Sunday, March 15, 2015

Hillcrest Property, LLP v. Pasco County - SCOTUS Brief in Opposition

Pasco County has filed its brief in opposition in Hillcrest Property, LLP v. Pasco County.

You might recall that this case has some Due Process issues that sound awfully familiar to the exactions reviewed by the U.S. Supreme Court in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2596 (2013). After the district court struck down an exactions ordinance as unconstitutional for violating Substantive Due Process, the Eleventh Circuit reversed on statute of limitations grounds. Hillcrest Property, LLP filed a petition for certiorari to the U.S. Supreme Court asking whether local governments can have their unconstitutional ordinances immunized from challenge by mere passage of time. The petition has garnered a lot of attention, including an amici brief by the National Association of Home Builders and others.

Here's the County's summary of its arguments:
This Court should deny Hillcrest’s petition for certiorari because the Eleventh Circuit’s decision applying a statute of limitations to bar Hillcrest’s facial substantive due process claim against the Ordinance neither conflicts with this Court’s decisions nor with decisions from other circuit courts of appeals nor with a state court of last resort. Moreover, Hillcrest below never raised and the magistrate judge, the district court and the Eleventh Circuit never considered the key components of Hillcrest’s petition, to wit, 42 U.S.C. § 1988 and “the federal Continuing Violation Doctrine.” Finally, Hillcrest’s and the amici’s extended parade of horribles stemming from the Eleventh Circuit’s decision is grossly exaggerated, if not completely wrong. 
Hillcrest’s petition is saturated with references to 42 U.S.C. § 1988 and “the federal Continuing Violation Doctrine.” Indeed, the second of the two questions Hillcrest presents for review involves only one issue: “whether the federal Continuing Violation Doctrine” applies. Hillcrest, however, never raised Section 1988 or any “Continuing Violation Doctrine” in the district court or in the Eleventh Circuit. Neither the magistrate judge nor the district court judge nor the Eleventh Circuit in their respective recommendation and decisions mentioned Section 1988 or any “Continuing Violation Doctrine.” This Court almost never considers issues, such as Section 1988 and any “Continuing Violation Doctrine” here, which were neither raised nor decided below. 
The other question which Hillcrest presents, “[w]hether a state statute of limitations should apply to a claim . . . seeking to enjoin enforcement of a county ordinance” claimed to be facially unconstitutional, asks this Court to jettison well-established principles from this Court and from the circuit courts of appeals. Federal courts have consistently applied state statutes of limitations against facial claims against ordinances and statutes, at least where defendants, such as the County here, raised the statute of limitations, at least outside the First Amendment and race contexts, and at least where, as the Eleventh Circuit found here, the “injury should have been apparent to Hillcrest upon the Ordinance’s passage” (Appendix 9). Moreover, there is no need to discard well-established principles here: Hillcrest’s as-applied substantive due process claim remains pending and Hillcrest may pursue damages and injunctive relief in connection with its as-applied claim. 
Hillcrest and the amici have peppered their petition and brief, respectively, with fears that the Eleventh Circuit’s decision applying a statute of limitations to bar Hillcrest’s facial claim would effectively “immunize” an ordinance or statute from constitutional challenge. What Hillcrest and the amici forget is that, while Hillcrest’s facial substantive due process claim against the Ordinance has wound its way through the Eleventh Circuit up to this Court, Hillcrest’s as-applied substantive due process claim against the Ordinance remains to be tried in district court. Moreover, circuit courts of appeals have consistently held that the bar of a statute of limitations against a facial claim against an ordinance or statute does not bar an as-applied claim against the ordinance or statute, on which the statute of limitations only begins to run once the ordinance or statute is “applied.” 
Hillcrest also has suggested that it would be unfair to bar its facial substantive due process claim because the statute of limitations could run prior to a landowner being aware that it had, or should have, a claim against the Ordinance. What Hillcrest overlooks is that the Eleventh Circuit held that the four year statute of limitations expired on Hillcrest’s facial substantive due process claim on November 22, 2009, four years from the enactment of the Ordinance on November 22, 2005. Hillcrest had applied for preliminary site plan approval on December 18, 2006, almost three years prior to November 22, 2009, and the County definitively “applied” the Ordinance against Hillcrest at least by August 23, 2007, two years, three months prior to November 22, 2009. Thus, even if Hillcrest were unaware of the Ordinance (or its impacts) prior to August 23, 2007, Hillcrest had two years three months to bring its facial substantive due process claim against the Ordinance within the four-year period the Eleventh Circuit applied. Hillcrest, however, did not sue prior to April 7, 2010, more than two years seven months after the Ordinance was definitively “applied” to Hillcrest and almost six months after the four-year statute of limitations on facial claims had expired.
Look for the reply soon. In the meantime, check out Robert Thomas's post on the amici brief.

