Land Use and Local Government Law and Litigation

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Filtering by Tag: concurrency

5th DCA - Landmark Takings Case: Off Site Exaction a Taking under Nollan/Dolan Where Applicant Refused Permit Due to Condition

This one came out in early January, and I'm surprised that I didn't hear the gnashing of teeth in Palatka all the way down here in Sarasota.

In what is now pretty much an epic, decade long battle, the 5th DCA in St Johns Water Management District v. Koontz, handed the water management district a major defeat and, in the process, put all government entities on notice that predatory exaction policies may create takings liability.

In the very short version, the water management district conditioned a permit for Koontz property to require significant off-site mitigation in the form of improving drainage facilities. The mitigation was supposedly to offset impacts to a small portion of the property that is within a "Riparian Habitat Protection Zone". Koontz refused to accept the condition, and the District denied the permit.

I don't think a short recap can do the facts justice; you have to read the case - and the four other opinions that have been generated on the way. The long and the short of it is that the circuit court didn't buy that the off site exaction was in any way rationally related to any demonstrable impacts to the protected property, and found that that the exaction violated the Nolan/Dolan nexus and was therefore not just an unconstitutional condition, but one that resulted in a taking of Koontz' property.

The District appears to have had three arguments: First, that the Nollan/Dolan rule didn't apply because (1) only money, not land, was involved, and (2) the exaction was offsite. The court pretty quickly (and I think correctly) did away with that argument.

The second claim was that Koontz couldn't complain because he refused the permit. This took a little longer to address, and its the part that everyone needs to read very carefully.

The third argument went something like "we could have denied the permit anyway, so there wasn't any damages." This took the court a long time to address, and completely got the dissent tangled up. The majority held, in effect, that once the government put the demand on the table, it was stuck with it. But the court got tangled up in the "right to the permit" argument in a way that reflects wrong thinking.

Everyone seems to have taken the position that the District could have denied the permit and there would have been no issue; that Koontz had "no right to the permit." But that's not really true. In Florida, there's a right to use property in any lawful manner. When the government adopts regulations and requires permits, it does not remove the underlying right - it subjects it to regulation. That is, the existence of regulations on the use of land does NOT convert the right to use land into a license from the government - something that the landowner is allowed to do by the grace of the government.

So while it's one thing to suggest that a property owner must demonstrate compliance with regulations, it's another thing altogether to suggest that a local government or agency has the right to simply deny permits where the criteria are otherwise met. And if the criteria are not met, the government really has an obligation to be able to state specifically why not, so that the landowner can comply.

Recognition of this fundamental aspect of the regulation of land might have saved both the majority and the dissent a great deal of confusion and circular logic.

And to anyone who thinks this opinion goes way too far, I suggest you read the other Koontz opinons to get a flavor for what the District has been demanding and the fact that it has been held repeatedly to be unjustified - this history plays out what would happen in many concurrency and environmental exaction cases if the landowner had the time and money to keep fighting.

This case has huge and immediate implications for every land use permitting process, especially those where the local government routinely extracts commitments far in excess of what would legally be proper in order.

But perhaps most important, this may discipline the "concurrency moritoria" extortion racket that many local governments have been practicing. Core issue: many local governments have adopted levels of service - particularly for roads- that they cannot maintain and achieve based on the adopted CIP (which now should be "financially feasible" meaning that LOS's will be met - but they are not). This creates "concurrency moratoria" - areas where the planned improvements in the 5 year (or long range) CIP don't create enough capacity to allow development that is otherwise consistent with the comp plan and LDRs to be approved.

The concurrency management system itself generates and proves the "demand" for the excessive exaction - the ordinances already say that the development can't be approved without concurrency, and the concurrency system requires a proportionate share or development agreement that provides all the improvements needed, whether or not it's proportionate.
And most governments have not adopted "proportionate share" concurrency regulations that address it and guarantee that the development only has to pay a proportionate share of the needed improvements. Lots of reasons, but mostly that they want to create a moratorium and address it through - ta dah - a development agreement or a condition in a development approval that requires the developer to pay more than a proportionate or fair share.

After this decision, any local government that has been doing that - or does it in the future- is at significant risk. Back in the early 90's, everyone was convinced that this risk would be from "temporary concurrency moratoria" under a combination of Lucas and First English. Now, they're back under Nolan/Dollan and the clear over-reaching of the government.

First DCA - Circuit Court can't Apply Equitable Estoppel in Cert Review

In Clay County v. Kendall Land Development, Inc., the First District quashed a circuit court decision that overturned a local concurrency-based denial on estoppel grounds.

This is one of those cases where the facts may disguise the real problem. Clay County has a fairly restrictive concurrency provision, and a concurrency certificate issued for a plat application has to be "vested" by gaining preliminary plat approval within 6 months and final plat approval within 2 years. The developer got a concurrency certificate, but didn't get the preliminary plat done within 6 months (which was December 2004), basically claiming that it could keep its certificate by meeting only the latter condition. One of its employees queried the County in January 2005 (after or on the preliminary plat deadline) and a general "OK' on the concurrency issue. As the platting process moved forward, the developer was told that concurrency would be a problem. The difference: fair share payments of over $600,000 instead of just below $192,000.

