Legislative Session Wrap-Up Part 2: Land Development

In addition to some of the bills I mentioned in Part 1 of my legislative session wrap-up, these bills will be of interest to the land development community.

Land Development Bills

HB 319: This bill clarified and amended transportation concurrency, which was overhauled by the 2011 Community Planning Act. The legislative staff report on the bill summarizes its effects:

[The bill places] new requirements on local governments that implement alternative mobility funding systems. The bill requires these alternative systems to allow developers to “pay and go” for new development. Under the bill, once a developer pays for its identified transportation impacts, the local government must allow the development process to move forward. The bill encourages local governments without a transportation concurrency funding system to implement an alternative mobility funding system.  

The bill prohibits alternative mobility funding systems that are not mobility fee based from requiring developers to pay for existing transportation deficiencies. Local governments must apply revenue they collect from alternative funding systems to implement the needs upon which the revenue collection was based and mobility fees must comply with the dual rationale nexus test. Under the dual rationale nexus test, a court will find an impact fee reasonable if: 1) it offsets needs that are sufficiently attributable to the new development and 2) the fees collected are adequately earmarked for the benefit of the residents of the new development. 

The bill makes the following changes to transportation concurrency mechanisms: (1) Allows developers to satisfy the transportation concurrency requirements of a local comprehensive plan by making a good faith offer to enter a binding agreement to pay for or construct its proportionate share of impacts; (2) Allows local government to pool contributions from multiple applicants to apply toward one regionally significant transportation facility; (3) Requires local governments to provide the basis upon which landowners will be assessed a proportionate share of cost addressing the transportation impacts from a proposed development; (4) Clarifies that s. 163.3180(5)(h), F.S., applies to local governments that continue to implement transportation concurrency; (5) Clarifies when local governments are not required to approve new development.

HB 357: This bill is aimed at increasing Florida's competitiveness in the manufacturing sector. Again, the legislative staff report provides an excellent analysis. Local governments are encouraged to establish local manufacturing development programs aimed increasing capital investment and job creation within the manufacturing industry. The Department of Economic Opportunity (DEO) is charged with developing a model ordinance for local governments to do so. Most importantly for business owners, the bill creates a coordinated approval process for development approvals and permits for manufacturers managed by DEO in order to streamline the process for manufacturers participating in local manufacturing development programs. Finally, DEO and Enterprise Florida are to develop and distribute materials indicating which areas have developed local manufacturing development programs.

HB 375: This bill reduces permitting and inspection requirements for septic tanks and related systems (technically called onsite sewage treatment and disposal systems). For landowners, the biggest changes is that some single-family homeowners may now operate and maintain their own systems with approval by the Department of Environmental Protection.

Finally, there was HB 999--this session's bill that every environmental organization loved to hate. There was a great deal of press about this bill, much of it negative. But what this bill did do was decrease a number of environmental permitting burdens. For that reason, I've included in it my land use and development roundup, even though it might have been better left to Part 3 of my legislative session wrap-up, where I will review environmental and natural resource bills. Below is a summary of changes taken from the legislative staff report.

• Limiting to three the number of times a local government may request additional information when reviewing an application for a development permit, unless the applicant waives the limit; 
• Expanding the activities that qualify as "phosphate-related expenses" for the purpose of receiving severance tax proceeds;
• Providing lease fee calculation for certain marinas, boatyards, and marine retailers and providing conditions for the discount and waiver of these fees;
• Providing general permits for local governments to construct certain mooring fields;
• Increasing the size of certain multi-family docks on sovereign submerged lands that are exempt from paying lease fees;
• Prohibiting water management districts (WMDs) from reducing allocations due to additional water supplies resulting from developing of desalination plants;
• Providing that the issuance of well permits is the sole responsibility of WMDs, delegated local governments, or local county health departments, and prohibiting government entities from imposing certain requirements and fees;
• Providing that licensure of water well contractors by a WMD must be the only water well contractor license required in the state or any political subdivision;
• Exempting certain farm ponds and wetlands from regulatory requirements;
• Increasing the amount the Department of Environmental Protection (DEP) is authorized to enter into a contract for preapproved advanced cleanup work for designated contaminated sites in each fiscal year;
• Allowing a person to bring a cause of action for damages resulting from a discharge or certain pollution if not authorized pursuant to chapter 403, F.S.;
• Extending the payment deadline of permit fees for major sources of air pollution;
• Specifying that field procedures and lab methods for certain water quality testing must be adopted by rule or approved by order;
• Prohibiting a local government from using a recovered materials dealer's registration information to compete unfairly with the dealer for a period of 90 days after it is submitted; 
• Authorizing DEP to establish permits for special events relating to boat shows;
• Authorizing expedited permitting for natural gas pipelines and for summary hearings; and
• Ratifying certain leases on state-owned uplands in the Everglades Agricultural Area.

