BrownIMPORTANT LAND DEVELOPMENT AND ENVIRONMENTAL ISSUES FOLLOWING
FLORIDA'S 2021 LEGISLATIVE SESSION

The 2021 Legislative Session was active and unusual - and unlike any other in Florida's history. Due to the COVID-19 pandemic, legislators held individual meetings via Zoom, the Florida Capitol was closed to the public and video conferencing was used to allow remote testimony during committee meetings. When the legislature adjourned on April 30, 2021, 3,096 total bills were filed, with 275 having passed both Chambers. We expect all bills to be presented to the Governor in the coming weeks and months for his consideration. Once a bill is presented, the Governor has 15 days to take action.

Important bills from the 2021 Legislative Session related to land development and environmental topics include the following:

Bert J. Harris Act Amended to Clarify that Property Owners Are Entitled to Relief after Relinquishing Title:
House Bill 421 and House Bill 1101 provides several key updates to the Bert J. Harris, Jr., Private Property Rights Protection Act (the "Act"). The Act outlines procedures and provides remedies to land owners whose properties are inordinately burdened by local government regulations. First, the bill revises the term "action of a governmental entity" to include the adoption or enforcement of any "ordinance, resolution, regulation, rule, or policy." Additionally, the term "real property" is revised to include "any surface, subsurface, or mineral estates." These changes are also reflected in the Land Use and Environmental Dispute Resolution Act.

The bill also reduces the waiting period under which a claimant must notify a local government before filing a claim under the Act from 150 days to 90 days. Furthermore, the bill amends the Act to provide that a property owner filing a claim remains entitled to relief for that claim even if the owner gives up legal title to the property before the conclusions of proceedings to resolve the claim, in response to the Dean Wish, LLC v. Lee County case discussed below in our case summaries. These amendments apply only to claims made in response to actions taken by governmental entities on or after July 1, 2021. If approved by the Governor, these provisions take effect October 1, 2021.

Critical Update to Procedures for Increasing Impact Fees:
House Bill 337 updates the Florida Impact Fee Act to proscribe the only procedure for a local government, school district, or special district to increase its impact fees. If a local government increases its current impact fees by 25% or less, then the new rate must be implemented in two equal annual increments beginning on the date the increased fee is adopted. If the increase is more than 25% but less than 50% of the current rate, then it must be implemented in four equal increments. Impact fee increases may not exceed 50% of the current impact fee rate and they cannot be increased more than once every 4 years. Further, impact fees cannot be increased retroactively. The only way a local government can avoid the aforementioned procedures is if they demonstrate extraordinary circumstances, they have held at least two publicly noticed workshops dedicated to the extraordinary circumstances, and the increase is approved by a two-thirds vote of the governing body. Importantly, these provisions apply retroactively to January 1, 2021.

The bill also made several other important changes. Significantly, all credits against impact fee collections must be made regardless of any provision in a local government or special district charter provision, comprehensive plan policy, ordinance, development order or permit, or resolution. Any contribution must be applied on a dollar-for-dollar basis at fair market value to reduce any impact fee collected for the general class of public facilities or infrastructure for which the contribution was made. The bill also clarifies that impact fee credit assignability and transferability apply regardless of whether the credits were established before or after the bill's effective date. The bill imposes financial statement audit requirements relating to the increases in impact fees. A local government, school district, or special district must submit with its annual financial report or its financial audit report an affidavit signed by its CFO attesting to the best of his or her knowledge that 1) all impact fees were collected and expended in compliance with the statute, 2) the reporting entity complied with the spending period provision in the local ordinance or resolution, and 3) the funds were expended only for the uses allowed under the statute- acquiring, constructing, or improving the specific infrastructure needs. This bill will take effect upon becoming a law.

