsborough, Pasco, and Pinellas counties must submit a feasibility report exploring the benefits, costs, and process of consolidation into a single MPO serving the contiguous urbanized area to the Governor, Senate President, and House Speaker;
• requires that public transit development plans of eligible providers in the public transit block grants program be consistent, to the maximum extent feasible, with the long-range transportation plans of the metropolitan planning organization in which the provider is located;
• requires that FDOT adopt by rule minimum safety standards for any governmentally or privately owned fixed-guideway transportation systems located within an independent special district created by local act which have boundaries within two contiguous counties:
o FDOT must conduct safety inspections in adherence with s.335.074 for any fixed guideway transportation systems that are raised or have bridges, as appropriate; and
o Inspectors must follow departmental safety protocols during safety inspections, including requiring the suspension of system service to ensure the safety and welfare of inspectors and the travelling public during such inspections.
• removes the requirement that each public transit provider’s productivity and performance report specifically address potential enhancements to productivity and performance that would have the effect of increasing the farebox recovery ratio; instead the report just needs to include the farebox recovery rate;
• requires public transit providers to publish productivity and performance information on its website, instead of in the local newspaper.;
• transfers the Santa Rosa Bay Bridge Authority’s bridge system to FDOT upon the bill becoming law and authorizes DOT to transfer it to the Florida Turnpike Enterprise.
• repeals the Santa Rosa Bay Bridge Authority in statute;
• provides that, upon the bill becoming law, the Greater Miami Expressway Agency is reestablished subject to revised powers and duties outlined in the bill; and
• provides that the provisions of s.189.072, dealing with the dissolution of an independent special district, do not apply to any entity created pursuant to the Florida Expressway Authority Act.
Florida Shared-Use Nonmotorized Trail Network: CS/SB 106 ER (Sen. Brodeur) was passed by the legislature on April 4 and signed by Gov. DeSantis on April 11. The effective date of the bill is July 1, 2023.
The bill expands the existing Shared-Use Nonmotorized (SUN) Trail Network and enhances coordination of the state’s trail system with the Florida Wildlife Corridor. Specifically, it:
• prioritizes the development of “regionally significant trails” which are defined as trails crossing multiple counties; serving economic and ecotourism development; showcasing the state’s wildlife areas, ecology, and natural resources; and serving as main corridors for trail connectedness across the state;
• enhances the planning, coordination, and marketing of the state’s bicycle and pedestrian trail system and the Wildlife Corridor;
• stipulates that trails developed within the Wildlife Corridor maximize the use of previously disturbed lands, such as abandoned roads and railroads, canal corridors, and drainage berms, and be compatible with applicable land use provisions;
• requires the FDOT to erect uniform signage identifying trails that are part of the SUN Trail Network and to submit a periodic report on the status of the SUN Trail Network;
• authorizes the FDOT and local governments to enter into sponsorship agreements, instead of the current concession agreements, for trails and to use associated revenues for maintenance, signage, and related amenities;
• recognizes “trail town” communities and directs specified entities to promote the use of trails as economic assets, including the promotion of trail-based tourism; and
• increases recurring funding for the SUN Trail Network from $25 million to $50 million and provides a nonrecurring appropriation of $200 million to plan, design, and construct the SUN Trail Network.
Transportation: CS/CS/CS/HB 425 ER (Rep. Esposito and Rep Andrade) passed on May 4. The effective date identified in the bill is July 1, 2023, unless otherwise provided. As of the date of this report, the bill has not been transmitted to Gov. DeSantis for his action.
The bill does the following:
• expands Florida’s existing Move Over Law to include disabled vehicles;
• requires the FDOT to coordinate with specified entities to establish standards by which the State Highway System will be graded according to their compatibility with the operation of autonomous vehicles;
• amends s.333.03(2) dealing with the adoption of airport zoning regulations, to provide that where a specified noise study has not been conducted for a public-use airport, the mitigation, versus prohibition, of potential incompatible uses associated with residential construction and educational facilities should be considered in the airport land use compatibility zoning regulations;
• codifies in s.334.066 the Implementing Solutions from Transportation Research and Evaluating Emerging Technologies Living Lab (ISTREET) within the University of Florida and provides for its duties relating to transportation research, education, workforce development, and related issues;
• provides that a producer of construction aggregates (gravel, sand, etc.) may not represent that an aggregate is certified for use unless such aggregate complies with FDOT rules;
• provides that a local governmental entity must accept electronic proof of delivery as an official record for a material delivery on a transportation project;
• requires FDOT contracts for bridge work over navigable waters to require a marine general liability insurance provision in an amount determined by FDOT;
• requires FDOT to implement strategies to reduce project costs while still meeting applicable federal and state standards;
• authorizes FDOT to share up to 10 percent of construction cost savings due to a change in contract design and scope, initiated after contract execution. with design, construction engineering, or inspection consultants whose input was involved in realizing the cost savings;
• authorizes a contractor who desires to bid exclusively on construction contracts with proposed budget estimates of $2 million or less (increased from $1 million) to submit reviewed, rather than audited, financial statements;
• authorizes an applicant for a contractor certificate of qualification to submit a request to keep an existing certificate, with the current maximum capacity rating, in place until the expiration date of the existing certificate;
• repeals a public records exemption for documents that reveal the identity of a person who has requested or obtained a bid package, plan, or specifications pertaining to any project to be let by FDOT;
• increases the height of modular news racks that can be placed within road rights-of-way to 105 inches;
• deletes current statutory language that prohibits FDOT from requesting legislative approval of a proposed turnpike project until the design phase of the project is at least 30 percent complete;
• amends s.339.175 dealing with metropolitan planning agencies (MPOs) to:
o require that, where more than one MPO is designated within an existing urbanized area, each MPO designated for the area to:
consult with every other MPO designated for the area and the state to coordinate plans and transportation improvement programs; and
ensure, to the maximum extent practicable, the consistency of data used in the planning process, including data used in forecasting travel demand within the urbanized area.
o provide that an MPO may not perform project production or delivery for capital improvement projects on the State Highway System;
o require that, in developing the long-range transportation plan and transportation improvement program, MPOs must consider the contiguous urbanized metropolitan area and project/strategies for improving the resilience of transportation infrastructure;
o require that membership of an MPO technical advisory committee must consider the proportional representation of the area’s population and include intermodal logistics centers representation whenever possible;
o require a report, due by Dec. 31, 2023, regarding the consolidation of the MPOs serving Hillsborough, Pasco, and Pinellas Counties which explores the benefits, costs, and process of consolidation into a single MPO serving the contiguous urbanized area. The report is to be done by these three MPOs and submitted to the Governor, Senate President, and House Speaker; and
o revise provisions regarding the powers and duties of the MPO Advisory Council.
• creates s 339.651, Strategic Intermodal System supply-chain demands, to require that the FDOT must specifically address in its transportation plans, including the Florida Transportation Plan and the Strategic Intermodal System Plan, the movement and storage of construction aggregate materials essential for building roadways
o requires FDOT to make $20 million available each year from FY 2023-24 through FY 2027-28 to fund projects that provide increased capacity end enhanced capabilities to move and store construction aggregate;
o provides minimum criteria for DOT to consider when evaluating projects requesting funding; and
o repeals this new section on July 1, 2028.
• authorizes FDOT to use $5 million from the State Transportation Trust Fund, beginning in FY 2023-24 and annually thereafter for five years, for a workforce development program as provided in s.334.044(35) to promote career paths in the road and bridge industry; and
• removes the requirement that railroad police be appointed by the governor and gives them arrest powers in every county in which the railroad operates.