Monday, June 11, 2012

Property Owner Asks U.S. Supreme Court to Review Florida Decision Limiting Exactions Law to Real Property Dedications

In a case with implications for property owners across the country, as well as permitting officials and land use planners, a Florida property owner has asked the U.S. Supreme Court to review a Florida Supreme Court decision about exactions. In St. Johns River Water Management District v. Koontz, 77 So. 3d 1220 (Fla. 2011), the Florida Supreme Court declined to recognize an exaction under U.S. Supreme Court precedent. The petition requesting the U.S. Supreme Court's review describes the case:
For over eleven years, a Florida land use agency refused to issue any of the permits necessary for Coy A. Koontz, Sr., to develop his commercial property. The reason was because Koontz would not accede to a permit condition requiring him to dedicate his money and labor to make improvements to 50 acres of government-owned property located miles away from the project—a condition that was determined to be wholly unrelated to any impacts caused by Koontz’s proposed development. A Florida trial court ruled that the agency’s refusal to issue the permits was invalid and effected a temporary taking of Koontz’s property, and awarded just compensation. After the appellate court affirmed, the Florida Supreme Court reversed, holding that, as a matter of federal takings law, a landowner can never state a claim for a taking where (1) permit approval is withheld based on a landowner’s objection to an excessive exaction, and (2) the exaction demands dedication of personal property to the public. 
The questions presented are: 
1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and  
2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

I previously described the Florida Supreme Court's legal analysis in the Koontz case:
The Florida Supreme Court held no taking occurred after a detailed survey of takings jurisprudence. It interpreted the Nollan/Dolan test as applicable only to exactions involving real property, and where regulatory entities had actually issued the permits sought with the objected-to exactions imposed. Although a line of cases expand the Nollan/Dolan test beyond real property conditions, the Court declined to give credence to those cases, stating it was constrained by U.S. Supreme Court precedent interpreting the Fifth Amendment takings clause. Consequently, the court held that the Nollan/Dolan doctrine applies only where the condition or exaction sought by the government “involves a dedication of or over the owner’s interest in real property in exchange for permit approval” and only when the regulatory agency actually issues the permit sought.” Id. at *9. Based on the Court’s interpretation, Koontz’s takings claim failed because the District did not condition approval of the permits on the dedication of any interest in real property in any way to public use. Thus, under the Court’s logic, nothing was ever taken from Koontz.

The Florida property owner is represented by the Pacific Legal Foundation, which recently made news for winning a landowner the right to take EPA to court in Sackett v. EPA. Stay tuned. The St. Johns River Water Management District's response is due July 2, 2012.