Takings of Personal Property: The Importance of Framing A Case

Suppose a local government suddenly bans the production and sale of widgets because public opinion is that the widgets contribute to obesity. Although the land where the widget factory is located could be used for other purposes, the widgets are now worthless because they can’t be sold. And the widget maker has lost a great deal of the capital that was invested in the widget factory and equipment. Does the widget maker have an inverse condemnation claim? It may depend on whether his taking claim is framed as one for tangible or personal property, and not of real property. A claim that the real property had been taken would not likely be successful, since in this hypothetical, it could be used for other purposes.

Most readers will recall that there are physical takings and regulatory takings. Regulatory takings can be complete takings of all economically beneficial uses of a property—or they can be less, in which case courts use a balancing test to determine whether there has been a taking. Most of us in the environmental and land use arena are at least familiar with these concepts when it comes to real property. But what about tangible property?

As recent decisions from the U.S. Supreme Court and Florida courts make clear, tangible or personal property is also protected by the Fifth and Fourteenth Amendments. In Horne v. Department of Agriculture, 576 U.S. _, No. 14-275 (2015), which was decided earlier this year and has been bouncing around the courts for years, the U.S. Supreme Court examined a federal regulation requiring raisin farmers to set aside a percentage of each year’s crop for the government’s benefit—without payment. The Supreme Court held this to be a taking, tracing back the law of personal property takings back to the Magna Carta. Further, it held that because the taking was physical (as opposed to merely a regulatory burden), there was a per se taking, without regard to whether any claimed public benefit or the economic impact on the owner.

Florida's First District Court of Appeal has agreed in a case involving Florida’s oft-ridiculed “pregnant pig” constitutional amendment that banned the use of gestation crates in 2002. State v. Basford, 119 So. 3d 478, 480 (Fla. 1st DCA 2013). There, a farmer who had made substantial improvements to his property and based his pork business on use of the crates brought an inverse condemnation suit against the state. Explaining that “real property, tangible property, and intangible property may be the subject of a takings claim,” the court emphasized that the farmer had not alleged a taking of real property. Id. at 483. Rather, he claimed that the constitutional amendment had taken all economically viable use of his business assets—which included barns, animal crates, a feed mill, and lab equipment. Id. at 481, 483.

In a colorful concurrence, Judge Wolf saw this taking as just as if the government decided, in lieu of seizing a tractor, that it would allow a farmer to keep the tractor but forbid the owner from turning it on. Id. at 484. This explanation should give property owners some cheer, since it hints that, as in Horne, complete restrictions in use of personal property should be compared to physical takings. And it gives the attorney a simple framework for thinking about these kinds of problems.

Both these cases are instances of a takings case being successfully (and creatively) framed. In Horne, there was no way to frame a real property takings claim, and in Basford, the court itself recognized that a real property takings claim would not have had much of a chance of success. Inverse condemnation claims are almost always tricky, so why make a case any more difficult than it needs to be? It seems that Ben Franklin would agree that, as for others, for property rights attorneys, an ounce of prevention is worth a pound of cure.

The Intersection of Florida's Homestead Protections and Irrevocable Licenses

This post is a bit different than previous posts. It stems from a real-world issue I dealt with several years ago, and then morphed into an article that I've tinkered with since then. When I tried to publish it, the feedback I received from a state bar section was that it was too narrow to be publishable. I am skeptical of that, but it very well could be true. In any case, I decided to self-publish it, in hopes that it may be useful to someone tasked with dealing with the perplexing intersection of Florida's powerful homestead protections and its murky law of irrevocable licenses. I welcome any feedback.

Florida’s Homestead Protections and Irrevocable Licenses 

This article explores the limitations that the homestead protections in the Florida Constitution place on irrevocable license claims. You may already be skeptical: everyone knows that the homestead protections do not extend to licenses because they are not property interests. Are you sure? I argue that irrevocable licenses may well be captured by the homestead protections against alienation. This could have important implications for both your transactional and litigation practices. 

