Why Exactions Law Should Bring Property Rights Advocates Cheer in the New Year

When even progressive scholars throw their hands up in the air over the strength of an area of property rights law, you know it's time for those of us who believe in strong property rights to take note. Professor Timothy Mulvaney at Texas A&M has done just that in his latest paper, forthcoming in the Harvard Environmental Law Review, "Legislative Exactions and Progressive Property." 

In it, Prof. Mulvaney covers the debate of whether the stringent judicial review of exactions provided to administrative exactions also applies to legislative exactions. The debate here is over what the government can demand from a landowner before approving a discretionary permit. In three important cases - Nollan, Dolan, and Koontz - the U.S. Supreme Court has held that the government must show that the demand is related to the harms that will be caused by the landowner's activities and that the demand is roughly proportionate to the ills the government seeks to remedy. 

The Supreme Court has explained that these rules apply no matter whether the government ultimately approves or denies a permit application and no matter whether the government demands money, road building, or anything else. Compared to other areas of property rights law, the Supreme Court has been remarkably clear that the landowners must be protected from such "unconstitutional conditions" by government. Governments, though, dislike such strict rules, and some have argued that these rules only apply to "administrative" demands, such as those by an executive or bureaucrat, and not to "legislative" demands, such as an ordinance that makes demands from everyone. As others have argued better than I can, the Takings Clause  and the Due Process Clauses of the Constitution do not distinguish between the branches of government in protecting landowners. 

In his article, Prof. Mulvaney essentially asks: should proponents of "progressive property" (read: fans of weak personal property rights) support making such a distinction for its practical consequences? He concludes:

Scholarly debate continues on the question of whether the heightened scrutiny of the Supreme Court’s decisions in Nollan and Dolan should be applicable in takings cases involving exactions that result from generally applicable legislation. Proponents of progressive conceptions of property have strong first-order reasons to support immunizing legislative exactions from such heightened scrutiny, reasons that are grounded in the checks and balances of democratic government, the likelihood of reciprocal advantages stemming from legislation, and an aversion to judicial usurpation of the legislative process. However, this Article raises the possibility that distinguishing between legislative and administrative exactions could produce two secondary effects that ultimately prove detrimental to progressive property’s aims. 

First, pressing the idea that administrative exactions are significantly more likely to abuse property owners than legislative exactions necessarily risks marginalizing case-by-case administration across the board, which could lead courts to incorporate the heightened scrutiny of Nollan and Dolan in takings cases involving administrative acts unrelated to exactions. Second, formally recognizing the legislative-administrative distinction could prompt governmental entities to shy away from administrative actions in favor of broad, unbending legislative measures to avoid heightened scrutiny, and deserting case-by-case administration can come with weighty social costs, given that it is administration that at least in certain instances can better respond to varied and unpredictable development impacts and invariably focuses attention on the affected parties’ human stories. 

It follows that both remaining options in the wake of Nollan, Dolan, and Koontz—subjecting legislative exactions to either a deferential level of takings scrutiny or the heightened standard to which administrative exactions currently are subject—pose significant complications for proponents of progressive conceptions of property. In the end, then, perhaps progressive property scholars might concentrate more readily on evaluating and advocating for other potential boundary principles in exaction takings law, or, even more dramatically, reinvigorate the long dormant and admittedly uphill battle to reverse Nollan and Dolan in their entirety.

That is, Constitutional questions aside, even proponents of weak personal property rights should be wary of making a distinction between administrative and legislative exactions. Why? Exactly because the Supreme Court has extended such clear, strong protections to administrative exactions. Those proponents would do better to focus their attention elsewhere, says Prof. Mulvaney.

Take heart, fans of private property rights: progress is being made. And that should bring you cheer in this New Year.

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.

Developments of Regional Impact to Surface in 2014 Legislative Session

Bruce Ritchie recently wrote a good summary in the Florida Current of a bill concerning Developments of Regional Impact (DRIs). Here's an excerpt:

A bill filed in advance of the 2014 legislative session would allow six more counties to avoid review by the state of some growth management decisions, continuing a trend in recent years of increasingly less state oversight. 

