2022 Legislative Session Review

Note: This presentation is a summary of legislation based on the bills and legislative staff reports. You are strongly encouraged to view the actual bills for the issues in which you are interested.

APA Florida

2022 Session Overview March 30, 2022

Whit Blanton, FAICP

Lester Abberger

Alex Magee

Thomas Hawkins, AICP, JD

APA Florida President Elect

Florida Lobby Associates, Inc.

APA Florida Executive Director

UF Department of Urban and Regional Planning

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APA Florida • Legislative Policy Committee o Section and at-large representatives o 2-year terms • Bill Tracking Report • Legislative Reporters • Planners Month in the Districts • Public Policy Workshop o Feb. 10-11, 2022

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Legislative priorities and flier created by LPC Members met with their legislators ahead of 2022 session.

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2022 Session Bill Statistics Senate and House Bills

Filed

Passed Both Chambers

Concurrent Resolutions

8

2

Resolutions (One chamber)

76

0

1753

238

Local Bills

61

37

Joint Resolutions

35

2

Memorials

23

8

1729

0

3685

285*

General Bills

Appropriation Projects (House) TOTALS * One Chamber Resolutions Not Included

Session Overview Session Context Budget

• Total: $101.5 billion • 10% more than current budget and 20% more than FY2019-20 • $37 billion in anticipated federal funds

What Died?

Bills that died would: • Require local government to prepare a business impact estimate prior to passing an ordinance (SB 280, HB 403) • Require local governments to adopt residential infill development standards (HB 739, SB 1248) • Require a supermajority vote of each house to approve a general law preempting something to the state (SB 152, SB 1900) • Make various changes to vacation rental legislation (HB 325, SB 512) • Prohibit fracking within the state (SB 208) • Create the Office of Diversity, Equity, and Inclusion within Governor’s Office (HB 221, SB 388)

• Establish Main Street Historic Tourism and Revitalization Act to provide tax credit for historic structure rehabilitation (HB 247, SB 1310)

Bills that died would: • Increase the number of elector voters required to approve constitutional amendments (HB 177, SB 950) • Allow property owners to make qualifying improvements, that enhance energy efficiency, renewable energy, or wind resistance, to real property and finance the cost through annual non-ad valorem tax assessments (SB 228, HB 101) • Authorize counties and municipalities to access any sanitary sewer lateral within their jurisdictions to investigate, clean, repair, recondition, or replace it (SB 608, HB 303) • Establish state renewable energy goals including net zero carbon emissions by 2050 (SB 366, HB 81) • Cap use of State Transportation Trust Fund monies for public transportation projects at 25% of state revenues deposited in fund (SB 398, HB 157) • Repeal preemption of tree pruning, trimming and removal (SB 316, HB 6025)

Bills that died would: • Reduce required grant match percentage rate and authorizes in-kind contributions under Regional Rural Development Grants Program (HB 685, SB 800) • Preempt regulation of home kitchen operations to the state (HB 707, SB 1158) • Requires comprehensive plans and plan amendments that apply to land in, or within two miles of, the Everglades Protection Area to follow the state coordinated review process (SB 932, HB 729) • Allow local governments to grant ad valorem tax exemption for property used to provide affordable housing (SB 1150, HB 495) • Implement the recommendations of the Blue-Green Task Force (SB 832, HB 561) • Revise the area within which impact fee credits are assignable or transferable (SB 1030, HB 681)

Bills that died would: • Limit constitutional amendments proposed by citizen initiative to matters relating to procedural subjects or to governmental structure (SB 1412, HB 1127) • Reimburse certain pole replacement costs incurred in the installation/deployment of infrastructure to support the provision of broadband internet service to customers in an unserved area (HB 1543, HB 1545, SB 1800, SB 1802)

What Did Pass?

