Feb. 18 Legislative Reporter

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Feb. 18, 2022 | Legislative Reporter There are only three weeks left in the 2022 legislative session. Bills that have not begun to move through committee are likely not to be passed.

Gov. Ron DeSantis’s proposed budget for FY 2022-23 totals $99.7 billion. Both the House and Senate have passed their proposed budgets, $105 billion and nearly $109 billion, respectively. They have until March 8 to agree on a budget to send to the governor. This will allow for the mandatory 72 hour waiting period before voting on the budget and allow the session to end on time on March 11.

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 have had action since the last Legislative Update.

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 Ordinances: CS/HB 403 (Rep. Giallombardo), a delete-all amendment, was reported favorably by the House Civil Justice & Property Rights Subcommittee on Feb 16. The amendment makes the bill consistent with CS/CS/SB 280 E1, passed by the Senate on Jan. 27 and currently in the House in Messages.

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: Feb. 18, 2022 | Legislative Reporter

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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; and 4. any additional information the governing body determines may be useful.

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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.

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.

When the plaintiff appeals a final judgment finding that an ordinance is valid and enforceable, the county or municipality may 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 that 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.

The bill also 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; Feb. 18, 2022 | Legislative Reporter

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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 or expressly preempted. 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.

CS/HB 403 now moves to the House State Affairs Committee, its final committee of reference.

Local Government Land Development Actions: CS/HB 739 (Rep. Borrero) proposes several changes related to land development and land development regulations. It would do the following: • amend s.125.022 (1) and s.166.033(1) F.S. to state that once an applicant has responded to a local government’s letter requesting additional information on a development permit or development order application, the local government may only provide additional comments on the deficiencies that are directly related to the deficiencies that were identified during the first review period or that directly address the responses given by the applicant. The local government may also make additional comments as a result of new information submitted by the applicant; • amend s.553.792(1) F.S., related to building permit application, to provide that the local government may only request more information on the additional information provided to the local government by the applicant and may not make new comments on the original application. The bill also amends s.553.792(2) F.S. to make similar changes; • create ss.163.3202(7) F.S. which: o requires each local government with $10 million or more in total revenue to adopt residential infill development standards by Jan. 1, 2023, and requires these standards to be considered in local decision making; o requires each local government with $10 million or more in total revenue after July 1, 2022, to adopt residential infill development standards in its land development regulations within 18 months after reaching that revenue threshold; o allows a local government to adopt its own residential infill standards or use the guidelines provided; however, all standards must provide that a residential infill project that is located within an area that has a basin management action plan adopted under s.403.067 must comply with the water quality standards established in that plan; o requires that each local government amend its development regulations to include residential infill development as a zoning classification and must incorporate it as an appropriate land use classification under the local government comprehensive plan; o defines a “residential infill development” as an area consisting of a development or subdivision of land designated as such by a local government wherein the dimensional requirements of the land use district are relaxed, and the local government review process is expedited; o identifies 12 guidelines that local government must use in developing the residential infill development standards, including that residential infill projects may not be larger than 120 acres and shall not be phased or incrementally expanded; Feb. 18, 2022 | Legislative Reporter

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requires each local government to adopt guidelines to be used by applicants seeking designations as residential infill development, including procedures for the review of applications, and identifies things that need to be considered by the applicant; provides that a local government may not approve a deficient application as a residential infill development. Where deficiencies exist, the applicant bears the burden to prove the benefits of the residential infill development outweigh the deficiencies in services; provides that a local government may not deny an applicant’s request for designation as a residential infill development if the applicant has complied with the development standards of this subsection; allows applicants to appeal a denial of an application through an administrative appeal and the local government must render a decision within 30 days of receiving the appeal; if a final decision is not rendered within 30 days, the application is deemed approved.

CS/HB 739 was reported favorably by the House Local Administration & Veterans Affairs Subcommittee on Feb. 7 and is now in the House Commerce Committee, its last committee of reference. A similar bill, SB 1248 (Sen. Gruters) has not yet been heard in committee.

School Concurrency: CS/CS/CS/SB 706 (Sen. Perry) amends s.163.3180 (6), F.S., to provide that school concurrency is deemed satisfied when the developer tenders a written legally binding, rather than actually executes, commitment to provide mitigation proportionate to the demand created by the development. The district school board must notify the local government that capacity is available for the development within 30 days after receipt of the developer’s commitment.

Additionally, the statue currently requires that any proportionate-share mitigation must be directed toward school capacity improvement identified in the five-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/CS/CS/SB 706 was passed by the Senate on Feb. 17 and is in the House in Messages. A similar bill, CS/CS/HB 851 (Rep. McClain) is scheduled to be heard on Feb. 21 in the House State Affairs Committee, its final committee of reference.

