Thursday, March 10, 2016

In Cementing Koontz's Legacy, the Florida Supreme Court Shows Why Taxpayers Will Foot an Enormous Bill for Government's Mistakes

Recently, the Florida Supreme Court refused to hear the Koontz case yet again. Too bad for taxpayers that it took the Court eighteen months to make a decision.

Recall that, in the long Koontz saga, in 1994, the government agreed to issue a permit to fill wetlands if the landowner paid to improve government culverts miles away. The landowner refused and sued when the government denied the permit. A decade ago, in 2006, the trial court found a taking and awarded $477,000 in just compensation.

The Florida Supreme Court said the landowner could only challenge the unreasonable permit demand after giving in to it. The U.S. Supreme Court, though, ruled for landowners (1) that the Nollan-Dolan exactions test applies even where a permit is denied because an applicant rejects an exaction, and (2) that the Nollan-Dolan exactions test applies to exactions other than real property, such as where a permit applicant is required to pay for work. Koontz v. St. Johns River Water Mgmt. Dist., 133 S.Ct. 2586 (2013). 

Not long afterwards, in late 2013, the Florida Supreme Court punted the case back to the appellate court for further proceedings. The 5th DCA made short work of the remand:
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. 
Yet again, in June 2014, the government asked the Florida Supreme Court to review the case. Over a year and a half later, the Florida Supreme Court has finally concluded this long saga, and the Koontz family will now return to the trial court to collect their just compensation. 

Which leads us to the difficult part for taxpayers: once the government made a bad decision, it doubled down for over twenty years. Now, taxpayers will be stuck not only with the bill for those bad decisions, but also the bill for the Koontz family's attorneys to prove that and the interest for the past two decades.

Thursday, March 3, 2016

A new era of coastal construction in South Florida leads to new regulatory challenges and opportunities

The booming coastal construction market in South Florida means that buildings are being built bigger, taller, and deeper. What does that mean for the developer? When it comes to Coastal Construction Control Line (CCCL) permitting, it means new challenges - and some new opportunities.

I recently coauthored a new legal update with my colleagues at Stearns Weaver explaining the background to this new era and how regulators at the Florida Department of Environmental Protection (DEP) and within local governments are responding. We explained:
In the past, many projects could accommodate excavated sand onsite. When they could not, offsite placement on dry, sandy beaches was relatively easy. Oftentimes now, though, sites are too constrained, and offsite placement is becoming more challenging for two reasons. 
First, projects in some areas are not located near dry beaches that need sand. Traditionally, FDEP has only allowed excavated sand to be placed on the dry sandy beach nearby the development. Recently, we developed a new approach with FDEP on several projects to allow sand excavated from constrained development sites to be placed in eroded "hotspot" areas located within the wet sandy beach, below the mean high water line. Each project site must be evaluated independently to assess whether this approach will work from a timing and cost feasibility standpoint, keeping in mind the applicable regulations and permit conditions that will be applied to provide FDEP the assurances needed regarding the quality of sand. Since sand sources in Florida for local governments to maintain beaches are limited and costly, this approach should be viewed as a positive alternative for addressing targeted eroded beaches. 
The second reason offsite placement is becoming more challenging is due to some local governments regulating and controlling the quality and placement of sand despite FDEP's role and authority, and imposing more stringent requirements on this activity. We are seeing a variety of approaches by local governments, including: 
  • Regulating when and how sand may be removed from or placed on coastal properties, using conditions that are stricter than FDEP's regulations;
  • Providing for fines, penalties, or refusal to issue building permits if their sand management regulations are not met;
  • Conditioning development approvals on sand quality, placement, and other actions;
  • Requiring large bonds to be posted and/or agreements in order to assure future remediation of sand in the event the local government determines the sand quality does not meet their standards; and
  • Seeking to have FDEP adopt more stringent testing requirements for excavated sand as a part of FDEP's ongoing CCCL program.
It will take time, but I predict that we will see these innovations spreading to Florida's other coasts in the near future. 

Please email me if you'd like to receive more legal updates like this as soon as they're released.