Local Business Protection Act (SB 620): • Creates s.70.91 F.S. to provide a mechanism for a Florida business owner to recover business damages related to government action • A private, for-profit business may claim business damages from a county or municipality if: o 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 o the business has engaged in lawful business in the jurisdiction for the three years preceding the enactment of or amendment to the ordinance or charter • Damages may not exceed: o the present value of the business’ 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 • 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

SB 620 continued: • Local government is not liable for business damages caused by an ordinance or charter provision that is: o required to comply with, or expressly authorized by, state or federal law o an emergency ordinance, declaration or order adopted under the State Emergency Act o a temporary ordinance enacted pursuant to s.125.66 or s.166.041 which remains in effect for no more than 90 days o 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 o 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 o related to the issuance or refinancing of debt o related to the adoption of a budget or budget amendment, including revenue sources necessary to fund the budget o related to procurement or o intended to promote, enable, or facilitate economic competition

SB 620 continued: • 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.

• 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.

The court may award reasonable attorney fees and costs to the prevailing party.

• 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.

SB 620 continued: •

There is no liability if, within the 120-day period, the county or municipality: o

repeals the ordinance or charter provision;

o

amends the ordinance or charter provision that returns it 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’ profit as applied on a per location basis within the jurisdiction;

o

grants a waiver of the ordinance or charter provision to a business submitting a claim for business damages;

o

with respect to an ordinance, publishes notice of its intent to repeal or amend the ordinance and, within 30 days after publication of the notice, 1)

2) 3) o

amends the ordinance in a manner that returns the ordinance to its form in existence before the business’ claim arose or amends the ordinance in a manner that avoids causing a reduction of at least 15 percent of the business’ profit as applied on a per location basis within the jurisdiction, or repeals the ordinance; or

with respect to a charter provision, the county provides notice of its intent to amend or repeal the charter provision 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.

SB 620 continued: • Applies to ordinances or charter provisions enacted or amended on or after the effective date

• Effective Date: Upon Becoming Law • Not yet submitted to Governor as of March 29, 2022

Building Regulation (HB 423): • Creates ss.553.79 (25) F.S. to provide that a local law, ordinance, or regulation may not prohibit or otherwise restrict the ability of a private property owner to obtain a building permit to demolish his or her single-family residential structure provided that o

structure is located in a coastal high-hazard area, moderate flood zone, or special flood hazard area according to a Flood Insurance Rate Map issued by the Federal Emergency Management Agency for the purpose of participating in the National Flood Insurance Program

o

the lowest finished floor elevation of such structure is at or below base flood elevation as established by the Building Code or a higher base flood elevation as may be required by local ordinance, whichever is higher; and

o

such permit complies with all applicable Florida Building Code, Fire Prevention Code, Life Safety Code requirements or local amendments to such codes.

• The application for a demolition permit for such single-family structure may only be reviewed administratively for compliance with the Building Code, Fire Prevention Code, Life Safety Code requirements, local amendments to such codes, and any regulations applicable to a similarly situated parcel

HB 423 continued: • Applications may not be subject to any additional local land development regulations or public hearings.

• Local government may not impose additional regulatory or building requirements on the new single-family residential structure constructed on the site of the demolished structure that would not otherwise be applicable to a similarly situated vacant parcel • ss.553.79(25) provisions do not apply to a: o structure designated on the National Register of Historic Places o privately owned single-family residential structure designated historic by a local, state, or federal governmental agency on or before January 1, 2022 or o privately owned single-family residential structure designated historic after January 1, 2022, by a local, state, or federal governmental agency with the consent of its owner • Amends s.553.792 F.S., dealing with building permit application to local governments, to provide that a local government may only make three requests for additional information from an applicant applying for specified types of building permits identified in ss. 553.792 (2)(a) F.S

HB 423 continued: • Requires the local government to review additional information within specified time frames

• If the applicant believes the request for additional information is not authorized by ordinance, rule, statute, or other legal authority, the local government, at the applicant’s request, shall proceed to process the application for approval, approval with conditions, or denial.

