Florida Senate - 2023 CS for SB 540 By the Committee on Judiciary; and Senator DiCeglie 590-03298-23 2023540c1 1 A bill to be entitled 2 An act relating to local government comprehensive 3 plans; amending s. 163.3184, F.S.; revising the review 4 process for adoption of comprehensive plan amendments; 5 providing that the prevailing party in a challenge to 6 a plan or plan amendment is entitled to recover 7 attorney fees and costs; providing construction; 8 providing retroactive applicability; amending s. 9 163.3187, F.S.; providing that the prevailing party in 10 a challenge to the compliance of a small scale 11 development order is entitled to recover attorney fees 12 and costs; amending s. 163.3202, F.S.; providing 13 applicability; amending s. 163.3215, F.S.; making 14 technical changes; providing an effective date. 15 16 Be It Enacted by the Legislature of the State of Florida: 17 18 Section 1.Paragraph (c) of subsection (3) of section 19 163.3184, Florida Statutes, is amended, and paragraph (g) is 20 added to subsection (5) of that section, to read: 21 163.3184Process for adoption of comprehensive plan or plan 22 amendment. 23 (3)EXPEDITED STATE REVIEW PROCESS FOR ADOPTION OF 24 COMPREHENSIVE PLAN AMENDMENTS. 25 (c)1.The local government shall hold its second public 26 hearing, which shall be a hearing on whether to adopt one or 27 more comprehensive plan amendments pursuant to subsection (11). 28 If the local government fails, within 180 days after receipt of 29 agency comments, to hold the second public hearing, the 30 amendment is amendments shall be deemed withdrawn unless 31 extended by agreement with notice to the state land planning 32 agency and any affected person that provided comments on the 33 amendment. If the amendment is not adopted at the second public 34 hearing, the amendment must be formally adopted by the local 35 government within 180 days after the second public hearing or 36 the amendment is deemed withdrawn The 180-day limitation does 37 not apply to amendments processed pursuant to s. 380.06. 38 2.All comprehensive plan amendments adopted by the 39 governing body, along with the supporting data and analysis, 40 shall be transmitted within 10 working days after the second 41 public hearing to the state land planning agency and any other 42 agency or local government that provided timely comments under 43 subparagraph (b)2. 44 3.The state land planning agency shall notify the local 45 government of any deficiencies within 5 working days after 46 receipt of an amendment package. For purposes of completeness, 47 an amendment shall be deemed complete if it contains a full, 48 executed copy of the adoption ordinance or ordinances; in the 49 case of a text amendment, a full copy of the amended language in 50 legislative format with new words inserted in the text 51 underlined, and words deleted stricken with hyphens; in the case 52 of a future land use map amendment, a copy of the future land 53 use map clearly depicting the parcel, its existing future land 54 use designation, and its adopted designation; and a copy of any 55 data and analyses the local government deems appropriate. 56 4.An amendment adopted under this paragraph does not 57 become effective until 31 days after the state land planning 58 agency notifies the local government that the plan amendment 59 package is complete. If timely challenged, an amendment does not 60 become effective until the state land planning agency or the 61 Administration Commission enters a final order determining the 62 adopted amendment to be in compliance. 63 (5)ADMINISTRATIVE CHALLENGES TO PLANS AND PLAN 64 AMENDMENTS. 65 (g)The prevailing party in a challenge filed under this 66 subsection is entitled to recover attorney fees and costs in 67 challenging or defending a plan or plan amendment, including 68 reasonable appellate attorney fees and costs. 69 Section 2.The amendment made by section 1 of this act to 70 s. 163.3184(3)(c), Florida Statutes, is remedial in nature, is 71 intended to clarify existing law, and applies retroactively to 72 January 1, 2022. 73 Section 3.Paragraph (a) of subsection (5) of section 74 163.3187, Florida Statutes, is amended to read: 75 163.3187Process for adoption of small scale comprehensive 76 plan amendment. 77 (5)(a)Any affected person may file a petition with the 78 Division of Administrative Hearings pursuant to ss. 120.569 and 79 120.57 to request a hearing to challenge the compliance of a 80 small scale development amendment with this act within 30 days 81 following the local governments adoption of the amendment and 82 shall serve a copy of the petition on the local government. An 83 administrative law judge shall hold a hearing in the affected 84 jurisdiction not less than 30 days nor more than 60 days 85 following the filing of a petition and the assignment of an 86 administrative law judge. The parties to a hearing held pursuant 87 to this subsection shall be the petitioner, the local 88 government, and any intervenor. In the proceeding, the plan 89 amendment shall be determined to be in compliance if the local 90 governments determination that the small scale development 91 amendment is in compliance is fairly debatable. The state land 92 planning agency may not intervene in any proceeding initiated 93 pursuant to this section. The prevailing party in a challenge 94 filed under this paragraph is entitled to recover attorney fees 95 and costs in challenging or defending the order, including 96 reasonable appellate attorney fees and costs. 97 Section 4.Present subsection (6) of section 163.3202, 98 Florida Statutes, is redesignated as subsection (7), and a new 99 subsection (6) is added to that section to read: 100 163.3202Land development regulations. 101 (6)Land development regulations relating to any 102 characteristic of development other than use, or intensity or 103 density of use, do not apply to Florida College System 104 institutions as defined in s. 1000.21(3). 105 Section 5.Subsections (3) and (4) of section 163.3215, 106 Florida Statutes, are amended to read: 107 163.3215Standing to enforce local comprehensive plans 108 through development orders. 109 (3)Any aggrieved or adversely affected party may maintain 110 a de novo action for declaratory, injunctive, or other relief 111 against any local government to challenge any decision of such 112 local government granting or denying an application for, or to 113 prevent such local government from taking any action on, a 114 development order, as defined in s. 163.3164, on the basis that 115 the development order which materially alters the use or density 116 or intensity of use on a particular piece of property, rendering 117 it which is not consistent with the comprehensive plan adopted 118 under this part. The de novo action must be filed no later than 119 30 days following rendition of a development order or other 120 written decision, or when all local administrative appeals, if 121 any, are exhausted, whichever occurs later. 