Legislative Update – February 9, 2018

Legislative Update:

This week marked the halfway point in the 2018 session.  Both the House and Senate passed their spending plans, each totaling roughly $87 billion.  The biggest differences between the two lies with proposed spending for K-12 schools, higher education, environmental and health care.

The latest APA Florida Bill Tracking report, as of February 9, can be viewed here.  Of note, the following bills had action this week:

Growth Management:

Developments of Regional Impact:  CS/HB 1151 would eliminate state and regional review of existing Developments of Regional Impact (DRIs) and the Florida Quality Development (FQD) program, and transfers the responsibility for implementation of, and amendments to, DRI and FQD development orders to the local governments in which the developments are located.  Note that if passed, the effective date of this bill would be upon becoming a law. The House Commerce Committee, the last committee of reference, made two amendments to this bill on February 8.

The first amendment states that the date until which the local government agrees that the approved development of regional impact will shall not be subject to downzoning, unit density reduction, or intensity reduction, cannot be amended to an earlier date unless the local government can demonstrate certain things.

The second amendment deals with changes to DRIS. The revised language states that any proposed change to a DRI must be reviewed by the local government based on the standards and procedures in its adopted local comprehensive plan and adopted local land development regulations, including, but not limited to, procedures for notice to the applicant and the public regarding the issuance of development orders. However, a change to a  development of regional impact that has the effect of reducing the originally approved height, density, or intensity of the development must be reviewed by the local government based on the standards in the local comprehensive plan at the time the development was originally approved, and if the development would have been consistent with the comprehensive plan in effect  when the development was originally approved, the local government may approve the change.

CS/CS/1244 (Sen. Lee), a similar bill, was reported favorably by the Senate Appropriations Subcommittee on Transportation, Tourism, and Economic Development, with the same two amendments, on February 8.  The bill now moves to the Senate Appropriations Committee, its third of four committees of reference.

Impact/Permit Fees:  CS/CS/HB 697 (Rep. Miller), which would prohibit impact fees from being collected before the issuance of a building permit, was reported favorably by the House Government Accountability Committee, its last committee of reference, on February 8.   As currently written, the bill states that the collection of an impact fee can be no earlier than the issuance of the building permit for the property that is subject to the fee. The bill also codifies the dual rational nexus test.  Specifically, the bill requires that an impact fee be reasonably connected to or have a rational nexus with: the need for additional capital facilities and the increased impact generated by the new residential or commercial construction; and the expenditures of the funds collected and the benefits accruing to the new residential or commercial construction.

Additionally, the local government must specifically earmark funds collected by the impact fees for use in acquiring capital facilities to benefit the new residents. Finally, the bill prohibits the use of impact fee revenues to pay existing debt or for prior approved projects unless the expenditure is reasonably connected to, or has a rational nexus with, the increased impact generated by the new residential or commercial construction.

The bill was amended by the committee to specifically state that these provisions are not applicable to water and sewer connection fees.  It was also amended to make changes to the sector planning process.  Language similar to s.380.06(15)(e)1 was added to apply to a development order for a detailed specific area plan. This language would prevent local governments, when adopting a detailed specific area plan or related development order, from including a development order condition that requires that developer to contribute or pay for land acquisition or public facilities unless there is a local ordinance which requires other development not subject to the DRI process to contribute a proportionate share necessary to accommodate any impacts having a rational nexus to the proposed development.  Additionally, the amendment identified specific time frames for review and approval of a detail specific area plan or related development order.  A local government would have 30 days to review an application for completeness and issue a letter stating it is complete or specifying needed additional information.  The developer has 30 days to address any deficiency. The local government has 90 days to approve, approve with conditions or deny the application after receipt of the initial or supplemental submissions whichever is later, unless the deadline is waived by the applicant.

CS/CS/CS/HB 697 is basically consistent now with CS/CS/SB 324 (Sen. Young) currently in the Senate Appropriations Committee, its last committee of reference.

