Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Filtering by Tag: takings

The United States Supreme Court Clarifies Nolan and Dolan to Include Cash Payment Demands and Demands that Result in a Denial of the Development Order: C. Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013), and St. Johns River Water Management District v. Koontz, 77 So. 3d 1220 (Fla. 2012).

In a divided 5-4 opinion, the U.S. Supreme Court (“SCOTUS”) overturned the Florida Supreme Court (“SCOF”) decision in Koontz.  The core and critical holdings: the “unconstitutional conditions” doctrine underlying the Nollan and Dolan decisions applies in the land use regulatory context to cash exactions as well as demands for a direct interest in land (land or easements), and also can apply (but may not always) where no cash or exaction changes hands because the government agency denies the application at hand.  I will let the majority opinion speak for the Court’s logic:
Nollan and Dolan …. allow[] the government to condition approval of a permit on the dedication of property to the public so long as there is a “nexus” and “rough proportionality” between the property that the government demands and the social costs of the applicant's proposal. Dolan, supra, at 391, 114 S.Ct. 2309; Nollan, 483 U.S., at 837, 107 S.Ct. 3141.  Our precedents thus enable permitting authorities to insist that applicants bear the full costs of their proposals while still forbidding the government from engaging in “out-and-out ... extortion” that would thwart the Fifth Amendment right to just compensation. Ibid. (internal quotation marks omitted). Under Nollan and Dolan the government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts.
The full complexity and ramifications of the decision will be debated for years and cases to come, so I will touch only on a few brief and important points. 

First, the full application of the decision on the case itself will not be resolved until the Florida Supreme Court addresses it on remand because SCOTUS refused to address or resolve the large number of Florida procedural and statutory law issues the SCOF dodged by (incorrectly) interpreting the federal takings issues.  These include when and whether a plaintiff may proceed under special statutory “compensation” provisions (like the one at play here) without going through the full APA process to challenge the validity of the administrative action.  This was also mangled by everyone in the Save Our Beaches case.  The particular Florida statute created the damages remedy that was at issue here - SCOTUS left open the remedy for an illegal exaction in cases where there is not a statutory damages remedy.

Second, it is very unclear how and when a landowner will be able to bring a Koontz-based claim of extortionate demands under the DRI (or more “standard” local government) development procedures.  Here, the District walked (or was walked) into a documented denial based on the demand for off-site improvements without any “formal” analysis or relationship between the impact on wetlands and the demand for off-site improvements.  I would note that the essential action occurred in 1993, and could not happen under the current wetland regulatory regime in Florida.  In fact, no demand for a valid impact fee or regulatory fee in Florida will fall afoul of Koontz.  

However, programs like Pasco County’s recently invalidated right-of-way dedication ordinance, that do not tie required dedications to any rational evaluation (by the government) of the impacts of the development, will either be invalidated, require compensation, or both.  And where local governments – openly or through “suggestive” review practices – demand things like parks, schools, sidewalks or other “contributions” in the rezoning or other process that are above, beyond or separate from established impact fees or exactions, those demands may subject the local government to claims – even (and perhaps especially) where the developer was successful in getting the development permit.

However, the majority opinion is clear:  like a “taking of all economic use” under Lucas, a violation of the Nollan/Dolan/Koontz prohibition on unconstitutional conditions is a per se taking.  Here’s the real warning and the potential problem for all sides:  there is no meaningful difference between treating development approvals like a benefit that has to be “bought” (what’s in it for the community) and engaging in “out-and-out extortion.”  Landowners are required to offset their legitimate impacts in order to develop – they are not required to provide benefits to the community. 

My final point (at least today) is this:  the parade of horribles in the SCOF opinion, the SCOTUS dissent, and the dissent of a large number of the land use commentators, all demonstrate an appalling lack of understanding of the day-to-day abuses that occur in the development process today, and how easily the Nollan/Dolan/Koontz test can be met by a government agency acting in good faith.  Methods for fairly evaluating the impacts of development on public facilities/infrastructure and environmental resources are readily available today.  The problems occur almost entirely from lack of planning and governmental over-reaching – and a culture of land use regulation that has become corrupted (in the general sense – but also leading to the specific) by the huge regulatory discretion enjoyed by local governments and the lack of effective judicial oversight on the use of that discretion.
On October 30, 2013, the Florida Supreme Court remanded the case to the Fifth DCA for further proceedings.  

