Feb. 25 Legislative Reporter

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Feb. 25, 2022 | Legislative Reporter There are two weeks left in the legislative session. Bills that have not made progress through the committee process are likely not to be passed this year.

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 over the past week. Please 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 Business Protection Act: CS/CS/HB 569 (Rep. McClure), now cited as the “Local Business Protection Act”, was reported favorably by the House Judiciary Committee, its final committee of reference, on Feb. 23. The bill creates s.70.91 F.S. to provide a mechanism for a Florida business owner to recover business damages related to government action. The bill applies to county and municipal ordinances or charter provisions enacted or amended on or after the effective date, which is identified as upon becoming law.

The bill states that a private, for-profit business may claim business damages from a county or municipality if: 1. the county or municipality enacts or amends an ordinance or charter that has or will cause a reduction of at least 15 percent of the business’ profit as applied on a per location basis of a business operated with the jurisdiction; and 2. the business has engaged in lawful business in the jurisdiction for the 3 years preceding the enactment of or amendment to the ordinance or charter.

The bill states that damages may not exceed the present value of the business’s future lost profits for the lesser of seven years or the number of years the business had been in operation in the jurisdiction before the ordinance or charter provision was enacted.

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The bill provides that a county or municipality is not liable for business damages caused by: 1. an ordinance or a charter provision that is required to comply with, or is expressly authorized by, state or federal law; 2. emergency ordinances, declarations, or orders adopted by a county or municipality under ss. 252.31-252.60, the State Emergency Management Act; 3. a temporary emergency ordinance enacted pursuant to s.125.66 or s.166.041 which remains in effect for no more than 90 days; 4. an ordinance or charter provision enacted to implement: a. part II of Chapter 163, relating to growth policy, county and municipal planning, and land development regulation, including zoning, development orders, and development permits; b. section 553.73, relating to the Florida Building Code; c. section 633.202, relating to the Florida Fire Prevention Code; 5. an ordinance or charter provision required to implement a contract or agreement, including, but not limited to, any federal, state, local, or private grant, or other financial assistance accepted by a county or municipal government; 6. an ordinance or charter provision relating to the issuance or refinancing of debt; or 7. an ordinance or charter provision relating to the adoption of a budget or budget amendment, including revenue sources necessary to fund the budget; 8. an ordinance or charter provision relating to procurement; or 9. an ordinance or charter provision intended to promote, enable, or facilitate economic competition.

The bill provides that s.70.91 F.S. does not apply to a business that may claim business damages in an eminent domain proceeding under chapter 73 and may not be construed to authorize double recoveries.

The bill also provides that an amendment to an ordinance or charter provision after the effective date of the bill gives rise to a claim under s.70.91 F.S. only to the extent that the application of the amendatory language is the cause of the claimed impact on a business apart from the ordinance or charter provision being amended.

At least 180 days before filing an action and within 180 days after the effective date of the relevant ordinance or charter provision, the business must present a good faith written offer, with specified documentation, to settle the business’ claim of business damages to the head of the county or municipality. Within 120 days of receipt of the offer and accompanying business records, the county or municipality must accept, reject, or make a counteroffer, which may include an offer to grant a waiver to the application of the ordinance or charter provision.

If the claim is not settled and a business files an action for business damages, it must be filed within one year of the effective date of the relevant ordinance, ordinance amendment or charter provision. In an action for business damages, the court may award reasonable attorney fees and costs to the prevailing party. Note that previously proposed language dealing with how attorney fees are calculated has been deleted.

The bill provides that there is no liability if, within the 120-day period, the county or municipality: (a) repeals the ordinance or charter provision that gave rise to the business’ claim; (b) amends the ordinance or charter provision that gave rise to the business’ claim in a manner that returns the ordinance or charter provision to its form in existence before the business’ claim arose or in a manner that avoids causing a reduction of at least 15 percent of the business’s profit as applied on a per location basis within the jurisdiction; (c) publishes notice of its intent to repeal or amend the ordinance that gave rise to the business’ claim and, within 30 days after publication of the notice, amends the ordinance in a manner that returns the ordinance to its form in existence before the business’ claim arose or in a manner that avoids causing a reduction of at least 15 percent of the business’s profit as applied on a per location basis within the jurisdiction, or repeals the ordinance; (d) grants a waiver of the ordinance or charter provision to a business submitting a claim for business damages; or (e) with respect to a charter provision, the county provides notice of its intent to amend or repeal the charter provision that is the basis of the business damage claim, and the charter provision is amended or repealed by the voters at an election or special election that occurs within 90 days after publication of the notice.