Sunday, March 8, 2015

New SCOTUS Amicus Brief in Hillcrest: Landowner and Development Groups Support Landowner

I've written about our petition to the U.S. Supreme Court beforeHillcrest Property, LLP v. Pasco County, No. 14-864. At its core, the petition asks whether local governments can immunize their unconstitutional ordinances from facial challenges by waiting to apply them to landowners, so that the statute of limitations runs out. That is, does a local government have a right to keep enforcing an unconstitutional law that is on its books, just by the passage of time?

We recently learned that a number of organizations focused on advancing the interests of landowners and developers filed an amicus brief in support of the landowner in this case, Hillcrest Property, LLP.  The National Association of Home Builders, the National Association of Realtors, the National Federation of Independent Small Businesses, the International Council of Shopping Centers, the National Multifamily Housing Council, and the Florida Home Builders all signed onto the brief, explaining:
What unites amici in this single brief is the fundamental belief in protecting the rights of private property owners, particularly against extortive and unconstitutional government regulation. Amici have a particular interest in this case, because the Eleventh Circuit Court of Appeals’ decision insulates the Respondent’s unconstitutional law from a facial substantive due process challenge. This decision now provides local government with an incentive to freely pursue constitutional mischief by enacting an unconstitutional law, and then waiting until the statute of limitations passes before enforcing it. Amici’s members, many of whom are small business owners, will now have to expend limited financial resources to bring a premature facial substantive due process claim, only to find out that their claim has no opportunity to be heard. Amici seek clarification that this Court’s precedents prevents such an outcome.
Here's the summary of their argument:
The Eleventh Circuit erred by creating a blanket rule of law that the mere enactment of an ordinance always commences a statute of limitations for a facial substantive due process claim. Such a rule creates an untenable scenario since property owners will often lack Article III standing to bring a claim within the time allowed under a statute of limitations, thereby effectively shutting the courthouse door. In cases where courts have found that the enactment of a law starts the statute of limitations clock, there have been concrete and particularized injuries to the plaintiffs. 
To uphold the Eleventh Circuit’s decision will waste precious judicial resources by requiring property owners to prematurely initiate lawsuits. At the same time, many of the amici members are small businesses, and are unable to mount a long and costly legal challenge before suffering a concrete injury. 
Further, this is not a Fifth Amendment Takings Clause case. Yet, the Eleventh Circuit incorrectly utilized statute of limitations rules from Takings jurisprudence by holding that Petitioner’s facial substantive due process claim was time-barred, because the statute of limitations commenced from themere enactment of Respondent’s unconstitutional Right-of-Way Preservation Ordinance (“Ordinance”). The court below held that the event of the Ordinance enactment, by itself, devalued Petitioner’s property. Hillcrest Prop., LLC v. Pasco County, 754 F.3d 1279, 1283 (“We are persuaded by the reasoning expressed by our sister circuit’s . . . . Hillcrest’s land became encumbered immediately upon the Ordinance’s enactment in 2005. Its property would have decreased in value at that time because any current or future development plans would have been subject to the Ordinance’s requirement that, in exchange for granting a commercial development permit, Hillcrest would have to deed part of the land to the county without payment for the acquisition.”). The Eleventh Circuit’s reliance on a purported “decrease[] in value” is in error. As this Court has explained, devaluation of property is part of the analysis of whether just compensation is due under the Takings Clause, but devaluation does not play a role in substantive due process analysis. Lingle v. Chevron, 544 U.S. 528 (2005). 
Finally, in cases where lower courts have found that the statute of limitations commences from the enactment of a law, the injury sustained by the plaintiff was fully effectuated by the enactment of the statute. Such an injury did not occur here.
As usual where yours truly is on the brief, I leave the commentary to others. There's an article over at Law 360 and an announcement by the Florida Home Builders Association.

