USA – FLORIDA Law and Practice Contributed by: Eduardo M. Soto and Fabio Giallanza, Weiss Serota Helfman Cole + Bierman, P.L
property or a borrower’s environmental compliance. As a result, lenders typically conduct environmen - tal due diligence (including Phase I/II ESAs where appropriate) and structure workouts, property control arrangements and foreclosure strategies carefully to preserve available secured-creditor protections and to avoid conduct that could be viewed as operational control. 3.9 Effects of a Borrower Becoming Insolvent Typically, a security instrument is not voided by the borrower’s insolvency, but other creditors may raise issues of enforceability due to lack of consideration. Loan documents will generally address a borrower’s rights to declare insolvency and waiver of stay provi - sions. Regardless, an insolvency will almost certainly delay enforcement proceedings. 3.10 Taxes on Loans In Florida, mortgages are subject to documentary stamp and intangible taxes based on the size of the loan without a cap on the amount to be paid. There are certain strategies to minimise or eliminate taxes in con - nection with a refinance. Loans which are not secured by real estate are subject to documentary stamp taxes up to an amount of USD700,000 which equates to USD2,450 in taxes. For example, a non-real estate secured loan of USD700,000 and USD7 million would pay the same amount of taxes – USD2,450. A loan in the amount of USD700,000 secured by Florida real estate would be subject to USD2,450 in documentary stamp taxes and USD1,400 in intangible taxes. A loan in the amount of USD7 million secured by Florida real estate would be subject to USD24,500 in documen - tary stamp taxes and USD14,000 in intangible taxes.
concerns. As of late, state-wide controls have increas - ingly encroached into local planning and zoning juris - diction in areas such as affordable housing, transit- oriented development and environmental permitting. At the local county and municipal levels, the Compre - hensive Plan is a state-mandated tool by which local governments set out their prospective (future-looking) planning visions for their jurisdiction. The implementa - tion of the Comprehensive Plan is done through land development regulations such as zoning codes and are specific to each county and municipality. State statutes are drafted and adopted by the leg - islature, and signed or vetoed by the governor. The Florida Administrative Code and its rules are guided by state agencies like the Department of Environmen - tal Protection. At the local level, the county commis - sion and local municipal commissions and councils are responsible for adopting Comprehensive Plans and land development regulations. 4.2 Development Process, Challenges and Enforcement Depending on the specific jurisdiction, and the nature of the requested development, there are different ways which development entitlements are obtained. Some entitlements can be by right, meaning that the applicant simply needs to meet the technical criteria for a building permit to be entitled to build. Some enti - tlements may have an administrative review of specific criteria by the jurisdiction’s planning or zoning official, or require approval of the proposed development at a public hearing before the land planning agency or full-fledged council or commission. These discretion - ary approvals involve the application of criteria set forth in the applicable land development regulations to the proposed development and an approval or denial must be supported by substantial competent evidence. Third parties can generally object, and may be entitled to appeal when they have standing. Appeal rights and procedures are often set out in the land development regulations. Appeals can go to the local jurisdiction’s land planning agency, council/commission, or to the appellate division of the circuit court for that jurisdic - tion. Third parties who own property or reside in the immediate vicinity of the subject of approval, because
4. Planning and Zoning 4.1 Planning and Zoning Framework
Land use, development, design and construction are governed by several strata of regulation. State-wide regulation can impact the entire gamut of land use, development and construction through the Florida Statutes, the Florida Administrative Code, the Florida Building Code and others. These state-wide controls have often dealt with minimum construction and engi - neering standards for development and environmental
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