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CS/CS/CS/HB 569 is now on the House Calendar on Second Reading. An identical bill, CS/SB 620 E1 (Sen. Hutson) was passed by the Senate on Jan. 27 and is in the House in Messages.

Real Property Rights: CS/HB 219 (Rep. Tuck) clarifies the Marketable Record Title Act (MRTA) dealing with the title examination and clearance process. Specifically, the bill: • clarifies that a property conveyance subject to existing encumbrances identified in a muniments of title does not automatically restart MRTA’s 30-year marketability period on such encumbrances; • modifies the definition of “covenant or restriction” to include agreements or limitations imposed by a governmental entity or required by such an entity as a condition of a development permit; • adds covenants, restrictions, zoning requirements, and building or development permits to the list of encumbrances extinguished by MRTA but excepts from extinguishment: o comprehensive plans or plan amendments; zoning ordinances; land development regulations; building codes; development permits and orders; and other laws, regulations, or regulatory approvals operating independently of matters recorded in the official record; and o any recorded covenant or restriction that states on the face of the first page of the document that it was accepted by a governmental entity as part of, or as a condition of, any such comprehensive plan or plan amendment; zoning ordinance; land development regulation; building code; development permit or order; or other law, regulation, or regulatory approval; and • allows a person with an interest in land which may be extinguished by the bill and whose interest has not been extinguished before July 1, 2022, to file a notice with the clerk of the court by July 1, 2023, to preserve such interest.

The bill also prohibits a county or municipality from enacting any ordinance or regulation restricting or prohibiting the owner or operator of a private parking facility from establishing rates and fees and issuing fines.

CS/HB 219 was reported favorably by the House Judiciary Committee, the last committee of reference, on Feb. 21 and has been placed on the House Calendar on Second Reading.

A similar bill, CS/SB 1380 E1 (Sen. Tuck) was passed by the Senate on Feb. 23 and is now in the House in Messages. This bill also includes the creation of s.125.412, F.S. to allow the board of county commissioners of a charter county to release a conservation designation or conservation easement on county-owned property without a referendum, notwithstanding the county charter, if the property will be used for any K-12 educational or athletic purpose by an educational institution that serves students in kindergarten through 12th grade and the property is contiguous to the educational institution.

Private Property Rights to Prune, Trim and Remove Trees: HB 1555 (Rep. McClain) amends s.163.045 F.S. which 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 provides that “documentation” is an onsite assessment performed in accordance with the tree risk assessment procedures outlined 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. 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.

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

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moderate, as determined by the tree risk procedures outlined in Best Management Practices – Tree Risk Assessment, Second Edition (2017).

HB 1555 was reported favorably by the House Judiciary Committee, its final committee of reference, on Feb. 21 and placed on the House Calendar on Second Reading. An identical bill, CS/SB 518 (Sen. Brodeur) was reported favorably by the Senate Rules Committee, its last committee of reference, on Feb. 23 and is now on the Senate Special Order Calendar for March 1.

School Concurrency: CS/CS/CS/HB 851 (Rep. McClain) amends s.163.3180 (6), F.S., to provide that school concurrency is deemed satisfied when the developer tenders a written legally binding commitment, rather than actually executing it, 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 5-year school board educational facilities plan that satisfies the demands created by the development. This bill adds a provision that if this is not done, the mitigation must be set aside and not spent until such an improvement has been identified.

CS/CS/CS/HB 851 was reported favorably by the House State Affairs Committee, its last committee of reference, on Feb. 21 and is now on the House Calendar on Second Reading. An identical bill, CS/CS/CS/SB 706 (Sen. Perry), was passed by the Senate on Feb. 17 and is in the House in Messages.