I. Florida’s Constitution Protects against Alienation of the Homestead

Let’s work through the basics quickly. Article X, section 4 of the Florida Constitution provides for several homestead protections. We are concerned with the protection against alienation in subsection 4(c): “[t]he owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.” This requires joinder of both husband and wife for the alienation of homestead property, even if only one spouse is the title owner.[i] Consequently, defective attempts to alienate homestead property are ineffectual and possibly void.[ii]

As an interpretative matter, like other constitutional homestead protections, the protection against alienation is a creature of equity that “must be liberally construed.”[iii] It should be construed in the “interest of the family home,”[iv] and “for the benefit of those whom it was designed to protect.”[v] These rules of interpretation mean, for instance, that because intent and substance are more important than form, the homestead protections may not be avoided indirectly.[vi] They also mean that the protection against alienation extends beyond the mere sale of the homestead. The dictionary definition of “alienation” is a conveyance of property to another.[vii] The constitutional meaning encompasses the broadest possible understanding of this definition: conveyance of “any right, title, or interest whatever in the homestead real estate.”[viii]

II. Irrevocable Licenses are Subject to the Protection against Alienation 

Consider, for example, the wide variety of interests subject to homestead protections: easements,[ix] possessory rights subject to a third-party trust,[x] mortgages,[xi] contracts for purchase and sale,[xii] leases,[xiii] and other contracts concerning interests in land.[xiv] But licenses are not interests in property: they are personal rights to use the property of another for a specific purpose, which are revocable at the will of the grantor.[xv] How then can licenses be subject to the protection against alienation? 

Florida courts have not directly addressed whether the protection against alienation applies to licenses. The evidence suggests, however, that it does apply to some licenses: namely irrevocable licenses. In Florida, unlike in some other jurisdictions, irrevocable licenses are distinct from easements.[xvi] Irrevocable licenses are remedial creatures of equity[xvii] that usually arise as a defense or counterclaim.[xviii] Licenses in Florida only become irrevocable under certain narrow circumstances: where a licensee: (1) is granted use of “property for a particular purpose or in a certain manner,” and (2) “in the execution of that use [expends] large sums or incurred heavy obligations for its permanent improvement.”[xix] In that case, the grantor’s right of revocation is “compromised.”[xx] Therefore, the licensee’s reliance investment is protected for a reasonable duration.[xxi] Even an oral license can become irrevocable.[xxii]

Despite this guidance, Florida and other courts have at times struggled to differentiate between easements and licenses.[xxiii] This is not surprising, since there are numerous cases with interests that share characteristics of both easements and license, such as irrevocable licenses and easements terminable upon a condition subsequent.[xxiv] Consider, for example, that easements are usually permanent but do not have to be, just as licenses are usually revocable at the will of the grantor but do not have to be.[xxv]

Only one case appears to have considered an irrevocable license in the context of the protection against alienation. In High v. Jasper Manufacturing Co., 49 So. 156, 156 (Fla. 1909), Mr. Register sold the rights to cut and remove timber from his homestead to Mr. High. When Jasper Manufacturing began cutting and removing the timber, Mr. High sued for an injunction.[xxvi] Although the trial court originally issued a preliminary injunction, after an evidentiary hearing, it dissolved the injunction because Mrs. Register had not joined in the conveyance in violation of the protection against alienation.[xxvii] Even though there was apparently a bill of sale, the Florida Supreme Court questioned whether the sale of standing timber was written or oral—if it were oral, then the Supreme Court appeared to believe it would operate as an irrevocable license. Ultimately, the Supreme Court did not make a determination, seemingly holding in affirming the trial court that the protection against alienation applied whether the contract was an interest in land or an irrevocable license.[xxviii] Therefore, the Supreme Court may have held that an irrevocable license is subject to the protection against alienation, but it did not do so clearly. 