Sunday, February 15, 2015

New Petition for Certiorari - Hillcrest Property, LLP v. Pasco County - The Next Koontz?

In a new petition for certiorari, Hillcrest Property, LLP v. Pasco County, No. 14-864, to the U.S. Supreme Court asks whether local governments can immunize their unconstitutional ordinances from facial challenges by waiting to apply them to landowners. The introduction follows. Because yours truly was on the brief, look to Law 360 or Robert Thomas for the commentary.
In Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2596 (2013), this Court held that governments cannot make extortionate demands for land because they “impermissibly burden the right not to have property taken without just compensation.” This Court explained the “reality” that “landuse permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the government often has broad discretion to deny a permit that is worth far more than property it would like to take.” Id. at 2595.

Pasco County enacted and enforced an Ordinance that, in every application, violates Koontz, while depriving affected property owners of the substantive and procedural protections of eminent domain. Hillcrest attacked the Ordinance as violating Due Process both on its face and as-applied under 42 U.S.C. § 1983. On summary judgment, the district court held the Ordinance facially unconstitutional, finding that it leveraged the police power to exact land that the County would otherwise have to pay for in violation of the Due Process Clause. Characterizing the Ordinance is as “an unmistakable, abusive and coercive misapplication of government power, perpetrated to cynically evade the Constitution,” App. 69, the district court then enjoined the County from prospectively enforcing the Ordinance.

On appeal, the Court of Appeals for the Eleventh Circuit held that Hillcrest’s facial claim was barred by Florida’s four-year personal injury statute of limitations. Without analyzing the propriety under 42 U.S.C. § 1988 of applying a statute of limitations to a law that is facially void ab initio, and therefore not law at all, the Eleventh Circuit assumed that Florida’s four-year statute of limitations applied. By so doing, the Eleventh Circuit decided an important federal question that has not been settled by this Court: namely, whether a state statute of limitations can bar a federal court from prospectively enjoining enforcement of an unconstitutional law.

Even assuming that a statute of limitations can be applied to a claim that a law is facially unconstitutional (and therefore void ab initio), the Eleventh Circuit ignored the federal rules of accrual and the Continuing Violation Doctrine. First, the Eleventh Circuit conflated the remedial distinction between facial and as-applied challenges with the unrelated jurisdictional question of statutes of limitations, creating different and unworkable accrual rules for facial and as-applied Due Process claims. Second, the Eleventh Circuit barred Hillcrest’s facial Due Process claim, despite the fact that the injury upon which Hillcrest’s facial claim was based was not fully effectuated and complete until, as the district court found, the County first applied the Ordinance to Hillcrest, well within the statutory period after the Ordinance was enacted. Third, even if Hillcrest’s facial Due Process claim accrued upon enactment of the Ordinance, the Eleventh Circuit ignored the Continuing Violation Doctrine, which prevented the enforcement of the County’s facially unconstitutional ordinance from being insulated by a statute of limitations. The Ordinance subjected Hillcrest to the continuing and ongoing threat of extortionate leveraging of the police power. While this Court has clearly held that the doctrine is applicable to suits under § 1983, the courts of appeals are now intolerably split on whether the doctrine must be applied to facial Due Process challenges under § 1983.