In 2009, the Legislature passed SB 360 exempting counties designated as "dense urban land areas" from state review for "developments of regional impact." Environmental groups requested a veto but then-Gov. Charlie Crist signed the bill. 

For years, developers and some cities and counties supported less review of those larger developments because of the longer timeframe required for approval. Some developers also try to avoid passing thresholds, such as the number of homes in a proposed project, that would trigger state review. 

The 2009 legislation exempted those developments of regional impact (DRIs) from state review in counties with populations of 900,000 and at least 1,000 people per square mile of land area, unless the proposed developments were in designated "urban service areas" around cities. 

In 2013, 242 cities met the requirement along with eight counties: Broward, Duval, Hillsborough, Miami-Dade, Orange, Palm Beach, Pinellas and Seminole. 

SB 372, filed by Sen. Bill Galvano, would provide the dense urban land area designation to counties with at least 300,000 or densities of 400 people per square mile. 

Fourteen cities would fall within the exemption along with six additional counties: Brevard, Lee, Manatee, Pasco, Sarasota and Volusia, according to Galvano's office.

There is commentary from interested parties, including yours truly. As I mention in the article, it seems like a good idea to continue to test the Legislature's renewed interest in letting communities run their own show. In the most populated local jurisdictions, there does not seem to be as much of a need for the cumbersome DRI process as there may have been in the past.

What Effect has the Community Planning Act had on Growth Management in Florida?

Robert Rhodes has a thoughtful piece in the Florida Bar's Environmental and Land Use Section Reporter, entitled "The 2011 Community Planning Act: Certain Change, Uncertain Reform." Bob served as the first chair of the section. In his piece, he focuses on the Community Planning Act's effects on the state's oversight role and its defects. Ultimately, he proposes:

[T]he Legislature should statutorily define the operative terms, important state resources and facilities, and adverse impact. This is core legislative policy-making and a legislative prerogative and responsibility. For reference points, the Legislature can review current state planning policies noted below, the statutory definitions of development of regional impact and the general law guidelines for designating an area of critical state concern. Other useful reference points are the SRPPS, which identify regionally significant resources and facilities.

Depending on the specificity of the statutory definitions, they can be further refined by rules developed by the Governor and Cabinet with the assistance of DEO and other review agencies. If the Legislature decides not to statutorily define the operative terms, rules should be developed and could be subject to legislative review and possible action.

Rulemaking is more than a policy choice. Standing alone, the undefined operative terms are vulnerable to constitutional attack because they are broad, vague, variable and delegate unrestrained legislative policy making to the executive branch review agencies.

He also discusses the state agency's burden of persuasion and how to clarify the act's compliance standards. Bob concludes:

The 2011 Act was branded by proponents as significant growth management reform. Reform means to change for the better, to improve. But it may also mean to end. I’m optimistic the recent legislation may be a catalyst in many communities for improvement and not the beginning of the end of the state planning program. But to borrow a phrase from The New York Times columnist Tom Friedman, I’m now a paranoid optimist.

Legislative Session Wrap-Up Part 2: Land Development

In addition to some of the bills I mentioned in Part 1 of my legislative session wrap-up, these bills will be of interest to the land development community.

Land Development Bills

HB 319: This bill clarified and amended transportation concurrency, which was overhauled by the 2011 Community Planning Act. The legislative staff report on the bill summarizes its effects:

[The bill places] new requirements on local governments that implement alternative mobility funding systems. The bill requires these alternative systems to allow developers to “pay and go” for new development. Under the bill, once a developer pays for its identified transportation impacts, the local government must allow the development process to move forward. The bill encourages local governments without a transportation concurrency funding system to implement an alternative mobility funding system.  

The bill prohibits alternative mobility funding systems that are not mobility fee based from requiring developers to pay for existing transportation deficiencies. Local governments must apply revenue they collect from alternative funding systems to implement the needs upon which the revenue collection was based and mobility fees must comply with the dual rationale nexus test. Under the dual rationale nexus test, a court will find an impact fee reasonable if: 1) it offsets needs that are sufficiently attributable to the new development and 2) the fees collected are adequately earmarked for the benefit of the residents of the new development. 