The unfortunate lack of clarity in the High case can be overcome, however, in considering the nature of an irrevocable license. As described above, it is primarily a remedial and equitable claim. Florida courts generally do not allow defenses to homestead claims, other than fraud. Statutes of limitation and laches generally are not defenses.[xxix] Neither are estoppel[xxx] or waiver.[xxxi] Similarly, courts shy from affirmatively applying documents that violate the protection against alienation.[xxxii] Consequently, between High and this skepticism of Florida courts in allowing defenses to homestead protections, the protection against alienation probably applies to irrevocable licenses. 

III. Implications for the Practitioner 

So what does this mean for the practitioner? Two hypotheticals illustrate the importance of understanding that irrevocable licenses are subject to homestead protections. First, suppose you are drafting a license for the benefit of your client over his neighbor’s homestead. Both parties agree to provisions that restrict the ability of the neighbor to terminate the license. At first glance, it may only seem necessary to have a title owner of the property execute the license. It is not an interest in land, after all. But if the spouse of the neighbor is not a title owner and later wants to terminate the license, your client may have no defense. Therefore, it is prudent to have all beneficial owners of the property execute the license in order to protect against disagreements later. This article suggests it may be most prudent to draft and execute the document as an easement to avoid the problems of interpretation discussed here. 

Second, suppose your client believes he has a valid, recorded easement over his neighbor’s property leading to the entrance of your client’s property. In reliance on that interest, your client has built a road, fence, and extensive landscaping on his neighbor’s property. After an argument, however, the neighbor sues to declare the easement void. You believe that the neighbor has a strong claim because his wife, who lives with him on the property as their homestead, did not sign it. Could you at least ask the court to award your client an irrevocable license in equity? Probably not, according to my analysis. 

In conclusion, as with most real estate questions in Florida, when confronted with a license, practitioners must be ever mindful of the Florida Constitution’s homestead protections. 

[i] Taylor v. Maness, 941 So. 2d 559, 563 (Fla. 3d DCA 2006) (enough that wife lived on homestead property with husband, who was the title owner).

[ii] See Pitts v. Pastore, 561 So. 2d 297, 301 (Fla. 2d DCA 1990)

[iii] Butterworth v. Caggiano, 605 So.2d 56, 58 (Fla.1992); accord Hillsborough Inv. Co. v. Wilcox, 13 So. 2d 448, 450 (Fla. 1943) (“Equity has complete jurisdiction over homesteads and exemptions.”).

[iv] Havoco of Am., Ltd. v. Hill, 790 So.2d 1018, 1021 (Fla. 2001); Heath v. First Nat. Bank in Milton, 213 So. 2d 883, 888 (Fla. 1st DCA 1968) (applying interpretative rule to the alienation protection). In Jones v. Carpenter, 106 So. 127, 130 (Fla. 1925), the Florida Supreme Court explained:

A homestead in this country is for the benefit of the family, where it can be sheltered and live beyond the reach of financial reverses. It is one of the issues of our republican government designed to encourage freeholders, those citizens who are the prop and mainstay of all free government. It is designed to keep sacred and inviolate the home for the family …. It cannot be alienated except as the law directs, and when the parties are sui juris and dealing at arm's length it is notice to the world of all these facts and more.

[v] Taylor, 941 So. 2d at 56.

[vi] Norton v. Baya, 102 So. 361, 363 (Fla. 1924).

[vii] Black’s Law Dictionary (8th ed. 2004).

[viii] High v. Jasper Mfg. Co., 49 So. 156, 157 (Fla. 1909); Thomas v. Craft, 46 So. 594, 596 (Fla. 1908); see also Bessemer Properties v. Gamble, 27 So. 2d 832, 833 (Fla. 1946) (Homestead protections extend to “any right or interest.”).

[ix] In re Minnig, 119 B.R. 326, 327 (Bankr. M.D. Fla. 1990); Dotson v. Wolfe, 391 So. 2d 757, 759 (Fla. 5th DCA 1980).

[x] Callava v. Feinberg, 864 So. 2d 429, 432 (Fla. 3d DCA 2003) (possessor of home protected by homestead, where her name was not on the title, which was held in trust by an unrelated party).

