Florida Senate - 2021 SB 1876 By Senator Albritton 26-01487-21 20211876__ Page 1 of 28 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1

An act relating to governmental actions affecting 2 private property rights; amending s. 70.001, F.S.; 3 revising notice of claim requirements for property 4 owners; creating a presumption that certain settlement 5 offers protect the public interest; specifying that 6 property owners retain the option to have a court 7 determine awards of compensation; authorizing property 8 owners to bring claims against governmental entities 9 in certain circumstances; providing that property 10 owners are not required to submit formal development 11 applications or proceed through formal application 12 processes to bring claims in specified circumstances; 13 amending s. 70.45, F.S.; defining the term “imposed” 14 or “imposition”; authorizing property owners to bring 15 actions to declare prohibited exactions invalid; 16 providing applicability; amending s. 70.51, F.S.; 17 providing and revising

definitions; providing for 18 resolution of disputes concerning comprehensive plan 19 amendments under the Florida Land Use and 20 Environmental Dispute Resolution Act; revising 21 requirements for initiating a proceeding under the 22 act; providing for an award of attorney fees and costs 23 to property owners who successfully bring actions to 24 compel a governmental entity to participate in certain 25 proceedings; revising provisions related to the 26 tolling of certain administrative proceedings; 27 revising the time periods for a governmental entity to 28 respond to a request for relief; requiring mediations 29

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 2 of 28 CODING: Words stricken are deletions; words underlined are additions. to be conducted according to specified provisions; 30 requiring the governmental entity’s conduct in dispute 31 resolution to be considered in determining whether 32 regulatory efforts were unreasonable or unfairly 33 burdened use of the property; revising the deadline 34 for a magistrate to prepare and file a written 35 recommendation; revising provisions related to 36 settlement agreements; specifying that a governmental 37 entity has authority to rehear and reconsider certain 38 actions pursuant to a special magistrate’s 39 recommendation; providing requirements for such 40 rehearing and reconsideration; revising provisions 41 related to other remedies that may be pursued by a 42 property owner; providing requirements for guidelines 43 adopted by governmental entities for dispute 44 resolution proceedings; specifying that certain 45 settlement discussions are confidential; requiring 46 that actions on proposed settlements be taken at open 47 meetings; deleting obsolete language; amending s. 48 163.3181, F.S.; conforming provisions to changes made 49 by the act; providing an effective date. 50 51 Be It Enacted by the Legislature of the State of Florida: 52 53

Section 1. Subsections (4), (5), and (6) and paragraph (a) 54 of subsection (11) of

section 70.001, Florida Statutes, are 55 amended to read: 56 70.001 Private property rights protection.— 57 (4)(

a) Not fewer less than 90 150 days before prior to 58

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 3 of 28 CODING: Words stricken are deletions; words underlined are additions. filing an action under this

section against a governmental 59 entity, a property owner who seeks compensation under this 60

section must present the claim in writing to the head of the 61 governmental entity, except that if the property is classified 62 as agricultural pursuant to s. 193.461, the notice period is 90 63 days.

The property owner must submit, along with the claim, a 64 bona fide, valid appraisal that supports the claim and 65 demonstrates the loss in fair market value to the real property. 66 If the action of government is the culmination of a process that 67 involves more than one governmental entity, or if a complete 68 resolution of all relevant issues, in the view of the property 69 owner or in the view of a governmental entity to whom a claim is 70 presented, requires the active participation of more than one 71 governmental entity, the property owner shall present the claim 72 as provided in this

section to each of the governmental 73 entities. 74 (

b) The governmental entity shall provide written notice of 75 the claim to all parties to any administrative action that gave 76 rise to the claim, and to owners of real property contiguous to 77 the owner’s property at the addresses listed on the most recent 78 county tax rolls. Within 15 days after the claim is presented, 79 the governmental entity shall report the claim in writing to the 80 Department of Legal Affairs, and shall provide the department 81 with the name, address, and telephone number of the employee of 82 the governmental entity from whom additional information may be 83 obtained about the claim during the pendency of the claim and 84 any subsequent judicial action. 85 (

c) During the 90-day-notice period or the 150-day-notice 86 period, unless extended by agreement of the parties, the 87

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 4 of 28 CODING: Words stricken are deletions; words underlined are additions. governmental entity shall make a written settlement offer to 88 effectuate: 89 1. An adjustment of land development or permit standards or 90 other provisions controlling the development or use of land. 91 2. Increases or modifications in the density, intensity, or 92 use of areas of development. 93 3. The transfer of developmental rights. 94 4. Land swaps or exchanges. 95 5. Mitigation, including payments in lieu of onsite 96 mitigation. 97 6.

Location on the least sensitive portion of the property. 98 7. Conditioning the amount of development or use permitted. 99 8. A requirement that issues be addressed on a more 100 comprehensive basis than a single proposed use or development. 101 9. Issuance of the development order, a variance, a special 102 exception, or any other extraordinary relief. 103 10. Purchase of the real property, or an interest therein, 104 by an appropriate governmental entity or payment of 105 compensation. 106 11.