The bill makes the following changes to transportation concurrency mechanisms: (1) Allows developers to satisfy the transportation concurrency requirements of a local comprehensive plan by making a good faith offer to enter a binding agreement to pay for or construct its proportionate share of impacts; (2) Allows local government to pool contributions from multiple applicants to apply toward one regionally significant transportation facility; (3) Requires local governments to provide the basis upon which landowners will be assessed a proportionate share of cost addressing the transportation impacts from a proposed development; (4) Clarifies that s. 163.3180(5)(h), F.S., applies to local governments that continue to implement transportation concurrency; (5) Clarifies when local governments are not required to approve new development.

HB 357: This bill is aimed at increasing Florida's competitiveness in the manufacturing sector. Again, the legislative staff report provides an excellent analysis. Local governments are encouraged to establish local manufacturing development programs aimed increasing capital investment and job creation within the manufacturing industry. The Department of Economic Opportunity (DEO) is charged with developing a model ordinance for local governments to do so. Most importantly for business owners, the bill creates a coordinated approval process for development approvals and permits for manufacturers managed by DEO in order to streamline the process for manufacturers participating in local manufacturing development programs. Finally, DEO and Enterprise Florida are to develop and distribute materials indicating which areas have developed local manufacturing development programs.

HB 375: This bill reduces permitting and inspection requirements for septic tanks and related systems (technically called onsite sewage treatment and disposal systems). For landowners, the biggest changes is that some single-family homeowners may now operate and maintain their own systems with approval by the Department of Environmental Protection.

Finally, there was HB 999--this session's bill that every environmental organization loved to hate. There was a great deal of press about this bill, much of it negative. But what this bill did do was decrease a number of environmental permitting burdens. For that reason, I've included in it my land use and development roundup, even though it might have been better left to Part 3 of my legislative session wrap-up, where I will review environmental and natural resource bills. Below is a summary of changes taken from the legislative staff report.

• Limiting to three the number of times a local government may request additional information when reviewing an application for a development permit, unless the applicant waives the limit; 
• Expanding the activities that qualify as "phosphate-related expenses" for the purpose of receiving severance tax proceeds;
• Providing lease fee calculation for certain marinas, boatyards, and marine retailers and providing conditions for the discount and waiver of these fees;
• Providing general permits for local governments to construct certain mooring fields;
• Increasing the size of certain multi-family docks on sovereign submerged lands that are exempt from paying lease fees;
• Prohibiting water management districts (WMDs) from reducing allocations due to additional water supplies resulting from developing of desalination plants;
• Providing that the issuance of well permits is the sole responsibility of WMDs, delegated local governments, or local county health departments, and prohibiting government entities from imposing certain requirements and fees;
• Providing that licensure of water well contractors by a WMD must be the only water well contractor license required in the state or any political subdivision;
• Exempting certain farm ponds and wetlands from regulatory requirements;
• Increasing the amount the Department of Environmental Protection (DEP) is authorized to enter into a contract for preapproved advanced cleanup work for designated contaminated sites in each fiscal year;
• Allowing a person to bring a cause of action for damages resulting from a discharge or certain pollution if not authorized pursuant to chapter 403, F.S.;
• Extending the payment deadline of permit fees for major sources of air pollution;
• Specifying that field procedures and lab methods for certain water quality testing must be adopted by rule or approved by order;
• Prohibiting a local government from using a recovered materials dealer's registration information to compete unfairly with the dealer for a period of 90 days after it is submitted; 
• Authorizing DEP to establish permits for special events relating to boat shows;
• Authorizing expedited permitting for natural gas pipelines and for summary hearings; and
• Ratifying certain leases on state-owned uplands in the Everglades Agricultural Area.

Because of the implications of this bill to agriculture (explicitly relating to farm ponds and implicitly in other ways), I've now cross-referenced this post with Part 1 of my legislative session wrap-up.

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.

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.

Early Issues for Landowners in the 2013 Legislative Session

People are starting to talk about the 2013 legislative session in Florida, which runs from March 5 to May 3. Here are some of the issues and bills that are being talked about. First, the Florida Current reports that there does not seem to be much appetite for changes to Florida's growth management system after the big changes in 2011:

After sweeping growth management law changes in 2011, most legislators and interest groups were content in 2012 to leave the issue alone while cities, counties and developers adjust to the changes. They still feel that way in 2013. However, a court case and a legal opinion involving growth management are creating a stir on a pair of issues. 