[xi] Pitts, 561 So. 2d at 301 (mortgage).

[xii] Taylor, 941 So. 2d at 562 (contract to sell homestead).

[xiii] In re Alexander, 346 B.R. 546, 551 (Bankr. M.D. Fla. 2006).

[xiv] Adams v. Malloy, 70 So. 463, 465 (Fla. 1915) (lease of timber growing on homestead, with right of ingress and egress for 10 years); High, 49 So. at 157 (whether the sale of timber was a contract concerning an interest in land or a license, it violated homestead alienation protection).

[xv] Dotson, 391 So. at 759; Dance v. Tatum, 629 So. 2d 127, 128 (Fla. 1993).

[xvi] Dance, 629 So. 2d at 128-29.

[xvii] Tatum v. Dance, 605 So. 2d 110, 113 (Fla. 5th DCA 1992) app’d, 629 So. 2d 127 (Fla. 1993).

[xviii] See, e.g., id. at 110 (pleaded defensively by a third party to a foreclosure); Brevard Cnty. v. Blasky, 875 So. 2d 6, 13 (Fla. 5th DCA 2004) (affirmative defense); Dupont v. Whiteside, 721 So. 2d 1259, 1261 (Fla. 5th DCA 1998) (counterclaim).

[xix] Dance, 629 So. 2d at 129. It is unclear whether Florida courts would accept the theory that a license is made irrevocable when it is couple with an interest. See James Ely & Jon Bruce, The Law of Easements & Licenses in Land § 11:8. Such a case may be presented in Richbourg v. Rose, 44 So. 69 (Fla. 1907) (license to cut trees may be irrevocable to the extent of removing trees already cut when license terminated because it was “coupled with an interest”), but it is unclear whether Dance overruled or narrowed it.

[xx] Blasky, 875 So. 2d at 12.

[xxi] Id.; see Tatum, 605 So. 2d at 113.

[xxii] Id.

[xxiii] Dotson, 391 So. at 758 ("The distinction between an easement and a license is often so metaphysical, subtle, and shadowy as to elude analysis.”); Burdine v. Sewell, 109 So. 648, 652 (Fla. 1926) (“An easement is distinguished from a license, though it is often difficult to make out whether a particular case is the one or the other.”).

[xxiv] See Dotson, 391 So. at 759.

[xxv] See id.; Seaboard Air Line Ry. Co. v. Dorsey, 149 So. 759, 761 (Fla. 1932).

[xxvi] Id.

[xxvii] Id. at 157.

[xxviii] Id.

[xxix] Reed, 145 So. 2d at 870 (declining to apply laches or statute of limitations to bar homestead alienation protections, where deed had been recorded for over twenty years).

[xxx] Sigmund v. Elder, 631 So. 2d 329, 331 (Fla. 1st DCA 1994); Moore v. Moore, 237 So. 2d 217, 220 (Fla. 4th DCA 1970).

[xxxi] DeMayo v. Chames, 934 So. 2d 548, 551 (Fla. 3d DCA 2006) approved, 972 So. 2d 850 (Fla. 2007); Callava v. Feinberg, 864 So. 2d 429, 432 (Fla. 3d DCA 2003); In re Estate of Nicole Santos, 648 So. 2d 277, 282 (Fla. 4th DCA 1995).

[xxxii] Taylor, 941 So. 2d 559, 564 (Fla. 3d DCA 2006) (refusing to enforce contract for purchase and sale in a way that would violate the protection against alienation).

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.

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.

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:

• Hillcrest Prop., LLP v. Pasco County, 24 Fla. L. Weekly, Fed. D 33 (M.D. Fla. 2013), finding that a local government may not require property owners to give up property in exchange for development permits, where the exaction is unconnected to the development's impact. Read more from on my friend Robert Thomas's blog. Disclaimer: my firm represents the plaintiff property owner in this case, and we submitted an amicus brief to the U.S. Supreme Court in the Koontz case on its behalf.

• 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.