Florida Main Street Program and Historic Preservation Tax Credits: CS/HB 247 (Rep. Salzman), a delete-all amendment, was reported favorably by the House Tourism, Infrastructure & Energy Subcommittee on Feb. 15. The amendment rendered the bill consistent with CS/SB 1310 (Sen. Rodriguez).

The bills create the Main Street Historic Tourism and Revitalization Act, which provides a tax credit against corporate income taxes and insurance premium taxes for qualified expenses incurred in the rehabilitation of a certified historic structure. The tax credit may not exceed 20 percent of qualified expenses incurred in the rehabilitation of a certified historic structure that has been approved by the National Park Service to receive the federal historic rehabilitation tax credit or 30 percent of the total qualified expenses incurred in the rehabilitation of a certified historic structure that has been approved by the National Park Service to receive the federal historic rehabilitation tax credit that is located within a local program area of an Accredited Main Street Program.

Any unused amount may be carried forward for a period of up to five taxable years. Tax credits may also be sold or transferred. There is no limit on the total number of transactions for the sale or transfer of all or part of a tax credit.

However, qualified expenses may only be counted once in determining the amount of an available tax credit, and no more than one taxpayer may claim a tax credit for the same qualified expenses.

CS/HB 247 now moves to the House Ways & Means Committee, its second of three committees of reference.

CS/SB 1310 is in the Senate Appropriations Committee, its final committee of reference.

Residential Development Projects for Affordable Housing: CS/CS/SB 962 E1 (Sen. Bradley) was passed by the Senate on Feb. 10 and is now in the House in Messages. The bill allows counties and municipalities, notwithstanding any other law or ordinance to the contrary, to approve the development of any residential development project, including a mixed-use residential development project, on any parcel zoned for commercial or industrial use if at Feb. 18, 2022 | Legislative Reporter

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least 10 percent of the project’s units are reserved for affordable housing. The developer must also agree not to apply for or receive funding under s. 420.0587 F.S. (State Apartment Incentive Loan.)

The bill states that these provisions are self-executing and do not require the governing body to adopt an ordinance or regulation before using this approval process.

CS/CS/HB 981 (Rep. Payne), a similar bill, is on the House Calendar on Second Reading.

Rural Development: CS/HB 685 (Rep. Drake) reduces the required non-state match amount for the Regional Rural Development Grants Program from 25 percent to 15 percent and allows in-kind contributions to count toward this threshold. The bill also removes the requirement that repaid funds from the Rural Community Development Revolving Loan Fund be matched in order to be retained to fund future loans.

Finally, the bill revises the uses of the Rural Infrastructure Fund to remove the requirement that grants be linked to financing specific projects. It increases the proportion of an infrastructure project that may be covered by the grant from 50 percent to 75 percent and increases the maximum grant for infrastructure feasibility studies, design and engineering activities, or other infrastructure planning and preparation activities to $300,000 for all projects. The bill removes the local match requirement for surveys, feasibility studies, and other activities related to the identification and preclearance review of land that is suitable for preclearance review and removes the requirement that a grant for an employment project create a minimum number of jobs.

CS/HB 685 was reported favorably by the House Commerce Committee, its last committee of reference, on Feb. 17.

CS/SB 800 (Sen. Albritton) contains similar provisions. CS/SB 800 also creates the Rural Opportunity Tax Refund Program to provide tax refunds to qualified target industry businesses located in rural areas and provides that qualified target industry businesses are eligible to receive a tax refund of specified taxes equal to $6,000 per created job. CS/SB 800 is in the Senate Appropriations Committee, its final committee of reference.

Floating Solar Facilities: CS/SB 1338 (Sen. Diaz) creates s.163.32051, F.S., relating to floating solar facilities (FSF). The bill defines “floating solar facility,” as a solar facility located on a wastewater treatment pond, abandoned limerock mine area, or other manmade water storage reservoir.

The bill requires FSFs to be a permitted use in appropriate land use categories in each local government’s comprehensive plan. Each local government must amend its development regulations to promote the expanded use of FSFs. The bill authorizes counties and municipalities to specify buffer and landscaping requirements, but such requirements may not exceed those for similar uses involving solar facility construction that is permitted in agricultural land use categories and zoning districts. The bill prohibits FSF construction in an Everglades Agricultural Area reservoir project, if the local governments involved determine that there would be a negative impact on that area or project.

The bill requires the Office of Energy within the Department of Agriculture and Consumer Services to develop and submit recommendations to the Legislature by Dec. 31, 2022, providing a regulatory framework for private and public sector entities that implement FSFs. CS/SB 1338 was reported favorably by the Senate Rules Committee, its last committee of reference, on Feb. 15.