One involves referendums on development and changes made by a "glitch bill" that passed in 2012. A circuit court judge in Palm Beach County ruled in October that HB 7081 in 2012 now allows Boca Raton residents to seek a referendum challenging the proposed Archstone apartment complex there. That ruling has developers seeking clarifying legislation. 

Another issue stemming from the 2011 law involves transportation "concurrency" and a system for charging developments for needed road improvements. In 2012, the Florida Association of County Attorneys said a requirement for allowing developers to pay only their "proportionate share" doesn't apply to counties with other systems for collecting mobility fees.

The Florida Forestry Association has an update on some interesting bills: 

Alternative Water Supply Development – HB 109 by Rep. Dana Young, SB 364 by Sen. Alan Hays. Florida’s population growth has taxed our water resources. Florida’s forested lands can be part of the solution through surface water storage and aquifer recharge. Extended consumptive use permits for water utilities would enable them to raise bonded revenue to fund the infrastructure needs for alternative water supplies. Both bills have been approved by their respective Agriculture Committees and now go to the House State Affairs Committee (HB 109) and the Senate Community Affairs Committee (SB 364). 

Ag Lands & Practices Act – HB 203 by Rep. Halsey Beshears. The Ag Lands & Practices Act adopted in 2003 preempted counties from adopting any new ordinance regulating a farm or forestry operation beyond adopted BMPs. While this has been very effective, an effort is now underway to expand this preemption from counties to governmental entities. HB 203 was approved by the House Agriculture Committee and now goes to the Local & Federal Affairs Committee. Sen. Jeff Brandes has filed a companion bill in the Senate, but a bill number has not been assigned yet. 

Green Building Certification – HB 269 by Rep. Halsey Beshears. The Department of Management Services (DMS) has adopted the LEED green building rating system for state construction projects. LEED does not accept wood products certified under the SFI or Tree Farm system, which means it excludes virtually all Florida wood products from being used in new state construction projects. Rep. Halsey Beshears has filed legislation requiring DMS to adopt a green building rating system that does not discriminate against Florida wood products. His bill would require Florida wood products to be considered first when the use of wood is required for state construction projects. HB 269 has been placed on the agenda of the House Energy & Utilities Committee next week. Sen. Greg Evers has filed a companion bill in the Senate, but a bill number has not been assigned yet.

The Florida chapter of the American Planning Association also writes on two bills, one with interesting property rights implications:

SB 584 (Senator Hays) would prohibit the state, a county or a municipality from buying land for conservation purposes unless: 1) An accurate inventory, not more than 1 year old, of government-owned property is made public; (2) Sufficient funds are approved in the annual budget for the maintenance of existing properties; (3) An analysis describing the annual cost of maintenance of the proposed land purchase is completed; and (4) An equal amount of public property not being held in conservation is returned or sold at fair market value to the private sector. There is no companion bill filed yet in the House. 

HB 673 (Rep. Perry) and SB 772 (Senator Brandes) are identical bills that would amend the Bert Harris Act (Chapter 70, F.S.) to prohibit a local government entity from directly or indirectly imposing a tax, fee, charge or exaction against private property that: 1) does not result from a development or proposed development with a essential nexus to development impacts upon infrastructure or other public facilities; or 2) is more stringent than an exaction imposed by a state or federal agency unless the local government entity demonstrates that the exaction is reasonably necessary. This bill appears to create a more stringent test than Nollan/Dolan requirements or “the rationale nexus" test stemming from Florida case law that has governed impact fees and other exactions for decades. SB 772 has been referred to the Senate Community Affairs Committee and Judiciary; HB 673 has been filed but not yet referred to committees.

Can a Legislature Pass Laws Limiting the Right to Compensation for a Taking?

Over the past week, I've been writing about a case before the U.S. Supreme Court that asks whether a property owner can be compensated for its timber, where the government destroyed the trees. Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012). In Florida, we have a long line of cases dealing with the destruction of trees because the state has the power by statute to destroy citrus trees where they pose a danger to other trees, such as by citrus canker infection. A recent case highlighted the problem of compensation for the trees and answered an interesting property rights question.