No changes to the action of the governmental entity. 107 108 If the property owner accepts a settlement offer, either before 109 or after filing an action, the governmental entity may implement 110 the settlement offer by appropriate development agreement; by 111 issuing a variance, a special exception, or any other 112 extraordinary relief; or by any other appropriate method, 113 subject to paragraph (d). 114 (d)1. When a governmental entity enters into a settlement 115 agreement under this

section which would have the effect of a 116

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 5 of 28 CODING: Words stricken are deletions; words underlined are additions. modification, variance, or a special exception to the 117 application of a rule, regulation, or ordinance as it would 118 otherwise apply to the subject real property, the relief granted 119 shall protect the public interest served by the regulations at 120 issue and be the appropriate relief necessary to prevent the 121 governmental regulatory effort from inordinately burdening the 122 real property.

Settlement offers made pursuant to paragraph (c) 123 shall be presumed to protect the public interest. 124 2. When a governmental entity enters into a settlement 125 agreement under this

section which would have the effect of 126 contravening the application of a statute as it would otherwise 127 apply to the subject real property, the governmental entity and 128 the property owner shall jointly file an action in the circuit 129 court where the real property is located for approval of the 130 settlement agreement by the court to ensure that the relief 131 granted protects the public interest served by the statute at 132 issue and is the appropriate relief necessary to prevent the 133 governmental regulatory effort from inordinately burdening the 134 real property. 135 136 This paragraph applies to any settlement reached between a 137 property owner and a governmental entity regardless of when the 138 settlement agreement was entered so long as the agreement fully 139 resolves all claims asserted under this section. 140 (5)(

a) During the 90-day-notice period or the 150-day-141 notice period, unless a settlement offer is accepted by the 142 property owner, each of the governmental entities provided 143 notice pursuant to subsection (4) paragraph (4)(

a) shall issue a 144 written statement of allowable uses identifying the allowable 145

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 6 of 28 CODING: Words stricken are deletions; words underlined are additions. uses to which the subject property may be put. The failure of 146 the governmental entity to issue a statement of allowable uses 147 during the applicable 90-day-notice period or 150-day-notice 148 period shall be deemed a denial for purposes of allowing a 149 property owner to file an action in the circuit court under this 150 section.

If a written statement of allowable uses is issued, it 151 constitutes the last prerequisite to judicial review for the 152 purposes of the judicial proceeding created by this section, 153 notwithstanding the availability of other administrative 154 remedies. 155 (

b) If the property owner rejects the settlement offer and 156 the statement of allowable uses of the governmental entity or 157 entities, the property owner may file a claim for compensation 158 in the circuit court, a copy of which shall be served 159 contemporaneously on the head of each of the governmental 160 entities that made a settlement offer and a statement of 161 allowable uses that was rejected by the property owner. Actions 162 under this

section shall be brought only in the county where the 163 real property is located. 164 (6)(

a) The circuit court shall determine whether an 165 existing use of the real property or a vested right to a 166 specific use of the real property existed and, if so, whether, 167 considering the settlement offer and statement of allowable 168 uses, the governmental entity or entities have inordinately 169 burdened the real property. If the actions of more than one 170 governmental entity, considering any settlement offers and 171 statement of allowable uses, are responsible for the action that 172 imposed the inordinate burden on the real property of the 173 property owner, the court shall determine the percentage of 174

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 7 of 28 CODING: Words stricken are deletions; words underlined are additions. responsibility each such governmental entity bears with respect 175 to the inordinate burden. A governmental entity may take an 176 interlocutory appeal of the court’s determination that the 177 action of the governmental entity has resulted in an inordinate 178 burden. An interlocutory appeal does not automatically stay the 179 proceedings; however, the court may stay the proceedings during 180 the pendency of the interlocutory appeal.

If the governmental 181 entity does not prevail in the interlocutory appeal, the court 182 shall award to the prevailing property owner the costs and a 183 reasonable attorney fee incurred by the property owner in the 184 interlocutory appeal. 185 (

b) Following its determination of the percentage of 186 responsibility of each governmental entity, and following the 187 resolution of any interlocutory appeal, the court shall impanel 188 a jury to determine the total amount of compensation to the 189 property owner for the loss in value due to the inordinate 190 burden to the real property. The property owner retains the 191 option to forego a jury and elect to have the court determine 192 the award of compensation.

The award of compensation shall be 193 determined by calculating the difference in the fair market 194 value of the real property, as it existed at the time of the 195 governmental action at issue, as though the owner had the 196 ability to attain the reasonable investment-backed expectation 197 or was not left with uses that are unreasonable, whichever the 198 case may be, and the fair market value of the real property, as 199 it existed at the time of the governmental action at issue, as 200 inordinately burdened, considering the settlement offer together 201 with the statement of allowable uses, of the governmental entity 202 or entities.

In determining the award of compensation, 203

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 8 of 28 CODING: Words stricken are deletions; words underlined are additions. consideration may not be given to business damages relative to 204 any development, activity, or use that the action of the 205 governmental entity or entities, considering the settlement 206 offer together with the statement of allowable uses has 207 restricted, limited, or prohibited.

