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Jan. 21, 2022 | Legislative Reporter The second week of the 2022 Legislative Session ended today.

To see the status of the bills being tracked by APA Florida, click here. If you would like any bills added to this report, please contact Alex Magee at fapa@floridaplanning.org. You can also view APA Florida’s legislative priorities here.

The following bills of interest had action this week.

Note: These summaries are based on a review of the bill language and legislative staff analysis. You are encouraged to read the actual bill language of bills that interest you.

Growth Management

Local Ordinances: CS/CS/SB 280 (Sen. Hutson), as amended by the Senate Rules Committee on Jan. 20, revises s.125.66 F.S. and s.166.041 F.S. to require cities and counties to prepare or cause to be prepared a business impact statement before adopting an ordinance, with exceptions. The proposed effective date of the bill is Oct. 1, 2022. The business impact statement must be posted on the jurisdiction’s website no later than the date the notice of proposed enactment is published. The business impact statement must include all of the following: 1. A summary of the proposed ordinance, including a statement of the public purpose served by the proposed ordinance, such as serving the public health, safety, morals, and welfare of the jurisdiction; 2. An estimate of the direct economic impact of the proposed ordinance on private for-profit businesses in the jurisdiction including the following, if any: • an estimate of direct compliance costs businesses may reasonably incur if the ordinance is enacted • identification of any new charge or fee on businesses subject to the proposed ordinance or for which businesses will be financially responsible • 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; Jan. 21, 2022 | Legislative Reporter

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4. Any additional information the governing body determines may be useful The bill also provides that the local jurisdiction is not required to hire an accountant or other financial consultant to prepare the business impact statement.

The bill states that this requirement for a business impact statement 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, including any appeals, 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 there is an appeal to a case in which the enforcement of an ordinance is suspended under these sections, the appellate court may lift the suspension if the local government prevailed in the lower 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 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 two new sections also do not apply to local ordinances enacted to implement: • part II of chapter 163; • section 553.73; • section 633.202; • sections 190.005 and 190.046; • ordinances required to comply with federal or state law or regulation; • ordinances related to the issuance or refinancing of debt; • ordinances related to the adoption of budgets or budget amendments; • ordinances required to implement a contract or an agreement, including, but not limited to, any federal, state, local, or private grant, or other financial assistance accepted by a county or municipality; or • emergency ordinances.

The bill provides that the court may award attorney fees and costs and damages as provided in s.57.112, F.S. Jan. 21, 2022 | Legislative Reporter

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The revised bill deletes previously proposed language that specified factors a court must consider in determining whether an ordinance is arbitrary or unreasonable.

Finally, the amended bill revises s.57.112 F.S. to authorize the award of reasonable attorney fees and costs and damages to a prevailing plaintiff in a civil action filed against a local government to challenge the adoption of a local ordinance on the grounds that the ordinance is arbitrary or unreasonable. Awards are capped at $50,000 and a prevailing party may not recover any attorney fees or costs directly incurred or associated with litigation to determine an award of reasonable attorney fees or costs. Additionally, this section cannot be construed to authorize double recovery if an affected person prevails on a damage claim brought against a local government pursuant to other applicable law involving the same ordinance, operative acts, or transactions. The bill also states that the amendments to this section effective Oct. 1, 2022, only apply to ordinances adopted on or after that date. Note that s.57.112 F.S. does not apply to local ordinances adopted pursuant to part II of Chapter 163, s.553.73, or s.633.202.

The Senate Rules Committee was the last committee of reference for this bill. A similar bill, HB 403 (Rep. Giallombardo) is in the House Civil Justice & Property Rights Subcommittee, its second of three committees of reference.

Business Damages Caused by Local Governments: CS/SB 620 (Sen. Hutson), reflecting amendments by the Senate Appropriations Committee, 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 states that a business may claim business damages 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 Florida 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 seven years’ lost profits, or an amount equal to the business’ gross receipts for the 60 months preceding the date of enactment of or amendment to the ordinance or charter provisions if a total loss of profit is caused.

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 state or federal law; 2. emergency ordinances, declarations, or orders adopted by a county or municipality under ss.252.31252.60, the State Emergency Management Act; 3. a temporary emergency ordinance enacted pursuant to s.125.66 or s.166.041 that remains in effect for no more than 90 days; 4. an ordinance or charter provision enacted to implement: a. part II of Chapter 163, relating to growth policy, county and municipal planning, and land development regulation; 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.

The amended bill deletes previously proposed language stating local governments were not liable for damages caused by an ordinance or a charter provision that increases economic freedom.

The bill also states that this does not apply to a business that may claim business damages in an eminent domain proceeding.

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At least 180 days before filing an action and within 180 days after the effective date of the relevant ordinance or charter provision, the business must present a written offer, with specified documentation, to settle the business’ claim of business damages to the head of the county or municipality. Within 120 days of receipt of the offer, the county or municipality must accept, reject, or make a counteroffer. Failure to respond or reject the offer will be considered a counteroffer of zero dollars for the purposes of calculating attorning fees.

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 c) publishes notice of its intent to repeal or amend the ordinance that gave rise to the business’ claim and, within 119 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 repeals the ordinance.

If the local government agrees on the business damages, the county or municipality must pay the business’ reasonable cost, including attorney fees and a reasonable accountant’s fee. If these costs cannot be agreed on, the business can file a complaint, within one year after the effective date of the relevant ordinance, ordinance amendment or charter provision, in circuit court to recover attorney fees and costs. The bill includes criteria for how attorney fees shall be calculated.

A business claiming the right to recover business damages must state in its complaint the nature and extent of those damages. At trial, a jury shall determine whether a business is entitled to business damages and the number of damages, if any. However, the business may elect to have business damages determined by the court.