Because of the implications of this bill to agriculture (explicitly relating to farm ponds and implicitly in other ways), I've now cross-referenced this post with Part 1 of my legislative session wrap-up.

A Cautionary Tale for Environmental and Land Use Practitioners: Florida Supreme Court Declines to Review Environmental Organization Sanctions

Today, the Florida Supreme Court decided not to a review a 1st DCA decision sanctioning environmental organizations. Martin Cnty. Conservation Alliance v. Martin County, No. SC11-2455 (May 9, 2013), declining to rvw. Martin Cnty. Conservation Alliance v. Martin Cnty., 73 So. 3d 856 (Fla. 1st DCA 2011) (original opinion revised on motion for rehearing). The Court originally accepted jurisdiction of the case on the grounds that the 1st DCA opinion expressly and directly contradicted with a decision by another district court of appeal. After further review, the Court determined that jurisdiction was improvidently granted and declined review of the case.

Keep in mind that, under Article V, Section 3 of Florida's Constitution, the Florida Supreme Court's jurisdiction is fairly limited. It has much stricter limitations on the cases it can hear than does the United States Supreme Court. In Florida, our court system has been set up so that the five district courts of appeal are the courts of last resort except in certain circumstances. This was not one of those circumstances.

That means the 1st DCA's opinion from 2011 is now final. As a reminder, I said previously that this case would be important to watch for anyone interested in environmental, land use, or administrative law in Florida. In a previous post, I explained:

[The Alliance] challenged two ordinances amending the Martin County comprehensive plan .... The Administrative Law Judge (“ALJ”) concluded the amendments would not cause environmental harm, and the Department of Community Affairs affirmed via issuance of an “in compliance” final order. The appellants appealed, but the First DCA dismissed the appeal for lack of standing, and it ordered appellants to show cause why sanctions should not be imposed for filing an appeal where appellate standing was lacking. The court, on its own initiative, has since withdrawn that order and replaced it with one holding the appeal to be in violation of section 57.105(1), Florida Statutes, and imposing sanctions .... Consequently, the First DCA imposed sanctions, stating that by advancing legal positions unsupported by material facts or law, appellants were statutorily subject to section 57.105 sanctions.

For a much more in-depth analysis, see my review of the 1st DCA opinion in the April 2012 edition of the Florida Bar's Environmental & Land Use Law Section Reporter.

This case serves as a cautionary tale to environmental and land use practitioners--and their clients--that advocacy in support of a position can sometimes go too far. That's not to denigrate the advocates in this case. There were good lawyers on both sides of this issue. But it should certainly go into the calculus of thinking about cases now. Per the 1st DCA's order, the sanctions will now be borne in equal part by the environmental organizations and their attorneys.

EDIT 5/10/2013: Bruce Ritchie has an article up at the Florida Current about the decision.

Legislative Session Wrap-Up Part I: Land Use, Agricultural, and Adverse Possession Bills

After a long legislative session, it's time to see which bills made it through the sausage factory and are on their way to the Governor's desk. I've discussed most of these bills previously. This is Part I of a series; environmental bills will be addressed in a future post. For land use issues generally, it was a tame session with few important developments. Agricultural landowners were the real winners in land use issues this session. At the end of this post I also summarize the bills the did not make it through session, but which you may have heard about.

Land Use Bills of Interest

HB 537: This is the glitch bill for the glitch bill. Recall that Yankeetown sued for a declaration that the 2011 Community Planning Act was unconstitutional. That litigation was settled last year when the Legislature passed a bill to allow local governments like Yankeetown keep their referenda processes. The only problem was the language was not narrow enough and a Palm Beach County judge interpreted the language to include a broad swath of referenda. The Legislature came back to fix it this year. After this, very very few local governments in Florida will be able to have referenda on land use issues. The bill states:

(b) An initiative or referendum process in regard to any local comprehensive plan amendment or map amendment is prohibited. However, an initiative or referendum process in regard to any local comprehensive plan amendment or map amendment that affects more than five parcels of land is allowed if it is expressly authorized by specific language in a local government charter that was lawful and in effect on June 1, 2011; a general local government charter provision for an initiative or referendum process is not sufficient.  

