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.

IMPLICATIONS:
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.

3d DCA - "Side" Interpretation of Code Not Separately Reveiwable

In City of Sunny Isles Beach v. Publix, the 3d DCA continued its apparent quest to tell the appellate division of Dade County never to side with a landowner or developer on a land development code issue.

The 3d issued a writ of prohibition preventing the circuit court from hearing a declaratory action brought by Publix against a written interpretation of the local zoning code by the city attorney. The code provided NO local administrative appeal of such a decision.

The 3d granted prohibition on the grounds that the opinion was used in the city commission's denial of Publix's site plan, and that decision was being reviewed by certiorari, so that would be the only review under the rubric that there is no judicial remedy until administrative remedies are exhausted.

Well, all very nice, but the bottom line is that cert review of the denial doesn't get fair review of the issue, for several reasons:
1. If there's any other basis to justify the denial, there's no review of that legal opinion or error.
2. The standard of review at that point is totally unclear because cert review is not to determine "mere legal error" but only "gross" errors that are fundamental (at least when a landowner is seeking review; when it's the government, any error appears to be fundamental in the 3d). Pile on top of that the unclear status of how much discretion to give the local interpretation, and you get a situation where the decision would not be overturned unless there was a finding in the order that flatly contradicted the ordinance AND it was clear from the order that the erroneous construction was the sole reason for the denial.
3 Then throw on top of this the "miscarriage of justice" standard, which was originally added to the 2d tier review standards to indicate further the kind of discretion there is in the discretionary review, but which shows up frequently in circuit court cert opinions.

The upshot is that the issue doesn't actually get resolved and determined. The city will win the cert petition and then claim that this vindicates the interpretation. Which it doesn't and can't.

Which gets to the really interesting problem: a circuit court's review of a local decision really can't be taken as "stare decisis" regarding any interpretation of a local ordinance involved for the simple reason that the court isn't determining whether the interpretation was right or wrong, it's whether it was so totally illegal as applied to particular facts that it created a miscarriage of justice.

Which in turn means that there is no real means in Florida today (and certainly in the 3d District, based on this opinion) to get a full and fair determination of the meaning of local zoning and environmental regulations. Back to the need for a statutory remedy for the review of local ordinances and decisions.

Code Enforcement and the Fact Not Discussed

In City of Miami v. Cortez, the 3d District overturned a circuit court decision in an appeal of a code enforcement board "mitigation order."

The 3d found that the circuit court failed to comport with the essential requirements of law. It found that any objections to the testimony in the mitigation hearing were not preserved, and that due process had been followed.

Here's how the 3d characterized the background facts:

On October 3, 2003, the City’s Code Enforcement Board ("Board") held a hearing
where property owner Amado Sabina pled guilty to a code violation for
performance of work on a residential property without a final permit. The Board
entered an enforcement order on October 10, 2003. Property owners Sabina and
Eumelia Cortes were afforded 60 days to correct the violation or face a fine of
$250 per day.

The property owners failed to correct the violations
and fines totaling $105,750 were assessed. On June 2, 2005, the Board held a
mitigation hearing to determine whether to reduce the amount of the fines
accrued. All of the witnesses at the hearing were duly sworn. At the conclusion
of that hearing, the Board reduced the fine to $10,000 and entered a mitigation
order.

The property owners appealed the mitigation order to the appellate
division of the circuit court, arguing that the mitigation order should be set
aside because the city inspector had improperly delayed inspection for a period
of six months. However the Board had already accepted this argument in reducing
the fine to $10,000. The appellate division nonetheless reversed both the
enforcement and mitigation orders.

The 3d quashed the decision of the circuit court.

However, it's clear to me that the 3d didn't include the truly relevant facts or address the real due process problem.

I suspect that the owners thought that they had fixed the problem and were shocked that fines were still accruing - this happens ALL THE TIME in these cases. The issue is that these orders end up creating "running fines" and (I think unconstitutionally) put the burden of proof on the owners to demonstrate that the violation no longer exists. Once an order imposing fines is issued, the local governments claim that they are under no further obligation to investigate or to determine whether a violation continues.

When the violation is for work without a permit, the violation generally isn't fixed until a permit is issued, any remedial work is done, and the work is inspected and signed off. This creates a situation where the local government can leave a person in violation by delaying permit decisions or imposing improper conditions, by finding inconsequential problems in the inspection, or by not inspecting. And by not notifying the code enforcement people when the inspection is done.

It's quite possible under the fact here that the property owners in fact got a permit and did anything else they needed to do within the 60 day window, but that the inspections were delayed and then even after the inspection the fines were accruing.

I would argue strongly that if that is the case, then the code enforcement statute is being administered unconstitutionally. I KNOW that this happens every day.

And I'm having to speculate because the opinion in this case is so devoid of the truly relevant facts, but I suspect that this is what the owners showed to the circuit court. So, did the 3d District get it wrong? We really can't tell because the opinion doesn't give use the rel event facts.