The developer administratively appealed the determination that it did not have concurrency and would have to pay the higher amount and lost. The circuit court, however, found that the county had misapplied the law of estoppel and should have been estopped by the January 2005 to the limited extent that the County was required to allow the developer to proceed based upon the fair share that would have been due then, if the developer had been told to reapply in January rather than in September 2006 when the whole issue came to light.

Now, there are bad facts here for estoppel law, but the circuit court was trying to do fundamental justice on the basis that if the developer lost the opportunity to apply for a new concurrency certificate when it would have been much cheaper because the County appeared to go along with its interpretation of the timing requirement.

The Fifth District has none of it. Repeatedly indicating that it was dealing with "an experienced developer," the District court destroys the lower court's jurisdiction to deal with equitable issues that are mishandled at the administrative level:

As we have noted, one “clearly established principle of law” is that, on first-tier certiorari review, a circuit court is limited to determining whether the administrative findings and judgment are supported by competent substantial evidence. Whether the record also contains competent substantial evidence that would support some other result is irrelevant. E.g., Dusseau v. Metro. Dade County Bd. of County Comm’rs, 794 So. 2d 1270, 1275 (Fla. 2001) (quoting from Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1093 (Fla. 2000)); G.B.V. Int’l, 787 So. 2d at 845; Educ. Dev. Ctr., Inc. v. City of West Palm Beach Zoning Bd. of Appeals, 541 So. 2d 106, 108 (Fla. 1989). Here, rather than merely determining whether the hearing
officer’s findings that Kendale did not reasonably rely on the January 2005
misstatement by the Chief Planner or any other act or omission of the County
and his decision that Kendale had failed to prove entitlement to the defense
of equitable estoppel were supported by competent substantial evidence, the
trial court conducted an independent review of the record, concluding that
competent substantial evidence supported a conclusion that the County was
equitably estopped to deny Kendale a CRC. This constituted “a violation of a
clearly established principle of law resulting in a miscarriage of justice” and, therefore, a departure from the essential requirements of law. G.B.V. Int’l, 787 So. 2d at 845; Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1093 (Fla. 2000).

We have also noted that another “clearly established principle of law” is that, when
considering a petition for writ of certiorari, a court has only two options--it may either deny the petition or grant it, and quash the order at which the petition is directed. G.B.V. Int’l, 787 So. 2d at 843-44 (citing cases). The court may not enter any judgment on the merits of the underlying controversy, or direct the lower
tribunal to enter any particular order. Id. Here, the trial court entered judgment on the merits, fashioning what it believed to be an equitable remedy. This, too, constituted “a violation of a clearly established principle of law resulting in a miscarriage of justice” and, therefore, a departure from the essential requirements of law. G.B.V. Int’l, 787 So. 2d at 845; Fla. Power & Light Co., 761 So. 2d at 1093.
The problem is that the lower court was actually saying that the hearing officer misconstrued the scope of his authority to deal with the equitable estoppel claim made by the developer and therefore departed from the essential requirements of law in not providing appropriate relief.

That kind of determination requires the reviewing court to examine the record closely to see if it was applied properly to the law. This is a particular problem when (a) equitable principles -which are inherently fact based-- are involved, and (b) where there are confusing or overlapping legal principles. Under the First District's holding, it doesn't matter if the lower tribunal got the law wrong so long as there is competent substantial evidence to support its decision under the wrong legal interpretation.

This difficult (crazy?) result flows from the simple fact that certiorari is flatly insufficient to provide the "one means of effective judicial review" that due process guarantees.

Said it once, said it twice and again. We need a statute providing effective judicial review under the model of 120.68, and we also need a statute that provides minimum standards for the conduct of local hearings and the issuance of administrative orders.

PRACTICE TIP: Get your case out of the administrative process and into circuit court as a declaratory or injunctive action. In this case, for example, the developer could have filed a declaratory action to determine the scope of the ability of the hearing officer to consider and apply equitable estoppel principles, and arguably to estopp the county (note: equitable powers per se are beyond the jurisdication and power of admininstrative officers).

It was the inadquacy of cert review and the resulting multiplicity of suits on different grounds under the pre-1972 APA that led to its amendment and the provision of the "rich arsenal of remedies" under the modern act. It very well may be that only an explosion of suits in circuit court attacking the jurisdiction of local boards, the processes in local ordinances, asking local procedures to be determined inadequate, and suing for prohibition, quo waranto and related writs will demonstrate the clear need for legislative reform.

This is not a "pro-developer" or "pro-neighbor" issue: noone gets a fair shake under the current system.

Finally, be aware: In the last year we've seen two cases that involved concurrency and fair share issues-this case and the D.R. Horton case from Jacksonville . They are the tip of the iceberg. Local governments statewide refuse to either fund their adopted level of service or lower them to affordable levels. The state's funding for non-SIES roads is dramatically inadequate. In the next two years we will see concurrency become a political and economic crisis on the scale of the 2004 hurrican season, and the result is going to be hundreds of lawsuits.

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.