March 16, 2022 | Sine Die Legislative Reporter

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March 16, 2022 | Legislative Reporter The Florida Legislature adjourned Sine Die at 1.03 pm on March 14. A total of 3,385 bills were filed including eight concurrent resolutions, 76 single chamber resolutions, 1,753 general bills, 61 local bills, 35 joint resolutions, 23 memorials, and 1,729 appropriation projects. Of this, only 285 bills passed both chambers.

The Legislature passed HB 5001, the General Appropriations Act, which contains the details of the $112.1 billion budget, more than 8 percent higher than last year’s budget. Of note, programs supporting affordable housing are allocated more than $362 million, and climate change concerns, such as flood and sea-level rise programs, will receive $471 million. Read a summary of the budget here.

Gov. Ron DeSantis has begun to receive bills that have passed both chambers. If a bill was sent to the governor during session, he has seven days to act on it. Now that the session has ended, the timeframe for acting increases to 15 days. If you want to follow the governor’s bill action, go to flgov.com and click on the icon reading “2022 Bill Actions”.

The following paragraphs summarize the major bills passed by the legislature that APA Florida tracked.

However, you are strongly encouraged to read the actual bill language. Also please look at the bill tracking report here to see if there are other bills of particular interest to you that are not discussed below. Please note these summaries are based on a review of the bill language and legislative staff analysis.

The following bills of interest passed the legislature: • Private Provider Inspections of Onsite Sewage Treatment and Disposal Systems: SB 856 ER (Sen. Brodeur) 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 ER (Sen. Hutson), 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 that 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).

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Airport Funding: HB 631 ER (Rep. Grall) 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).

Powers of Land Authorities: SB 442 ER (Sen. Rodriguez) 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 ER (Rep. Truenow) creates s.373.4134 F.S. to provide for the development of water quality enhancement areas that 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 soled to governmental entities. (identified effective date of July 1, 2022).

Education: SB 758 ER (Sen. Diaz) 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).

The following bills of note also passed the legislature:

Growth Management School Concurrency: SB 706 ER (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 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.

The bill identifies an effective date of July 1, 2022.

Private Property Rights to Prune, Trim, and Remove Trees: SB 518 ER (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 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.

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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).

The bill identifies and effective date of July 1, 2022.

Local Business Protection Act: SB 620 ER (Sen. Hutson) 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 three 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’ 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.

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.

Additionally, the bill 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.

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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 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 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.

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’ 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’ 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.

The bill identifies an effective date of upon becoming law.

Local Tax Referenda Requirements: HB 777 ER (Rep. Robinson) 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.

The bill identifies an effective date of Oct. 1, 2022.

Residential Development Projects for Affordable Housing: SB 962 ER (Sen. Bradley) amends ss.125.01055(6) and ss.166.04151(6) F.S., dealing with affordable housing. These sections currently allow a county and municipality to, notwithstanding any other law or local ordinance or regulation to the contrary, approve the development of affordable housing on any parcel zoned for residential, industrial, or commercial use.

On parcels zoned for commercial or industrial uses, the bill would provide that an approval may include a mixed-use residential development project so long as at least 10 percent of the units are for housing that is affordable and the sponsor of the project agrees not to apply for or receive funding under s.420.5087 F.S. (State Apartment Incentive Loan Program). The provisions of these subsections are self-executing and do not require the governing body to adopt an ordinance or a regulation before using the approval process in these subsections.

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The bill identifies an effective date of upon becoming law.

Real Property Rights: SB 1380 ER (Sen. Rodriquez) 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.

• 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 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. Any such ordinance or regulation is a violation of this section and is null and void. The rates and rules must be posted and clearly visible to persons parking on the private property. 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 penalties.

The bill identifies an effective date of upon becoming a law.

Floating Solar Facilities: HB 1411 ER (Rep. Avila) 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 water storage reservoirs.

The bill requires floating solar facilities 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 these facilities. The bill authorizes counties and municipalities to specify buffer and landscaping requirements, but such requirements may not exceed those for similar uses involving other solar facility construction that are permitted uses in agricultural land use categories and zoning districts. The bill 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.

The bill also 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 to private and public sector entities that implement floating solar facilities.

The bill identifies an effective date of July 1, 2022.

Agritourism: SB 1186 ER (Sen. Albritton) amends s.570.85 F.S. to remove a requirement that agritourism be a secondary stream of revenue for a bona fide agricultural operation. Additionally, it amends s.5760.87 F.S. to add that an agricultural land classification may not be denied or revoked solely due to the construction, alteration, or March 16, 2022 | Legislative Reporter

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maintenance of a nonresidential farm building, structure, or facility on a bona fide farm which is used to conduct agritourism activities. However, the buildings, structures, or facilities must be an integral part of the agricultural operation, and must be assessed at their just value and added to the agriculturally assessed value of the land.