CS/CS/SB 1144 (Sen. Perry), which deals with permit fees, was reported favorably as a committee substitute by the Senate Appropriations Subcommittee on Finance and Tax on February 5 and is now in the Senate Appropriations Committee, its last committee of reference.  The bill requires the governing body of a local government to post its building permit and inspection fee schedules on its website. The bill also requires that before December 31, 2019, the governing body of a local government must publish its building permit and inspection utilization report on its website. After December 31, 2019, a local government must update the report prior to amending its building permit and inspection fee schedule. The report must use the most recently completed financial audit.  As amended, the bill is now consistent with CS/CS/CS/HB 725( Rep. Williamson) which has passed out of its three committees of reference and placed on the Calendar on 2nd Reading

Linear Facilities:  HB 405 (Rep. Williamson) and SB 494 (Sen. Lee) are identical bills which amend two of the items excluded from the definition of “development” in relation to the Florida Electrical Power Plant Siting Act by:

  • Providing that the exclusion for work done on established rights-of-way applies to established rights-of-way and corridors and to rights-of way and corridors to be established; and
  • Providing that the exclusion for the creation of specified types of property rights applies to creation of distribution and transmission corridors. The bill makes identical changes to the definition of “development” in the Florida Local Government Development Agreement Act.

 On February 8, the Senate substituted HB 405 (passed by the House on January 25) for SB 494 on Second Reading, which was laid on the table; HB 405 has been placed on the Senate Calendar on Third Reading for February 14.

Vegetable Gardens:  SB 1776 (Sen. Bradley), which would prohibit local governments from regulating vegetable gardens on residential properties, was reported favorably by the Senate Community Affairs Committee on February 6.  It now moves to the Senate Rules Committee, its last committee of reference.  There is no House companion bill as of date.

Tree and Timber Trimming, Removal, and Harvesting:  SB 574 (Sen. Steube), which would preempt the regulation of the trimming, removal or harvesting of trees and timber on private property to the state, was scheduled to be heard in the Senate Community Affairs Committee on February 6 but was not considered.  It is now scheduled to be heard on February 13.

Senator Steube has filed a strike-all amendment which would delete this previously proposed blanket preemption and instead state that, where the state or a water management district, a water control district created under chapter 298, a neighborhood improvement district created under chapter 163, an independent special district, or a community development district created under chapter 190, has a duty to maintain any rights-of-way, a municipality, county, or other political subdivision of the state may not prohibit, restrict, or condition, or require a permit, fee, or mitigation for, the trimming or removal of trees, timber, or vegetation. The proposed amendment also includes language stating that municipalities or counties are not prohibited from licensing or regulating the people engaged in the trimming or removal activities.

Senator Steube’s proposed amendment also would delete language in s. 163.3209 which deals with electrical transmission and distribution line right of-way maintenance.  The amendment proposes to delete existing language which says that this section does not supersede local government ordinances dealing with specimen trees or historical trees, or local plans regarding vegetation maintenance in local government rights of way.  Senator Rodriguez has filed an amendment to Senator Steube’s amendment which would have the effect of leaving the existing statutory language intact.

CS/HB 521 (Rep. Edwards-Walpole), which contains the same language regarding certain rights-of-ways as is included in Senator Steube’s proposed amendment, is now in the House Government Accountability Committee, its last committee of reference.

Public Lodging/Vacation Rentals:   At their January 30 meeting, the Senate Community Affairs Committee reported favorably a proposed committee substitute which combined SB 1400 and SB 1640. The revised bill explicitly preempts the regulation of vacation rentals to the state.  A local law, ordinance or regulation adopted on or before June 1, 2011 is continues to be grandfathered.

The amended bill, CS/SB 1400, creates the “Florida Vacation Rental Act” within part III of Chapter 509, F.S., and separates the regulation of vacation rentals from the regulation of hotels and motels.  A vacation rental was defined as any unit in a condominium or cooperative or any individually or collectively owned single-family, two-family, three-family, or four-family house or dwelling unit that is rented to guests for periods of less than 6 months but is not a timeshare project.

The Division of Hotels and Restaurants is provided with the authority to implement the act, including licensure and enforcement. The bill regulates “commercial vacation rentals” and requires registration and biannual inspections.

The bill allows local governments to regulate activities that arise when a property is used as a vacation rental, provided the regulation applies uniformly to all residential properties.  The bill limited vacation rental occupancy to the lesser of four persons plus two additional persons for each sleeping room, or one person for each 150 square feet of finished area. Finally, the bill allows local governments to assess a reasonable fee for the submission of certain information by a vacation rental owner and may assess fines for failure to comply.