CS/CS/HB 1411, a similar bill, was reported favorably by the House Commerce Committee, its final committee of reference, on Feb. 17. The committee amended the definition of floating solar facility to also include stormwater treatment ponds and reclaimed water ponds. The bill has been placed on the House Special Order Calendar for Feb. 22.

Real Property Rights: CS/SB 1380 (Sen. Rodriguez) amends laws regarding restrictions on the use of real property.

The bill limits how certain older real estate covenants or restrictions apply in a manner that protects real property rights and honors zoning requirements and conditions of a building or development permit. The bill also allows a property owner the right to establish parking rules and rates applicable to the owner’s property.

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The Marketable Record Title Act (MRTA) simplifies property transactions and modernizes land use by eliminating property rights that are more than 30 years old and predate the root of the title of the property in question. There are, however, numerous exceptions to MRTA whereby a property right is not extinguished by MRTA. The bill amends MRTA to: • modify an exception to extinguishment to require that a general reference to a prior right must include an affirmative statement of intent to preserve such property right; • specify that MRTA may extinguish a covenant or restriction related to a zoning requirement, building permit, or development permit. However, this will not extinguish the underlying zoning or building codes or ordinances; nor will it extinguish a covenant or restriction that says on its first page that it was required by local codes; and • allow revitalization of a covenant or restriction that had been required by a government agency as a condition of a development permit.

A person who wishes to protect a property interest potentially extinguished by the change to MRTA has until July 1, 2023, to file a Statement of Marketable Title Action in the public records in order to preserve the property interest.

The bill also provides that the owner or operator of a private property used for motor vehicle parking may establish rules, rates, and fines that govern private persons parking motor vehicles on such private property. A county or municipality may not enact an ordinance or a regulation restricting or prohibiting a right of a private property owner or operator to establish rules, rates, and fines governing parking on the private property. The bill requires a specific notation on any invoice.

CS/SB 1380 was reported favorably by the Senate Rules Committee, its last committee of reference, on Feb. 15 and placed on the Special Order Calendar for Feb. 23. A similar bill, CS/HB 219 (Rep. Tuck) is scheduled to be heard in the House Judiciary Committee, its last committee of reference, on Feb.21.

Broadband Infrastructure: HB 1543 (Rep. Tomkow) creates the Broadband Pole Replacement Program, to be administered by the Florida Office of Broadband within the Department of Economic Opportunity. The program will reimburse fixed, wireline broadband service providers for their costs incurred for the removal and replacement of existing utility poles 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 cost 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 DEO 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, HB 1545 (Rep. Tomkow). For the 2022-23 fiscal year, the bill appropriates $400 million in nonrecurring funds from the General Revenue Fund to DEO for the purpose of administering the Broadband Opportunity Program created in 2021.

HB 1543 was reported favorably by the House Infrastructure & Tourism Appropriations Subcommittee, its second of three committees of reference, on Feb. 16 and now moves to the House Commerce Committee, its final committee of reference. A similar bill, CS/SB 1800 (Sen. Boyd), is in the Senate Appropriations Subcommittee on Transportation, Tourism, and Economic Development, its second of three committees of reference.

Local Preemptions

Private Property Rights to Prune, Trim and Remove Trees: CS/SB 518 (Sen. Brodeur) amends s.163.045 F.S. that currently 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 adds certain qualifiers and definitions to the existing provision. Specifically, the bill defines “documentation” as an onsite assessment performed in accordance with the tree risk assessment processes and guidelines in Best Management Practices – Tree Risk Assessment, Second Edition (2017) and conducted and signed by an arborist certified by the International Society of Arboriculture (ISA) or a Florida licensed landscape architect.

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The bill also 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.

Additionally, the bill provides that a local government cannot require a notice, application, approval, permit fee or mitigation, for the tree pruning, trimming or removal, if a property owner possesses documentation from an arborist certified by the ISA or a Florida licensed landscape architect that a tree poses an unacceptable risk to persons or property. The bill states that 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 procedures outlined in Best Management Practices – Tree Risk Assessment, Second Edition (2017).

CS/SB 158 was reported favorably by the Senate Governmental Oversight and Accountability Committee on Feb. 10 and is now in the Senate Rules Committee, its last committee of reference. An identical bill, HB 1555 (Rep. McClain) is in the House Judiciary Committee, its final committee of reference.

Home Kitchen Operations: CS/SB 1158 (Sen. Jones), a delete-all amendment, would preempt the regulation of home kitchen operations to the state. Under the bill, a local law, ordinance, or regulation may not prohibit a home kitchen operation or regulate the preparation, processing, storage, or sale of home kitchen food products; however, a home kitchen operation must comply with the conditions for the operation of a home-based business under s.559.955 F.S. The revised bill creates s.500.82 F.S. to cover home kitchen operations. The bill defines this operation to be a natural person or an entity that stores, handles, prepares, and packages home kitchen products at the residence of the natural person or at the residence of a natural person who has an ownership interest in the entity and sells such products in accordance with s.500.80 F.S. A home kitchen operation is not a public food service establishment, a catering operation or a cottage food operation. The bill also provides that a home kitchen product means food that is stored, handled, prepared, and packaged by a home kitchen operation and is not raw milk, raw milk products, raw oysters or raw shellfish.