What if a legislature decided that private property takings claims were becoming too burdensome? Could the legislature pass a law limiting the right to compensation for inverse condemnation? The 3d DCA recently addressed this question head-on. Florida Dept. of Agric. & Consumer Services v. Brignoni, - So. 3d -, 37 Fla. L. Weekly D2199 (Fla. 3d DCA 2012). According to the 3d DCA, the answer is no:

The provision of the Florida Constitution providing that “[n]o private property shall be taken except for a public purpose and with full compensation,” Art. X, § 6(a), Fla. Const., is self-executing; therefore, “it is immaterial that there is no statute specifically authorizing recovery for loss.” Dep't of Agric. & Consumer Servs. v. Mid–Florida Growers, Inc., 521 So.2d 101, 103 n. 2 (Fla.1988). “[T]he point is that the common law and statutory provisions for inverse condemnation do not displace the constitutional requirement for just compensation....” Dep't of Agric. & Consumer Servs. v. Bogorff, 35 So.3d 84, 90 (Fla. 4th DCA), review denied, 48 So.3d 835 (Fla.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 2874, 179 L.Ed.2d 1188 (2011). 

The relevant compensation portion of Florida's Citrus Canker Law, § 581.1845(4), Fla. Stat. (2006), provides: The specification of a per-tree amount paid for the residential citrus canker compensation program does not limit the amount of any other compensation that may be paid by another entity or pursuant to court order for the removal of citrus trees as part of a citrus canker eradication program. 

As the Florida Supreme Court has stated: [The] Citrus Canker Law sets a compensation floor that is consistent with the established principle that “the determination of what is just compensation ... is a judicial function that cannot be performed by the Legislature.” Haire v. Fla. Dep't of Agric. & Consumer Servs., 870 So.2d 774, 785 (Fla.2004) (quoting State Plant Bd. v. Smith, 110 So.2d 401, 407 (Fla.1959)); see also Patchen, 906 So.2d at 1008 (“[W]e conclude that the schedule established by the Legislature sets a floor but does not determine the amount of compensation. When the State destroys private property, the State is obligated to pay just and fair compensation as determined in a court of law.” (quoting Haire, 870 So.2d at 785)). 

In sum, it is not only beyond legislative purview to displace the constitutional requirement of just compensation upon a taking, but section 581.1845 expressly contemplates the entry of a court order obligating the State to compensate a homeowner for the destruction of his or her residential citrus trees under the CCEP in excess of the statutory per-tree amount. The Florida Supreme Court, finding the statute remedial, gave section 581.1845 its plain meaning, “which is to provide compensation to homeowners who had trees destroyed on or after January 1, 1995.” Patchen, 906 So.2d at 1008. Although the concurring and dissenting opinions in Patchen suggest concern over whether the majority opinion impliedly eliminated the right to pursue an inverse condemnation claim for the destruction of residential citrus trees, the majority opinion limits the scope of its opinion to the certified question posed.³ See Patchen, 906 So.2d at 1005–09. Accordingly, “[i]f the compensation required by the Constitution exceeds a statutory amount, the State will have to pay that amount.” Bogorff, 35 So.3d at 91.

That is, in Florida, the Legislature is welcome to set a minimum for compensation to injured property owners.  It could not, however, arbitrarily cap the amount of compensation that a property owner could receive, or keep the property owners out of court in an effort to recover just compensation. Put simply, the Legislature must respect the rights protected in the federal and state constitutions.

Legislation Settling Yankeetown Case Approved by House & Senate

I wrote back in December about the legislation that would settle the Yankeetown litigation. In Yankeetown v. DEO (37 2011 CA 002036), Yankeetown asked the court to declare that the Community Planning Act, HB 7207 (ch. 2011-139, Laws of Fla.), was unconstitutional.

As readers of this blog will recall, the parties reached a settlement agreement that required them to use their best efforts to pass legislation that would cure Yankeetown's main issue and allow it to continue to use its referendum process for its comprehensive plan amendments. Language that appears to meet the requirements of the settlement agreement has been passed in both chambers, although the chambers will have to settle the other diferences.