Key Provisions of Chapter 163 Amended Regarding Newly Created Municipalities, Comprehensive Plans, Development Agreements, and DRIs:
House Bill 59 provides several updates to growth management regulations. The bill requires newly created municipalities to incorporate all development orders existing before the municipality's comprehensive plan effective date and prohibits a municipality from impairing the completion of development in accordance with existing development orders. The bill also requires local governments to include a property rights element in its comprehensive plan by the earlier of the date of its next proposed plan amendment adoption initiated after July 1, 2021 or the date of its next scheduled comprehensive plan evaluation and appraisal. Furthermore, the bill allows a party with an interest to a development agreement and a local government to amend or cancel a development agreement without securing the consent of other parcel owners whose property was originally subject to the development agreement. However, if the amendment or cancellation directly modifies the allowable uses or entitlements of such owners' property, all property owners subject to the amendment or cancellation must consent to it.

The bill also requires the Florida Department of Transportation ("FDOT"), when selling property, to provide a right of first refusal to the previous property owner for the department's current estimate of value of the property. Finally, the bill authorizes the amendment of any DRI agreement between the state land planning agency, the developer, and the local government that did not expire on or before April 6, 2018 and that was classified as "essentially built out." Any such agreement or amendment on or after April 6, 2018 may authorize the developer to exchange approved land uses provided the change will not increase impacts to public facilities. This bill has an effective date of July 1, 2021.

Major Updates to Florida Laws on Community Associations:
Senate Bill 630 provides significant revisions to the regulation and governance of condominium associations (Chapter 718, F.S.), cooperative associations (Chapter 719, F.S.), and homeowners' associations (Chapter 720, F.S.). Among the various changes, the bill addresses elections disputes, emergency powers, and payment of fines in all chapters. Furthermore, the bill also permits an association in each chapter to extinguish discriminatory restrictions that exist in recorded title transactions. For condominium associations, the bill deletes a conflict of interest provision prohibiting an association to employ or contract with a service provider that is owned or operated by a board member or person who has a financial relationship with a board member. The bill also prohibits subrogation rights in a unit owner's insurance policy against an association if the association's policy does not include that right against the unit owner.

Additionally, the permissible fee for the transfer of a unit is increased from $100 to $150, and provides for the adjustment of the fee every five years. Condominium associations and unit owners are authorized to install, maintain, and operate electric vehicle charging stations on common elements or unit owner parking areas. Regarding homeowners' associations, the bill clarifies that an amendment to the governing documents, rules, or regulations after July 1, 2021 that prohibits a parcel owner from renting the parcel, limiting the duration of a rental term, or limiting the number of times a parcel owner may rent their parcel during a specified term only applies to parcel owners that acquired title after the amendment's effective date or if the parcel owner consents to the amendment. However, the bill provides an exception for homeowners' associations with 15 or fewer parcel owners. Finally, for cooperative associations, the bill provides that an interest in a cooperative unit is an interest in real property and permits board members to vote by telephone, real-time video conferencing, or similar real-time electronic communication. If approved, these provisions take effect July 1, 2021.

Maximum Acreage for Small-Scale Comprehensive Plan Amendments Increased to 50 Acres:
House Bill 487 amends the requirements to apply for small scale comprehensive plan amendments by increasing the maximum acreage from 10 acres to 50 acres. The bill also increases the maximum acreage for a small-scale comprehensive plan amendment within a rural area of opportunity from 20 acres to 100 acres. The bill also provides that any landowner with a development order existing before the incorporation of a municipality may elect to abandon the development order and develop the vested density and intensity of the development order provided it is consistent with the comprehensive plan and concurrency obligations remain. The effective date of this bill is July 1, 2021.

Code Enforcement Investigators May Not Investigate Anonymous Complaints:
Senate Bill 60, among other provisions, prohibits a local government code enforcement investigator from investigating anonymous complaints of a potential violation of a local government code or ordinance unless the potential violation poses an imminent threat to the public health, safety, or welfare, or imminent destruction of habitat or environmentally sensitive resources. The effective date of this bill is July 1, 2021.