LESSON: If a client gets into code enforcement problems, get in the board's face and start objecting to EVERYTHING from the first hearing. Object that the hearings violate due process because the written guidelines are inadequate or lacking; demand rulings on right to cross examine; object to every piece of written evidence that is offered (most of it is hearsay, lots of it is inadmissible). Object to the local ordinance if you can. And demand very specific findings from the Board or Special Magistrate regarding EXACTLY what actions need to be taken to correct the violation. And then appeal the VERY FIRST determination (the "violation" determination).

If it gets to a "penalty" hearing, make the same objections. Then enter evidence on the "four factors" in the section 162.09 regarding the amount of penalty.

The code enforcement system has turned into a maze of abusive traps because the processes are badly written, badly administered, and almost always applied against unrepresented respondents.

5th Upholds Special Use - But It's Very Confusing

In Keene v. Zoning Bd. of Adjustment the 5th District upheld a determination by the circuit court that a semi-annual riding event with dozens of riders was permitted in the Rural Residential area.

Interesting issue one: no one mentions the deference to agency construction rule, or if it applies - more interesting because of issue number two.

Interesting issue two: this is framed as an appeal from a declaratory action in front of the circuit court, which could only be a 163.3215 challenge, because any other challenge would be a cert petition. However, the majority opinion does not frame the question as whether the action was consistent with the comprehensive plan, but whether the use was consistent with uses permitted as special uses under the Land Development Code. Something's wrong, and I suspect that the dissent has the right analysis - which focuses on the comprehensive plan uses.

So we have a case where it appears from the appellate decision that the causes of action, the standards of review, and the standard being reviewed against (the LDC vs the plan) are a total mishmash. Why? Broken record time: the absence of a statute that would provide a consistent form and method of judicial review of local government decisions, one that also states that the review is appellate, what the standard of appellate review is, what the appellate remedies are, and what the standards for decisions are.

5th DCA - open meeting and discussion can cure open meeting violation

In Finch et al v. Seminole School Bd, the 5th DCA held that a long open meeting, at which issues were fully vetted, cured an earlier open meeting violation that occurred when school board members took a bus trip to view sites.

In effect, the Court found that the violation was a technical one, and that the violation did not create communications that the later public meeting did not cure. While the court did not discuss it, it seemed clear that any other ruling would create an unacceptable situation where an open meeting violation regarding a particular subject couldn't be cured and would leave the board powerless to act on that subject.

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.

Fla Supremes: Uniform Statutes Aren't

In Phantom of Brevard v. Brevard County, the Fla. Supreme Court put home rule over legislative authority by upholding a line of cases requiring the Legislature to use ridiculously specific magic words in order to preempt local authority.

A statute governing the regulation of fireworks that has as its purpose and intent section the following:

This chapter shall be applied uniformly throughout the state. Enforcement of
this chapter shall remain with local law enforcement departments and officials
charged with the enforcement of the laws of the state.

The Supreme Court held that this does not prevent local governments from adopting additional provisions that add regulatory requirements or restrictions to the statutory framework with this language:

However, focusing on potential differences caused by varying local requirements
confuses the issue. Because chapter 791 does not include an insurance coverage
standard or requirement, chapter 791 is not being applied disparately. In other
words, a state statute is not being applied in a non-uniform manner when a
locality enacts a regulation on a particular matter that is not addressed in the
statute. The statute is being applied uniformly. It is the local ordinance that
is creating any variance between counties.

In other words, the statutory requirement for uniform application is totally superfluous and ineffectual. It is a matter of fundamental " law that a local government could not modify the statute itself. The idea that a statute providing for uniform laws, or uniform application, does not evidence legislative intent to preempt the subject matter from local standards is a slap in the face to the legislature and makes a fetish out of home rule. While local government have home rule under the constitution, the constitution also clearly provides for the supremacy of the state legislature and the courts seem to have forgotten it - or at least have developed an unreasoning hostility to it.

LESSON: Legislative draftspeople simply need to start adding the phrase: "all regulation or setting of regulatory standards is hereby preempted and local government shall have no authority to adopt different standards" to pretty much every piece of environmental, land use, and business regulation that goes through their doors.

A Heavily Divided Court Lets the Alternative Referendum Amendment on the Ballot

In Advisory Opinion RE: Florida Growth Management Initiative Giving Citizens the Right to Decide Local Growth Management Plan Changes, a deeply (and somewhat bitterly) divided Court determined that the Ballot Title and Summary for the "alternative referendum amendment" were not misleading, and that the matter could be put before the voters on certification of sufficient signatures.

The issue that the dissent fixed on is the one that might also be the political chain around this measure's neck: the very restrictive requirements for signing petitions to require a referendum for a particular plan amendment. The dissenting justices found that the summary's failure to disclose those restrictions made it misleading. I'm quite sure that quotes from the dissent will be placed front and center in materials attacking the amendment.