Upcoming Presentation about Sustainability and Property Rights

On Friday, September 13th at 9 am, come out to the Florida Chapter of the American Planning Association's (APA) annual conference. I'm joining a distinguished panel to discuss sustainability and property rights in a presentation entitled "Where do property rights fit into sustainability? Recent developments affecting planners." We'll discuss a number of cases and developments that I've written about here, such as the Koontz, Ponce Inlet, and Hillcrest cases. Here's a brief description of what you'll learn about:

Are private property rights compatible with sustainability? The law is evolving: what do planners need to know? The U.S. Supreme Court is poised to decide a case from Florida that could have serious implications for how governments can use development exactions. At the same time, the legislature is considering exactions legislation. Another case from Florida could lead to bankruptcy for a local government in Florida if its takings and Bert Harris Act judgments are affirmed on appeal. The panelists will discuss the challenges, pitfalls, and even the opportunities that these developments present.

As I mentioned, we have a great lineup besides yours truly, including:

• Nancy E. Stroud, Esq., AICP, of Lewis, Stroud & Deutsch, P.L., who represents local governments in land use and development matters, drafted the Florida Chapter of the APA's amicus  brief in the Ponce Inlet case, and who serves on the APA's national amicus committee (which submitted a brief supporting the government Koontz)
• Linda R. Hudson, Esq., who is Senior Assistant City Attorney for the City of Tallahassee and is experienced in a variety of planning, environmental, growth management, and land use matters
• Seth. C. Behn, AICP, of Lewis, Longman, & Walker, P.A., who works with a law firm to represent developers in the land use entitlement process

The brochure for the conference is attached.

Second 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 second quarter of 2013. This is the column that I formerly coauthored. Here is what we've got this quarter:

• Clipper Bay Invs., LLC v. Dep’t of Transp., No. 1D11-5496, 2013 WL 425882 (Fla. 1st DCA Feb. 5, 2013). "The Marketable Record Title Act’s exception for easements and right-of-ways is applicable to land held as a fee estate for the purpose of a right-of-way, so long as competent, substantial evidence establishes the land is held for such a purpose."
• Wendler v. St. Augustine, 108 So. 3d 1141 (Fla. 5th DCA 2013). As I pointed out previously, 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.
• Alachua Land Investors, LLC v. Gainesville, 107 So. 3d 1154 (Fla. 1st DCA 2013). As I discussed, for an inverse condemnation claim to be ripe, the plaintiff should prove (1) the regulation denies substantially all economically beneficial or productive use of the land; (2) alternative uses were applied for and conclusively denied by the regulatory body; and (3) at least one meaningful application has been filed under the existing regulations.
• Nieto v. Mobile Gardens Ass’n of Englewood, Inc., No. 2D11-4958, 2013 WL 1489377 (Fla. 2d DCA Apr. 12, 2013). "A homeowners association lacks standing to enforce restrictive covenants unless it is the direct assignee of the developer’s right to enforce deed restrictions or it is a successor in interest of the developer."
• Martin Cnty. Conservation Alliance v. Martin Cnty., No. SC11-2455, 2013 WL 1908644 (Fla. May 9, 2013). As I've discussed previously, the Florida Supreme Court dismissed review of a case from the 1st DCA sanctioning environmental organizations for advancing legal positions unsupported by material law or fact.

For those interested, there are about two years' worth of analysis and these summaries on new environmental and land use cases in Florida in my archives.

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.

Think Adverse Possession is Tough in Florida Now? Take a Look at These Bills!

In honor of my most popular blog post ever, I'm bringing my readers this update on adverse possession legislation. First, what's adverse possession?

The doctrine of adverse possession “dates back at least to sixteenth century England and has been an element of American law since the country's founding.”2 The first adverse possession statute appeared in the United States in North Carolina in 1715.3 Adverse possession is defined as "[a] method of acquisition of title to real property by possession for a statutory period under certain conditions." An adverse possessor must generally establish five elements in relationship to possession. The possession must be:

• Open; 
• Continuous for the statutory period; 
• For the entirety of the area; 
• Adverse to the record owner's interests; and 
• Notorious.