The bill also states that the new s.70.91 F. S does not apply to a business that may claim damages under Chapter 73 (Eminent Domain) and may not be construed to authorize double recoveries.

The bill states that it applies to county and municipal ordinances or charter provisions enacted or amended on or after the effective date, which is now identified as upon becoming law.

The Senate Appropriations Committee, which reported the bill favorably on Jan. 20, was the last committee of reference for this bill. A similar bill, CS/HB 569 (Rep. McClure) is the House Local Administration & Veterans Affairs Subcommittee, its second of three committees of reference.

School Concurrency: CS/HB 851 (Rep. McClain) was reported favorably as amended by the House Local Administration & Veterans Affairs Subcommittee on Jan. 19. The amended bill deletes previously proposed language that would require school concurrency, if adopted, to be applied on a districtwide basis. The revised bill amends s.163.3180 F.S. to state that school concurrency is satisfied if the developer tenders a written legally binding commitment to provide mitigation proportionate to the demand for public school facilities to be created by actual development of the property. Currently the law requires the developer to execute said commitment.

The bill also adds language to require that a local government must issue a final decision on the developer’s tendered legally binding commitment with 60 days after the date of receipt. If the local government fails to issue a final decision within 60 days, the tendered legally binding commitment is deemed approved.

Lastly, 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/HB 851 now moves to the House Education & Employment Committee, its second of three committees of reference. SB 706 (Sen. Perry), identical to HB 851 as originally filed, is scheduled to be heard in the Senate Community Affairs Committee, its first committee of reference, on Jan. 25.

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Florida Main Street Program and Historic Preservation Tax Credits: SB 1310 (Rep. Rodriguez) creates s.220.197, F.S., the Main Street Historic Tourism and Revitalization Act, that 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 up to 10 years.

SB 1310 was reported favorably by the Senate Commerce and Tourism Committee on Jan. 18 and moves to the Senate Finance and Tax Committee, its second of three committees of reference. A similar bill, HB 247 (Rep. Salzman), is in the House Tourism, Infrastructure & Energy Subcommittee, its first of three committees of reference.

Residential Home Protection: CS/SB 518 (Sen. Brodeur), a delete-all amendment, 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 established by the International Society of Arboriculture (ISA) and conducted and signed by an arborist certified by the same entity 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, prior to 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 518 was reported favorably by the Senate Community Affairs Committee on Jan. 18 and moves to the Senate Governmental Oversight and Accountability Committee, its second of three committees of reference. A similar bill, HB 1555 (Rep. McClain) is in the House Civil Justice & Property Rights Subcommittee, its first of three committees of reference.

Affordable Housing

Tax Exemption for Affordable Housing: CS/SB 1150 (Rep. Rodriguez) creates s.196.1979, F.S. that provides that a county or municipality may adopt an ordinance to grant a partial exemption to property used to provide affordable housing to natural persons or families meeting the extremely-low-income, very-low-income, lowincome, or moderate-income limits specified in s.420.0004. To be eligible for the exemption, the property must be within a multifamily project containing 50 or more residential units, at least 10 percent of which are used to provide affordable housing meeting the requirements of this new section and be subject to a recorded land use restriction agreement in favor of the Florida Housing Finance Corporation or any other governmental or quasigovernmental jurisdiction which requires that any units qualifying for the exemption be used for providing affordable housing.

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Eligible property may receive an ad valorem property tax exemption of up to 75 percent of the assessed value of the residential units used to provide affordable housing. Property eligible for the exemption may receive an exemption of up to 100 percent of the assessed value if 100 percent of the multifamily project’s residential units are used to provide affordable housing. The bill also outlines requirements for these ordinances and how the property appraiser should apply the exemption. The provisions of the bill would first apply to the 2023 tax roll.

CS/SB 1150 was reported favorably by the Senate Community Affairs Committee on Jan. 18 and now moves to the Senate Finance and Tax Committee, its second of three committees of reference. HB 495 (Rep. Rodriguez), identical to this bill as originally filed, is in the House Local Administration & Veterans Affairs Subcommittee, its first committee of reference.

Constitutional Amendments

Limiting Subject of Constitutional Amendments Proposed by Citizen Initiative: HJR 1127 (Rep. Beltran) proposes an amendment to Section 3 of Article XI of the Florida Constitution limiting the scope of constitutional revisions and amendments proposed by initiative. Such proposals would be limited to matters relating to procedural subjects or to the structure of the government. If approved by 3/5 of the membership of each house of the legislature, the amendment would be placed on the 2022 general election ballot. If the amendment is approved by 60 percent of voters, it would be effective the first Tuesday after the first Monday in 2023.

HJR 1127 was reported favorably by the House Public Integrity & Elections Committee on Jan. 18 and moves to the House Judiciary Committee, its final committee of reference. SJR 1412 (Sen, Brodeur), an identical bill, is in the Senate Ethics and Elections Committee, its first committee of reference.

News Articles

House Democrats criticize previous lawmakers, Ron DeSantis over affordable housing Tristan Wood | Florida Politics | Jan. 18 Travis Hutson files amendment addressing home rule concerns with preemption bill Jacob Ogles | Florida Politics | Jan. 18 Huge Win for Preservation in Florida This Morning!

Florida Trust | Jan. 18 Bill to protect farmers’ tax benefits amid growing agritourism clears first House committee Kelly Hayes | Florida Politics | Jan. 19 Proposal to block many citizen ballot initiatives clears first committee Renzo Downey | Florida Politics | Jan. 18 Florida bill to help businesses sparks fears of lawsuits against local governments John Kennedy | Capital Bureau, USA Today Network Florida | Jan. 21

Jan. 21, 2022 | Legislative Reporter

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