The award of compensation 208 shall include a reasonable award of prejudgment interest from 209 the date the claim was presented to the governmental entity or 210 entities as provided in subsection (4). 211 (c)1. In any action filed pursuant to this section, the 212 property owner is entitled to recover reasonable costs and 213 attorney fees incurred by the property owner, from the 214 governmental entity or entities, according to their 215 proportionate share as determined by the court, from the date of 216 the presentation of the claim to the head of the governmental 217 entity pursuant to paragraph (4)(

a) the filing of the circuit 218 court action, if the property owner prevails in the action and 219 the court determines that the settlement offer, including the 220 statement of allowable uses, of the governmental entity or 221 entities did not constitute a bona fide offer to the property 222 owner which reasonably would have resolved the claim, based upon 223 the knowledge available to the governmental entity or entities 224 and the property owner during the 90-day-notice period or the 225 150-day-notice period. 226 2.

In any action filed pursuant to this section, the 227 governmental entity or entities are entitled to recover 228 reasonable costs and attorney fees incurred by the governmental 229 entity or entities from the date of the filing of the circuit 230 court action, if the governmental entity or entities prevail in 231 the action and the court determines that the property owner did 232

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 9 of 28 CODING: Words stricken are deletions; words underlined are additions. not accept a bona fide settlement offer, including the statement 233 of allowable uses, which reasonably would have resolved the 234 claim fairly to the property owner if the settlement offer had 235 been accepted by the property owner, based upon the knowledge 236 available to the governmental entity or entities and the 237 property owner during the 90-day-notice period or the 150-day-238 notice period. 239 3.

The determination of total reasonable costs and attorney 240 fees pursuant to this paragraph shall be made by the court and 241 not by the jury. Any proposed settlement offer or any proposed 242 decision, except for the final written settlement offer or the 243 final written statement of allowable uses, and any negotiations 244 or rejections in regard to the formulation either of the 245 settlement offer or the statement of allowable uses, are 246 inadmissible in the subsequent proceeding established by this 247

section except for the purposes of the determination pursuant to 248 this paragraph. 249 (

d) Within 15 days after the execution of any settlement 250 pursuant to this section, or the issuance of any judgment 251 pursuant to this section, the governmental entity shall provide 252 a copy of the settlement or judgment to the Department of Legal 253 Affairs. 254

(11) A cause of action may not be commenced under this 255

section if the claim is presented more than 1 year after a law 256 or regulation is first applied by the governmental entity to the 257 property at issue. 258 (

a) For purposes of determining when this 1-year claim 259 period accrues: 260 1.a. A law or regulation is first applied upon enactment 261

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 10 of 28 CODING: Words stricken are deletions; words underlined are additions. and notice as provided for in this sub-subparagraph subparagraph 262 if the impact of the law or regulation on the real property is 263 clear and unequivocal in its terms and notice is provided by 264 mail to the affected property owner or registered agent at the 265 address referenced in the jurisdiction’s most current ad valorem 266 tax records.

The fact that the law or regulation could be 267 modified, varied, or altered under any other process or 268 procedure does not preclude the impact of the law or regulation 269 on a property from being clear or unequivocal pursuant to this 270 sub-subparagraph subparagraph.

Any notice under this sub-271 subparagraph subparagraph shall be provided after the enactment 272 of the law or regulation and shall inform the property owner or 273 registered agent that the law or regulation may impact the 274 property owner’s existing property rights and that the property 275 owner may have only 1 year after from receipt of the notice to 276 pursue any rights established under this section. 277 b.

If the notice required in sub-subparagraph a. is not 278 provided to the property owner, the property owner may at any 279 time after enactment notify the head of the governmental entity 280 in writing via certified mail and, if available, e-mail that the 281 property owner deems the impact of the law or regulation on the 282 property owner’s real property to be clear and unequivocal in 283 its terms and, as such, restrictive of uses allowed on the 284 property before the enactment.

Within 45 days after receipt of a 285 notice under this sub-subparagraph, the governmental entity in 286 receipt of the notice must respond in writing via certified mail 287 and, if available, e-mail to describe the limitations imposed on 288 the property by the law or regulation. The property owner is not 289 required to formally pursue an application for a development 290

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 11 of 28 CODING: Words stricken are deletions; words underlined are additions. order, development permit, or building permit, as such will be 291 deemed a waste of resources and shall not be a prerequisite to 292 bringing a claim pursuant to paragraph (4)(a). However, any such 293 claim must be filed within 1 year after the date of the property 294 owner’s receipt of the notice from the governmental entity of 295 the limitations on use imposed on the real property. 296 2. Otherwise, the law or regulation is first applied to the 297 property when there is a formal denial of a written request for 298 development or variance. 299

Section 2. Present paragraphs (c), (d), and (

e) of 300 subsection (1) of

section 70.45, Florida Statutes, are 301 redesignated as paragraphs (d), (e), and (f), respectively, a 302 new paragraph (

c) is added to that subsection, and subsections 303 (2), (4), and (5) of that

section are amended, to read: 304 70.45 Governmental exactions.— 305

(1) As used in this section, the term: 306 (c) “Imposed” or “imposition” as it relates to a prohibited 307 exaction or condition of approval refers to the time at which 308 the property owner must comply with the prohibited exaction or 309 condition of approval. 310

