Thursday, April 30, 2015

The Florida Legislature Creates a Cause of Action for Illegitimate Exactions

Although the Florida House may have gone home early, they at least got down to business and strengthened the property rights of Florida landowners before leaving Tallahassee. Both houses of the Legislature passed an illegitimate exaction bill nearly unanimously. Judging by Governor Scott's strong property rights record, you can bet he'll let this one become law.

HB 383 was aimed at addressing guidance provided by the U.S. Supreme Court in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2596 (2013). The legislative bill analysis explains:
Of particular significance to the bill, the Koontz court found that while the government's conditions unconstitutionally burdened the landowner's Fifth Amendment rights, no constitutional taking has occurred that qualifies for the constitutionally mandated remedy of just compensation to the landowner. Instead, the Court left it up to the states to determine what remedies would be available to a landowner who has been subject to an unconstitutional demand where no actual taking has occurred. 
The Court explained: "Where the permit is denied and the condition is never imposed, nothing has been taken. While the unconstitutional conditions doctrine recognizes that this burdens a constitutional right, the Fifth Amendment mandates a particular remedy—just compensation—only for takings. In cases where there is an excessive demand but no
taking, whether money damages are available is not a question of federal constitutional law but of the cause of action—whether state or federal—on which the landowner relies." 
Consequently, the Court left unanswered the question of whether the landowner in Koontz could recover damages for unconstitutional conditions claims predicated on the Takings Clause because the landowner's claim was based on Florida law, s. 373.617, F.S. Specifically, because s. 373.617, F.S., allows for damages when a state agency's action is "an unreasonable exercise of the state's police power constituting a taking without just compensation," it is a question of state law as to whether that provision covers an unconstitutional conditions claim.
The bill gives landowners just that statutory cause of action, providing for injunctive relief and damages for a "prohibited exaction," defined as "any condition imposed by a governmental entity on a property owner's proposed use of real property that lacks an essential nexus to a legitimate public purpose and is not roughly proportionate to the impacts of the proposed use that the governmental entity seeks to avoid, minimize, or mitigate." Here's the key provision:
In addition to other remedies available in law or equity, a property owner may bring an action in a court of competent jurisdiction under this section to recover damages caused by a prohibited exaction. Such action may not be brought until a prohibited exaction is actually imposed or required in writing as a final condition of approval for the requested use of real property. The right to bring an action under this section may not be waived. This section does not apply to impact fees adopted under s. 163.31801 or non-ad valorem assessments as defined in s. 197.3632.
That is, if the exaction doesn't measure up to the U.S. Supreme Court's exactions trio (Nollan, Dolan, and Koontz), a landowner can make a claim for damages (which is defined to include injunctive relief, which might include invalidation of the offensive condition). Just as those cases command (but which many courts have misunderstood), the government has the "burden of proving the exaction has an essential nexus to a legitimate public purpose and is roughly proportionate to the impacts of the proposed use that the governmental entity is seeking to avoid, minimize, or mitigate." Sensibly, the landowner must give the government written notice of the claim to give the government a chance to rescind or reduce the exaction. If the landowner wins a lawsuit, the court must award attorney's fees.

What does all this mean, in layman's terms? Simply put, if, in exchange for a development permit, the government demands more than it fairly should, or demands something that doesn't relate to the permit, than landowners have another tool at their disposal to challenge the government demand and get damages for their injuries. All in all, this was a great way to celebrate the Bert Harris Act's twentieth birthday.

And speaking of the Bert Harris Act, there were a few "glitch" fixes to it this year (as has been the case over the past few years):

  • The bill clarifies that property must be "directly" affected by government action. Presumably, this means to distinguish properties that are merely tangentially or indirectly affected by a government action to another property.
  • It clarifies that the landowner and the government can use the flexibility of the Bert Harris Act settlement process both before and after a lawsuit is filed. This was an important amendment because the Bert Harris Act allows settlements to protect the landowner from application of contrary local laws and ordinances, and last year an appellate court refused to allow a settlement agreement because it was entered after a lawsuit was filed. Collier County v. Hussey, 147 So. 3d 35 (Fla. 2d DCA 2014).
  • Sensibly, the bill also prohibits actions against local governments that adopt federal flood maps as a requirement of the National Flood Insurance Program.

Tuesday, April 21, 2015

Consider Supporting the Pacific Legal Foundation

As litigators fighting for property rights (or any other type of litigation), the long slog of the work in the trenches can sometimes bring us down or cause us to lose sight of the big picture. That's what it's great to have the support of great organizations like Pacific Legal Foundation.

The Managing Attorney of PLF's Atlantic Center in Palm Beach Gardens, Mark Miller, recently discussed my practice in a post on PLF's Liberty Blog. Perhaps most notably, Mark, a double Gator graduate of the University of Florida, was forced to say a few kind words my alma mater, The Florida State University. The cause of property rights really can bring good people together!

PLF has been doing great work in the field since 1973: it has chalked up seven victories in the U.S. Supreme Court. PLF also supported my firm and client with an amicus brief when I was working in Tallahassee on the briefing of a case defending the riparian rights of beachfront property owners before the U.S. Supreme Court. Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592 (2010). PLF also supported my client before the 11th Circuit in a case I've written about here that we are trying to get the U.S. Supreme Court to review. Hillcrest Property, LLP v. Pasco County, No. 14-864.

Please consider supporting PLF, and if you are an attorney with a property rights issue, call Mark to discuss getting amicus support from PLF.

Monday, April 20, 2015

Hillcrest Property, LLP v. Pasco County - Property Owner's Reply Brief

Those who follow this blog will be familiar with our petition to the U.S. Supreme CourtHillcrest Property, LLP v. Pasco CountyNo. 14-864. You'll also be familiar with the County's brief in opposition to the U.S. Supreme Court taking this case up on certiorari, and with the overwhelming amici support we received from 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.

And you'll probably recall that this case raises due process, exactions, and unconstitutional conditions issues that are similar to those the U.S. Supreme Court recently dealt with in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2596 (2013). The Eleventh Circuit, though, ruled that any issues dealing with the facial constitutionality of the County's ordinances had to be raised within four years of their adoption. This case asked the U.S. Supreme Court to weigh in, and the reply brief was recently filed.

As is my tradition when my firm or I am on a case or a brief, I leave commentary to others. For an interesting writeup, see Robert Thomas's post on the issue, where he concludes: "But regardless of the claim made or the remedy sought, if the challenge is in federal court, the plaintiff must show Article III standing, and must demonstrate some injury to itself as a result of the ordinance that is different from that of the general public. And we're not sure how that happened in Hillcrest until Hillcrest actually presented development proposal which triggered application of the Right of Way Preservation Ordinance."

Keep an eye on this one. It was on the conference list for Friday, April 17, so we could have an answer as soon as today on whether the Supreme Court will take it up.