• Prior to making a third request for information the local government must offer to meet with the permit applicant to attempt to resolve outstanding issues • Effective Date: July 1, 2022 • Not yet submitted to Governor as of March 29, 2022

Real Property Rights (SB 1380): • Amends the Marketable Record Title Act (MRTA) dealing with title examination and clearance process for property rights that are more than 30 years old and predate the root of the title • 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 • Exempts 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

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

SB 1380 continued: • 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 • Creates s.717.075, F.S. to prohibit 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. o

any such ordinance or regulation is a violation of this section and is null and void

o

rates and rules must be posted and clearly visible to persons parking on the private property

o

an invoice for parking charges must include a statement that the invoice is privately issued, is not issued by a governmental authority and is not subject to criminal

•

Effective Date: Upon Becoming law

•

Not yet submitted to Governor as of March 29, 2022

Legal Notices (HB 7049): • Makes a number of changes to Chapter 50, F.S., dealing with legal and official advertisements • Creates s.50.0311 F.S. to deal with publication of advertisements and public notices on a publicly accessible website and governmental access channels • Allows a local governmental agency the option to publish legal notices on a publicly accessible website owned or designated by the county instead of in a print newspaper if the cost is less than the cost of publishing in a newspaper

• Requires a governmental agency with at least 75 percent of its population located in a county that has a population of fewer than 160,000 to first hold a public hearing and determine that its residents have sufficient access to the internet by broadband service before publishing legally required advertisements and public notices on the county website • Requires notice at least once per year in a newspaper of general circulation or another publication that is mailed or delivered to all residents and property owners throughout the government's jurisdiction, indicating that property owners and residents may receive legally required advertisements and public notices from the governmental agency by first-class mail or email upon registering their name and address or email address with the governmental agency

HB 7049 continued: • A special district spanning the geographic boundaries of more than one county that satisfies the criteria for publishing and chooses to publish legally required advertisements and public notices on a publicly accessible website must publish such advertisements and public notices on the publicly accessible website of each county it spans • Effective Date: January 1, 2023 • Not yet submitted to Governor as of March 29, 2022

Private Property Rights to Prune, Trim, and Remove Trees (SB 518): • Amends s.163.045 F.S. to add definitions and qualifiers to existing provision

• Provides that a local government cannot require a notice, application, approval, permit fee or mitigation, for the tree pruning, trimming or removal on a residential property, 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 • 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 • Residential property is defined 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.

SB 518 continued: • Unacceptable risk exists 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) • Effective Date: July 1, 2022 • Not yet submitted to Governor as of March 29, 2022

Floating Solar Facilities (HB 1411): • Creates s.163.32051, F.S.

• Requires floating solar facilities to be a permitted use in appropriate land use categories in a local government’s comprehensive plan • Requires local land development regulations to promote the expanded use of these facilities • Defines floating solar facilities 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 water storage reservoirs • Requires solar facilities to comply with setback and landscaped buffer area criteria for similar uses in the agricultural district • Allows a county or municipality to adopt ordinances specifying buffer and landscaping requirements for floating solar facilities but these requirements may not exceed those of similar uses involving construction of other solar facilities permitted in agricultural land use categories and zoning districts

HB 1411 continued: • Prohibits the construction of floating solar facilities in an Everglades Agricultural Area reservoir project if the local governments involved with the project determine that the facility will have a negative impact on that project • Requires the Office of Energy within the Department of Agriculture and Consumer Services to develop and submit recommendations to the Legislature by December 31, 2022, to provide a regulatory framework to private and public sector entities that implement floating solar facilities • Effective Date: July 1, 2022 • Not yet submitted to Governor as of March 29, 2022

Agritourism (SB 1186): • Amends s.570.85 F.S. to remove a requirement that agritourism be a secondary stream of revenue for a bona fide agricultural operation • Amends s.5760.87 F.S. to add that: o an agricultural land classification may not be denied or revoked solely due to the construction, alteration, or maintenance of a nonresidential farm building, structure, or facility on a bona fide farm which is used to conduct agritourism activities o so long as the building, structure, or facility is an integral part of the agricultural operation, the land it occupies shall be considered agricultural in nature o such buildings, structures, and facilities, and other improvements on the land, must be assessed under s.193.011 at their just value and added to the agriculturally assessed value of the land • Effective Date: July 1, 2022 • Not yet submitted to Governor as of March 29, 2022

Inventories of Critical Resources (SB 882): • 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