Consumptive Use Permit, Development Permit, and Development Agreement Expiration Dates May be Tolled During a State of Emergency:
Senate Bill 912 expands the types of permits and agreements that may be tolled and extended during a declared state of emergency by including consumptive use permits issued by the Florida Department of Environmental Protection ("FDEP") or a water management district, development permits, and development agreements. The bill applies retroactively to any declaration of a state of emergency issued by the Governor for a natural emergency on or after March 1, 2020.

Local Governments May Not Prohibit Home-Based Businesses in Areas Zoned for Residential Uses:
House Bill 403 prohibits a local government from restricting, regulating, or altering the licensing requirements for home-based businesses within its jurisdiction. There are a few requirements, such as the businesses must comply with the local zoning requirements for parking, they cannot have more than two employees or independent contractors who do not reside at the home, they must maintain the external architectural aesthetics of the neighborhood, and the business use must be secondary to the property's use as a residential dwelling. However, the provisions in this bill do not apply to any current or future declaration of condominium, cooperative, or declaration of covenant pursuant to Chapters 718, 719, and 720. The effective date of this bill is July 1, 2021.

FDEP Required to Complete Comprehensive Statewide Flood Vulnerability and Sea Level Rise Assessment:
Senate Bill 1954 addresses flooding and sea level rise in Florida by requiring the FDEP to complete a comprehensive statewide flood vulnerability and sea level rise assessment. Furthermore, FDEP will now administer the Resilient Florida Grant Program, which will provide grants to local governments for community resiliency planning and data collection. In response to these assessments and grants, we expect local governments to amend their comprehensive plans and land development codes to address flooding and sea level rise concerns. Governor DeSantis signed this bill into law on May 12, 2021 and it is now in effect.

Solar Facilities Must be Permitted Uses in All Agricultural Future Land Use Categories and Zoning Districts:
Senate Bill 896 requires local governments to permit solar facilities in all agricultural future land use categories and zoning districts. This bill captures the Legislature's intent to encourage solar facilities throughout the state. The facilities must comply with setback and landscape buffer area criteria for other similar uses in the agricultural districts. Importantly, this bill does not apply to solar facility construction applications submitted to a local government before July 1, 2021. The effective date of this bill is July 1, 2021.

Florida Building Code Amended to Streamline Online Processes:
House Bill 1059 allows building permit applications, payments, and supplemental documents to be submitted electronically and requires local governments to post the current status of applications as well as procedures for reviewing, processing, and approving applications on their website. Further, the bill requires local governments to provide single-family residential dwelling permit applicants 10 business days to correct their application if it is denied by the local government. If a local government fails to meet statutory deadlines for reviewing permit applications then the permit fees may be reduced. Finally, the bill prohibits government entities from requiring a contractor's contract be submitted in order to obtain a building permit for commercial property projects. The effective date of this bill is October 1, 2021.

M-CORES Program Repealed:
Senate Bill 100 repeals the M-CORES Program within FDOT, which was first established by the Florida Legislature in 2019. M-CORES was created to advance construction of regional corridors with the idea of revitalizing rural communities, encouraging job creation in those communities, and providing regional connectivity while improving upon technology, public safety, quality of life, and environmental protection. In its place, the bill creates programs related to arterial highway projects with associated funding mechanisms that were previously applied to the M-CORES program. The bill is expected to have a minimal fiscal impact on state revenues or expenditures and has an effective date of July 1, 2021.

Certain Wastewater Utility Companies Required to Submit Plan for Eliminating Non-Beneficial Surface Water Discharge to FDEP:
Senate Bill 0064 captures the Legislature's intent to ensure future water availability. Under this bill, domestic wastewater utilities that dispose of effluent, reclaimed water, or reuse water through surface water discharge must submit a plan for eliminating non-beneficial surface water to FDEP by January 1, 2032. FDEP is required to approve or deny the plan within 9 months of receipt. The bill also provides incentives to developers who utilize residential graywater technologies. These incentives include density or intensity bonuses. This bill takes effect upon becoming law.