I personally wish those provisions were not there - or less onerous. I think that the idea of having a referendum by petition (rather requiring them automatically) is a decent compromise - but the pretty extreme limitations on this amendment may limit its use as an anti-Hometown Demagogy weapon.

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.

Fla Supremes Turn a Blind Eye to Costs of Hometown Democracy Amendment

In Advisory Opinion re: Referenda Required for Adoption and Amendment of Local Comprehensive Land Use Plans, the Florida Supreme Court rejected a second proposed financial impact statement for the proposed Hometown Demagoguey amendment.

The gist of the Court's complaint was that the impact statement assumed that there would have to be a significant number of special elections:

As drafted, the revised financial impact statement would mislead voters into
believing that implementation of the amendment will require the expenditure of
millions of dollars. Such an inference is patently contrary to the purpose of
the amendment, which is to limit the number of amendments to local comprehensive
land use plans.

Of course, the courts statement of the "purpose" of Hometown Demagoguey is simply not true: the purpose is not to limit the number of amendments, but to subject them to referenda. Limiting the number of amendments is not a stated purpose - at least it's nowhere in the ballot title and summary.

A majority of the Court (at least this time - see later opinion on the "counter-amendment") seem dedicated to seeing this as a "good government" reform- there seems to be no recognition of the highly problematic and anti-democratic effects it will have. There's no recognition of the number of state-mandated amendments that will have to be processed (many on an annual basis) and voted on, no recognition that there is a right to seek plan amendments, no recognition that each amendment might require its own place on a ballot, no recognition that there aren't twice a year elections in most jurisdictions.

Fifth DCA Reduces Standing in 163.3215 Challenges to a Pleading Exercise

In Save the Homosassa River Aliance v. Citrus County, the 5th District dramatically expanded the scope of standing under section 163.3215, essentially eliminating any meaningful limitation from the language that requires a plaintiff to claim and demonstrate impacts to an interest protected by the plan that exceeds that of the general public.

The challenge involved a rezoning that increased density, from 15 to 87 units.

In reviewing the cited allegations of the complaint, at least one of the plaintiffs probably alleged sufficient standing based on potential traffic impacts to a hurricane evacuation route. But the rest of the allegations are just junk - claims that the plaintiffs enjoyed canoeing on the river that are not then supported by any claim of particular plan policies that protect those interests and that would be violated by the development order.

In order to gut the definition of "aggrieved or adversely affected" in the statute, the court sets up a straw dog of a "unique" interest or impact - which is clearly not required, and then allows "any" impact to "any" interest:

The allegations show that the Plaintiffs all have a direct and demonstrated
concern for the protection of the interests furthered by the comprehensive
plan that would be adversely affected by allowing a development that violates the plan.
An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a
"unique harm" limitation onto the statute would make it impossible in most
cases to establish standing and would leave counties free to ignore the plan
because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right.

But for the most part, the allegation in the complaint cited by the Court didn't claim that the development would harm the protected interests that were claimed in any meaningful way. The court's attempts to distinguish the earlier Keyser and Putnam County Envt'l Council opinions are simply unconvincing.

The REAL problem is that the courts now permit "strict scrutiny" of the plan that doesn't discriminate between the broad language of goals or objectives, and many totally subjective policies. There is no way for ANY development to be consistent with most plans if every part of the plan is read expansively.

Read the dissent to this case. What's coming is an explosion of cases that will essentially halt any development that anyone doesn't like for as long as the NIMBY-neighbors can afford to litigate.

A New Attack on a Comp Plan Amendment - and Concurrency Creates Need for Interlocutory Review

OK, this one is innovative and interesting - and I can't believe it hasn't been raised before.

In CNL Resorts v. City of Doral, the 3d DCA overturned an ALJ order that dismissed a counts in a challenge to a comprehensive plan amendment that claimed inconsistency with the provision of the state comprehensive plan that requires consideration and protection of private property rights.

The first interesting issue was that the court accepted the interlocutory appeal of the dismissal on the basis that concurrency windows were shutting and would harm the landowner:

Here, we agree that CNL would be deprived of an adequate remedy and suffer
irreparable injury due to the City having limited roadway capacity. In order to
develop property, landowners need to obtain the requisite permits from the City.
Thus, during the pending proceedings, the surrounding permitted neighbors will
continue to develop their properties and consume the available roadway. In turn,
once the available roadway capacity is filled, CNL will not be able to obtain a
permit, and its development rights will be extinguished. Therefore, CNL has
shown there is no adequate remedy without this Court’s immediate review, and we
have jurisdiction to hear CNL’s petition

On the substantive issue, the ALJ had found that the petitioner was trying to raise constitutional claims that were not proper in the administrative forum. The 3d DCA disagreed, finding (correctly, I think) that the claim was whether the statutory requirement to consider and respect property rights had been met.

If this challenge is ultimately successful, it creates an interesting theory for landowners who believe that the plan provisions improperly restrict property rights - worth reading for everyone.