• Provides the following criteria to determine if a wetland is critical o the ecological value of the wetland, as determined by the physical and biological components of the environmental system o the effect of the wetland on water quality and flood mitigation o the ecosystem restoration value of the wetland, and o the inherent susceptibility of the wetland to development due to its geographical location or natural aesthetics • 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 • Allows property owner to have their property removed from the list at anytime by submitting by certified mail a letter stating they wish their property to be removed and sufficiently identifying such property to the district governing board

SB 882 continued: • Requires the governing board, at its next regularly scheduled meeting, to approve removal if these requirements are met • Requires water management districts opting to utilize an annual strategic plan to include a list of critical wetlands in such plan • Effective Date: July 1, 2022 • Not yet submitted to Governor as of March 29, 2022

Statewide Flooding and Sea Level Rise Resilience (HB 7053): • Creates s.14.2031 F.S., to establish the Statewide Office of Resilience within the Executive Office of the Governor, to be headed by a Chief Resilience Officer who is appointed by and serves at the pleasure of the Governor o purpose is to review all flood resilience and mitigation activities in the state and o coordinate flood resilience and mitigation efforts with federal, state, and local governmental entities and other stakeholders • Creates s.339.157 F.S. to require FDOT to develop a resilience action plan for the State Highway System based on current conditions and forecasted future events; the goals of which are to do all of the following: o recommend strategies to enhance infrastructure and the operational resilience of the State Highway System, which may be incorporated into the transportation asset management plan o recommend design changes for retrofitting existing state highway facilities and constructing new ones o enhance partnerships for collaboration to address multijurisdictional resilience needs

• FDOT action plan must be submitted to the Governor and the Legislature by June 20, 2023, and a status report every third year on June 30 thereafter

HB 7053 continued: • Makes various revisions to s.380.093, relating to statewide resiliency funding and planning, among which are: o authorizing the use of Resilient Florida Grant Program funds for preconstruction activities for projects to be submitted for inclusion in the Statewide Flooding and Sea-Level Rise Resilience Plan (Plan) in municipalities with a population of 10,000 or fewer and counties with a population of 50,000 or fewer o

defining the term “preconstruction activities” to mean activities associated with a project that occur before construction begins, including, but not limited to, design of the project, permitting for the project, surveys and data collection, site development, solicitation, public hearings, local code or comprehensive plan amendments, establishing local funding sources, and easement acquisition

o

authorizing special districts that are responsible for the management and maintenance of inlets and intracoastal waterways or for the operation and maintenance of a potable water facility, a wastewater facility, an airport, or a seaport facility to submit projects for inclusion in the Plan

HB 7053 continued: o

expanding the list of entities that may submit a list of proposed projects 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 Provides that these provisions operate retroactively to January 1, 2021

•

Requires DEP to rank and include in the Statewide Flooding and Sea-Level Rise Resilience Plan (Plan) all eligible projects that were submitted for the Plan

•

Revises the $100 million cap on funding proposed for each year of the Plan to a minimum threshold of $100 million

•

Requires DEP, in consultation with the Chief Resilience Officer, to prepare a report regarding flood resilience and mitigation efforts in the state and submit the report to the Governor, the President of the Senate, and the Speaker of the House of Representatives by December 15, 2022

•

Effective Date: July 1, 2022

•

Not yet submitted to Governor as of March 29, 2022

Residential Development Projects for Affordable Housing (SB 962): • Amends ss.125.01055(6) and ss.166.04151(6) F.S., dealing with affordable housing

• On parcels zoned for commercial or industrial use, local approval may include a mixed residential development project if: o

at least 10 percent of the units are for affordable housing, and

o

the sponsor of the project agrees not to apply for or receive funding under the State Apartment Incentive Loan program

•

Provisions are self-executing and do not require local government to adopt an ordinance or regulation to implement

•

Effective Date: Upon becoming law

•

Not yet submitted to Governor as of March 29, 2022

School Concurrency (SB 706): • Amends s.163.3180(6) F.S.