The Case Below:  Florida Supreme Court Mangles a Difficult Takings Case.
I have condensed the background for this tangled, fifteen year plus odyssey through the administrative process and three trips for appellate review, as the complete story would take far too long to repeat.  Koontz owns a 14.7 acre property that includes a significant proportion of wetlands and is also largely within a “Riparian Habitat Protection Zone of the Econlockhatchee River Hydrological Basin.”  Koontz sought to fill 3.4 acres of wetlands for a project.  The SJRWMD staff recommended approval with many conditions, one of which was that Koontz pay to perform offsite mitigation by replacing culverts in systems four and a half miles from the property or plug drainage canals seven miles away.  The District never introduced any evidence that these actions would mitigate direct impacts created by the proposed development or that they were in any way proportionate to the impacts of the proposed development.  Koontz refused to accept the conditions, and the District denied the permit.  Koontz then sued under         § 373.617, which provides a statutory process and remedies for claims that a permitting action would constitute a taking.  In its first and second trips up and down the appellate chain to the Fifth DCA, the ripeness and other issues were addressed.  On remand after the second appeal, the circuit court found the condition would create a taking, and the District chose to grant Koontz the permit (after receiving additional evidence that the jurisdictional wetlands on the property were significantly less extensive than originally thought).  The circuit court then awarded Koontz $376,154 for a temporary taking by the District.

The 5th DCA upheld the circuit court, holding the demand for off-site mitigation was an exaction under Nolan and Dolan.  The Fifth rejected the District’s assertion that Nolan and Dolan did not apply to “cash” demands for mitigation, but only to conditions that require a grant or dedication of lands or easements.  The dissent objected to lack of ripeness based on Koontz’s failure to litigate its validity in an administrative challenge, and also asserted that a takings claim is not available for mitigation conditions that do not involve dedications of land or easements.

The Florida Supreme Court overturned the Fifth DCA.  It held that while Florida follows federal takings law, it was not clear under existing decisions that Nollan and Dolan apply to exactions that do not take the form of dedications of land or easements, and it would not “extend” those holdings to include such exactions.  It also held takings claims are available “only where the regulatory agency actually issues the permit sought, thereby rendering the owner’s interest in the property subject to the dedication imposed.”  Justice Polston, joined by Justice Canady, concurred in the result, and would have held the entire issue was an attack on the propriety of the agency action and should have been subject to exhaustion by a challenge to the permit action under the APA.

The Court (and other courts that reached the same conclusion) was simply wrong in holding that the takings analysis does not reach “cash” mitigation.  The “unconstitutional conditions” doctrine on which this branch of takings jurisprudence is based, prohibits the government from conditioning a license, permit or benefit on the relinquishment of a constitutional right or protected interest.  The doctrine protects against regulatory over-reaching in any context - government employment (which is otherwise wholly discretionary), welfare (you can’t condition receipt), other forms of licenses (you can’t be required to swear allegiance to the United States in order to get a driver’s license), and the list goes on.

Furthermore, it is clear a regulation that requires a person to forego cash or its equivalent can be a taking.  This was the issue in Webb’s Fabulous Pharmacy v. Beckworth, 101 S. Ct. 446 (1980), which held a statute allowing the clerk to keep interest on private funds deposited into the registry of the court violated the takings clause.  Furthermore, (and directly on point) the Supreme Court characterized the statutory provision that awarded the interest to the clerk as an “exaction [that] is a forced contribution to general governmental revenues and is not reasonably related to the costs of using the courts.”  It went on to note that the Fifth Amendment “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”  The Supreme Court went on to state that “the county’s appropriation of the beneficial use of the fund is analogous to the appropriation of the use of private property in United States v. Causby. . . .”