(2) In addition to other remedies available in law or 311 equity, a property owner may bring an action in a court of 312 competent jurisdiction under this

section to declare a 313 prohibited exaction invalid and recover damages caused by a 314 prohibited exaction. Such action may not be brought by a 315 property owner at the property owner’s discretion when until a 316 prohibited exaction is actually imposed or when it is required 317 in writing as a final condition of approval for the requested 318 use of real property. The right to bring an action under this 319

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section may not be waived. This

section does not apply to impact 320 fees adopted under s. 163.31801 or non-ad valorem assessments as 321 defined in s. 197.3632. 322

(4) For each claim filed under this section, the 323 governmental entity has the burden of proving that the 324 challenged exaction has an essential nexus to a legitimate 325 public purpose and is roughly proportionate to the impacts of 326 the proposed use that the governmental entity is seeking to 327 avoid, minimize, or mitigate. The property owner has the burden 328 of proving damages that result from a prohibited exaction. 329

(5) The court may award attorney fees and costs to the 330 prevailing party; however, if the court determines that the 331 challenged exaction which is the subject of the claim lacks an 332 essential nexus to a legitimate public purpose, the court shall 333 award attorney fees and costs to the property owner. 334

Section 3. The amendments made by this act to ss. 70.001 335 and 70.45, Florida Statutes, apply to claims made in response to 336 actions taken by governmental entities on or after July 1, 2021. 337

Section 4. Subsections (2), (3), and (4), paragraph (

b) of 338 subsection (5), paragraphs (a), (b), and (

c) of subsection (6), 339 subsections (8) and (10) through (13), paragraph (

a) of 340 subsection (15), paragraph (

a) of subsection (16), and 341 subsections (17) through (21), (24), (25), (26), (28), and (30) 342 of

section 70.51, Florida Statutes, are amended to read: 343 70.51 Land use and environmental dispute resolution.— 344

(2) As used in this section, the term: 345 (a) “Comprehensive plan amendment” means a governmental 346 action subject to s. 163.3181(4). 347 (b)(a) “Development order” means any order, or notice of 348

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 13 of 28 CODING: Words stricken are deletions; words underlined are additions. proposed state or regional governmental agency action, which is 349 or will have the effect of granting, denying, or granting with 350 conditions an application for a development permit, and includes 351 the rezoning of a specific parcel.

Actions by the state or a 352 local government on comprehensive plan amendments are not 353 development orders. 354 (c)(b) “Development permit” means any building permit, 355 zoning permit, subdivision approval, certification, special 356 exception, variance, or any other similar action of local 357 government, as well as any permit authorized to be issued under 358 state law by state, regional, or local government which has the 359 effect of authorizing the development of real property 360 including, but not limited to, programs implementing chapters 361 125, 161, 163, 166, 187, 258, 372, 373, 378, 380, and 403. 362 (h)(c) “Special magistrate” means a person selected by the 363 parties to perform the duties prescribed in this section.

The 364 special magistrate must be a resident of the state and possess 365 experience and expertise in mediation and at least one of the 366 following disciplines and a working familiarity with the others: 367 land use and environmental permitting, land planning, land 368 economics, local and state government organization and powers, 369 and the law governing the same.

A special magistrate is not 370 required to be a certified mediator. 371 (d) “Enforcement action” means any civil or administrative 372 action by a governmental entity intended to enforce any law, 373 ordinance, regulation, rule, or policy related to the 374 development or use of real property. The term includes, but is 375 not limited to, any action taken under

chapter 162, such as a 376 notice of violation, order, or placement of a lien, or the 377

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 14 of 28 CODING: Words stricken are deletions; words underlined are additions. service of a notice of violation or an order to correct a 378 condition, or an equivalent action, by a state agency. 379 (g)(d) “Owner” means a person with a legal or equitable 380 interest in real property who filed an application for a 381 development permit for the property at the state, regional, or 382 local level and who received a development order, who filed a 383 comprehensive plan amendment, or who holds legal title to or who 384 has a legal or equitable interest in real property that is 385 subject to, or is otherwise a person subject to, an enforcement 386 action of a governmental entity. 387 (i)(e) “Proposed Use of the property” means the proposal 388 filed by the owner to develop his or her real property or the 389 actual use of the property giving rise to an enforcement action. 390 (e)(f) “Governmental entity” includes an agency of the 391 state, a regional or a local government created by the State 392 Constitution or by general or special act, any county or 393 municipality, or any other entity that independently exercises 394 governmental authority.