The bill identifies an effective date of July 1, 2022.

Building Regulation: HB 423 ER (Rep. LaMarca) makes a number of changes to the Florida Building Code.

Among other things, the bill creates s.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: • such 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; • 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 • such permit complies with all applicable Florida Building Code, Fire Prevention Code, Life Safety Code requirements or local amendments to such codes.

An 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. Such applications may not be subject to any additional local land development regulations or public hearings.

If a single-family residential structure is demolished pursuant to a demolition permit, a 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.

The bill provides that this subsection does not apply to a: • structure designated on the National Register of Historic Places; • privately owned single-family residential structure designated historic by a local, state, or federal governmental agency on or before Jan. 1, 2022; or • privately owned single-family residential structure designated historic after Jan. 1, 2022, by a local, state, or federal governmental agency with the consent of its owner.

Additionally, the bill 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 s.553,792 (2)(a) F.S., among which are nonresidential buildings less than 25,000 square feet included residential units or than a single-family unit and multifamily residential not exceeding 50 units. 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.

The bill requires the local government to review additional information within specified time frames. 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.

The bill identifies an effective date of July 1, 2022.

Legal Notices: HB 7049 ER (Rep. Fine and Grall) makes a number of changes related to public notice. It 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. The bill reverts the criteria a newspaper must satisfy to be qualified to publish all legal notices back to the criteria in place March 16, 2022 | Legislative Reporter

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before the passage of chapter 2021-17, Laws of Fla., with the exception that newspapers qualified to publish legal notices are no longer required to be for sale.

It 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.

A governmental agency that uses a publicly accessible website to publish legally required advertisements and public notices shall provide 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 e-mail upon registering their name and address or e-mail address with the governmental agency.

Finally, the bill eliminates the obligations of the Florida Press Association relating to equitable legal notice access by minority populations.

The bill identifies an effective date of Jan. 1, 2023.

Environment and Natural Resources Inventories of Critical Resources: SB 882 ER (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: • 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.

The bill identifies an effective date of July 1, 2022.

Statewide Flooding and Sea Level Rise Resilience: HB 7053 ER (Rep. Busatta Cabrera) 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 Florida Department of Transportation (FDOT) 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 state highway facilities and constructing new ones; and • enhance partnerships for collaboration to address multijurisdictional resilience needs.

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The bill identifies what needs to be included in this plan. It also requires FDOT to submit the action plan to the governor and the 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 deletes previous language that allowed funding to be used for projects that adapt critical assets to flooding and sea-level rise; • 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; • 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; • requiring DEP to rank and include in the Statewide Flooding and Sea-Level Rise Resilience Plan all eligible projects that were submitted for the plan; • authorizes 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; • 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.

By Dec. 15, 2022, the bill requires DEP, in consultation with the Chief Resilience Officer, to prepare a report regarding flood resilience and mitigation efforts in the state. The report must be submitted to the Governor, the President of the Senate, and the Speaker of the House of Representatives.

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 as outlined on the agency’s website.

The bill identifies an effective date of July 1, 2022.

Equity, Diversity, and Inclusion (Read APA Florida’s statement related to the bills below here) Individual Freedom: HB 7 ER (Rep. Avila) amends s.760.10, dealing with unlawful employment practices, to provide 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 constitutes discrimination based on race, color, sex, or national origin. It also amends s.1000.05 to also 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.

The bill identifies an effective date of July 1, 2022.

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Parental Rights in Education: HB 1557 ER (Rep. Harding) requires that school districts adopt procedures for notifying parents if there is a change in their student’s services or monitoring related to a student’s mental, emotional, or physical health or well-being. All procedures adopted under the bill must reinforce the fundamental right of parents to make decisions regarding the upbringing and control of their children by requiring school district personnel to encourage students to discuss issues related to his or her well-being with his or her parent.

The bill prohibits school districts from maintaining procedures that withhold information, or encourage students to withhold information, related to a student’s mental, emotional, or physical health or well-being from parents. A school district may only withhold information if a prudent person would reasonably believe that disclosure would subject the student to abuse, abandonment, or neglect.

The bill prohibits instruction on sexual orientation or gender identity in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students.

The bill creates a cause of action for parents that permits them to enforce their rights through declaratory and injunctive relief. A prevailing parent is entitled to attorney fees and court costs and may be awarded damages.

The bill identifies an effective date of July 1, 2022.

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