Under the bill, a home kitchen operation is exempt from the permitting requirements of s.500.12 F.S. (state food permits) if the home kitchen operation complies with s.500.82 F.S. and has: • annual gross sales of home kitchen food products that do not exceed $250,000; • limits preparation and service of home kitchen food products to no more than 10 individual meals/day or the approximate equivalent of meal components when sold separately; • prepares, cooks, and serves home kitchen food products on the same calendar day; • processes home kitchen food products in compliance with state and federal regulations and s.500.82.

The bill also: • authorizes sales via the Internet or in person, and delivery in person directly to the consumer, to a specific event venue, or to the consumer by the home kitchen operation or a third-party delivery service; • prohibits sales and deliveries of home kitchen products to wholesalers or retailers.

• specifies labeling requirements; • Requires specific training and protocols for home kitchen operations, owners, and employees; • requires DACS to investigate complaints and makes refusal to permit entry and inspection grounds for disciplinary action.

CS/SB 1158 was reported favorably by the Senate Regulated Industries Committee on Feb. 9 and now moves to the Senate Appropriations Committee, its last committee of reference. A similar bill, CS/HB 707 (Rep. Learned) is in the House Agriculture & Natural Resources Appropriations Subcommittee, its second of three committees of reference.

Environment and Natural Resources

Inventories of Critical Wetlands: CS/CS/SB 882 (Sen. Brodeur) amends s.373.036, F.S., to require water management districts, in cooperation with local governments, to develop a list of critical wetlands to be acquired through the Land Acquisition Trust Fund. The bill provides the following criteria to determine if a wetland is critical: Feb. 18, 2022 | Legislative Reporter

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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; the ecosystem restoration value of the wetland; and the inherent susceptibility of the wetland to development due to its geographical location or natural aesthetics.

The bill directs each water management district’s governing board to notify the owner of any property that the district contemplates including on the critical wetlands list before it adopts or amends the list. If at any time a property owner wishes to have their property removed from the list, they must submit by certified mail a letter stating they wish their property to be removed and sufficiently identifying such property to the governing board. The governing board shall approve removal if the requirements are met. The bill additionally requires water management districts opting to utilize an annual strategic plan to include a list of critical wetlands on such plan.

CS/CS/SB 882 was reported favorably by the Senate Rules Committee, its last committee of reference, on Feb. 10 and is now on the Senate Special Order Calendar on Feb. 23. A similar bill, HB 761 (Rep. Truenow) is on the House Calendar on Second Reading.

Constitutional Amendments

Revisions or Amendments of the State Constitution by Citizen Initiative: CS/SJR 1412 (Sen. Brodeur) is a joint resolution proposing an amendment to Section 3 of Article XI of the State Constitution to limit revisions or amendments of the State Constitution by citizen initiative to matters relating to procedural subjects or to the structure of the government or of the State Constitution.

The SJR requires three-fifths vote of the membership of each house of the legislature for passage. Resolutions are not subject to the veto power of the governor but are filed by the legislature directly to the Secretary of State. If approved by three-fifths of the membership of each house of the legislature, the amendment will be placed on the 2022 general election ballot. If adopted by at least sixty percent of electors voting on the measure at the 2022 general election, the proposed amendment will take effect on Jan. 10, 2023.

CS/SJR 1412 was reported favorably on Feb. 8 by the Senate Ethics and Elections Committee reflecting a change in the amendment title that will be used on the ballot to make it consistent with the House version. A reference to the Senate Governmental Oversight and Accountability Committee was removed so the bill now moves to the Senate Rules Committee, its final committee of reference. HJR 1127 (Rep. Beltran) is out of committee and is on the House Calendar on Second Reading.

News Articles

A $3.3 billion gulf: Here are the budget fault lines dividing the Florida House and Senate John Kennedy | Capital Bureau, USA Today Network – Florida | Feb. 17 House passes $105.3 billion spending plan Jim Turner | Palm Coast Observer | Feb. 17 Florida Senate passes budget that wouldn’t punish schools Brendan Farrington | Associated Press | Feb. 17 Activists oppose environmental funding bill as land acquisition measures progress Renzo Downey | Florida Politics | Feb. 14 How do lawmakers get local pet projects in the state budget? It isn’t easy or always transparent.

Diane Rado | Florida Phoenix | Feb. 14

Feb. 18, 2022 | Legislative Reporter

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