Sunday, May 5, 2013

Legislative Session Wrap-Up Part I: Land Use, Agricultural, and Adverse Possession Bills

After a long legislative session, it's time to see which bills made it through the sausage factory and are on their way to the Governor's desk. I've discussed most of these bills previously. This is Part I of a series; environmental bills will be addressed in a future post. For land use issues generally, it was a tame session with few important developments. Agricultural landowners were the real winners in land use issues this session. At the end of this post I also summarize the bills the did not make it through session, but which you may have heard about.

Land Use Bills of Interest

HB 537: This is the glitch bill for the glitch bill. Recall that Yankeetown sued for a declaration that the 2011 Community Planning Act was unconstitutional. That litigation was settled last year when the Legislature passed a bill to allow local governments like Yankeetown keep their referenda processes. The only problem was the language was not narrow enough and a Palm Beach County judge interpreted the language to include a broad swath of referenda. The Legislature came back to fix it this year. After this, very very few local governments in Florida will be able to have referenda on land use issues. The bill states:
(b) An initiative or referendum process in regard to any local comprehensive plan amendment or map amendment is prohibited. However, an initiative or referendum process in regard to any local comprehensive plan amendment or map amendment that affects more than five parcels of land is allowed if it is expressly authorized by specific language in a local government charter that was lawful and in effect on June 1, 2011; a general local government charter provision for an initiative or referendum process is not sufficient.  
(c) It is the intent of the Legislature that initiative and referendum be prohibited in regard to any development order. It is the intent of the Legislature that initiative and referendum be prohibited in regard to any local comprehensive plan or map amendment, except as specifically and narrowly permitted in paragraph (b) with regard to local comprehensive plan or map amendments that affect more than five parcels of land. Therefore, the prohibition on initiative and referendum stated in paragraphs (a) and (b) is remedial in nature and applies retroactively to any initiative or referendum process commenced after June 1, 2011, and any such initiative or referendum process that has been commenced or completed thereafter is hereby deemed null and void and of no legal force and effect.
The bill also repeals the agricultural enclave language passed in last year's Chapter 2012-75, Laws of Florida. This should not affect many one way or the other, since that language was aimed at a narrow pet project.

HB 7019 - This bill includes the same language as HB 537, above, and some other miscellaneous provisions. Of note to the land-use community is that it extend the deadline for notifying a local government or agency that a permit holder wishes to extend a permit for two years (for the holder of "any building permit, and any permit issued by the Department of Environmental Protection or by a water management district pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from January 1, 2012, through January 1, 2014, is extended and renewed for a period of 2 years after its previously scheduled date of expiration").

Agricultural Bills of Interest

HB 203 - The 2003 Agricultural Lands & Practices Act preempted counties from adopting any new ordinance regulating a farm or forestry operation beyond adopted BMPs. This bill extends the preemption to nearly all local governments (water management and drainage districts are excluded). It also extends the preemption so that local governments may not assess any fees on farm and forestry operations subject to BMPs.

SB 1106 - Provides that a "local government may not adopt an ordinance, regulation, rule or policy that prohibits, restricts, regulates, or otherwise limits an agritourism activity on land classified as agricultural…” An agritourism activity is “any activity consistent with a bona fide farm or ranch that allows members of the general public…to view or enjoy agricultural-related activities….” The bill also limits the liability for landowners using their land for agrictourism, where land is posted in a specific manner.

HB 1193 -This bill makes the greenbelt assessment more favorable for landowners. Under the current law, the greenbelt assessment can be removed when: (1) the landowner changes the zoning of the land, even if it remains agricultural; (2) land classified as agricultural is surrounded by development and the county commission determines that it acts as a deterrent to further development; and (3) agricultural land is sold and the purchase price of land is three or more times the agricultural assessment. The bill removes these 3 provisions, making the only cause for removal of an agricultural assessment to be that it is no longer being used for an agricultural use. It also eliminates the ability of a value adjustment board to review the classifications made by the property appraiser unless a request is made by the landowner.

HB 7087 -  Tucked away inside this bill is a directive to FWCC to develop wildlife BMPs for agricultural lands. After these are developed, they could provide significant protection to landowners who follow them, as, under the Agricultural Lands & Practices Ac, the BMPs would likely preempt local governments from regulating issues that they encompass.
Best management practices for wildlife.-The department and the Fish and Wildlife Conservation Commission recognize that agriculture provides a valuable benefit to the conservation and management of fish and wildlife in the state and agree to enter into a memorandum of agreement to develop and adopt by rule voluntary best management practices for the state's agriculture industry which reflect the industry's existing contribution to the conservation and management of freshwater aquatic life and wild animal life in the state. 
(1) The department shall enter into a memorandum of agreement with the Fish and Wildlife Conservation Commission for the purpose of developing the best management practices pursuant to this section and applying such best management practices on agricultural lands within the state. The agreement may allow for selected pilot projects in order to better facilitate the development of the best management practices. 
(2) The department may adopt rules establishing the best management practices pursuant to this section. The rules must include provisions for a notice of intent to implement the best management practices and a system to assure the implementation of the best management practices, including recordkeeping requirements. 
(3) Notwithstanding any other provision of law, including s. 163.3162, the implementation of the best management practices pursuant to this section is voluntary and except as specifically provided under this section and s. 9, Art. IV of the State Constitution, an agency, department, district, or unit of local government may not adopt or enforce any ordinance, resolution, regulation, rule, or policy regarding the best management practices on land classified as agricultural land pursuant to s. 193.461.
EDIT 5/20/13: HB 999 also contains some provisions exempting farm ponds from some water regulations. For more detailed information, see my legislative session wrap-up Part 2.

Property Bills of Interest

HB 903: The adverse possession bill I wrote about previously was passed in a watered-down form. Adverse possession will be more difficult, as has been the trend in recent sessions, but not as much as in some of the bill proposals we saw earlier in the session. The big changes are (1) that an adverse possessor must pay all taxes and assessments in the first year and continuously throughout the possession and (2) anyone who occupies a structure solely by adverse possession is guilty of trespass. The second requirement will make it difficult to achieve some of the squatting we have seen in the news here in Florida.

Bills of Interest that were not Passed

HB 321 / SB 1716 - Would have exempted some small developments from transportation concurrency, proportionate fair share, and impacts fees.

HB 673 / SB 772 - Would have limited the ability of local governments to impose land use exactions.

HB 33 / SB 466 - Would have allowed landowners with lands contiguous to state-owned lands to submit a request to the state to exchange state-owned land for a conservation easement on privately-held land.

HB 901 / SB 584 - Would have require governments purchasing conservation lands to return an equal amount to private hands.

HB 7149 - Would have made the campus master planning process drastically simpler.