The term does not include the United 395 States or any of its agencies. 396 (f)(g) “Land” or “real property” means land and includes 397 any appurtenances and improvements to the land, including any 398 other relevant real property in which the owner had a relevant 399 interest. 400

(3) Any owner who believes that a development order, either 401 separately or in conjunction with other development orders, a 402 comprehensive plan amendment, or an enforcement action of a 403 governmental entity, is unreasonable or unfairly burdens the use 404 of the owner’s real property, may apply within 30 days after 405 receipt of the order, comprehensive plan amendment, or notice of 406

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 15 of 28 CODING: Words stricken are deletions; words underlined are additions. the governmental action for relief under this section. 407

(4) To initiate a proceeding under this section, an owner 408 must file a request for relief with the elected or appointed 409 head of the governmental entity that issued the development 410 order or orders, denied the comprehensive plan amendment, or 411 that initiated the enforcement action. Filing may be by 412 electronic mail to the official e-mail address of the head of 413 the governmental entity, by hand delivery to such person, or by 414 United States mail to such person at his or her official 415 address. Formal service of process is not required for such 416 filing.

The process shall be considered initiated as of the date 417 the petition is filed with the head of the governmental entity 418 pursuant to this subsection. The head of the governmental entity 419 may not charge the owner for the request for relief and must 420 forward the request for relief to the special magistrate who is 421 mutually agreed upon by the owner and the governmental entity 422 within 10 days after receipt of the request. 423

(5) The governmental entity with whom a request has been 424 filed shall also serve a copy of the request for relief by 425 United States mail or by hand delivery to: 426 (

b) Any substantially affected party who submitted oral or 427 written testimony, sworn or unsworn, of a substantive nature 428 which stated with particularity objections to or support for any 429 development order, comprehensive plan amendment, at issue or 430 enforcement action at issue. Notice under this paragraph is 431 required only if that party indicated a desire to receive notice 432 of any subsequent special magistrate proceedings occurring on 433 the development order, comprehensive plan amendment, or 434 enforcement action. Each governmental entity must maintain in 435

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 16 of 28 CODING: Words stricken are deletions; words underlined are additions. its files relating to each particular development order, 436 comprehensive plan amendment, or enforcement action orders a 437 mailing list of persons who have presented oral or written 438 testimony and who have requested notice. 439

(6) The request for relief must contain: 440 (

a) A brief statement of the owner’s proposed use of the 441 property. 442 (

b) A

summary of the development order or comprehensive 443 plan amendment or a description of the enforcement action. A 444 copy of the development order or comprehensive plan amendment or 445 the documentation of an enforcement action at issue must be 446 attached to the request. 447 (

c) A brief statement of the impact of the development 448 order, denial of the comprehensive plan amendment, or 449 enforcement action on the ability of the owner to achieve the 450 proposed use of the property. 451

(8) The special magistrate has the sole authority to 452 determine whether a request for relief is complete and was 453 timely filed and may conduct a hearing on whether the request 454 for relief should be dismissed for failing to include the 455 information required in subsection (6). If the special 456 magistrate dismisses the case, the special magistrate shall 457 allow the owner to amend the request and refile. Failure to file 458 an adequate amended request within the time specified shall 459 result in a dismissal with prejudice as to this proceeding. A 460 property owner who is successful in a suit to require a 461 governmental entity to participate in a proceeding under this 462

section shall be awarded attorney fees and costs. 463 (10)(

a) Before initiating a special magistrate proceeding 464

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 17 of 28 CODING: Words stricken are deletions; words underlined are additions. to review a local development order, comprehensive plan 465 amendment, or local enforcement action, the owner must exhaust 466 all nonjudicial local government administrative appeals if the 467 appeals take no longer than 4 months.

Once nonjudicial local 468 administrative appeals are exhausted and the development order, 469 comprehensive plan amendment, or enforcement action is final, or 470 within 4 months after issuance of the development order, denial 471 of the comprehensive plan amendment, or notice of the 472 enforcement action if the owner has pursued local administrative 473 appeals even if the appeals have not been concluded, the owner 474 may initiate a proceeding under this section.

Initiation of a 475 proceeding tolls rendition or effectiveness of the development 476 order, denial of the comprehensive plan amendment, the time for 477 seeking judicial review of a local government development order 478 or enforcement action until the special magistrate’s 479 recommendation is acted upon by the local government. Election 480 by the owner to file for judicial review of a local government 481 development order, comprehensive plan amendment, or enforcement 482 action before prior to initiating a proceeding under this 483

section waives any right to a special magistrate proceeding. 484 (

b) If an owner requests special magistrate relief from a 485 development order, comprehensive plan amendment, or enforcement 486 action issued by a state or regional agency, the time for 487 challenging agency action under ss. 120.569 and 120.57 is tolled 488 until the agency acts upon the recommendation of the special 489 magistrate or the proceeding is terminated by the owner. If an 490 owner chooses to bring a proceeding under ss. 120.569 and 120.57 491 before initiating a special magistrate proceeding, then the 492 owner waives any right to a special magistrate proceeding unless 493

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 18 of 28 CODING: Words stricken are deletions; words underlined are additions. all parties consent to proceeding to mediation. 494

(11) The initial party to the proceeding is the 495 governmental entity that issues the development order or 496 comprehensive plan amendment to the owner or that is taking the 497 enforcement action.