On February 8, the Senate Regulated Industries Committee, the second of three committees of reference, reported the bill favorably with several amendments.  CS/CS/SB 1400  reflects the following changes to the bill:

  • Amended the proposed definition of vacation rental to change the reference period of rental from less than 6 months to “more than three times in a calendar year for periods less than 30 days or 1 calendar month, whichever is less”
  • Added language to the legislative findings to say that it is not the Legislature’s intent for the application of the Florida Vacation Rental Act to supersede any current or future declaration or declaration of condominium enacted pursuant to chapter 718, cooperative documents enacted pursuant to chapter 719, or declaration of covenants or declaration enacted pursuant to chapter 720.
  • Clarifies grandfathering language, for any local law, ordinance, or regulation adopted on or before June 1, 2011, to include when such local law, ordinance, or regulation is being amended to be less restrictive

The bill now moves to the Senate Appropriations Committee, its last committee of reference.

 HB 773 (Rep. La Rosa) also deals with vacation rentals.  It amends current preemption authority to add that a local law, ordinance, or regulation may regulate activities that arise when a property is used as a vacation rental provided such regulation applies uniformly to all residential properties without regard to whether the property is  used as a vacation rental as defined in s. 509.242 or a long term rental subject to the provisions of chapter 83 or whether a  property owner chooses not to rent the property.  This bill has been referred to two committees of reference but has not yet been heard.

Economic Development/Redevelopment:

Rural Economic Development:  CS/HB 1103 (Rep. Albritton), makes changes to the Regional Rural Development Grants Program and the Rural Infrastructure Fund.  It was reported favorably by the House Transportation & Tourism Appropriations Subcommittee on February 6 and moves to the House Commerce Committee, its last committee of reference.  The bill makes the following modifications to the Regional Rural Development Grants Program:

  • Increases the maximum grant amount that can be received by a regional economic development organization serving a rural area of opportunity from $150,000 to $250,000;
  •  Revises the match requirement from an equal amount to a 25 percent annual match;
  • Clarifies how grants may be used to build the professional capacity of regional economic development organizations;
  • Authorizes grants to be used by an organization to provide technical assistance to local governments;
  • Removes the authorization that DEO contract for the development of an enterprise zone web portal or website.

The bill makes the following modifications to the Rural Infrastructure Fund:

  • Removes the requirement that total project grants be up to 40 percent of the total cost for catalyst site projects;
  •  Increases the maximum amount that DEO may award for projects that are not located on designated catalyst sites from 30 percent to 50 percent;
  • Expands eligible projects and uses to include broadband Internet service; and
  • Removes a reference to projects located in an enterprise zone as it relates to DEO’s application and funding reevaluation and review requirements.

In addition, the bill creates contract/agreement requirements for both the Regional Rural Development Grants Program and the Rural Infrastructure Fund. Contracts/agreements involving the expenditure of grant funds are to be placed on the regional economic development organization’s or DEO’s website, respectively, for review 14 days before execution. The bill requires the contracts/agreements to include the purpose, performance standards, budget, value of services, and travel and entertainment expenses.

Tourist Development Tax:  CS/SB 658 (Sen. Brandes) was reported favorably by the Senate Appropriations Subcommittee on Finance and Tax on February 5.  The bill, as originally filed, would expand the types of things that a county tourist development tax can be used on to include activities to acquire, construct, extend, enlarge, remodel, repair, improve, maintain, operate, or finance public facilities within the boundaries of the county or subcounty special taxing district in which the tax is levied, if the public facilities are needed to increase tourist-related business activities in the county or subcounty special district and are recommended by the county tourist development council created pursuant to s. 125.0104(4)(e), F.S. Tax revenues may be used for any related land acquisition, land improvement, design, and engineering costs and all other professional and related costs required to bring the public facilities into service.  “Public Facilities” is defined to mean major capital improvements that have a life expectancy of 5 or more years, including but not limited to transportation, sanitary sewer, solid waste, drainage, potable water and pedestrian facilities.

The bill was amended by the committee to add certain water-related items to the list of approved uses of tourist development tax revenues and to provide that tourist development tax revenues may be used to finance public facilities only if the following conditions are satisfied:

  • The county or subcounty district in which the tax is levied received at least $20 million in revenue from the tax in the year before using the revenue for infrastructure.
  • The use of tax revenue for public infrastructure must be approved by a vote of at least two-thirds of the county governing board.
  • No more than 70 percent of the cost of the infrastructure may be paid for with tourist development tax revenue and sources of funding for the remaining cost must be identified and confirmed by the county governing board and
  • An independent professional analysis, paid for by the tourist development council, must show the positive impact of the infrastructure on tourist-related businesses.