(c) It is the intent of the Legislature that initiative and referendum be prohibited in regard to any development order. It is the intent of the Legislature that initiative and referendum be prohibited in regard to any local comprehensive plan or map amendment, except as specifically and narrowly permitted in paragraph (b) with regard to local comprehensive plan or map amendments that affect more than five parcels of land. Therefore, the prohibition on initiative and referendum stated in paragraphs (a) and (b) is remedial in nature and applies retroactively to any initiative or referendum process commenced after June 1, 2011, and any such initiative or referendum process that has been commenced or completed thereafter is hereby deemed null and void and of no legal force and effect.

The bill also repeals the agricultural enclave language passed in last year's Chapter 2012-75, Laws of Florida. This should not affect many one way or the other, since that language was aimed at a narrow pet project.

HB 7019 - This bill includes the same language as HB 537, above, and some other miscellaneous provisions. Of note to the land-use community is that it extend the deadline for notifying a local government or agency that a permit holder wishes to extend a permit for two years (for the holder of "any building permit, and any permit issued by the Department of Environmental Protection or by a water management district pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from January 1, 2012, through January 1, 2014, is extended and renewed for a period of 2 years after its previously scheduled date of expiration").

Agricultural Bills of Interest

HB 203 - The 2003 Agricultural Lands & Practices Act preempted counties from adopting any new ordinance regulating a farm or forestry operation beyond adopted BMPs. This bill extends the preemption to nearly all local governments (water management and drainage districts are excluded). It also extends the preemption so that local governments may not assess any fees on farm and forestry operations subject to BMPs.

SB 1106 - Provides that a "local government may not adopt an ordinance, regulation, rule or policy that prohibits, restricts, regulates, or otherwise limits an agritourism activity on land classified as agricultural…” An agritourism activity is “any activity consistent with a bona fide farm or ranch that allows members of the general public…to view or enjoy agricultural-related activities….” The bill also limits the liability for landowners using their land for agrictourism, where land is posted in a specific manner.

HB 1193 -This bill makes the greenbelt assessment more favorable for landowners. Under the current law, the greenbelt assessment can be removed when: (1) the landowner changes the zoning of the land, even if it remains agricultural; (2) land classified as agricultural is surrounded by development and the county commission determines that it acts as a deterrent to further development; and (3) agricultural land is sold and the purchase price of land is three or more times the agricultural assessment. The bill removes these 3 provisions, making the only cause for removal of an agricultural assessment to be that it is no longer being used for an agricultural use. It also eliminates the ability of a value adjustment board to review the classifications made by the property appraiser unless a request is made by the landowner.

HB 7087 -  Tucked away inside this bill is a directive to FWCC to develop wildlife BMPs for agricultural lands. After these are developed, they could provide significant protection to landowners who follow them, as, under the Agricultural Lands & Practices Ac, the BMPs would likely preempt local governments from regulating issues that they encompass.

Best management practices for wildlife.-The department and the Fish and Wildlife Conservation Commission recognize that agriculture provides a valuable benefit to the conservation and management of fish and wildlife in the state and agree to enter into a memorandum of agreement to develop and adopt by rule voluntary best management practices for the state's agriculture industry which reflect the industry's existing contribution to the conservation and management of freshwater aquatic life and wild animal life in the state. 

(1) The department shall enter into a memorandum of agreement with the Fish and Wildlife Conservation Commission for the purpose of developing the best management practices pursuant to this section and applying such best management practices on agricultural lands within the state. The agreement may allow for selected pilot projects in order to better facilitate the development of the best management practices. 

(2) The department may adopt rules establishing the best management practices pursuant to this section. The rules must include provisions for a notice of intent to implement the best management practices and a system to assure the implementation of the best management practices, including recordkeeping requirements. 

(3) Notwithstanding any other provision of law, including s. 163.3162, the implementation of the best management practices pursuant to this section is voluntary and except as specifically provided under this section and s. 9, Art. IV of the State Constitution, an agency, department, district, or unit of local government may not adopt or enforce any ordinance, resolution, regulation, rule, or policy regarding the best management practices on land classified as agricultural land pursuant to s. 193.461.

EDIT 5/20/13: HB 999 also contains some provisions exempting farm ponds from some water regulations. For more detailed information, see my legislative session wrap-up Part 2.

Property Bills of Interest

HB 903: The adverse possession bill I wrote about previously was passed in a watered-down form. Adverse possession will be more difficult, as has been the trend in recent sessions, but not as much as in some of the bill proposals we saw earlier in the session. The big changes are (1) that an adverse possessor must pay all taxes and assessments in the first year and continuously throughout the possession and (2) anyone who occupies a structure solely by adverse possession is guilty of trespass. The second requirement will make it difficult to achieve some of the squatting we have seen in the news here in Florida.

