On Thursday, May 4, 2017, the legislature enrolled a bill for the governor’s signature regarding renewable energy devices, such as solar panels, exempting 80% of their taxable value from county ad valorem taxation. Florida law already provides a 100% exemption for residential solar installations. This bill, however, addresses non-residential solar installations, such as commercial rooftop installations and utility-scale solar farms.
The bill is commonly referred to as Amendment 4 because Amendment 4 was the constitutional referendum that voters approved in August 2016 by a margin of 73%, modifying the constitution to grant the Legislature the authority to implement the tax exemption by general law.
Who owns the solar equipment determines its characterization as either real property or tangible personal property. Either way, it is subject to the same 80% exemption.
Amendment 4 takes effect on January 1, 2018. From that date until December 31, 2037, 80% of the value of a solar installation will be excluded from real property tax if the landowner owns the solar equipment, and likewise 80% will be exempted from tangible personal property tax if, instead, the solar developer, as a lessee on the property, owns the solar equipment.
Projects that Do Not Qualify
Projects under development in fiscally constrained counties and that file applications for comprehensive plan amendments or planned unit development (“PUD”) zoning in those counties on or before December 31, 2017, will not be eligible for the exemption. Shumaker advises clients on prudent courses of action to ensure eligibility for the tax exemption in these counties.
Amendment 4: Topic at Solar Power Southeast
Florida’s utility-scale solar market will continue to enjoy the current surge in activity with the implementation of Amendment 4, together with continued federal tax investment incentives in terms of the Investment Tax Credit and bonus depreciation. Chris Delp will speak at Solar Power Southeast in Atlanta, Georgia, on May 11, 2017, on this and other factors underlying the increase in municipally owned utility power purchases and investor-owned utility solar roll-outs in the Sunshine State.
Informing Florida Lawyers on Amendment 4
On Wednesday, May 3, 2017, Chris Delp and Tim Hughes presented on Amendment 4’s implications on utility-scale solar development in a continuing legal education seminar for the Environmental and Land Use Law Section of the Florida Bar.
Tim Hughes is an attorney in the Solar Industry Practice Group at Shumaker, Loop & Kendrick, LLP, where he monitors regulatory developments and market trends and provides experienced counsel and representation in the development, financing, and construction of solar power systems.
 Under the Florida constitution, only county governments may levy ad valorem taxes on real property and tangible personal property, while the state government does not have this taxing power. Fla. Const. art. VII, § 1. Ad valorem taxation means a tax based on property’s assessed value and is synonymous with “property tax.” Fla. Stat. § 192.001(1) (2016). Tangible personal property means all goods, chattels, and other articles of value, excluding certain vehicular items. Fla. Stat. § 192.001(11)(d).
 Did the voters get what they demanded? Amendment 4’s seventy-five-word summary that appeared on the ballot communicated to voters that by voting “yes,” the voters would authorize the Legislature to:
[E]xempt from ad valorem taxation the assessed value of solar or renewable energy source devices subject to tangible personal property tax, and to authorize the Legislature, by general law, to prohibit consideration of such devices in assessing the value of real property for ad valorem taxation purposes.
The foregoing does not communicate that the Legislature might implement less than a 100% exemption, as was the case for residential solar equipment. However, Amendment 4 itself proposed to add to the Florida Constitution, Article VII, providing that the “assessed value of solar devices or renewable energy source devices . . . may be exempt from ad valorem taxation, subject to limitations provided by general law” (emphasis added).
Amendment 4’s full text appears to authorize the Legislature to give the people only half a loaf—or four-fifths of a loaf, to be exact.
 If the real property owner also owns the solar equipment, as is the case with a commercial building owner who also owns the rooftop solar installation, the solar equipment is considered a fixture to the real property and is taxed by the county accordingly. If, however, a tenant on the premises owns the solar equipment, as is the case with a utility-scale solar developer who leases a site from a landowner, the solar equipment is characterized as tangible personal property.
 An earlier version of the bill limited this provision’s application to projects greater than twenty megawatts in size. The final version includes all projects of all sizes in such counties and for which comp plan amendments or PUD zoning is filed before 2018.