CS/SB 658 is now in the Senate Appropriations Committee, its last committee of reference.

CS/HB 585 (Rep. Fine) is similar to CS/SB 658 but includes additional language included by the House Commerce Committee, its last committee of reference, on February 1.  The amendment says a county cannot use tourist development taxes until an objective analysis of the proposed use of revenue is conducted that determines the long-term economic benefits from incremental tourism will exceed the tax revenues expended.  This bill was also amended to require that any recommendation to spend tax revenues from the tourist development tax on public facilities must be accompanied by an analysis of the anticipated impact of the public facilities on tourist-related business activities in the county or subcounty special taxing district. The analysis required by this subparagraph must be prepared and signed by an individual possessing a terminal degree in economics or other relevant field who is not currently or formerly employed or contracted by any public or private entity involved in proposing, approving, constructing or operating the public facilities.

Environment/ Natural Lands:

Fracking:   SB 462 (Sen. Young) , which would prohibit advanced well stimulation treatments, was reported favorably by the Senate Environmental Preservation and Conservation Committee on February 5.  It now moves to the Senate Appropriations Subcommittee on the Environment and Natural Resources Committee, its second of three committees of reference, and is scheduled to be heard on February 14.   An identical bill, HB 237 (Rep. Peters), is in the House Agriculture & Natural Resources Appropriations Subcommittee, its first of three committees of reference.  A third bill which would prohibit extreme well stimulation, SB 834 (Sen. Farmer), has yet to be heard in committee.

Land Acquisition Trust Fund:  CS/SB 204 (Sen. Bradley) was passed by the Senate on February 7. The bill increases the annual appropriation from the Land Acquisition Trust Fund (LATF) for spring restoration, protection, and management projects from the lesser of 7.6 percent or $50 to the lesser of 10.7 percent or $75 million.  Additionally, the bill requires $50 million to be appropriated from the LATF to the St. Johns River Water Management District for projects dedicated to the restoration of the St. Johns River and its tributaries or the Keystone Heights Lake Region.

Transportation:

Bicycle/Pedestrian Planning:   CS/SB 1304 (Sen. Young), which deals with bicycle sharing, was reported favorably with amendments by the Senate Banking and Insurance Committee on February 6.  The bill as originally filed, focused on dockless bicycles and would have specifically preempted the regulation of dockless bicycles and bicycle sharing companies to the state.  Among the changes, the committee amended the bill’s provisions to extend to any bicycle sharing company that uses an online application and revised the preemption language to delete the specific preemption of regulation to the state.  The  language now states  that “a local governmental entity may not take any action or adopt any local ordinance, policy, or regulation that is designed to limit or prevent a bicycle sharing company or any company engaged in the rental of bicycles from operating within  its jurisdiction, provided that the company has demonstrated compliance with all local laws and regulations applicable to other similar businesses seeking to do business or presently  doing business within that jurisdiction.”  Additionally, among other changes, the revised bill allows local governmental entities to enter into agreements for the placement of docking stations on public land and clarifies local governmental entities can enforce uniform traffic violations under ch. 316, F.S.

CS/HB 1033 (Rep. Toledo), a similar bill to SB 1304 as originally filed, continues to focus on dockless bicycles and preempts the governance of dockless bicycles and dockless bicycle sharing companies to the state.  The bill is in the House Commerce Committee, its last committee of reference.

Alternative Transportation Authority:  SB 1200 (Sen. Young) creates the Statewide Alternative Transportation Authority (Authority) as part of the organization of the Florida Department of Transportation.  The Authority is granted sole responsibility for the design and construction of alternative transportation systems, defined as a system of infrastructure, appurtenances, and technology designed to move the greatest number of people in the least amount of time. The term includes, but is not limited to, autonomous vehicles and transportation network companies.  The bill was reported favorably by the Senate Transportation Committee on February 1 and moves to the Senate Appropriations Subcommittee on Transportation, Tourism, and Economic Development, its second of three committees of reference.

A similar bill, CS/HB 535 (Rep. Avila) is in the House Transportation & Tourism Appropriations Subcommittee, its second of three committees of reference.