In those instances when the development 498 order, comprehensive plan amendment, or enforcement action is 499 the culmination of a process involving more than one 500 governmental entity or when a complete resolution of all 501 relevant issues would require the active participation of more 502 than one governmental entity, the special magistrate may, upon 503 application of a party, join those governmental entities as 504 parties to the proceeding if it will assist in effecting the 505 purposes of this section, and those governmental entities so 506 joined shall actively participate in the procedure. 507

(12) Within 21 days after the date on which the notice was 508 provided under subsection (5) receipt of the request for relief, 509 any owner of land contiguous to the owner’s property and any 510 substantially affected person who submitted oral or written 511 testimony, sworn or unsworn, of a substantive nature which 512 stated with particularity objections to or support for the 513 development order, comprehensive plan amendment, or enforcement 514 action at issue may make a written request to participate in the 515 hearing by transmitting such request to the official who signed 516 the notice proceeding.

Those persons may be permitted to 517 participate in the hearing but shall not be granted party or 518 intervenor status. The participation of such persons is limited 519 to addressing issues raised regarding alternatives, variances, 520 and other types of adjustment to the development order, 521 comprehensive plan amendment, or enforcement action which may 522

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 19 of 28 CODING: Words stricken are deletions; words underlined are additions. impact their substantial interests, including denial of the 523 development order or comprehensive plan amendment or application 524 of an enforcement action. 525

(13) Each party must make efforts to assure that those 526 persons qualified by training or experience necessary to address 527 issues raised by the request or by the special magistrate and 528 further qualified to address alternatives, variances, and other 529 types of modifications to the development order, comprehensive 530 plan amendment, or enforcement action are present at the 531 hearing. 532 (15)(

a) The special magistrate shall hold a hearing within 533 60 45 days after his or her receipt of the request for relief 534 unless a different date is agreed to by all the parties. The 535 hearing must be held in the county in which the property is 536 located. 537 (16)(

a) Five days after the date on which the special 538 magistrate is selected, or 21 days after the date on which the 539 petition is served Fifteen days following the filing of a 540 request for relief, whichever is earlier, the governmental 541 entity that issued the development order or comprehensive plan 542 amendment or that is taking the enforcement action shall file a 543 response to the request for relief with the special magistrate 544 together with a copy to the owner.

The response must set forth 545 in reasonable detail the position of the governmental entity 546 regarding the matters alleged by the owner. The response must 547 include a brief statement explaining the public purpose of the 548 regulations on which the development order, comprehensive plan 549 amendment, or enforcement action is based. 550

(17) In all respects, the hearing must be informal and open 551

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 20 of 28 CODING: Words stricken are deletions; words underlined are additions. to the public and does not require the use of an attorney. The 552 hearing must operate at the direction and under the supervision 553 of the special magistrate. The object of the hearing is to focus 554 attention on the impact of the governmental action giving rise 555 to the request for relief and to explore alternatives to the 556 development order, comprehensive plan amendment, or enforcement 557 action and other regulatory efforts by the governmental entities 558 in order to recommend relief, when appropriate, to the owner. 559 (

a) The first responsibility of the special magistrate is 560 to facilitate a resolution of the conflict between the owner and 561 governmental entities to the end that some modification of the 562 owner’s proposed use of the property or adjustment in the 563 development order, comprehensive plan amendment, or enforcement 564 action or regulatory efforts by one or more of the governmental 565 parties may be reached. Accordingly, the special magistrate 566 shall act as a facilitator or mediator between the parties in an 567 effort to effect a mutually acceptable solution.

The parties 568 shall be represented at the mediation by persons with authority 569 to bind their respective parties to a solution, or by persons 570 with authority to recommend a solution directly to the persons 571 with authority to bind their respective parties to a solution. 572 The mediation shall be conducted according to ss. 44.401-44.406. 573 (

b) If an acceptable solution is not reached by the parties 574 after the special magistrate’s attempt at mediation, the special 575 magistrate shall consider the facts and circumstances set forth 576 in the request for relief and any responses and any other 577 information produced at the hearing in order to determine 578 whether the action by the governmental entity or entities is 579 unreasonable or unfairly burdens the real property. 580

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c) In conducting the hearing, the special magistrate may 581 hear from all parties and witnesses that are necessary to an 582 understanding of the matter. The special magistrate shall weigh 583 all information offered at the hearing. 584

(18) The circumstances to be examined in determining 585 whether the development order, comprehensive plan amendment, or 586 enforcement action, or the development order, comprehensive plan 587 amendment, or enforcement action in conjunction with regulatory 588 efforts of other governmental parties, is unreasonable or 589 unfairly burdens use of the property may include, but are not 590 limited to: 591 (

a) The history of the real property, including when it was 592 purchased, how much was purchased, where it is located, the 593 nature of the title, the composition of the property, and how it 594 was initially used. 595 (

b) The history or development and use of the real 596 property, including what was developed on the property and by 597 whom, if it was subdivided and how and to whom it was sold, 598 whether plats were filed or recorded, and whether infrastructure 599 and other public services or improvements may have been 600 dedicated to the public. 601 (

c) The history of environmental protection and land use 602 controls and other regulations, including how and when the land 603 was classified, how use was proscribed, and what changes in 604 classifications occurred. 605 (

d) The present nature and extent of the real property, 606 including its natural and altered characteristics. 607 (

e) The reasonable expectations of the owner at the time of 608 acquisition, or immediately before prior to the implementation 609