122 (4)If a local government elects to adopt or has adopted an 123 ordinance establishing, at a minimum, the requirements listed in 124 this subsection, the sole method by which an aggrieved and 125 adversely affected party may challenge any decision of local 126 government granting or denying an application for a development 127 order, as defined in s. 163.3164, which materially alters the 128 use or density or intensity of use on a particular piece of 129 property, on the basis that it is not consistent with the 130 comprehensive plan adopted under this part, is by an appeal 131 filed by a petition for writ of certiorari filed in circuit 132 court no later than 30 days following rendition of a development 133 order or other written decision of the local government, or when 134 all local administrative appeals, if any, are exhausted, 135 whichever occurs later. An action for injunctive or other relief 136 may be joined with the petition for certiorari. Principles of 137 judicial or administrative res judicata and collateral estoppel 138 apply to these proceedings. Minimum components of the local 139 process are as follows: 140 (a)The local process must make provision for notice of an 141 application for a development order that materially alters the 142 use or density or intensity of use on a particular piece of 143 property, including notice by publication or mailed notice 144 consistent with the provisions of ss. 125.66(4)(b)2. and 3. and 145 166.041(3)(c)2.b. and c., and must require prominent posting at 146 the job site. The notice must be given within 10 days after the 147 filing of an application for a development order; however, 148 notice under this subsection is not required for an application 149 for a building permit or any other official action of local 150 government which does not materially alter the use or density or 151 intensity of use on a particular piece of property. The notice 152 must clearly delineate that an aggrieved or adversely affected 153 person has the right to request a quasi-judicial hearing before 154 the local government for which the application is made, must 155 explain the conditions precedent to the appeal of any 156 development order ultimately rendered upon the application, and 157 must specify the location where written procedures can be 158 obtained that describe the process, including how to initiate 159 the quasi-judicial process, the timeframes for initiating the 160 process, and the location of the hearing. The process may 161 include an opportunity for an alternative dispute resolution. 162 (b)The local process must provide a clear point of entry 163 consisting of a written preliminary decision, at a time and in a 164 manner to be established in the local ordinance, with the time 165 to request a quasi-judicial hearing running from the issuance of 166 the written preliminary decision; the local government, however, 167 is not bound by the preliminary decision. A party may request a 168 hearing to challenge or support a preliminary decision. 169 (c)The local process must provide an opportunity for 170 participation in the process by an aggrieved or adversely 171 affected party, allowing a reasonable time for the party to 172 prepare and present a case for the quasi-judicial hearing. 173 (d)The local process must provide, at a minimum, an 174 opportunity for the disclosure of witnesses and exhibits prior 175 to hearing and an opportunity for the depositions of witnesses 176 to be taken. 177 (e)The local process may not require that a party be 178 represented by an attorney in order to participate in a hearing. 179 (f)The local process must provide for a quasi-judicial 180 hearing before an impartial special master who is an attorney 181 who has at least 5 years experience and who shall, at the 182 conclusion of the hearing, recommend written findings of fact 183 and conclusions of law. The special master shall have the power 184 to swear witnesses and take their testimony under oath, to issue 185 subpoenas and other orders regarding the conduct of the 186 proceedings, and to compel entry upon the land. The standard of 187 review applied by the special master in determining whether a 188 proposed development order is consistent with the comprehensive 189 plan shall be strict scrutiny in accordance with Florida law. 190 (g)At the quasi-judicial hearing, all parties must have 191 the opportunity to respond, to present evidence and argument on 192 all issues involved which are related to the development order, 193 and to conduct cross-examination and submit rebuttal evidence. 194 Public testimony must be allowed. 195 (h)The local process must provide for a duly noticed 196 public hearing before the local government at which public 197 testimony is allowed. At the quasi-judicial hearing, the local 198 government is bound by the special masters findings of fact 199 unless the findings of fact are not supported by competent 200 substantial evidence. The governing body may modify the 201 conclusions of law if it finds that the special masters 202 application or interpretation of law is erroneous. The governing 203 body may make reasonable legal interpretations of its 204 comprehensive plan and land development regulations without 205 regard to whether the special masters interpretation is labeled 206 as a finding of fact or a conclusion of law. The local 207 governments final decision must be reduced to writing, 208 including the findings of fact and conclusions of law, and is 209 not considered rendered or final until officially date-stamped 210 by the city or county clerk. 211 (i)An ex parte communication relating to the merits of the 212 matter under review may not be made to the special master. An ex 213 parte communication relating to the merits of the matter under 214 review may not be made to the governing body after a time to be 215 established by the local ordinance, which time must be no later 216 than receipt of the special masters recommended order by the 217 governing body. 218 (j)At the option of the local government, the process may 219 require actions to challenge the consistency of a development 220 order with land development regulations to be brought in the 221 same proceeding. 222 Section 6.This act shall take effect July 1, 2023.