Broadband Infrastructure: CS/CS/SB 1800 (Sen. Boyd), a committee substitute, creates the Broadband Pole Replacement Program, to be administered by the Office of Broadband within the Department of Economic Opportunity. The program will reimburse eligible broadband Internet service providers for their costs incurred for the removal and replacement of existing utility poles, for the purpose of providing qualifying broadband service access, in areas of Florida that are unserved by broadband Internet service.

Reimbursements under the program are limited to 50 percent of the broadband Internet service provider’s eligible pole replacement costs, or $5,000 — whichever is less.

The bill does not appropriate any funding to the program or resources to the department to administer the program. It removes previously proposed references to the Broadband Pole Replacement Trust Fund and the appropriation to the Broadband Opportunity Program.

CS/CS/SB 1800 was reported favorably by the Appropriations Subcommittee on Transportation, Tourism, and Economic Development on Feb. 22 and is now scheduled to be heard in the Senate Appropriations Committee on Feb. 28. A similar bill, HB 1543 (Rep. Tomkow) is in the House Commerce Committee, its last committee of reference.

Floating Solar Facilities: CS/CS/HB 1411 (Rep. Avila) was passed by the House on Feb. 24. The bill creates s.163.32051, F.S., relating to floating solar facilities (FSF). The bill defines “floating solar facility,” as a solar facility as defined in s.163.3205(2), which is located on wastewater treatment ponds, abandoned limerock mine areas, stormwater treatment ponds, reclaimed water ponds, or other manmade water storage reservoirs.

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.

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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, to provide a regulatory framework for private and public sector entities that implement FSFs. A similar bill, CS/SB 1338 (Rep. Diaz) was temporarily postponed on Second Reading and retained on the Calendar on Feb. 23. The Senate bill does not include stormwater treatment ponds or reclaimed water ponds in the definition of an FSF. Local Tax Referenda Requirements: CS/CS/HB 777 (Rep. Robinson) was passed by the House on Feb. 24. The bill requires referenda authorizing certain optional local taxes to be held at a general election. The affected taxes are as follows: • tourist development tax; • areas of critical state concern tourist impact tax; • children’s services independent special district tax; • county temporary excess ad valorem millage; • municipal temporary excess ad valorem millage; • county transportation motor fuel tax; • local option fuel tax; and • school district millage A similar bill, CS/CS/SB 1194 (Sen. Boyd), was reported favorably by the Senate Appropriations Committee, its last committee of reference, on Feb. 24.

Environment and Natural Resources

Statewide Flooding and Sea Level Rise Resilience: CS/SB 1940 (Sen. Brodeur) was reported favorably by the Senate Subcommittee on Agriculture, Environment, and General Government on Feb. 22 and now is scheduled to be heard in the Senate Appropriations Committee, its final committee of reference, on Feb. 28.

The bill establishes the Statewide Office of Resilience within the Executive Office of the Governor. The bill provides that the office must be headed by a Chief Resilience Officer, who is appointed by and serves at the pleasure of the governor.

The bill requires the Department of Transportation (DOT) to develop a resilience action plan for the State Highway System based on current conditions and forecasted future events. The goals of the resilience action plan are to do all of the following: • recommend strategies to enhance infrastructure and the operational resilience of the State Highway System, which may be incorporated into the transportation asset management plan; • recommend design changes for retrofitting existing and constructing new state highway facilities; and • enhance partnerships for collaboration to address multijurisdictional resilience needs.

It also requires DOT to submit the action plan to the governor and legislature by June 20, 2023, and a status report every third year on June 30 thereafter.

The bill makes various revisions to s. 380.093, F.S., relating to statewide resiliency funding and planning, including: • authorizing the use of Resilient Florida Grant Program funds to fund preconstruction activities for projects to be submitted for inclusion in the Statewide Flooding and Sea-Level Rise Resilience Plan in municipalities with a population of 10,000 or fewer and counties with a population of 50,000 or fewer, but not for projects that adapt critical assets to flooding and sea-level rise; • pushing back by one year (to 2023 and 2024, respectively) the dates by which the Comprehensive Statewide Flood Vulnerability and Sea-Level Rise Data Set and the assessment must be completed; • expanding the list of entities that may submit a list of proposed projects to DEP that address risks of flooding or sea-level rise identified in the vulnerability assessments funded by the Resilient Florida Grant Program, to Feb. 25, 2022 | Legislative Reporter

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include special districts as defined in state law, if they are responsible for the operation and maintenance of an airport or a seaport facility; expanding the list of entities that may submit a list of proposed projects to DEP that mitigate the risks of flooding or sea-level rise on water supplies or water resources to include drainage districts, erosion control districts, and regional water supply authorities; and revising the $100 million cap on funding proposed for each year of the plan to a minimum threshold of $100 million.