In addition, this case is a minefield for a number of reasons.  If the Court determined that the denial of a permit cannot cause a taking, why did it have to reach the other issue?  Moreover, if the denial could not have such effect, why did the majority not agree with Justice Polston that the issue was subject to exhaustion and avoid making a constitutional ruling?  The answer is very troubling:  the Court wanted to assert that regulatory agencies can, should, and must impose such conditions on permits without fear of takings claims.  The Court states:
It is both necessary and logical to limit land-use exactions doctrine to these narrow circumstances. Government agencies must have the authority and flexibility to independently evaluate permit applications and negotiate a permit award that will benefit a landowner without causing undue harm to the community of the environment.  If a property owner is authorized to file an inverse condemnation claim on the basis of the exactions theory any time regulatory negotiations are not successful and a permit is denied, two undesirable outcomes inevitably ensure.  First, the regulation of land use, deemed by the United States Supreme Court to be “peculiarly within the province of state and local legislative authorities,” would become prohibitively expensive.  . . .   Second, and as a result of the first consequence, agencies will opt simply to deny permits outright without discussion or negotiation rather than risk the crushing costs of litigation.  Property owners will have no chance to amend their applications or discuss mitigation options because the regulatory entity will be unwilling to subject itself to potential liability.  Land development in certain areas of Florida would come to a standstill.  We decline to approve a rule of law that would place Florida land-use regulation in such an unduly restrictive position.
I cannot understand how the Court allowed itself to take this extreme position, one that cannot be justified by evidence or the law.  The Supreme Court had previously held the public interest in the development process is protected by the “local regulations [or statutes], which must be uniformly administered.”  Broward County v. G.B.V. Intern’l, Inc, 787 So.  2d 838 (Fla. 2001).  Under Florida impact fee vs. tax, delegation of authority/rule adoption and similar requirements, most mitigation requirements are established by statute, rule or ordinance with respect to the extent and nature of required mitigation.  Is the Court really saying that government entities are and must be free to demand unauthorized, illegal exactions in order to protect the public interest?  The Court seemed frightened by a parade of horribles if it upheld the Fifth’s decision, and ignored the implications of overturning it in the way that it did:  Under this decision, agencies and local governments will feel that the Florida Supreme Court has expressly authorized them to demand whatever exactions they want during negotiations.  If they are smart, they won’t put those demands in writing.  They will simply inform developers that if they don’t “voluntarily donate” to whatever the local issue de jour may be, they won’t get a permit approval, and they will be secure in the inability of the developer to challenge the resulting condition.  It will be worse when “negotiating” with elected officials who may hear permit applications.

The Florida Supreme Court’s opinion could have an additional, unintended result that agencies and local governments may like less:  frustrated landowners and developers will be able to take claims of illegal “cash” mitigation demands direct to federal court, because Florida has construed its takings clause to exclude a remedy.

3d DCA - More on Takings and Statute of Limitations in Monroe County BUD cases

In Beyer v. Monroe County, the 3d DCA reversed a trial court determination that the plaintiff's takings case was barred by the statute of limitations. This is another case where the existence and use of the "beneficial use determination" process available in Monroe County establishes the date that a takings case accrues, as opposed to the date of adoption. Required reading for anyone looking at filing takings claims, as are the other recent 3d DCA opinions coming from Monroe County, because they illustrate the interaction of ripeness, administrative remedies and "as applied" vs. facial takings claims.

1st DCA – Home Venue Can be Waived by Agencies

Levy County v. Diamond et al , 7 So.3d 564 (Fla. 1st DCA 2009)

The plaintiffs brought a takings case against the County, DEP and Bd of Trustees and filed (understandably, given the home venue rule) in Leon County. Levy County obtained waivers from the agencies and sought transfer of venue. The Plaintiff objected (probably wanting a Leon County jury – who wouldn’t have to pay for any taking claim prosecuted against Levy County), and the circuit court denied the County’s motion. The 1st DCA held that the DEP and Bd of Trustees of the Internal Improvement Trust Fund (aka, Governor and Cabinet) could waive the “home venue” right (which would require them to be sued in Leon County), and that when they did, the circuit court in Leon County abused its discretion in not transferring venue of an inverse condemnation suit involving property in Levy County to the circuit court in Levy County.

1st DCA Clarifies Prior Opinion in Takings Case

Drake et al v. Walton County, 6 So.3d 717 (Fla. 1st DCA 2009)
The 1st DCA issued a clarifying opinion in this case clarifying that there were two different takings – a temporary taking and a later permanent taking – from the flooding of the property involved. The confusing facts are that the land was flooded, then made dry by drainage improvements and a dam installed by the County, then flooded again by later actions taken by the County, including removing the dam. Lesson: if the government creates private property, it must pay compensation if it later destroys that property.

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.

Different case, same "facial vs as applied" problem

In Shands et al v. City of Marathon, the 3d DCA applied the same mistaken analysis to a takings claim against the city, under facts that provide an additional twist.

That twist is that the landowners didn't start the rights determination process till later, and got caught up further when the City incorporated and adopted and amended the County's land use regulations.

I think there may some different defenses and issues than were presented in the Monroe case ---- in particular, what happens if property is subjected to a limitation by one government agency or local government, then the same restriction is reapplied by another jurisdiction - does a new cause of action get created? But that question is totally buried in the larger mistake regarding facial vs as applied challenges.

3d DCA gets Right Result but Wrong Analysis in Facial v As Applied Taking Case

In Collins et al v Monroe County, the 3d DCA absolutely correctly overturned a trial court decision on summary judgment that held that a takings challenge was a "facial challenge" and was untimely filed based on the 4 year statute of limitations.