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 22 of 28 CODING: Words stricken are deletions; words underlined are additions. of the regulation at issue, whichever is later, under the 610 regulations then in effect and under common law. 611 (

f) The public purpose sought to be achieved by the 612 development order, comprehensive plan amendment, or enforcement 613 action, including the nature and magnitude of the problem 614 addressed by the underlying regulations on which the development 615 order, comprehensive plan amendment, or enforcement action is 616 based; whether the development order, comprehensive plan 617 amendment, or enforcement action is necessary to the achievement 618 of the public purpose; and whether there are alternative 619 development orders, comprehensive plan amendments, or 620 enforcement action conditions that would achieve the public 621 purpose and allow for reduced restrictions on the use of the 622 property. 623 (

g) Uses authorized for and restrictions placed on similar 624 property. 625 (

h) Whether the governmental entity attempted to resolve 626 the dispute in good faith, including, but not limited to, 627 adhering to the deadlines provided in this section. 628 (i)(

h) Any other information determined relevant by the 629 special magistrate. 630

(19) Within 14 days after the conclusion of the hearing, or 631 when the parties propose a settlement agreement for entry by the 632 special magistrate pursuant to subsection (22), the special 633 magistrate shall prepare and file with all parties a written 634 recommendation. 635 (

a) If the special magistrate finds and concludes that the 636 development order at issue, or the development order, 637 comprehensive plan amendment, or enforcement action in 638

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 23 of 28 CODING: Words stricken are deletions; words underlined are additions. combination with the actions or regulations of other 639 governmental entities, is not unreasonable or does not unfairly 640 burden the use of the owner’s property, the special magistrate 641 must recommend that the development order, comprehensive plan 642 amendment, or enforcement action remain undisturbed and the 643 proceeding shall end, subject to the owner’s retention of all 644 other available remedies. 645 (

b) If the special magistrate finds and concludes that the 646 development order, comprehensive plan amendment, or enforcement 647 action, or the development order, comprehensive plan amendment, 648 or enforcement action in combination with the actions or 649 regulations of other governmental entities, is unreasonable or 650 unfairly burdens use of the owner’s property, the special 651 magistrate, with the owner’s consent to proceed, may recommend 652 one or more alternatives that protect the public interest served 653 by the development order, comprehensive plan amendment, or 654 enforcement action and regulations at issue but allow for 655 reduced restraints on the use of the owner’s real property, 656 including, but not limited to: 657 1.

An adjustment of land development or permit standards or 658 other provisions controlling the development or use of land. 659 2. Increases or modifications in the density, intensity, or 660 use of areas of development. 661 3. The transfer of development rights. 662 4. Land swaps or exchanges. 663 5. Mitigation, including payments in lieu of onsite 664 mitigation. 665 6. Location on the least sensitive portion of the property. 666 7. Conditioning the amount of development or use permitted. 667

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 24 of 28 CODING: Words stricken are deletions; words underlined are additions. 8. A requirement that issues be addressed on a more 668 comprehensive basis than a single proposed use or development. 669 9. Rehearing or reconsideration and issuance of the 670 development order, comprehensive plan amendment, or enforcement 671 action with or without modifications or additional stipulations, 672 or a variance, special exception, or other extraordinary relief, 673 including withdrawal of the enforcement action. 674 10. Purchase of the real property, or an interest therein, 675 by an appropriate governmental entity. 676 (

c) If the parties reach a proposed settlement agreement at 677 any time before the special magistrate enters a recommendation, 678 which agreement may remain subject to approval by the 679 governmental entity, the parties may request that the special 680 magistrate transmit the settlement agreement to the governmental 681 entity as the special magistrate’s findings and recommendation 682 for consideration and approval by the governmental entity, and 683 the special magistrate need not include the findings or 684 conclusions set forth in paragraph (

a) or paragraph (

b) This 685 subsection does not prohibit the owner and governmental entity 686 from entering into an agreement as to the permissible use of the 687 property prior to the special magistrate entering a 688 recommendation. An agreement for a permissible use must be 689 incorporated in the special magistrate’s recommendation. 690 (

d) This

section provides legislative authority for the 691 governmental entity or tribunal to rehear and reconsider its 692 prior action on a development order, comprehensive plan 693 amendment, or enforcement action pursuant to, and in 694 consideration of, a special magistrate’s recommendation, 695 regardless of whether existing statutes, rules, ordinances, or 696

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Any such rehearing or 697 reconsideration shall be at a public hearing noticed and 698 otherwise conducted in the same manner as the original hearing. 699 The tribunal shall treat the special magistrate’s findings, or a 700 settlement agreement, as evidence for modification of its prior 701 development order, comprehensive plan amendment, or enforcement 702 action, and shall provide an opportunity for any person who 703 participated in the original hearing or the special magistrate’s 704 proceeding to provide additional evidence and testimony.

