In the 2023 Legislative Session, the Florida Legislature enacted Chapter 2023-309, Laws of Florida. This amendment added new requirements to the ordinance adoption process for cities and counties, clarified continuances of ordinance hearings, and created processes and attorney fee liability for ordinance challenges. These changes impact Collier’s cities and the county itself and will impact the practice of all who work with counties and cities.
This article gives a high-level explanation of the changes.
First, this amendment creates the requirement for business impact estimates, and that requirement applies to all ordinances (and the amended sections of amended ordinances) enacted after October 1, 2023, by cities or counties, except for the following ordinances:
- Ordinances required for compliance with federal or state law or regulation;
- Ordinances relating to the issuance or refinancing of debt;
- Ordinances relating to the adoption of budgets or budget amendments, including revenue sources necessary to fund the budget;
- Ordinances required to implement a contract or an agreement, including, but not limited to, any federal, state, local, or private grant, or other financial assistance accepted by a municipal government;
- Emergency ordinances;
- Ordinances relating to procurement; or
- Ordinances enacted to implement the following:
- Part II of chapter 163, relating to growth policy, county and municipal planning, and land development regulation, including zoning, development orders, development agreements, and development permits;
- Sections 190.005 and 190.046;
- Section 553.73, relating to the Florida Building Code; or
- Section 633.202, relating to the Florida Fire Prevention Code.
Business Impact Estimates must include:
- A summary of the proposed ordinance, including a statement of the public purpose to be served by the proposed ordinance, such as serving the public health, safety, morals, and welfare of the county.
- An estimate of the direct economic impact of the proposed ordinance on private, for-profit businesses in the county, including the following, if any:
- An estimate of direct compliance costs that businesses may reasonably incur if the ordinance is enacted.
- Identification of any new charge or fee on businesses subject to the proposed ordinance or for which businesses will be financially responsible.
- An estimate of the county’s regulatory costs, including an estimate of revenues from any new charges or fees that will be imposed on businesses to cover such costs.
- A good faith estimate of the number of businesses likely to be impacted by the ordinance.
- Any additional information the board determines may be useful
Note that the amendment specifically states that a city or county is not required to procure an accountant or other financial consultant to prepare the business impact estimate required.
Method for Continuing Hearings on Ordinances
Additionally, in this amendment, the legislature has clarified the method for continuing hearings on ordinances. Specifically, for both counties and cities, the statutes now state hearings: “may be continued to a subsequent meeting if, at the meeting, the date, time, and place of the subsequent meeting is publicly stated. No further publication, mailing, or posted notice as required under this subsection is required, except that the continued consideration must be listed in an agenda or similar communication produced for the subsequent meeting. This paragraph is remedial in nature, is intended to clarify existing law, and shall apply retroactively.”
This amendment was acknowledged in the legislative history of the bill as in response to a recent case challenging this procedure. The Senate Rules committee noted, while “common practice by local governments, the validity of continuing consideration of proposed ordinances was called into question by Testa v. Town of Jupiter Island, 2023 WL 1808293 (Fla. 4th DCA, Feb. 8 2023).” Fla. S. Comm. on Rules, CS/CS/SB 170 (2023) Staff Analysis p. 7 (Feb. 24, 2023) (available at https://www.flsenate.gov/Session/Bill/2023/170/Analyses/2023s00170.rc.PDF).
Process for Challenging Certain Ordinances
Finally, the legislature clarified the process for challenging certain ordinances and amended section 57.112 to add prevailing party attorney fees to actions filed against local governments challenging the adoption of a local ordinance on the grounds that the ordinance is arbitrary or unreasonable, up to $50,000.00. Regarding challenging ordinances, a local government must suspend ordinance enforcement if there is a legal challenge to an ordinance’s validity on the grounds that it is expressly preempted by the State Constitution or by state law or is arbitrary or unreasonable if:
(a) The action was filed with the court no later than 90 days after the adoption of the ordinance;
(b) The plaintiff requests suspension in the initial complaint or petition, citing this section; and
(c) The municipality has been served with a copy of the complaint or petition.
These changes warrant a close look by all local government practitioners.
This article first appeared in the Collier County Bar Association’s Adverse Witness magazine, November 2023.
Related post: Local Government Law