The problem is that in the process, the court totally mangled the difference between a "categorical" taking and an "balancing test" taking, confusing them with facial vs. as applied takings. The Court held that a challenge based on the deprivation of "all economic use" of the property was a facial taking and would be subject to the four year statute from the time of adoption, but that these were claims of substantial deprivation of value and the time ran from the final application:

In an as-applied claim, the landowner challenges the regulation in the
context of a concrete controversy specifically regarding the impact of the
regulation on a particular parcel of property. Taylor, 659 So. 2d at 1167. The
standard of proof for an as-applied taking is whether there has been a
substantial deprivation of economic use or reasonable investment-backed
expectations. See generally Penn Central Transp. v. City of New York, 438 U.S.
104 (1978) (considering the economic impact of the regulation on the claimant,
the extent to which the regulation has interfered with distinct investment-backed expectations, and the character of the government action; diminution in the property value alone cannot establish a taking); Taylor, 659 So. 2d at 1167. The question presented is whether the record shows that the Landowners were deprived by the enactment of the 2010 Comprehensive Plan of all economic use of their property, which amounts to a facial taking, or were deprived of substantial use of their property, but left with some economic value, which is an as-applied taking.

Emphasis added.

The problem is that the court's analysis here is totally wrong: a "categorical" Lucas-type claim that a regulation has deprived the landowner of all economic use is almost never a facial claim, nor can it be under the ripeness requirements that the Court discusses later in the opinion.

Here, the application of Monroe County's comp plan and ldr was at issue. On their face, they preclude development in huge areas of the county and require compliance with strict "rate of growth" requirements that preclude even individual building permits for existing lots. But the ordinance has an entire administrative process for both vested rights and for what amounts to an administrative determination that a taking will occur if rights aren't given, with recommendations to either grant a permit or buy the property.

With particular respect to the whole Monroe County regulatory scheme, courts have held that the availability of this remedy precludes takings claims until or unless the process is followed. They also have held that no temporary or permanent taking can occur until after the completion of the process. So the ripeness and other doctrines effectively preclude a facial challenge to the ordinances (and most land use lawyers knew this) .

The core distinctions are categorical takings, which do not require a demonstration of the value of the property taken or remaining in order to demonstrate the taking, and "balancing" type tests where the financial or economic impact must be assessed against the property as a whole.

Which then gets you to the different sub-causes of action under a takings theory:

1. Illegal conditions (Nollan/Dolan) on a development permit or application that require an exaction. This clearly requires a property-specific application, but it is a categorical type taking in that if the exaction is not proportional to the impacts created, it is a taking regardless of the effects on the value of the property as a whole However, the essence of this claim is that the government assessed the exaction against a particular proposal, so it is always as-applied.

- Note these distinctions were behind the whole highway reservation as a takings fight in the early 90s. One decision held that the reservation statute, which prohibited all development within reservation areas designated next to state roads, was unconstitutional because it "took" property (the right to use the reserved area) without making any provision for compensation. Later cases clarified that even if such statutes are unconstitutional, there are not actual "takings" of property until or unless the reservation is applied to a particular property so as to deny particular uses and the government refuses to either vary the prohibition or pay compensation.

2. Illegal violation of the right to exclude/imposed right to use (Loretto Teleprompter) - an ordinance or statute that allows another person or the government to use your property (like to hang cable television) is a forced grant of easement or license - this is a "categorical" taking in that it doesn't require a demonstration of the value of the right 'taken' or the remaining rights in the property. However, there is not taking until someone takes advantage of the ordinance or statute, so it almost always an as-applied claim.

3. The Lucas case: total taking of all economic use . This is a "categorical" taking because if all use is removed, the relative burden is irrelevant, but it is an as-applied test. If a regulation prevents ANY use of property, it is a taking. However, in almost any conceivable situation in order to prove that it does that, a landowner would have to apply to use the property and be denied, or to try to get some administrative determination of rights (as here) and be told there are none. So ripeness and damages issues almost always will make this an as-applied challenge.

The big and still unresolved issue in these cases has to do with "use" versus "non-use" value: what if all use is prohibited, but the land has some use to someone other than the owner, perhaps as open space, or as a beach access, or some other function that is totally accessory to a separate parcel. Under the strict language of Lucas, and one critical footnote, the focus is on the value created by the use of the property by the owner, and the potential for some value to the property in its sale or passive use by another would not count. But that isn't followed in a number of cases.

4. Penn Central Balancing -- This is the general and difficult case where there are some uses left to a property, but they are significantly limited in a way that so limits "legitimate, investment backed expectations" so as to create a taking (along with several other considerations described in the opinion). It always is an "as applied" challenge, because it is the particular effect of the regulation on the particular facts of the property and expectations of the owner that are at issue.
The 3d DCA opinion is simply mind-blowingly wrong and perverse: if you claim that an ordinance deprives you of all economic use, you can only raise that within four years of adoption, even if you haven't actually had it applied to your property so you can prove it.