Bills of Interest that were not Passed

HB 321 / SB 1716 - Would have exempted some small developments from transportation concurrency, proportionate fair share, and impacts fees.

HB 673 / SB 772 - Would have limited the ability of local governments to impose land use exactions.

HB 33 / SB 466 - Would have allowed landowners with lands contiguous to state-owned lands to submit a request to the state to exchange state-owned land for a conservation easement on privately-held land.

HB 901 / SB 584 - Would have require governments purchasing conservation lands to return an equal amount to private hands.

HB 7149 - Would have made the campus master planning process drastically simpler.

First Quarter 2013: Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted its column on the environmental and land use cases in Florida that you need to know about for the first quarter of 2013. This is the column that I formerly coauthored. There are a number of interesting cases this quarter:

• Galleon Bay Corp. v. Bd. of County Comm’rs, No. 3D11-1296, 2012 WL 6027768 (Fla. 3d DCA Dec. 5, 2012). As I discussed in an early post, "in determining whether a landowner’s investment-backed expectations are met in an inverse condemnation case, trial courts should not factor commonly owned but separately platted subdivisions in the analysis."

• Bd. of Supervisors v. Fla. Dep’t of Transp., 103 So. 3d 218 (Fla. 4th DCA 2012). I also covered this case previously. In an inverse condemnation proceeding, attorneys’ fees must be awarded based on all work relating to the suit. This includes work performed before the date a suit is filed. 

• Bischoff v. Walker, No. 5D11-2194, 2012 WL 6213271 (Fla. 5th DCA Dec. 14, 2012). "Where a deed references a property boundary defined by a natural monument, such as a canal or lake, Florida law follows the general rule that a rebuttable presumption exists in favor of finding the boundary at the centerline of the monument, absent evidence of contrary intent."

• Jass Properties, LLC v. N. Lauderdale, 101 So. 3d 400 (Fla. 4th DCA 2012). "Florida law does not expressly prohibit a municipality from declining to contract with tenants for utility services and instead restricting service agreements to property owners."

• Clark v. Bluewater Key RV Ownership Park, No. 3D11-884, 2012 WL 6602657 (Fla. 3d DCA Dec. 19, 2012). "An association of property owners at a recreational vehicle park is not subject to regulations of homeowners’ associations under chapter 720, Florida Statutes, where the park prohibits any permanent or semi-permanent structures intended or used as permanent living quarters."

• Florida Attorney General Opinion 12-32 (2012). "A proposed county ordinance that would condition acceptance of an application for rezoning on the consent of a specified number of property owners may be an illegal delegation of legislative power." 

My archives have about two years' worth of analysis and these summaries on the new environmental and land use cases, for those who are interested.

Water Law and the Dormant Commerce Clause - Is the Tarrant Case Much Ado about Nothing?

I've written previously about this year's water law case before the U.S. Supreme Court. Tarrant Regional Water District v. Herrmann, 11-889 (argued April 23, 2013). I've written about how this case has constitutional law implications, and that those of us in Florida and the Southeast should watch this one.

It may end up being much ado about nothing. (Sound familiar this term?) In today's oral argument, the implications of the dormant commerce clause on water law were barely mentioned. In fact, the dormant commerce clause was only mentioned three times. Suffice it to say the Justices don't seem interested in addressing that issue.

But in addressing what they were interested in, the Justices had a great deal of questions on this complex area of the law. As one report describes it,

Some questions sounded sympathetic to the thirsty Tarrant Regional Water District, which seeks Oklahoma water to serve Fort Worth-area customers. Other questions seemingly supported Oklahoma. Many questions, though, simply underscored the legal and technical complications now confronting justices dealing with what may be the biggest water law case of the year. “You read this brief that you submitted,” Justice Elena Kagan told the Obama administration attorney at one point, “and it gives you a kind of a headache.” 

At another point, Justice Antonin Scalia told a lawyer, “I don’t understand what you just said,” while Justice Sonia Sotomayor acknowledged that she “can’t make rhyme or reason” out of some provisions of a water deal. And following one drawn-out scenario that seemed to reach a dead end, Justice Stephen Breyer offered a simple one-word verbal shrug: “Anyway.” 

While some of the uncertainty may have been professed, in order to make a point, it did make clear what a different world water law can be. “They don’t address a lot of questions like this one,” attorney Charles A. Rothfeld, who represented Tarrant, noted following the seemingly inconclusive hourlong oral argument.