In sum, the Eleventh Circuit has forever immunized from facial challenge a regulatory scheme that cannot ever be applied constitutionally. This enables the County to continue to extortionately leverage its police power every time it applies the Ordinance, enabling it to continue to coerce landowners into dedicating land for free the County would otherwise have to pay for. This should not be the law. The Due Process Clause prohibits government from extortionately leveraging its police power to evade the substantive and procedural protections of eminent domain. A law purposefully designed to evade this prohibition cannot stand.
Which brings us to the Questions Presented:
1. Whether a state statute of limitations should apply to a claim brought pursuant to 42 U.S.C. § 1983 seeking to enjoin enforcement of a county ordinance that, on its face, and in violation of the Fifth Amendment’s Due Process Clause, extortionately leverages the police power every time it is applied to coerce landowners into dedicating road right-of-way the county would otherwise have to pay for. 
2. If there is a statute of limitations, whether the federal Continuing Violation Doctrine applies, such that a landowner whose property is subject to the ordinance may elect to bring a facial Due Process claim either upon enactment of the ordinance or later, within the limitations period following application of the ordinance to that landowner.

Monday, January 19, 2015

Should Florida Scrap the Development of Regional Impact Process?

One of my goals in the new year is to get back on the horse here at my blog. Last year was a great year for personal and professional development, but the blog suffered. I've been encouraged to receive so many emails from readers asking me to continue working on it in 2015.

First up is something to watch for in this year's legislative session. Over at Context Florida, Bruce Ritchie has a good piece on whether Florida's Development of Regional Impact (DRI) should be scrapped. The genesis of the article was Bob Rhodes's article in Florida Planning asking the same question. Bob's opinion goes a long way, since he was the first administrator of the DRI program and he chaired the State of Florida Environmental and Land Management Study committee (ELMs II).

Think of the DRI process as a significant layer of state and regional regulation placed on top of Florida already robust growth management regime for big projects. Over time, the significance of the DRI program has eroded, but it causes a great deal of headache when it does come up. Management of legacy DRIs takes an enormous amount of time that might be better spent elsewhere.

The legislature reduced its importance to some degree with the Community Planning Act in 2011, and it considered reducing its importance even more just last session. Looks like it may well surface again this session.


Thursday, June 5, 2014

First Quarter 2014: 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 2014. Here's what we've got:
  • Beyer v. City of Marathon, 38 Fla. L. Weekly D2286 (Fla. 3d DCA 2013), rejecting the local government's claims of statutes of limitation and laches where it delayed the processing of an application.
  • Archstone Palmetto Park, LLC v. Kennedy, 2014 WL 305086 (Fla. 4th DCA 2014), clarifying the limitations for local government public referenda for development orders.
  • Fla. Dep’t of Agriculture & Consumer Servs. v. Mendez, 126 So. 3d 367 (Fla. 4th DCA 2013), regarding standards to apply to takings under the Citrus Canker Eradication Program.
  • Detournay v. City of Coral Gables, 38 Fla. L Weekly D2552 (Fla. 3d DCA 2013), holding that local government code violation actions are executive acts that cannot be supervised by the courts in actions by third parties attempting to force the government to pursue the violations.
  • Ripps v. City of Coconut Creek, 124 So. 3d 1007 (Fla. 4th DCA 2013), holding that a DRI substantial deviation threshold regarding hotel rooms was moot under newly amended laws.
  • Grove at Harbor Hills Homeowners v. Harbor Hills Dev., L.P., 38 Fla. L. Weekly D2627 (Fla. 5th DCA 2013), emphasizing that "maintenance" and "control" have different meanings in real estate use agreements.
  • Clearwater Housing Authority v. Future Capital Holding Corp., No. 2D12-5515 (Fla. 2d DCA 2013), holding that the statute of repose applicable to an action founded on the design, planning, or construction of an improvement to real property can be triggered on an event other than an improvement to real property.
Past summaries are available in my archives.

Tuesday, June 3, 2014

Do Macroeconomic and Microeconomic Factors Matter in the Takings Analysis of Economically Beneficial Use?