In most jurisdictions, state statutory law prescribes the limitations period – the period within which the record owner must act to preserve his or her interests in the property – while the state's body of common law governs the nature of use and possession necessary to trigger the running of the statutory time period. As legal scholars have noted, “[a]dverse possession decisions are inherently fact specific.” Therefore, an adverse possessor must establish “multiple elements whose tests are elastic and provide the trier of fact with flexibility and discretion.”

That most popular post ever was "Adverse Possession Now More Difficult in Florida." It's been more than twice as popular as any other post I've written. It's also my first post from when I really got starting blogging in earnest. In that post, I explained how adverse possession worked in Florida and how Senate Bill 1142 (2011) changed it:

In Florida, this ancient English doctrine of property law is defined in chapter 95, Florida Statutes. Under Florida law, there are two ways to adversely possess property. First, a person can adversely possess by actually possessing it and claiming color of title, or claiming a right to it based on a recorded document, for seven years. Second, a person can actually possess a property and, within the first year of possession, file a claim with the county property appraiser's office. Under this method, the person also has to pay property taxes during the seven year possession period. 

SB 1142 amends the current law to make it harder to acquire property by adverse possession by paying taxes on a parcel. Currently, there is no requirement that a property owner be notified that someone has stepped in to pay taxes on the property. It requires property appraiser to notify the rightful property owner when someone files for adverse possession with the appraiser. When filing, the possessor must disclose the intended use of the property.

That bill passed, but the Legislature doesn't seem to be completely satisfied that property owners are protected enough. House Bill 903 and its counterpart, Senate Bill 1166, are winding through the legislative process. If passed, they would make it nearly impossible to claim adverse possession in Florida without color of title (i.e., by what is commonly called squatting). The staff analysis reports:

This bill adds a number of requirements related to adverse possession without color of title. The bill requires that a person who files a return for taxes with the intent of claiming the property by adverse possession must:

• Wait for all taxes and liens on the property to accrue for two years.
• Have actual and continued control of the property.
• Maintain or improve the exterior of any structures on the land.
• Pay all mortgages and liens on the property.
• Not apply for adverse possession for more than one property in the state at the same time.
• Not enter any structure on the land until the end of the adverse possession period and after a deed has been issued to the possessor.
• Maintain the property without entering any of the structures.
• Provide a notarized statement from the record owner giving consent to the adverse possession.

It's tough to imagine a situation where someone could meet these requirements. And, as the staff report hints, the bill seems more intended at eliminating adverse possession than fixing it: "The bill .. requires a signed statement of the existing owner acknowledging the adverse possession, but the concept of adverse possession is that possession is adverse to the owner. If the owner acquiesces to possession, there can be no claim for adverse possession."

Maybe cases like this attempt to adversely possess a $2.5M mansion here in Florida (along with the banks that own those properties) are the impetus behind these bills. But adverse possession was designed to preserve the status quo and keep property productive. These bills seem to destroy that delicate balance.

Fourth Quarter 2012: 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 fourth quarter of 2012. This is the column that I formerly coauthored. Here are the summaries:

• Town of Longboat Key v. Islandside Property Owners Coalition, LLC, 94 So.3d, 1037 (Fla. 4th DCA 2012). As I discussed in detail previously, In certiorari review, a circuit court is not bound by a local commission’s longstanding interpretation of a local code if that interpretation is unreasonable or erroneous. 
• 19650 NE 18th Ave LLC. v. Presidential Estates Homeowners Ass’n, Inc., - So.3d -, 2012 WL 4448792 (Fla. 3rd DCA 2012). Where a deed of sale violated a county covenant requiring the deed to specify the number of units a buyer may build on the property, the remaining development rights associated with the property were not forfeited because such a condition was not included in the contract. 
• Garcia v. Andonie, - S. Ct. -, 2012 WL 4666458 (Fla. 2012). The homestead exemption statute’s provision requiring that a property owner reside on the property to be entitled to a homestead property tax exemption violated Florida’s constitutional provision governing the homestead exemption.
• Fla. Dept. of Agriculture and Consumer Services v. Mendez, - So.3d -, 2012 WL 3023214 (Fla. 4th DCA 2012). The statute permitting issuance of writ of execution against Florida departments for judgment in eminent domain actions does not permit issuances of writ of execution against Florida departments in inverse condemnation actions. Further, a constitutional challenge to section 11.066, Florida Statutes, is not ripe for adjudication prior to appropriation proceedings before the Legislature.