If you're as perplexed about all this as the Justices seemed to be, here is a great backgrounder article, complete with a graphic of exactly what water rights this compact covers. In the end, though, the Supreme Court will be addressing a very basic question: can Oklahoma keep Texas away from its water?

What Does the U.S. Supreme Court's Decker Decision Mean in Plain Language?

Once again, thanks to the Southeastern Wood Producers Association for inviting me to give its membership an update on the forest roads litigation in the latest edition of its newsletter, Out of the Woods. See Decker v. NEDC, 568 U.S. _ (2013) (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). This short, readable article is excerpted below.

U.S. Supreme Court Decides Forest Roads Case 

In good news for the forestry community, federal permits will not be required anytime soon for logging roads. In Decker v. NEDC, the U.S. Supreme Court decided that the U.S. Environmental Protection Agency’s (EPA) rules properly exempt stormwater runoff from logging roads from permitting under the Clean Water Act.

In the last issue of Out of the Woods, you may recall that I mentioned this case because it addressed two important questions. First, would all forest and logging roads require a time-consuming and expensive permit (permitting costs in the Southeast had been estimated as high as $21.46 per acre per year)? Second, would forest landowners be exposed a greater risk of environmental lawsuits? These questions made the Decker case the most important regulatory decision for forestry professionals and forest landowners in recent memory.

In the 1970s, EPA had developed the Silvicultural Rule, excluding logging roads from Clean Water Act permitting. No one had ever challenged that interpretation until an environmental organization, NEDC, sued Oregon and several timber companies. Although the defendants had acted legally under the EPA’s standards, NEDC argued that they should have had a permit because EPA’s rule was invalid. A federal trial court dismissed the case, but the appellate court invalidated the rule.

By the time the case got to the Supreme Court and was ready for oral arguments in December, the forestry community looked poised to win. EPA, though, complicated things by issuing a new rule on the eve of arguments that was supposed to fix the problem. After these complications, most observers thought it was unlikely that the Supreme Court would address the actual Clean Water Act permitting issues.

In a pleasant surprise for the forestry community, however, the Supreme Court did. It ruled that EPA’s rules exempt “discharges of channeled stormwater runoff from logging roads” from Clean Water Act permitting, reasoning that EPA’s interpretation of its own regulation was reasonable, was longstanding, and complied with the intent of the Clean Water Act. The Supreme Court could have stopped there, but it went on to congratulate Oregon on a job well done in implement its forestry best management practices. The Supreme Court seemed to recognize, as foresters and scientists have pointed out, that a nationwide Clean Water Act permitting regime might actually lead to dirtier water. In doing so, the Supreme Court recognized the importance of allowing landowners and the forestry community to work together voluntarily to address environmental problems, rather than requiring a command-and-control regime.

The Decker decision, however, was not all good news for the forestry community. The Supreme Court said the NEDC could bring its challenge to the Silvicultural Rule, which was over 30 years old. Normally, a rule can only be challenged for a short period of time before it becomes law. The Supreme Court ruled that because the challenge was to whether the landowners had proper permits, they were not actually challenging the rule directly. This will, unfortunately, lead to more litigation by environmental organizations that do not like longstanding rules. Landowners may be subject to these lawsuits, even if they follow all of the agencies’ rules and recommendations. With this risk, and the fact that NEDC has already filed a new lawsuit challenging EPA’s new rule, the Clean Water Act remains an issue that the forestry community must be aware of.

With all environmental law and regulatory problems, the real solution is political. Therefore, congressional action permanently exempting silviculture in all its forms from the Clean Water Act would still be the best solution. Recent election-year politics have not yielded results, but now that the Supreme Court has ruled, this issue may not be as contentious as it once was. You can help by calling your elected representatives.

Jacob T. Cremer is an attorney at Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., in Tampa. His practice focuses on property rights, environmental, and land use law. He grew up in a family that has been involved in forestry in Florida for many generations. Follow the developments on these cases and others at his blog, The Florida Land Environment, www.jacobtcremer.com.

Why Citizens are Baffled by Code Enforcement Proceedings

Even local governments receiving the benefits of Mother Teresa's good works and missions can't help themselves. Here's an excerpt:

Thirty-three years ago, Mother Teresa of Calcutta came to Miami to put her merciful motto of love into action: “To serve the poorest of the poor.”

Since then, each morning a group of sisters of the congregation of the Missionaries of Charity, donning their distinctive white blue-bordered saris, passes through the gates of their beloved Overtown convent — where they live without air conditioning, washing machines or television — and cross the street to enter the world of the poor: a soup kitchen founded by Mother Teresa. 