Nope, according to Florida's Fifth District Court of Appeals. Ocean Palm Golf P'ship v. Flagler Beach, Case No. 5D12-4274 (May 30, 2014). Here's an excerpt:
We agree with Ocean Palm Golf that the government's refusal to act can constitute a total taking under some circumstances. See, e.g., Tollius v. City of Miami, 96 So.2d 122 (Fla.1957) (holding that the denial of property owner's request to rezone lots from residential to commercial was an abuse of discretion because the character of the area had changed greatly, rendering single-family residential use unsuitable); Kugel v. City of Miami, 206 So.2d 282 (Fla. 3d DCA 1968) (concluding that denial of rezoning request from residential to less restrictive zone constituted a taking of the property where what had been quiet residential area was now surrounded by tall buildings and parking lots). However, as the City correctly points out, the cases holding that a taking has occurred when the government refuses a request to change zoning, even though the character of the land surrounding the affected land has changed dramatically, are distinguishable from this case because, here, the character of the property surrounding the golf course parcel has remained largely the same for decades—it has long been used for single- and multifamily residences. Ocean Palm Golf replies that the changed circumstance on which it is relying is not a change to the surrounding properties, but rather is the change in market and demographic factors: the fact that golf courses across the country are no longer profitable due to the over-construction of golf courses, the aging golf population, and the increased expense involved in operating the golf course. We deem this to be a faulty argument, as it is based on Ocean Palm Golf's failed economic expectations. In effect, Ocean Palm Golf's position is that if a landowner buys a piece of property and the economy later takes a downturn, resulting in the frustration of the landowner's expectations, then the government must act as a guarantor for the landowner's investment after it becomes unprofitable due to, not the zoning regulations, but outside market forces. This is not the purpose of eminent domain law.
Id. at 16-17. I'll leave analysis for others, since the law firm of yours truly was on the case.

Thursday, May 8, 2014

Koontz Wins on Exactions Again - Probably for Good

I'm a bit later to the game than usual on this one. On April 30, Florida's 5th DCA handed the Koontz family another big win in St. Johns River Water Management District v. Koontz, Case No. 5D06-1116 (Fla. 5th DCA Apr. 30, 2014). After the U.S. Supreme Court's landmark ruling last year, many speculated that there were a great many questions left open about exactions law, at least under state law. The 5th DCA disagreed:
Because our decision in Koontz IV is entirely consistent with the decision of the United States Supreme Court, we adopt and reaffirm Koontz IV in its entirety and affirm the judgment below. We deny Appellant’s request to reopen the briefing. The constitutional issues decided by the United States Supreme Court were fully briefed here, and that Court’s holding does not set forth a new legal construct with which we must re-analyze these issues. To the extent that Appellant seeks to brief the state law issues left open by the Supreme Court, we conclude that those issues were either disposed of in Koontz I or Koontz IV, or they were not preserved and presented in those proceedings.
This is good news for property owners in Florida. As the Pacific Legal Foundation writes:
The Court of Appeal’s decision is an important win, not just for the Koontz family, but for all Floridians who face extortionate demands in the permitting process. Under the Court of Appeal’s interpretation of the relevant Florida statute, property owners can be compensated for the lost use of their land during the entire period the land-use agency engages in its extortionate practice.
Both my fellow bloggers, Gideon Kanner and Robert Thomas, think the St. Johns Water Management District will seek review in the Florida Supreme Court. 