• Provides that school concurrency is satisfied when developer tenders a written legally binding commitment to provide mitigation (current language which requires the developer to execute a commitment) • After receiving the commitment, the district school board has 30 days to notify the local government that capacity is available • If proportionate-share mitigation is not directed toward school capacity improvement identified in the 5-year school board educational facilities plan that satisfies the demands created by the development, the mitigation must be set aside and not spent until such an improvement has been identified • Effective Date: July 1, 2022

• Not yet submitted to Governor as of March 29, 2022

Local Tax Referenda Requirements (HB 777): • Requires referenda authorizing certain optional local taxes to be held at a general election

• Affected taxes are as follows: o Tourist development tax o

Areas of critical state concern tourist impact tax

o

Children’s services independent special district tax

o

County temporary excess ad valorem millage

o

Municipal temporary excess ad valorem millage

o

County transportation motor fuel tax

o

Local option fuel tax

o

School district millage

• Effective Date: October 1, 2022 • Not yet submitted to Governor as of March 29, 2022

Individual Freedom (HB 7): • Amends s. 760.10, dealing with unlawful employment practices • Provides that subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe certain concepts constitute discrimination based on race, color, sex, or national origin • Also amends s.1000.05 to provide that it constitutes discrimination on the basis of race, color, national origin, or sex under this section to subject any student or employee to training or instruction that espouses, promotes, advances, inculcates, or compels such student or employee to believe certain specified concepts • Expands the requirements related to the teaching of the history of African Americans • Language added to SB 2524, a budget conforming bill, which was not included in HB 7 and impacts the enforcement of HB 7 on state universities

Also passed and submitted to Governor: • Airport Funding: HB 631 amends s.332.007(6)(c) F.S., dealing with financing of master planning and eligible aviation development projects at publicly owned, publicly operated airports, to limit FDOT funding of the non-federal share of such projects to general aviation airports, or commercial service airports that have fewer than 100,000 passenger boardings per year as determined by the FAA (identified effective date of July 1, 2022) (Governor must act on bill by April 12)

Also passed but not yet submitted to Governor: • Private Provider Inspections of Onsite Sewage Treatment and Disposal Systems: SB 856 allows the owner of an onsite sewage treatment and disposal system to hire a private provider to perform an inspection that follows applicable regulatory requirements of the system (identified effective date of July 1, 2022).

• Fish and Wildlife Conservation Commission (FWC): SB 494, among other things, amends the Florida Forever Act to require each lead land managing agency, in consultation with the FWC, to consider in the management plan the feasibility of creating a gopher tortoise recipient site for state lands under its management which are larger than 40 contiguous acres; also prohibits a local government from creating a public bathing beach or swim area in the marked channel of the Florida Intracoastal Waterway or within 100 feet of the marked channel (identified effective date of July 1, 2022)

Also passed but not yet submitted to Governor: • Powers of Land Authorities: SB 442 amends s.380.0666 F.S., which deals with the powers of land authorities in counties that have one or more areas of critical state concern, specifies that land authorities to assist the counties within which they are located in the administration of state and federal grants awarded to those counties for residential flood and sea-level rise mitigation projects (identified effective date of July 1, 2022)

• Environmental Management: HB 965 creates s.373.4134 F.S. to provide for the development of water quality enhancement areas which are a natural system constructed, operated, managed, and maintained for the purpose of providing offsite regional treatment for which enhancement credits may be provided pursuant to a water quality enhancement area permit and sold to governmental entities (identified effective date of July 1, 2022)

Also passed but not yet submitted to Governor: • Education: SB 758 makes a number of changes related to charter schools, including providing that a charter school may not be subject to any land use regulation requiring a change to a local government comprehensive plan or requiring a development order or development permit, as those terms are defined in s.163.3164, that would not be required for a public school in the same location (identified effective date of July 1, 2022) • Regulation of Smoking by Counties and Municipalities: HB 105 renames the Florida Clean Indoor Air Act the “Florida Clean Air Act” and expressly authorizes counties and municipalities to restrict smoking within the boundaries of any of the public beaches and public parks they own, except with regard to the smoking of unfiltered cigars (identified effective date of July 1, 2022)

1.5 CM (1 Law) Event #9232227