This opinion would create a situation where the government was better off getting someone into the application process and then - four years later- adopting an interpretation that the owner couldn't use the property at all than if the government allowed some (but not much) use of the property.

One can only hope that this will get corrected, and quickly.

1st DCA - Gov't Flooding of Property is a Taking

In Drake v. Walton County, the 1st DCA concluded that a county decision to "redivert" water across the Plaintiff's land was a taking.

If the case were merely a "flooding" case where the government drainage project or action causes permanent (even if periodic) flooding of land, it would not bear much mention - or the dissent. But here, the facts are very convoluted, and involve lands that had been subject to flooding, then were protected by a drainage project - which did not work - and then were subjected to flooding again when the drainage project was removed or altered. This creates understandable confusion in determining how the common law right to put water on downward properties (at least to historic amounts) can conflict with the government's liability when it alters drainage patterns.

Save Our Beaches - the Review

Intro and Disclaimer: after my earlier comments about this decision, I took a lot of time to write this one. I won't back down from my earlier statements that the majority got it wrong - really wrong -- and that Justice Lewis' dissent has it right.

In Walton County et al v. Stop the Beach Renourishment et al, the Florida Supreme Court reversed the First District’s determination that a beach renourishment permit issued by the DEP was invalid because the permit relied on an erosion control line (ECL) that in turn violated a statutory provision that prohibits the establishment of an ECL if it would constitute a taking, unless there was provision for compensation. The establishment of an ECL statutorily fixes the property limits, establishes fee ownership in the state for all lands seaward of the ECL, and replaces certain common law riparian rights with statutory rights.

I first want to note that the case presented significant public policy problems for the Court. The existing beach renourishment statute prohibits beach renourishment without an ECL, even with an easement from the upland owners. This is predicated on a legislative determination that public funds for beach renourishment should not be used to put sand on “private” property (which can be interpreted as having a constitutional basis). Unless this statute were amended, a decision upholding the 1st DCA would have had significant negative consequence for future beach renourishment projects, as well as creating the possibility that existing ECLs would have been overturned – or that the state would have had to compensate landowners in order to keep the ECLs in place. Given these tensions, it is not surprising that the Court would find a way to overturn the 1st DCA.

[Side note: the Court’s resolution of the problem sidestepped the interesting issue of what kind of compensation would have been required for a taking. As the Court found, the statute does provide a number of substantive right to replace the rights destroyed. Where value is “put back” by government action, this is taken into account in calculating damages. It may well have been that any damages due would have been non-existent or nominal, and might even be subject to the kind of administrative “default valuation” that the Court permitted in the citrus canker cases.]

To be short and sweet, I think that Justice Lewis got it right in his dissent, and that the majority not only got it wrong, but got it wrong in a way that was both disingenuous and that creates future litigation problems. I’ll identify just a few of those.

1. The facial taking problem. The Court reengineered this case into being a facial constitutional challenge to the statute. It clearly isn’t for all the reasons set forth in the dissent. This creates several new problems:

a. The Court left the state open to massive federal takings claims – the state has refused to provide compensation under the state constitution, making federal claims ripe and justiciable; if the federal courts disagree that the statute provides an adequate “swap” for the rights taken, it could now find that compensation is due under the U.S. Constitution.

b. The Court pulled a nasty trick on the litigants. It labeled the challenge facial (even though it clearly was , then posited circumstances not pled (regarding how avulsive effects might affect the application of the statute) to hold that the statute could take the right to accretion under all circumstances, so couldn’t be a facial taking. What does this means for pleading as applied challenges? Can the Court always turn around and apply other facts to deny your claim?

The opinion reflects a frightening lack of understanding of how administrative law has developed since Key Haven with respect to litigating administrative challenges where there is a claim that the statute (or action) violates the constitution or another statute - issues that an administrative law judge does not have jurisdiction to decide, but which the Court of Appeal does have jurisdiction over. The Court also did not appear to understand the statutory provisions at issue. Critically, the Court does not recognize (as the 1st District did) that the issue of whether the statute (which provided that an ECL was void if it would create a taking and there was no provision for compensation - which was the case here) was violated as opposed to whether there was a constitutional violation. Under the US Supreme Court decision in First English, a statute does not create an unconstitutional taking unless it both takes property and fails to provide compensation. So under this statute, there is clearly an as applied issue as to whether the ECL in this case violated the statute by taking property (riparian rights) without providing compensation.