As always, if you're interested in previous case law updates, take a look at my past posts for previous cases I've summarized about Florida environmental and land use law.

Boundary and Fencing Disputes, Adverse Possession, and Property Law in Florida

This weekend I ran across a good resource for Florida property owners. The University of Florida IFAS Extension produced the Handbook of Florida Fence and Property Law a couple of years ago. I thought I would point it out to my readers because it covers a range of interesting topics that I get asked about a lot. It covers a bit about adverse possession, which my most popular blog post covers. It also covers another topic that I am asked about a great deal: neighbor boundary disputes. What happens when neighbors have disputes over their boundary lines or their fences? The handbook summarizes, after giving a great deal of detail:

If your title clearly describes your land and, according to your deed and your neighbor’s deed, your neighbor’s fence is clearly encroaching upon your land, you should immediately notify your neighbor in writing of the encroachment. Your neighbor is required to remove this encroachment. 

If the location of the true boundary line is unclear from both your deed and your neighbor’s deed, avoid future dispute by notifying your neighbor of the ambiguity, calling a surveyor, and clarifying your boundary lines. In the case where you think boundary by agreement or boundary by acquiescence may apply to the dispute, think of the aspects of each and whether they actually apply to your case. 

Remember the three aspects of boundary by agreement: 

1. Uncertainty or doubt as to the true boundary line
2. Agreement that a certain line will be treated by the parties as the true boundary line
3. Subsequent occupation by the parties in accordance with the agreement for a period of time sufficient to show settled recognition of the line as a permanent boundary 

Consider also the two aspects of boundary by acquiescence: 

1. A dispute or uncertainty from which it can be implied that both parties are in doubt as to the true boundary line
2. Continued occupation and acquiescence in a line other than the true boundary for a period of more than seven years (as required by the statute of limitations)

Of course, IFAS has many other guides and handbooks that landowners may find useful.

Third Quarter 2012: 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 third quarter of 2012. It's a relatively small bunch this time:

• Southern Union Co. v. United States, - S. Ct. -, 2012 WL 2344465 (2012), determined that the Sixth Amendment protection requiring that juries determine any fact, other than a prior conviction, that increases a criminal defendant’s maximum potential sentence applies to the sentencing of criminal environmental fines. The U.S. Supreme Court overturned the $18 million penalty assessed against Southern Union and sent the case back to the appeals court for further consideration.
• FT Investments, Inc. v. Florida Department of Environmental Protection, - So.3d -, 2012 WL 2138110 (Fla. 1st DCa 2012), holding that a third party defense to strict liability for petroleum contamination only applies if the purchaser of the contaminated property had no knowledge of the contamination after a reasonable inquiry. The takeaway here is that liability under the statute is strict - do not assume that just because you did not cause the contamination you cannot be held liable for it.
• Department of Transportation v. Florida Gas Transmission Co., - So.3d -, 2012 WL 2014755 (Fla. 1st DCA 2012), discussing issues related to contractual interpretation of a gas pipeline easement.
• Turkali v. Safety Harbor, Case no. 2D11-3649 (Fla. 2d DCA 2012), explaining, as I have discussed previously, that a "valid, bona fide appraisal" under the Bert J. Harris Private Property Protection Act must provide information about the value of the individual property at issue. As I discussed before, it's important to make sure that you follow the statute precisely to preserve your statutory rights.

As always, if you're interested in previous case law updates, take a look at my past posts for previous cases I've summarized about Florida environmental and land use law.