Maybe - but don't bet on it. Why? The Florida Supreme Court probably doesn't have jurisdiction to hear the case. The Florida Supreme Court has extremely limited jurisdiction compared to many other state high courts. Article V, section 3(b) of the Florida Constitution lays out its jurisdiction. None of the mandatory review provisions apply, and only two of the discretionary review provisions might apply:
(b) JURISDICTION.—The supreme court:
(3) May review any decision of a district court of appeal that expressly declares valid a state statute, or that expressly construes a provision of the state or federal constitution, or that expressly affects a class of constitutional or state officers, or that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.
(4) May review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance, or that is certified by it to be in direct conflict with a decision of another district court of appeal.
As for article V, section 3(b)(3), there is no declaration a state statute is valid, there is no class of officers expressly affected, and no other district court of appeal has ruled on this issue in a way that directly conflicts with the 5th DCA's opinion. The only potential "in" for the St. Johns Water Management District would be to argue that the 5th DCA "expressly construes a provision of the state or federal constitution." But that's not really what the 5th DCA did, its re-adoption of St. Johns River Water Mgmt. Dist. v. Koontz, 5 So. 3d 8 (Fla. 5th DCA 2009) [Koontz IV] notwithstanding. Here, the 5th DCA is just saying that all issues have been disposed of previously, and to the extent they weren't, they haven't been preserved. You don't get Florida Supreme Court review for that.

As for article V, section 3(b)(4), it's almost impossible to imagine the 5th DCA granting a motion by the St. Johns Water Management District like it did five years ago in Koontz IV. There, the court had wrestled with what it believed was an undecided questions of state and federal law. Here, on the other hand, the court writes "Because our decision in Koontz IV is entirely consistent with the decision of the United States Supreme Court, we adopt and reaffirm Koontz IV in its entirety and affirm the judgment below." And again, no other district court of appeal has ruled on this issue in a way that directly conflicts with the 5th DCA's opinion.

Is there a chance of a rehearing? Sure, there's always a chance, but I certainly wouldn't want to be the attorney who files a motion for rehearing in a case that the 5th DCA thinks is this open-and-shut. If I were the Koontz family, I'd feel pretty good right now. And as a property owner in Florida, I feel a little bit better.

Sunday, March 16, 2014

Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted its columns on the environmental and land use cases in Florida that you need to know about for the third quarter of 2013, as well as the fourth quarter of 2013. Here is what we've got this quarter:
  • Town of Ponce Inlet v. Pacetta, LLC, No. 5D12-1982, 2013 WL 3357520 (Fla. 5th DCA July 5, 2013), reversing the trial court decision that I've written extensively about, and holding that a Bert Harris Act claim for the burdening of vested rights cannot be premised on local government assurances that it will amend its comprehensive plan.
  • Collins v. Monroe County, No. 3D11-2944, 2013 WL 3455608 (Fla. 3d DCA July 10, 2013), determining that a special master's administrative recommendation that a local government purchase properties because they may be a taking is not enough to prove the taking, where the landowners could not prove they had explored the properties' development potential.
  • Seminole Tribe of Fla. v. Hendry County, 114 So.3d 1073 (Fla. 2nd DCA 2013), holding that a local government's land use procedures were not preempted by the Power Plant Siting Act when a property owner applied for a local government land use permit before activating Power Plant Siting Act review.
  • Maronda Homes v. Lakeview Reserve Homeowners Ass’n, No. SC10-2292, No. SC10-2336, WL 3466814 (Fla. July 11, 2013), deciding that the implied warranties of fitness and merchantability apply to certain common areas, and a Florida law limiting these warranties cannot be applied retroactively.
  • Angelo’s Aggregate Materials v. Pasco County, 118 So.3d 971 (Fla. 2d DCA 2013), holding that a local government may not require an administrative vested rights process to be exhausted by a landowner before requesting that a court issue a declaratory judgment.
  • Manley v. City of Tallahassee, 2013 WL 4007650 (11th Cir. 2013), determining that a local government does not deprive a landowner of his property in violation of due process where it approves a site plan of a neighbor without allowing the landowner to be heard, even if the landowner has an access agreement concerning the neighbor's property.
  • Foley v. Orange County, 2013 WL 4110414 (M.D. Fla. 2013), finding that a local government may not enact or enforce land use regulations in conflict with general laws and regulations concerning the care and keeping of exotic animals.
  • U.S. Sugar Corp. v. 1,000 Friends of Fla., 2013 WL 4017136 (Fla. 4th DCA 2013), holding that comprehensive plan consistency is determined by analyzing the face of a development order, and not by what the developer intends to do under the development order.
  • CBS Outdoor, Inc. v. Fla. Dep’t of Transp., 2013 WL 5744443 (Fla. 1st DCA 2013), determining that where Florida law allows the owners of signs and billboards to engage in an administrative process to receive compensation for blocked view, the billboards must conform to local, state, and federal regulations for their owners to use this process.
If you're so inclined, over two years' worth of these cases and these summaries on new environmental and land use cases in Florida are in my archives.