The potential damage that the Court's end-orientated analysis (or lack thereof) has on broad areas of litigation where administrative challenges have statutory or constitutional dimensions cannot be overstated. I expect that this is the area where we will see a bunch of articles showing up in the near future.

2. The claims preserved. In two footnotes, the Court notes circumstances that still could create a takings claim. First, if the ECL was established too far landward (landward of the actual MHWL over 19 year period), it could create a taking of the “gap” lands. The Court thus raised a statutory/permitting issue to constitutional status. Second, the Court noted that if the permit allowed too much beach to be added, it could create a taking by imposing burdens on the “right to access” the water. Between the two of these claims, the Court created an entirely new set of as applied attacks that can be waged against the establishment of an ECL and gave them constitutional status.

3. The poor analysis problem. Again, with all due deference to the policy problem facing the Court, the analysis of some of the issues was unrealistic and unconvincing, and many of which are just scary.

a. The new constitutional duty to protect the beach. The Court read the constitutional provisions regarding public trust for navigable waters and waters to the high water mark together with the provision regarding protection of the natural beauty of the state to create an entirely new constitutional provision (and this from a “conservative” jurist!): “Concisely put, the State has a constitutional duty to protect Florida’s beaches, part of which it holds ‘in trust for all the people.’” HOLY COW! What exactly does this mean? Does this constitutional duty extend only to how it regulates the rights of beach owners, or does it mean that the Legislature has a constitutional duty to renourish beaches? Does it have a duty to condemn private property along beaches to create/protect them?

b. The avulsion discussion. I will let others who actually specialize in riparian/littoral rights take this apart. Let’s just say that this seemed to be thrown together to justify why a facial taking wasn’t demonstrated, and in doing so may have created another constitutional problem. The Court argued that the right of landowners to accretion was limited by the avulsion doctrine, such that the state would have the right to lands suddenly added by a hurricane – or the right to put those sands back in the water to return the high water line to its pre-event state. The Court then cited to a true riparian case (freshwater) for the proposition that landowners have a right to return their property to a pre-storm event condition if there is sudden avulsion/erosion from an event. This is going to make for VERY interesting arguments in the future, since DEP and local governments are more and more restrictive about issuing emergency permits to allow landowners to protect their lands after storms. This could create new constitutional challenges to anti-hardening rules/ordinances and other regulatory limits on a landowners’ right to recover property lost to storms.

c. The “swapped rights”. The Court found several “swaps” of rights to be reasonable: the riparian right to accretion is “swapped” for the state’s obligation to maintain the renourished areas; that the riparian “rights of access” is swapped for a statutory “right of access” (undefined); and “rights of view” enjoyed by beachfront property owners are protected.

  • i. While it might be arguable that the swap of the right to accretion for a statutory obligation to protect the beach (right) is objectionably reasonable, it is absolutely unclear whether it is appropriate constitutionally – and this is going to be a federal case.
  • ii. As for the right of access being equal – it’s not, because associated with the ECL and a renourishment then landowner loses (i) the right to exclude the public from areas between the beach and the property, and (ii) the right to use those areas. Here’s the rub: before ECL and renourishment, a beachfront owner can park her Hobie Cat twenty feet from the water and put it in any time, and can keep people away from it; afterward, the landowner can’t do these things (hence the footnote that indicates adding too much beach might be a taking).
  • iii. Regarding the right to a view, the Court found that the statutory prohibition on placing structures on the reclaimed lands protected the riparian right to views of the water; but riparian view rights extent to activities on or in the water, and by cutting off the riparian rights, these rights are extinguished. This could have consequences to landowners close to proposed piers, jetties, or similar structures or uses.

d. The demise of the “right of contact with the water” and with it, the right to wharfage and access to navigable water. The Court totally mixed together the common law “public trust” doctrine of sovereign ownership to the MHWL with Florida’s constitutional definition that this includes the wet sandy beach to claim that the riparian “right of contact” with the water doesn’t exist. Essentially, the Court argues that the existence of the foreshore (the wet sand between the daily low tide and the daily high tide), along with the fact that the MHWL moves, means that there is no right to touch the water (or that this right is subordinate to or inherent in the right of access). This discussion totally misses the purpose of the right to contact, which along with the right of access supports the historic riparian and littoral right to wharf out to navigable water. While this issue was not discussed in the 1st District opinion (and probably not have been tried in the context of the as applied administrative challenge to the permit), the right to construct a pier or wharf in order to connect the upland to navigable waters was associated with and dependant on the right of access to the water and whether the property touched the water – purely upland property didn’t and doesn’t have this right. While it is unlikely that any individual homeowner would utilize that right, commercial or other properties might – at least until it’s extinguished by the establishment of an ECL

I can only suggest that we haven’t seen the last of this issue, and that the next round of litigation is likely to be even more challenging.