Local Governments Banned from Enacting Laws Prohibiting the Siting, Development, or Redevelopment of a Fuel Retailer or Related Transportation Infrastructure to Supply Fuel:
Senate Bill 839 prohibits a local government from enacting laws, ordinances, or resolutions that restrict the siting, development, or redevelopment of a fuel retailer or transportation infrastructure necessary to provide fuel to a fuel retailer. Further, the local government cannot require the fuel retailer to install or invest in a specific type of fueling infrastructure. This bill takes effect upon becoming law.

Utility Services Protected from Local Government Restrictions that Prohibit or Restrict Fuel Sources:
Senate Bill 919 prevents local governments from enacting laws or taking action that restricts or prohibits the types of fuel sources of emergency production, which will be used, converted, or supplied by certain entities in order to service customers. These entities include public utilities, electric utilities, natural gas utilities. Any local government laws enacted on or before July 1, 2021 that conflict with this bill are considered void. This bill takes effect July 1, 2021.

From the beginning, the members of our Land Development, Zoning & Environmental Practice Group and our Director of Government Affairs have been involved in tracking, impacting and drafting legislation on behalf of clients, including in the above referenced bills. We will continue to provide legislative updates as the Governor takes action. We will be producing a more comprehensive alert covering all the bills that become law in the near future. For more information on any of the issues discussed here, please contact us. 
legalLEGAL UPDATE  
Second DCA Holds That Property Owner's Rights in Submerged Lands Are Subordinate to Landowner's Rights Granted by the Public Trust Doctrine

The Second DCA has held that property owners have a common law right to wharf out and construct docks out to navigable waters, even if the dock extends over privately-held submerged lands. In 2011, 5F, LLC ("5F") obtained property that included stated-owned submerged lands adjacent to neighboring properties. 5F requested that adjacent homeowners pay 5F compensation in exchange for the right to build boat docks over and beyond 5F's submerged property. The Hawthornes, owners of one of the adjacent properties, refused. In 2017, the Florida Department of Environmental Protection ("FDEP") approved a permit allowing the Hawthornes to build a boat dock extending over 5F's property. 5F sued the Hawthornes for trespass and requested a permanent injunction halting the construction of the dock. The trial court ruled in favor of the Hawthornes and the Second DCA affirmed. View More

Fourth DCA Affirms Lower Court's Decision, Electing to Not Reweigh Evidence Determining That Navigable Waters Did Not Exist on Certain Parcels in 1845

Waterfront ICW Properties and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida both claimed ownership to a piece of submerged land. At trial, the main dispute was whether the property contained "navigable waters" that would constitute sovereign lands of the State of Florida. The trial court evaluated whether the waters were navigable in 1845 when Florida became a state. The trial court determined that no navigable waters existed in 1845 and thus the property was not a sovereign land of Florida. The Fourth DCA affirmed. View More 
 
Florida Circuit Court Rules That Developers Are Not Entitled to an Injunction to Stop City's Statutorily-Enabled Contraction Process
 
Several developers ("Developers") sought a declaratory judgment and a temporary injunction against the City of North Port (the "City") to stop the contraction, or deannexation, of property. The Developers argued that they had vested rights in their property that allowed them to prevent the City from deannexing the property. The court rejected the Developers' argument and denied the Developers' request for temporary injunction. The court reasoned that the purpose of granting an injunction is to preserve the status quo and that an injunction "would change the status quo." The court noted that Florida Statutes and policy establishes a contraction process, and it would be against public policy for the court to halt the process via injunction. View More
 
Southern District of Florida Dismisses Restaurant's Claim That COVID-19 Curfew Violated Its Rights Under the First Amendment, Fourth Amendment, and Governor's Emergency Orders
 