On a recent morning, following the Liturgy of the Hours prayer inside a tiny chapel with the image of Our Lady of Fatima, the sisters, accustomed to listening to candid words from grateful men, woman and children, found a notice of violation with a potential property lien from a City of Miami Code Enforcement inspector posted on an electrical pole. 

Apparently the sisters had never obtained a permit for feeding — for free and without using public funds — hundreds of homeless who see in their eyes the universal symbol of compassion and dignity represented by Mother Teresa. 

“What kind of violation are we doing?” asked convent superior Lima Marie. “Taking care of the homeless and feeding them is a violation?” 

The sisters felt intimidated because the notice ends with a threat: operating “a business without all required licenses is illegal under state and city law and is punishable by criminal arrest and/or closing the business.” 

With such aggressive language, it is obvious that city government shows no respect toward these religiously devoted women and lacks the basic sensitivity to differentiate between a business without a license and charity work.

Why not work proactively with citizens who are quite obviously benefiting the community? As with many enforcement actions, here, the power is the only justification for the means. If you're not seeing a theme in my posts here, see the Sackett case. Different context, similar hubris.

Your Raisins or Your Life: Recapping the Horne Oral Argument before the U.S. Supreme Court

Last week, the U.S. Supreme Court heard oral arguments in this term's third property rights case, which could have important implications for a variety of agriculture interests. Horne v. U.S. Department of Agriculture, No. 12-236 (argued Mar. 20, 2013). This is the case where raisin producers raised the Takings Clause as a defense to the government's imposition of fines for a New-Deal-era agricultural marketing law. The government, on the other hand, has argued that the raisin producers can try their hand at bringing a separate lawsuit but cannot use it as a weapon against government enforcement.

Lyle Denniston at SCOTUSblog recaps the strange and lively arguments:

A portentous constitutional issue hung in the air Wednesday as the Supreme Court examined government seizures of private property, and everybody seemed to want to have it decided. But it was almost totally lost in a fog raised by a perplexing array of minutiae about how the government tries to push up the price of raisins. The cloud was so thick that even a highly respected professor and former judge misspoke twice in describing his clients’ role.

***

In one of the points Wednesday when a bit of clarity seemed within reach, Justice Stephen G. Breyer (who often asks questions with multiple layers of complexity) suggested simply that the raisin program is either constitutional or it’s not, and “it rather seems to me that it is not a right fit for the Court of Claims. Am I wrong about that?”

The Wall Street Journal gets the implications right for the average Joe:

Taxpayers are wary of government programs that confiscate private property—witness outrage over the 2005 Supreme Court Kelo decision that let government take homes via eminent domain for private use. Now the High Court is considering another program that orders citizens to surrender their assets—or else.

U.S. raisin farmers have been required for nearly 80 years to turn over a share of their crops to the federal government every year, often at below-market prices. Last week the Supreme Court heard oral argument on whether, in the words of Justice Elena Kagan, this annual raisin heist is "a taking, or just the world's most outdated law." 

*** 

For small businesses, these routine confiscations are a special burden because so few can afford to defend their property rights. Similar federal marketing orders cover produce including apricots, avocados, kiwis and olives. The effect is to impose a tax on farmers. 

As Justice Antonin Scalia put it, so it's "your raisins or your life, right? . . . you don't have to pay the penalty if you give us the raisins." No, Mr. Palmore explained. "They have to give the raisins . . . It's not a choice." Which is why the Justices should find these takings to be unconstitutional.

Seems like The Onion picked a good case to parody, doesn't it?

Those who like to read the tea leaves would do best by checking out Robert Thomas's blow-by-blow analysis of the arguments. His prediction?

We're predicting a narrow ruling from the Court vacating the Ninth Circuit's amended opinion, holding that the issue is not "jurisdictional," and sending the case back to the Ninth Circuit for further consideration of the Hornes' request for en banc review. The multiple concessions from USDA's counsel are probably going to be too much to overcome, and a narrow remand would allow the Court to resolve the case without getting too far into the weeds about "handlers" and "producers," issues that no Justice seemed ready to tackle, and without getting into the merits of the takings issue.

In his preview of the Horne case, Robert Thomas did a good job of connecting Horne to a case that's near and dear to this author's heart, Koontz v. St Johns River Water Management District, No. 11-1447 (argued Jan. 15, 2012). I've written about the Koontz case many times, and as my readers know, I co-authored an amicus brief in support of the landowner-petitioner in that case. As I've discussed before, Horne, like Koontz, raises a fundamental question about the Takings Clause: does it have any power to prevent unconstitutional threats? Or must a property owner roll over to the government's extortion and only then go to court?