Wednesday, February 26, 2014

Exactions Bills in the 2014 Legislative Session Should Cheer Property Owners

The 2014 Florida Legislative Session convenes next Tuesday, and property owners should find some early cheer in a pair of bills: HB 1077 (Perry) and SB 1310 (Evers).

These bills bear a strong resemblance to two bills that did not pass last year: HB 673 and SB 772, both of which would also have limited the ability of local governments to impose exactions somewhat beyond the Nollan-Dolan test. As you might expect, this year's bills appear to have been tweaked to take into account the Koontz decision.

Even though the problem in Koontz was with the St. Johns River Water Management District, a state agency, local governments have really been the bigger culprits in leveraging exactions from property owners. That is probably why these bills are aimed at limiting the ability of local governments to exact payments for indirect impacts of development. Part of the bills restate the law after Koontz: governments can't require exactions that are unrelated to the impacts of development. The part that appears to be new to Florida is that regulatory overlap would be reduced because local governments would be prohibited from exacting more than a state or federal agency for the same impact. 

So where a state or federal agency must analyze an impact, it looks like local governments would largely have to accept that analysis. This might not sound like much, but it does at least put a ceiling on what a local government can demand in return for a permit if a state or federal agency is involved.

The text of the bills is below.
Section 1. Section 70.45, Florida Statutes, is created to read:

70.45 Local government development exactions.—

(1) The Legislature finds that in the land use planning and permitting process, a landowner or applicant may be especially vulnerable to excessive demands for relinquishment of property or money in exchange for planning and permitting approvals. The Legislature further finds that exaction demands beyond the direct impact of a proposed development are against public policy and are therefore prohibited.

(2) A county, municipality, or other local governmental entity may not impose on or against any private property a tax, fee, charge, or condition or require any other development exaction, either directly or indirectly, that:
(a) Requires building, maintaining, or improving a public, private, or public-private infrastructure or facility that is unrelated to the direct impact of a proposed development, improvement project, or the subject of an application for a development order or administrative approval.
(b) Is more stringent than an exaction imposed by a state or federal agency on or against the same property that concerns the same impact.  
(3) This section does not prohibit a county, municipality, or other local governmental entity, upon demonstration, from:
(a) Imposing a tax, fee, charge, or condition or requiring any other development exaction that serves to mitigate the direct impact of the proposed development and that has an essential nexus to, and is roughly proportionate to, the impacts of the proposed development upon the public, private, or public-private infrastructure or facility that is maintained, owned, or controlled by the county, municipality, or other local governmental entity.
(b) Accepting the voluntary dedication of land or an easement that has an essential nexus to, and is roughly proportionate to, the impacts of the proposed development upon the public, private, or public-private infrastructure or facility that is maintained, owned, or controlled by the county, municipality, or other local governmental entity and the development or proposed development is situated on the specific property to which the dedication of land or easement applies.  
Section 2. This act shall take effect July 1, 2014.

Tuesday, February 11, 2014

Florida Loses One of Its True Heroes

Florida has lost one of its heroes--and probably its greatest modern author. Patrick D. Smith has died at 86. This three-time Pulitzer Prizer winner wrote the best historical fiction ever written about Florida.

His most well-known book, A Land Remembered, follows a family through Florida's history. If you want to learn about Florida's cracker cowboys, its agricultural history, or the heartbreak of its pioneers watching it develop, it's for you. Even if you just like historical fiction, it's for you. If you've never read A Land Remembered, do yourself a favor and go buy it now.