The 705 tribunal’s action on the special magistrate’s recommendation 706 shall then become the final order on the development order, 707 comprehensive plan amendment, or enforcement action. 708

(20) The special magistrate’s findings and recommendation 709 are is a public record under

chapter 119. However, actions or 710 statements of all participants to the special magistrate 711 mediation proceeding are evidence of an offer to compromise and 712 inadmissible in any proceeding, judicial or administrative. 713

(21) Within 45 days after receipt of the special 714 magistrate’s findings and recommendation, the governmental 715 entity responsible for the development order, comprehensive plan 716 amendment, or enforcement action and other governmental entities 717 participating in the proceeding must consult among themselves 718 and each governmental entity must: 719 (

a) Accept or modify the recommendation of the special 720 magistrate, including any proposed settlement agreement, as 721 submitted and proceed to implement it by development agreement, 722 when appropriate, by rehearing or reconsidering the development 723 order or enforcement action, or by other method, in the ordinary 724 course and consistent with the rules and procedures of that 725

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 26 of 28 CODING: Words stricken are deletions; words underlined are additions. governmental entity.

However, the decision of the governmental 726 entity to accept the recommendation of the special magistrate 727 with respect to rehearing or reconsidering the prior development 728 order or enforcement action or granting a modification, 729 variance, or special exception to the application of statutes, 730 rules, regulations, or ordinances as they would otherwise apply 731 to the subject property does not require an owner to duplicate 732 previous processes in which the owner has participated in order 733 to effectuate the granting of the modification, variance, or 734 special exception; or 735 (

b) Modify the recommendation as submitted by the special 736 magistrate and proceed to implement it by development agreement, 737 when appropriate, or by other method, in the ordinary course and 738 consistent with the rules and procedures of that governmental 739 entity; or 740 (b)(

c) Reject the recommendation as submitted by the 741 special magistrate. Failure to act within 45 days is a rejection 742 unless the period is extended by agreement of the owner and 743 issuer of the development order, comprehensive plan amendment, 744 or enforcement action. 745

(24) The procedure created by this

section is not itself, 746 nor does it create, a judicial cause of action. Once the 747 governmental entity acts on the special magistrate’s 748 recommendation, the owner may pursue whatever administrative or 749 judicial remedies are applicable elect to file suit in a court 750 of competent jurisdiction. Invoking the procedures of this 751

section is not a condition precedent to filing a civil action. 752

(25) Regardless of the action the governmental entity takes 753 on the special magistrate’s findings and recommendation, a 754

Florida Senate - 2021 SB 1876 26-01487-21 20211876__ Page 27 of 28 CODING: Words stricken are deletions; words underlined are additions. recommendation that the development order, comprehensive plan 755 amendment, or enforcement action, or the development order, 756 comprehensive plan amendment, or enforcement action in 757 combination with other governmental regulatory actions, is 758 unreasonable or unfairly burdens use of the owner’s real 759 property may serve as an indication of sufficient hardship to 760 support waivers of or modification, variances, or special 761 exceptions to the application of statutes, rules, regulations, 762 or ordinances to the subject property, whether as a part of the 763 implementation of the recommendation, in a subsequent 764 application, or in an administrative or judicial challenge to 765 the action of the governmental entity.

However, the special 766 magistrate’s findings and recommendation are not preclusive to 767 any issue or defense in any subsequent administrative or 768 judicial proceeding. 769

(26) A special magistrate’s findings and recommendation 770 under this

section constitutes data in support of, and a support 771 document for, a comprehensive plan or comprehensive plan 772 amendment, but is not, in and of itself, dispositive of a 773 determination of compliance with

chapter 163. 774

(28) Each governmental entity may establish procedural 775 guidelines to govern the conduct of proceedings authorized by 776 this section, which must include, but are not limited to, 777 payment of special magistrate fees and expenses, including the 778 costs of providing notice and effecting service of the request 779 for relief under this section, which shall be borne equally by 780 the governmental entities and the owner. Such guidelines may not 781 modify the requirements and relief provided by this

section in 782 any way. 783

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(30) In order to encourage the resolution of disputes, and 784 regardless of whether the parties are engaged in pending 785 litigation recently before a court or administrative agency, a 786 governmental entity may conduct meetings following the 787 procedures in s. 286.011(8) at any time after the governmental 788 entity responds in writing to a request for relief to discuss 789 settlement strategies, but shall not take action on a proposed 790 settlement agreement except at a noticed public meeting This 791

section applies only to development orders issued, modified, or 792 amended, or to enforcement actions issued, on or after October 793 1, 1995. 794

Section 5. Subsection (4) of

section 163.3181, Florida 795 Statutes, is amended to read: 796 163.3181 Public participation in the comprehensive planning 797 process; intent; alternative dispute resolution.— 798

(4) If a local government denies an owner’s request for an 799 amendment to the comprehensive plan which is applicable to the 800 property of the owner, the owner may initiate a dispute 801 resolution proceeding under s. 70.51 the local government must 802 afford an opportunity to the owner for informal mediation or 803 other alternative dispute resolution. The costs of the mediation 804 or other alternative dispute resolution shall be borne equally 805 by the local government and the owner. If the owner requests 806 mediation, the time for bringing a judicial action is tolled 807 until the completion of the mediation or 120 days, whichever is 808 earlier. 809

Section 6. This act shall take effect July 1, 2021. 810