On August 6, 2021, DEO updated their guidance to redefine the term “initiated” to also include “the Department will consider a proposed plan amendment to be 'initiated' on the date…[t]he local government planning authority deems complete a submitted application for a change to the comprehensive plan…prior to July 2, 2021.” This change will allow many pending plan amendments that were placed in limbo to now move forward. Please contact the authors for more details as this is an evolving situation.
On June 29, 2021, Florida Gov. Ron DeSantis signed House Bill 59 into law as chapter 2021-195, which included a requirement for all local governments to adopt a property rights element in their comprehensive land use plan. Effective July 1, HB 59 mandated that the next initiated amendment to the comprehensive plan must address the property rights element requirement. This essentially means that any new real estate development that requires a comprehensive plan amendment is under a moratorium until the local government adopts the property rights element into its comprehensive plan.
Florida’s land planning agency, the Department of Economic Opportunity, has weighed in on its interpretation of the law. The DEO has stated in a notice to local governments that any comprehensive land use plan amendments transmitted to the department, that were not already heard by the local government’s local planning agency by July 1, would be sent back to the local government until a property rights element is adopted or included in the amendment.
The DEO has also stated that the property rights element must be its own element in the comprehensive plan, and will view any amendment based on the statute as acceptable, but will look closely for amendment language that varies from the statutory language.
The list of general principles that must be addressed as part of that new property rights element that were included in HB 59 are:
The following rights shall be considered in local decisionmaking:
- The right of a property owner to physically possess and control his or her interests in the property, including easements, leases, or mineral rights.
- The right of a property owner to use, maintain, develop, and improve his or her property for personal use or for the use of any other person, subject to state law and local ordinances.
- The right of the property owner to privacy and to exclude others from the property to protect the owner's possessions and property.
- The right of a property owner to dispose of his or her property through sale or gift.