House Bill 7081 passed in the House on February 16th. Senate Bill 440 passed in the Senate yesterday. The bill was sponsored by Senator Bennett, one of the principal authors of the Community Planning Act. The relevant language in the bill, with additions underlined, reads:

163.3167(8) An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment is prohibited. However, any local government charter provision that was in effect as of June 1, 2011, for an initiative or referendum process in regard to development orders or in regard to local comprehensive plan amendments or map amendments, may be retained and implemented.

The Governor will still have to approve this language for it to become law. Judging by the strong support in both chambers for it, it seems likely that he will. The status of his action on bills is here. Then the parties would have to go back before the court to finish the settlement process. Stay tuned for this and other legislative updates. I'll be watching as the 2012 legislative session winds down.

New Legislation May Allow Yankeetown to Keep Its Referedum Requirement

New comprehensive planning legislation that may interest my readers has been filed. For those who are not as familiar with comprehensive plans, the legislative staff analysis of one the bills that have been filed explains them briefly:

The Local Government Comprehensive Planning and Land Development Regulation Act (the Act), also known as Florida’s Growth Management Act, was adopted by the 1985 Legislature. The Act requires all of Florida’s counties and municipalities to adopt local government comprehensive plans that guide future growth and development. Comprehensive plans contain chapters or “elements” that address future land use, housing, transportation, water supply, drainage, potable water, natural groundwater recharge, coastal management, conservation, recreation and open space, intergovernmental coordination, capital improvements, and public schools. The state land planning agency that administers these provisions is the Department of Economic Opportunity. 

A local government may choose to amend its comprehensive plan for a host of reasons. It may wish to: expand, contract, accommodate proposed job creation projects or housing developments, or change the direction and character of growth. Some comprehensive plan amendments are initiated by landowners or developers, but all must be approved by the local government. The first step in the process is for the local government to develop a comprehensive plan amendment proposal. Public participation is a critical part of the comprehensive planning process. Citizens often want to be a part of planning their communities and landowners need to be aware of changes that could affect their property. A local government considering a plan amendment must hold at least two advertised public hearings on the proposed comprehensive plan or plan amendment. Notice must be published in a newspaper of general paid circulation in the jurisdiction of interest. The procedure for transmittal of a proposed or adopted comprehensive plan amendment requires the affirmative vote of a majority of the members of the governing body present at the hearing. 

As you may recall, as a part of last year's landmark growth management legislation, the Community Planning Act, ch. 2011-139, Laws of Fla. (HB 7207), prohibited referenda requirements. Yankeetown's charter requires it to hold a referendum for approval of any comprehensive plan changes, and Yankeetown wanted to keep the requirement. Consequently, Yankeetown filed a lawsuit alleging that the Community Planning Act was unconstitutional. St. Pete Beach later intervened in the case to protect its own referendum that had eliminated its referendum requirement (after years of court battles), and the state moved to dismiss Yankeetown's complaint.

On November 9, while the state's motion to dismiss was still pending, the parties filed a joint motion and settlement. The motion, which was approved by the court, holds the litigation while all parties use their best efforts to pass legislation to amend section 163.3167(8), Florida Statutes. The proposed legislation would allow Yankeetown's referendum requirement to stand, while banning other local governments from taking it up. If the required legislation is not passed, the litigation will likely continue.

Senator Mike Bennett has already filed the implementing legislation, SB 842. He was one of the principal authors of the Community Planning Act. The relevant language in the bill, with additions underlined, reads:

163.3167(8) An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment is prohibited. However, any local government charter provision that was in effect as of June 1, 2011, for an initiative or referendum process in regard to development orders or in regard to local comprehensive plan amendments or map amendments, may be retained and implemented.

Note that the language is quite strict: not only must local governments have already adopted their referendum requirements, but the requirements must also have adopted them as part of their charters. Charters are generally much more difficult to amend than simply passing an ordinance.

SB 440, also filed by Senator Bennett, contains the same language and appears to be moving through the committee structure even faster than SB 842. There is not yet a House companion bill.

For those interested, you can track SB 842 and SB 440 online.