U.S. Supreme Court Says No Clean Water Act Permit Needed for Logging Roads, Raises Other Questions for Landowners and Agencies

In a victory for landowners, the U.S. Supreme Court just issued its opinion in the forest roads case, Decker v. NEDC, 568 U.S. _ (2013) (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). The Supreme Court began by breezing past the argument by EPA and the environmental plaintiff that the case was moot because of EPA's newly-revised rule exempting logging roads from permitting under the Clean Water Act. It held that the new rule was irrelevant to the merits of the case before it because the landowners might still be liable for penalties under the old rule for past violations of the Clean Water Act.

On the merits, the Supreme Court held that EPA's rules exempt "discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme." Slip Op. at 15. The Court reasoned that EPA's reading of its regulations was reasonable, was longstanding, and complied with the intent of the Clean Water Act:

It is well established that an agency’s interpretation need not be the only possible reading of a regulation—or even the best one—to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it “unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’” Chase Bank USA, N. A. v. McCoy, 562 U. S. _, _ (2011) (slip op., at 12) (quoting Auer, 519 U. S., at 461). The EPA’s interpretation is  a permissible one. Taken together, the regulation’s references to “facilities,” “establishments,” “manufacturing,” “processing,” and an “industrial plant” leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities associated sites, as well as other relatively fixed facilities.  

There is another reason to accord Auer deference to the EPA’s interpretation: there is no indication that its current view is a change from prior practice or a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___ (2012) (slip op., at 10). The opposite is the case. The agency has been consistent in its view that the types of discharges at issue here do not require NPDES permits.  

The EPA’s decision exists against a background of state regulation with respect to stormwater runoff from logging roads. The State of Oregon has made an extensive effort to develop a comprehensive set of best practices to manage stormwater runoff from logging roads. These practices include rules mandating filtration of stormwater runoff  before it enters rivers and streams, Ore. Admin. Rule 629–625–0330(4) (2012); requiring logging companies to construct roads using surfacing that minimizes the sediment in runoff, Rule 629–625–0700(2); and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity, Rule 629–625–0700(3). Oregon has invested substantial time and money in establishing these practices. In addition, the development, siting, maintenance, and regulation of roads—and in particular of state forest roads—are areas in which Oregon has considerable expertise. In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Congress has given express instructions to the EPA to work “in consultation with State and local officials” to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. §1342(p)(6). 

Slip Op. at 14-15. The Court's resolution of this issue seems to still leave the Ninth Circuit litigation on the EPA's new rule in play. I'll continue following that issue.

Beyond the immediate comfort that this opinion should give forest landowners, there are two significant issues that could have broader implications. First, we could see an increase in citizen-suit environmental litigation under the Clean Water Act. The Supreme Court held that "the instant suit is an effort not to challenge the Silvicultural Rule but to enforce it under a proper interpretation." Slip Op. at 9. It just happens to be that the NEDC's reading of the rule did not match EPA's. Therefore, "[t]he present action is within the scope of §1365. It is a claim to enforce what is at least a permissible reading of the Silvicultural Rule." Slip Op. at 8. Consequently, environmental organizations will most certainly argue in the future that regulations are ambiguous and should be interpreted in a different--and novel--way that implicates liability for landowners. What's a landowner to do if it can be sued for following a regulation in exactly the way that EPA interprets it?

The second broader implication, as the New York Times notes, is Justice Scalia's call for review in his dissent of the longstanding principle of administrative law that executives agencies receive great deference to agency interpretations of their own regulations:

The Court gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, moreover, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed. Enough is enough. 

Justice Scalia forcefully argues that, while there may be reasons to defer to an agency's interpretation to a statute where Congress has purposefully delegated authority to the agency, there is no good reason to do the same for an agency when it interprets its own rule. "For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.” Ultimately, he says, "He who writes a law must not adjudge its violation."

This idea seems quite reasonable to me, just as it did to Chief Justice Roberts and Justice Alito. They, however, recognized the argument goes "to the heart of administrative law." Accordingly, while they expressed some interest in reconsidering this principle, they felt this case was not the proper vehicle for the argument because it had not been argued in any depth. At the very least, Justice Scalia's dissent should give rise to some interesting petitions for certiorari to the Supreme Court in the coming days.