7020 Entertainment brought suit against Miami-Dade County ("County") challenging the County's enactment of a curfew during COVID-19. 7020 Entertainment made several arguments, including that the County's curfew infringed on their First Amendment rights, that the curfew was preempted by an Executive Order from the Governor, and that the curfew violated the Fourth Amendment. The County moved to dismiss the complaint. The Court granted the County's motion to dismiss. The Court reasoned that the curfew was justified in light of the pandemic and that it was an appropriate response to the COVID-19 crisis. View More
 
Eleventh Circuit Holds that Property Owner Properly Pled Violation of Florida Law When Town Required Special Assessment to Fund Underground Utilities
 
The Town of Palm Beach (the "Town") began the process of moving its utilities underground and, as part of this process, proposed to levy special assessments against the property owners who would benefit from the project. In 2017, PBT Real Estate ("PBT")-an owner of a condominium subject to the assessments-objected to being charged special assessments, arguing that the assessments violated its due process and equal protection rights under the Fourteenth Amendment, and constituted an illegal tax under Florida's Constitution. The district court dismissed PBT's complaint for failure to state a claim. On appeal, the Eleventh Circuit held that the district court properly dismissed all claims under the Fourteenth Amendment, but erred in dismissing the state law unconstitutional tax claim. The court reasoned that the state law claim, although not stated perfectly, had relied on sufficient legal authority and should not have been dismissed. View More
 
Fourth DCA Holds That the City of Boca Raton's 2010 Comprehensive Plan Amendment Contained Permissive Language That the City Could Consider, but Was Not Required to Adopt
 
In 2010, the City of Boca Raton (the "City") changed the future land use designation of several properties to Planned Mobility ("PM") which allows, among other uses, residential development. In 2014, Boca Center at Military, LLC ("Boca Center") purchased a property ("Property") subject to the PM future land use designation. The Property was zoned for only commercial, office, or retail uses. Beginning in 2018, the City decided to indefinitely halt the adoption of any zoning regulations that would allow residential development on the Property. The Boca Center brought suit against the City under the Bert J. Harris Act (the "Act"), claiming that the City's decision to not allow zoning consistent with its future land use designation resulted in an inordinate burden on the Property requiring compensation. The trial court granted a motion to dismiss in favor of the City. On appeal, the Fourth DCA affirmed the lower court's decision. The court reasoned that (1) the Act protected "against governmental action rather than government inaction," and (2) changing a zoning to the assigned future land use designation was permissive, not mandatory. The court concluded that the City did not inordinately burden property by merely preserving the status quo. View More
 
Middle District of Florida Grants Preliminary Injunction Holding That Restrictions on Church's Parking Lot Placed a Substantial Burden on Its Sincerely Held Religious Beliefs

Pass-A-Grille Beach Community Church (the "Church") allowed the public to use its parking lot to access the beach for free, using that as an opportunity to proselytize to the community. After receiving complaints from local residents, the City of St. Petersburg (the "City") cited the Church with parking violations. The City's code enforcement magistrate ruled that the Church could not use its parking lot for beach parking at all, whether for free or for a fee. In response, the Church filed suit against the City, arguing that the regulation violated the Free Exercise clause of the United States Constitution and burdened its sincerely held beliefs. The Middle District of Florida ruled in favor of the Church, reasoning that the Church successfully showed a substantial likelihood of success on the merits of the case and stating that the City failed to use the least restrictive means to further a compelling government interest. The court issued a temporary injunction stopping the City from enforcing parking lot regulations against the Church. View More
 
Southern District of Florida Holds City's Withdrawal of Approved Lease With Property Owner Does Not Implicate a Property Interest if the Lease is Not Signed

In 2010, Tropical Soup Corporation ("Tropical Soup") submitted a request for proposal ("RFP") to the City of Key West (the "City") to renovate and develop several pieces of property (collectively, the "Properties") in the City. The City accepted Tropical Soup's RFP and, for the next nine years, required numerous modifications be made to the development plan. In 2020, the City then withdrew the RFP and ceased all negotiations with Tropical Soup. In response, Tropical Soup brought suit against the City alleging deprivation of a property interest. The Court ruled in favor of the City, reasoning that Tropical Soup's efforts to create an acceptable contract for the development of the Properties did not create a protected property interest. View More
 
