Property Rights Element

Clarification of Property Rights Element Requirements (as of July 23, 2021) 

Section 163.3177(6)(i)2, Florida Statutes (Chapter 2021-195, Laws of Florida), requires a local government to adopt and include the property rights element in its comprehensive plan for any proposed plan amendment initiated after July 1, 2021. A proposed comprehensive plan amendment is initiated on the date the amendment is first considered at a public hearing, as outlined in Section 163.3174(4), Florida Statutes, held by the local planning agency.

If the local government's local planning agency conducted a hearing on a comprehensive plan amendment on or before July 1, 2021, the local government may complete the adoption process for that comprehensive plan amendment package in accordance with the process set forth in Chapter 163, Florida Statutes. If the comprehensive plan amendment had been first considered at a local planning agency's hearing on or after July 2, 2021, then Section 163.3177(6)(i), Florida Statutes, requires the local government to also adopt the property rights element into its comprehensive plan on the date of adoption of that next proposed amendment.

As listed in Section 163.3177(6)(i), Florida Statutes, a local government may adopt its own property rights element or use the following statement of rights:

The following rights shall be considered in local decision making:

1. The right of a property owner to physically possess and control his or her interests in the property, including easements, leases, or mineral rights.
2. 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.
3. The right of the property owner to privacy and to exclude others from the property to protect the owner's possessions and property.
4. The right of a property owner to dispose of his or her property through sale or gift.

Additionally, FloridaCommerce has received questions around the adoption of small-scale amendments, which are 50 acres or less according to Section 163.3187(1)(a), Florida Statutes, and if the property rights element needs to be submitted for state coordinated review. FloridaCommerce does not review small scale amendments; however, we encourage you to consult your legal department regarding actions that you may need to take prior to the adoption of a small-scale amendment. Property rights element related amendments may be submitted for state expedited review unless the local government is partially or entirely located within an area of critical state concern or the amendment is proposed as part of the local government's evaluation and appraisal review amendments.

Additional Guidance Regarding Chapter 2021-195, Laws of Florida (as of August 5, 2021)

FloridaCommerce is providing more clarity regarding Chapter 2021-195, Laws of Florida. Please continue reading below for guidance.

House Bill 59, which became law on June 29, 2021, adds Section 163.3177(6)(i), Florida Statutes. Effective July 1, 2021:

Each local government must adopt a property rights element in its comprehensive plan by the earlier of the date of its adoption of its next proposed plan amendment that is initiated after July 1, 2021, or the date of the next scheduled evaluation and appraisal of its comprehensive plan pursuant to Section 163.3191, Florida Statutes (emphasis added).

Following the release of our prior guidance, FloridaCommerce has received public input requesting further clarification regarding the term "initiated."

"Initiated" is not a "term of art" with a readily discernible definition within the land use regulatory scheme and was not defined within the legislation. In that vein, FloridaCommerce will consider a proposed plan amendment to be "initiated" on the date:

• The amendment is first considered at a public hearing, as outlined in Section 163.3174(4), Florida Statutes, held by the local planning agency; or
• The local government planning authority deems complete a submitted application for a change to the comprehensive plan.

If prior to July 2, 2021, either of these events has occurred, the local planning agency may complete the adoption process for that comprehensive plan amendment package in accordance with the process set forth in Chapter 163, Florida Statutes.

We hope this information will be helpful. If you require additional information or clarity, please let us know.

Frequently Asked Questions

1. Question: Can proposed amendments received by FloridaCommerce prior to July 2, 2021, be adopted and reviewed if adopted after July 1, 2021?
   • Answer: Yes.
2. Question: Will proposed amendments received by FloridaCommerce after July 1, 2021, that do not include the property rights element be returned to the local government?
   • Answer: If an amendment without the property rights element as considered at a public hearing by the local planning agency prior to July 2, 2021, or the local planning authority deems a submitted application for a change to the comprehensive plan complete prior to July 2, 2021, FloridaCommerce will accept the amendment for review. If neither of these events occurred prior to July 2, 2021, an amendment that does not include a property rights element will be returned to the local government without being reviewed by FloridaCommerce.
3. Question: Does the property rights element have to be a stand-alone element instead of adding required legislative language to an existing element?
   • Answer: Yes
4. Question: Can local governments adopt small scale amendments prior to adopting a property rights element?
   • Answer: FloridaCommerce does not review small scale amendments; however, we encourage you to consult your legal department regarding actions that you may need to take prior to the adoption of a small-scale amendment.
5. Question: Can a local government restrict property rights element language to a specific land use
   • Answer: The statute states, "the following rights shall be considered in local decision-making" and does not specify a particular area of decision making.
6. Question: Do property rights element-related amendments have to be submitted for state coordinated review?
   • Answer: Property rights element-related amendments may be submitted for state expedited review unless the local government is partially or entirely located within an area of critical state concern or the amendment is proposed as part of the local government's evaluation and appraisal review amendments.
7. Question: Can a local government's proposed property rights element amendment package contain additional proposed amendments?
   • Answer: Yes, as long as the local government adopts the entire amendment package at their adoption hearing.
8. Question: Does the property rights element have to be in the form of goals, objections and policies
   • Answer: No, the property rights element may be adopted exactly as written in legislation. Additionally, section 163.3177(1)(c), F.S., states that the format of the principles and guidelines in a comprehensive plan can be done at the discretion of the local government.