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Reggie L. Bouthillier
Tallahassee
Jeffrey A. Collier
Tampa
Jacob T. Cremer
Tampa
Director of Planning,
Tallahassee Office
*Special thanks to Kaley Witeck, who assisted in the drafting of this update. Kaley is a third-year Juris Doctor Candidate at Stetson University College of Law.
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Important Land Development and Environmental Issues
Following Florida's 2017 Legislative Session
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More than 3,000 bills were introduced during the 2017 Florida Legislative Session but only 211 passed (the lowest number in 20 years). A handful related to environmental and land development issues.
Notably, Governor Scott recently signed the Public Notice of Pollution Act (
SB 1018) into law, providing closure to one of this legislative session's more important environmental issues.
The bill passed unanimously in both the House and Senate.
As we reported previously, Governor Scott had been calling for passage of such a bill since some widely-reported pollution incidents in 2016. While awaiting the legislative session, the Governor directed the Florida Department of Environmental Protection ("FDEP") to issue
Emergency Rule 62ER16-1. An Administrative Law Judge
struck down the rule, finding that FDEP did not follow rulemaking procedures in finalizing the proposed rule and did not have the legal authority to impose the rule. Legislators immediately began drafting legislation to replace the rule.
In summary, the Public Notice of Pollution Act requires the owner or operator of an installation (any property or operation that may emit contaminants in prohibited quantities) to report certain discharges of pollutants by filing a notice, with the State Watch Office, within 24 hours of the discharge. If the circumstances of the discharge change, the owner or operator should file an amended notice. FDEP will post, on a website, all notices and amendments. The Act provides that a notice is not an admission of liability or harm. The Act requires FDEP to adopt rules necessary to implement this law. Our Land Development, Zoning & Environmental Practice Group will monitor the rulemaking process and the Act's implementation and enforcement and keep you apprised of material developments.
Other important bills from this legislative session related to land development and environmental issues include the following:
- Brownfield Cleanup Funds Increased, Commercial Real Estate Rental Tax Decreased, New Rural Tax Exemption Created: HB 7109 was approved by the Governor and became effective immediately. The bill doubles the funding amount for cleanup of Brownfield and drycleaning-solvent contaminated sites from $5 million to $10 million. The bill also reduces the sales tax on the rental of commercial real estate from 6% to 5.8%. Finally, it creates a sales tax exemption for building material, the rental of tangible personal property, and pest control services used in new construction located in a rural area of opportunity, if certain criteria are met.
- Renewable Energy Source Devices: SB 90 became effective July 1, 2017. This bill implements Amendment 4 by exempting consideration of 80% of the value of a "renewable energy resource device" when determining the assessed value of residential and nonresidential property. The device is given the same 80% exemption if considered to be tangible personal property. Certain projects in fiscally-constrained counties are not subject to the exemption.
- Water Resources: SB 10 was approved by the Governor and became effective immediately. It creates water storage reservoirs to reduce freshwater discharges into the St. Lucie and Caloosahatchee estuaries. Water storage areas are authorized to come from the Everglades Agricultural Area reservoir project and the C-51 reservoir project. Land can be acquired in order to implement the project. A revolving loan fund will help local governments and water supply entities to develop and construct the reservoirs.
- Utilities: HB 687 will become effective July 1, 2017. This bill creates the Advanced Wireless Infrastructure Act, which establishes a process for wireless providers to place "small wireless facilities" near utility poles that are located in public rights-of-way owned by a county or municipality. The bill outlines monetary and size requirements for "small wireless facilities," as well as the collocation permit and exemption processes.
- Limitations of Property Tax Assessments: House Joint Resolution 21 proposes a constitutional amendment that would permanently retain the 10% cap on annual non-homestead parcel assessment increases, which is set to expire on January 1, 2019. The constitutional amendment would not apply to school district levies. Its passage is contingent upon the amendment being approved by 60% of Florida voters in the 2018 general election. If approved by the voters, the resolution will go into effect on January 1, 2019.
- Homestead Exemption: House Joint Resolution 7105 proposes a constitutional amendment that would increase the homestead exemption by exempting the assessed value of a homestead property between $100,000 and $125,000. The constitutional amendment would not apply to school district levies. Its passage is contingent upon the amendment being approved by 60% of Florida voters in the 2018 general election. If approved by the voters, the resolution will go into effect on January 1, 2019.
Perhaps just as important were the controversial environmental, land development, and economic development bills that were not passed. We expect that most, if not all, of these issues will return next session and will continue to monitor them.
- Advanced Well Stimulation Treatment (Fracking) Ban: SB 442, which died in the Senate Appropriations Subcommittee on the Environment and Natural Resources, would have banned well intervention performed by injecting fluids into a rock formation at pressure, which alters the rock in order to increase oil or gas production. These techniques, known as fracking, have been hotly debated in Florida for several years now.
- Economic Development and Tourism Funding: HB 7005, which died in the Senate Appropriations Committee, would have essentially eliminated Enterprise Florida, Inc., the state's economic development organization. HB 9, which died in the Senate Commerce and Tourism Committee, would have placed more restrictions, limitations, and requirements on Visit Florida, the state's official tourism marketing corporation. The budgets of both organizations were at risk during session as well. During a special session held in June 2017, legislators agreed to fund Visit Florida at $76 million (the same as in fiscal year 2017) and to put $85 million into a new job-creation fund.
- Community Redevelopment Termination: Two bills, HB 13, which died in the Senate Community Affairs Committee, and SB 1770, which died in the Senate Appropriations Subcommittee on Transportation, Tourism, and Economic Development, concerned amendments to the Community Redevelopment Act of 1969. Together, the bills made it very difficult to form new Community Redevelopment Agencies (CRAs), dealt with inactive CRAs, and sunset all existing CRAs unless reauthorized by a super-majority vote of the city or municipality that created the CRA.
Please contact Reggie Bouthillier, Jeff Collier, Jake Cremer or Ken Metcalf for more information on any of the issues discussed here.
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