What are the Timing Requirements of a Bert Harris Act Claim? New Decision Reinforces Need for Florida Supreme Court Review

Under a recent decision about the Bert Harris Act, property owners in some parts of the state will receive stronger protections than in others. Wendler v. St. Augustine, 5D12-2563, 2013 WL 1007290 (Fla. 5th DCA 2013). The case muddies the waters for the timeline of when a claim under the Act must be presented to a government entity before a lawsuit is filed. A local news outlet reports the background:

Between 1998 and 2006, the Wendlers purchased eight parcels in St. Augustine; including seven structures built between 1910 and 1930 located in a National Register of Historic Places District. The parcels are subject to city ordinance, section 28-89, City of St Augustine Municipal Code, which regulates the demolition or relocation of certain historic structures—the Wendlers say that they were aware of the ordinance at the time they purchased the property.

But, in 2002, the City revised the ordinance by expanding the list of regulated structures to include homes at least 50 years old. The amendment also extended the waiting period for a demolition permit from six months to one year. In 2005, the City again amended the ordinance, authorizing the City’s Historic Architectural Review Board to deny demolition or relocation requests indefinitely for three types of structures, including those considered “contributing property to a National Register of Historic Places District”. On December 5, 2007, St Augustine’s Historic Architectural Review Board first applied the twice-amended ordinance to the Wendler property and denied the demolition permits.

In a press release I received by email from the Coalition for Property Rights, the attorney representing the property owners explains in more detail:

In 2007, the Wendlers applied for “Certificates of Demolition” regarding seven buildings located on their private property. The buildings, originally built between 1910 and 1930, have been used as apartments rented primarily to Flagler College students. With the passage of time, the buildings have become uneconomic due to the extraordinary costs of upkeep and Flagler College’s recent construction of student dormitories 

The Wendlers wanted to demolish or relocate the old buildings to make way for a new Henry Flagler-styled hotel they wished to develop at the gateway of the City along King Street. The City denied the Wendlers’ request on historic preservation grounds, on a general finding that removal of buildings would be detrimental to the historic and architectural character of the City. 

This was surprising given that the City had earlier approved the demolition of houses next door for Flagler College’s construction of lighted tennis courts and also designated the King Street “entry corridor” as “blighted” and in need of redevelopment by private enterprise. The City showed little concern that the Wendlers were losing money on their property when left with the present use of the old buildings as apartments. For the public good, the City expected the Wendlers to continue with their economic hardship as part of historic preservation. 

To understand the case, one has to look through the City’s smokescreen to really see what is going on. Of 162 applications for demolition made in a 10-year period, the City of St. Augustine denied only 7 of those applications indefinitely – those 7 applications were the ones made by the Wendlers. Incredible as it may sound, the City argued that the Wendlers should have known that their applications would be denied when the City approved all of the other 152 applications. 

The trial court judge threw out the Wendler's suit, reasoning they had not presented their claim in a timely manner to the local government before suing. The 5th DCA reversed, with two important holdings concerning when a suit is properly brought under the Bert Harris Act. 

First, the 5th DCA upheld Citrus County v. Halls River Development, Inc., 8 So.3d 413 (Fla. 5th DCA 2009). That case held that the impact of governmental regulations can sometimes be determined when a government simply adopts the changes to its laws and regulations, rather than when they are specifically applied to the property owner. The 5th DCA implied that its decision conflicts with the 1st DCA, which has held to the contrary that “until an actual development plan is submitted, a court cannot determine whether the government action has ‘inordinately burdened’ property." M & H Profit, Inc. v. Panama City, 28 So. 3d 71, 76 (Fla. 1st DCA 2009). This holding probably only applies to the pre-2011 Bert Harris Act. In 2011, it was amended to provide that a law or regulation is only applied upon enactment if notice is provided to affected property owners.

Second, the 5th DCA held that the statute of limitations for filing a Bert Harris Act claim in court is within 4 years of the government’s act. Section 70.001(11), it held, is a pre-suit condition merely requiring that a claim be presented to a local government within 1 year of its act. The court also agreed with Russo Assocs., Inc. v. Dania Beach Code Enforcement Bd., 920 So. 2d 716 (Fla. 4th DCA 2006), that the law's tolling provision for other legal relief applies to both the pre-suit notice condition and to the filing of the claim in court. The 5th DCA implied that its decision conflicts with the 2d DCA, which held to the contrary that the Bert Harris Act "provides that the action must be filed within one year of the application of the ordinance to the subject property." Turkali v. Safety Harbor, 93 So.3d 493, 494 (Fla. 2d DCA 2012). I posted previously on the Turkali decision. This holding is important because it applies to cases both before and after the 2011 amendments to the Bert Harris Act.

With the 5th DCA recognizing that its decision conflicts with two other district courts of appeal, I wouldn't be surprised to see this one show up at the Florida Supreme Court. Until then, the safe thing to do is the present claims to government entities within 1 year of the government's action, period.