Second DCA Holds That the Bert J. Harris Act Requires Property Owners to Remain the Legal Holder of Title Until the Conclusion of the Lawsuit in Order to Obtain Damages

Dean Wish, LLC ("Dean Wish") brought suit against Lee County (the "County") under the Bert J. Harris Jr., Private Property Rights Protection Act (the "Act") for inordinately burdening its property by zoning it as "Coastal Rural" rather than "Rural." Dean Wish sought over $9 million in damages because the Coastal Rural zoning allowed for significantly less density than the Rural zoning classification. Prior to trial, the Company sold the property. In response to selling the property, the County moved for summary judgment, arguing that the Act required the Company to remain the "property owner"-as defined in the Act-until the conclusion of the lawsuit. The trial court agreed, and granted summary judgment in favor of the County. On appeal, the Second DCA affirmed the lower court's decision, reasoning that the clear and unambiguous language of the Act required the property owner to remain the property owner until the conclusion of the lawsuit. The Second DCA also certified a question of public importance to the Florida Supreme Court in order to review its decision in light of conflicting principles of property law. View More

SpotCONGRATULATIONS!   
Ronald Weaver was honored as a 2021 Luminary!
This prestigious recognition is given annually by The Junior League of Tampa and WEDU PBS to individuals who exemplify leadership, commitment to the community through advocacy, and achievement of distinction in a particular sphere and have made a lasting impact in Hillsborough County. More information on both Ron and this honor can be found here.

Watch the 2021 Luminaries Special here.
IN THIS ISSUE




VIN MARCHETTI
It is with profound sadness that we announce the passing of Vin Marchetti.

Vin, who succumbed to cancer on March 21, 2021 at the age of 64, was a man of incredible character and integrity. He was respected by all who he represented and all who knew him and was a consummate leader and mentor to countless young adults in the legal profession and throughout the community. Vin was an invaluable member of our firm and the Tampa Bay community, a loving husband and father, and a cherished friend.

Vin was instrumental in growing and solidifying the footprint of our Land Development group in Tampa. His career spanned over 30 years in land use, zoning, permitting, land use litigation, government affairs, and economic development. Vin was steadfastly dedicated to his clients and involved in countless projects that helped transform Tampa and that will have a lasting impact on the region.

Click here for more.
QUALIFIED OPPORTUNITY ZONES
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EXECUTIVE ORDER PERMIT EXTENSION TRACKER
View our online tool that tracks Executive Orders declaring a state of emergency in Florida so that you can research whether opportunities exist to extend the expiration of those permits.

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TeamMEET THE TEAM   
  
*Jeffrey Cooper, Jen Hyde, Ken Metcalf, Michael Paparesta, Chris Smith, David Smith and Cynthia Spidell are not attorneys and are not authorized to practice law.
Ken, David and Cynthia are highly experienced planners. Ken and Cynthia are AICP certified.
Jen and Chris are highly experienced GIS analysts.
Jeffrey and Michael are highly experienced real estate analysts.
Special thanks to Christopher Perrigan who assisted in the drafting of this edition. Christopher is a third-year Juris Doctor Candidate at Florida State University College of Law.
About Stearns Weaver Miller
  
Stearns Weaver Miller Weissler Alhadeff & Sitterson is a full service law firm with offices in Miami, Fort Lauderdale, Tampa, Tallahassee, and Coral Gables, Florida. We offer multidisciplinary solutions with a focus on Litigation & Dispute Resolution, Business Restructuring, Corporate & Securities, Government & Administrative, Labor & Employment, Real Estate, Real Estate Finance, Commercial Finance and Loan Restructuring & Workouts, Land Development, Zoning & Environmental, Marital & Family Law and Tax. For more information, please visit stearnsweaver.com.