4th DCA - 4 Limitation on Inverse Condemnation for Illegal Exaction and Stealing Doesn't Offend Public Policy

In a probably correct opinion that is marred by very bad discussions of public policy, the 4th DCA held in New Testament Baptist Church v. FDOT that the lower court properly dismissed a counter-claim/cross-claim for inverse condemnation brought 13 years after an allegedly illegal dedication demand.

The claim was brought by a church that had been required to dedicated 7.5 acres (of its 19) in 1992 for streets (that the city didn't build) in order to get a plat approval. When the DOT went to condemn more of its property in 2005, the church cross complained that the earlier dedication was illegal.

The 4th cites a bunch of other cases finding that inverse condemnation cases need to be brought within 4 years. The cited cases, however, involved direct regulation, not exactions. The court distinguishes several exaction cases where the claim was made much later than the regulatory requirement.

The disturbing issue is the court's treatment of the question of whether an unconstitutional exaction is void or voidable. The court noted that contracts or other actions that are in violation of public policy are void. The court then holds that even an illegal dedication requirement doesn't implicate public policy because only the victim of the illegal act is harmed. The court goes on to justify this position by claiming that the church "benefitted" from the plat. This totally flies in the face of the "unconstitutional condition" cases that Nolan and Dolan spring from, which recognize that where the government imposes an illegal and unconstitutional condition on a government action on a permit or benefit, the victim does not need to refuse to accept the benefit in order to complain.

The Court forgets the basic tenet: the issuance of a development order is not a "benefit" to the landowner because the landowner has an underlying property right to develop. The development order is the governments' OBLIGATION arising from its choice to regulate a property right in the public interest; a landowner's development pursuant to a plat is not the "acceptance of a benefit" from the government because the landowner has the underlying right in the first place.

Illegal Exactions Protected by Bond Validation

In Frederick et al v. Northern Palm Beach County Improvement District et al, the District Court upheld the circuit court's dismissal of claims raised by various homeowners who claimed that they were subjected to unconstitutional exactions.

The homeowner's predecessors in interest (the developer) cut a deal with the county to set up an improvement district to fund not only the roads internal to the project, but also to build a major section of arterial road. While the project was still under the developer's control, an assessment was levied (for 20 years) against property in the development and the bonds were validated.

None of the other developments who benefit from the improved major road were assessed. Later, homeowners subject to the assessment -- understandably annoyed when they realized they were paying for infrastructure for the entire area, and effectively subsidizing the other developments-- sued to establish that the assessments were illegal because they were not proportionate to the impacts of the paying development.

The circuit court dismissed, holding that the statute of limitations had run the validation of the bonds precluded later challenges to the assessments. The District Court affirmed, holding that the homeowners were bound by their predecessor's knowledge of the date of the validation/action.
In the case now before us, we must balance the interests of the Homeowners in
receiving notice of the exclusive nature of the Unit 18 assessments against the
public policy concerns highlighted in H&B Builders. Weighing these competing
interests, we find that, on these facts, the Homeowners interests are outweighed
by the need of the District for certainty in creating water management plans and
funding those plans. As a result, the approval and creation of the assessments
and impact fees here by the District provided sufficient notice to then existing
and future homeowners of their obligations. This is true even if the assessments
and impact fees were improperly levied. See Ves Carpenter, 422 So. 2d 342;
Spring Lake Improvement District, 814 So. 2d 1077.

So, clearly, sue before you buy - or at least be sure that your developer did.

Gypsies, Tramps and Thieves - Maybe We'll Find Out if Section 95.361 is Constitutional

In Charity et al v. Sarasota County, the 2d DCA reversed summary judgment in favor of the County in a case that involved where the owners of property seperated from a canal by a street that was established by common law dedication have riparian rights to the street. The basic facts (and similar cases have been litigated way more frequently than you might believe) is that you have lots, a street, and then lands on the other side of the street (very thin strip) and then a canal. I won't both to characterize the original plats because all the players in this are home town to me, but let's just say that based on practice and history, the landowners had good reason to believe that the lands between the road and the seawall were theirs, but the land records can be characterized as ambiguous.

The court had ruled based on (the court found) the misapplication of an earlier case (Kreiger v. Town of Longboat Key) involving the extent of rights in lands where property that is subject to a plat is conveyed by metes and bounds. The court in that case found that the later sale of the property by metes and bounds excluded rights that were associated with the land under a plat; it found that the later sale intentionally excluded the rights and appurtant lands under the plat.