The bill requires the Florida Flood Hub for Applied Research and Innovation to provide certain data to counties and municipalities for vulnerability assessments. Beginning Jan. 1, 2023, the bill also directs surveyors and mappers to submit digital copies of the elevation certificates they complete to the Division of Emergency Management (DEM) as outlined on DEM’s website.

A similar bill, CS/HB 7053 (Rep. Busatta Cabrera), originally filed on Feb. 3, was reported favorably by the House State Affairs Committee, its final of two committees of reference, on Feb. 23. It has been placed on the House Special Order Calendar for March 1.

Inventories of Critical Wetlands: CS/CS/SB 882 (Sen. Brodeur) was passed by the Senate on Feb. 23 and is in the House in Messages. The This bill 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: • 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 identify such property to the governing board. At its next regularly scheduled meeting, 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 in such plan.

A similar bill, HB 761 (Rep. Truenow) is on the House Calendar on Second Reading.

Transportation

Transportation Projects: CS/CS/HB 157 (Rep. Andrade), a committee substitute, was reported favorably by the House Commerce Committee, the last committee of reference, on Feb. 23 and is now on the House Special Order Calendar for March 1. The revised bill deletes previously proposed language that capped the annual minimum commitment of state revenue deposited into the State Transportation Trust Fund by the Florida Department of Transportation for specified public transportation projects at no more than 25 percent of such funds, excluding state revenues used for matching federal grants, unless otherwise specified in the General Appropriations Act. The bill now: • creates s.163.31803, F.S. that requires local governments to provide mobility fee credits to a residential developer for capital improvements to a transportation system that FDOT deems necessary to ensure the safe and efficient mobility of people, commerce, and goods to bring a planned housing community into service; • creates s.344.066 F.S. that establishes the Implementing Solutions from Transportation Research and Evaluating Emerging Technologies Living Lab (I-STREET) with the University of Florida, and provides for its duties relating to transportation research, education, workforce development, and related issues; Feb. 25, 2022 | Legislative Reporter

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clarifies FDOT’s authority to engage in progressive design-build contracting as an innovative technique of highway and bridge design and construction; exempts certain progressive design-build contracts from an existing statutory cap on innovative contracts; authorizes landowners to obtain permits from FDOT to clear vegetation from the right-of-way on limited access facilities under specified conditions; removes a limitation on design-build contracting to certain types of projects and authorizes design-build contracting for all types of projects; requires contracts for bridge work over navigable waters to contain provisions requiring a minimum amount of general liability insurance; provides that stipends paid by FDOT to non-selected design-build firms that have submitted responsive proposals for construction contracts contained in FDOT’s legislatively approved work program are not subject to existing documentation and notification requirements for settlement payments made by FDOT to resolve bid protests; authorizes an applying 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 annual or reviewed interim 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 reveals 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; and changes from five years to 10 years the length of time that FDOT must adjust toll rates for inflation.

A similar bill, CS/SB 398 (Sen. Hooper) is scheduled to be heard in the Senate Appropriations Committee, its last committee of reference, on Feb. 28. Note that the Senate bill includes the language regarding the public transportation funding cap that was deleted in the House bill.

News Articles

Local Business Protection Act heads to full House voter after Democratic amendments fail Jesse Scheckter | Florida Politics | Feb. 24 Bill intended to prevent future Surfside tragedies is headed for the Senate floor Michael Moline | Florida Phoenix | Feb. 23 Republicans unified as House votes against “woke” indoctrination Renzo Downey | Florida Politics | Feb. 24 Florida’s growing marijuana industry praises Ben Albritton’s agritourism bill as it passes Senate panel Daniel Figueroa IV | Florida Politics | Feb. 24 Climate-induced flooding: Florida planning its defense but leaves causes unaddressed Laura Cassels | Florida Phoenix | Feb. 22 click image to register

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