Here, the court found that the landowners would not have automatically lost their rights to the lands under the conveyances, and that the conveyances referenced the plats (as well as metes and bounds extensions). I think what you have in some of the cases are deeds that have lines like "Lot 9 and the S 20 feet of lot 10 less lands for easements as recorded at Book x Page y. "

The circuit court bought the argument that this kind of sale took them out of the ownership of the lands under the rights of way and the riparian rights to the other side (here, the rule is that if there are no landowner/lotowners on the far side of the street to own to the 1/2 way point, the single adjacent owner gets it all). The 2d DCA overturned it.

The County had also argued, but the circuit court did not reach and the 2d DCA expressly did not consider, that it had total ownership of the road under the "dedication statute," 95.361. That statute provides that in cases like this where its not clear who opened the road, if the county maintains it for 7 years, there is a presumption of dedication for the width of the maintained right of way, and that dedication would include the entire fee. The statute provided a limited window to challenge the operation of the statute.

So the County's argument is that it owns the road by operation of the statute and that this breaks the ownership of the strip of land between the road and the seawall.

This sets up a potential for a major confrontation over the validity of the statute. The statute was created to safeguard public rights to government maintained roads. But by granting full title, it actually takes land without compensation. Moreover, by taking title to roads subject to common law dedication (which granted right of way to the government, but maintained ownership in the adjoining lots or the grantor), this would disturb existing expectations to a huge extent.

As applied in cases where the government opened a road years ago and has maintained it, it creates a useful way to establish that a road is in fact public. In cases where the right of way already has been dedicated, it is not much more than outright theft of the fee, and serves no purpose other than to extinguish the residual rights of the adjoining landowners.

On remand, the circuit court's resolution of this issue may create a major confrontation over whether the statute (1) applies to roads that were dedictated; (2) is an unconstitutional taking under the Florida constitution; or (3) is an unconstitutional taking under the US constitution.

5th Flip Flops on Rehearing - Best Diversified does NOT get an Inverse Condemnation Judgment (or File that Bert Harris Claim Right)

In an opinion on rehearing that seems to have taken over a year (here's the link), the 5th DCA reversed its decision (well, to be clear, Judge Sharp changed sides), and found that the circuit court erred in finding that a construction and debris landfill suffered a taking when a) both the County and the DEP clearly and almost admittedly changed their rules just to deny permits to that particular landfill, and b) there was massive issues in what needed to be done to close it.

The facts seem all over the place if you compare the opinions, at least insofar as they apply to whether the landfill could accept fill to be closed. Judge Sharp seems to have switched sides based on a view that the county would have allowed the owner to pay to have clean fill brought in to close the landfill -- even thought that isn't a "use" and wouldn't leave the property with other uses. The landowner appears to have wanted to have a permit to bring in clean C&D fill to cover the other fill.

OK, so the taking goes down. One thing that I find a serious issue in both opinions is that they find no taking in the denial of permits to continue operating the landfill under the "nuisance" exception of Lucas. The problem is that no-one ever tried to shut down the operation as a nuisance. They simply claimed "issues" that were "nuisance like" in the permitting process. The problem is that actual nuiscance doctrine always involves balancing -- an activity isn't always a nuisance just because it has some objectionable characteristics.

Let's be clear: the 5th found the DEP found that the activity was a public nuisance. But such a determination is an action in tort. DEP has never been given any authority to try nuisance torts. AS A MATTER OF THE SEPERATION OF POWERS, DEP DOES NOT HAVE THE AUHTORITY TO DETERMINE AND DECLARE A LANDFILL TO BE A PUBLIC NUISANCE. Those powers are set forth in section 403.704, Fla. Stat. and permit standards are set forth in sectin 403.707. While the Dep't has LOTS of ennumerated powers, the power to declare a public nuisance is not one of them. But, hey, when did a little thing like not having the power to abrogate the common law stop a zealous agency attorney (what, his/her oath as an attorney? respect for the constitution? ) ?

The court's approach here seems to indicate that if there is anything objectionable, the local government or a state agency can declare a nuisance without having to litigate the nuisance under the common law, and evade takings responsibility at the same time.

BUT THE BIG issue is that the landowner might have succeeded in a Bert Harris claim (which he won below) except that the 5th found (in a footnote) that he had not complied with the statutory requirement of filing a claim. It also found that Bert Harris liability doesn't attach to the abatement of a public nuisance. But if the landowner HAD filed the appraisal, at least there would be a reasonable fight over damages under that Act. Moreover, even if the denial of the landfill were not compensable, if there were no other uses left to the property, there may have been Bert Harris liability anyway.

2055 Wood Street, Suite 206, Sarasota, FL 34237      Phone (941) 681-8700

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.