Congress Stays NPDES Permitting for Forest Roads

In a move that gives forest landowners a bit of comfort, Congress has stayed NPDES permitting for forest roads until October 1, 2012 through its Omnibus Appropriations Bill. The move was necessary because of a Ninth Circuit Court of Appeals decision that has been extremely unpopular, prompting legislators on both sides of the aisle to support action reversing it. Observers in the Ninth Circuit reported on the case below:

The Ninth Circuit [decision] will effectively require many timberland owners and logging companies to obtain permits for stormwater runoff from logging roads in the western U.S. The case, Northwest Environmental Defense Center (NEDC) v. Brown, involved two Oregon logging roads where stormwater runoff is collected in systems of ditches, channels, and culverts, and then discharged into adjacent rivers. The Ninth Circuit initially issued its decision in August 2010...On May 17, the court withdrew its earlier opinion and reissued a revised version. 

In the reissued opinion, the Ninth Circuit reiterated that the stormwater collection systems at issue unambiguously constitute “point sources” under the Clean Water Act (CWA), and that such discharges therefore require permits under the CWA’s National Pollutant Discharge Elimination System (NPDES) program. In so holding, the court significantly limited a decades-old regulation that had historically been viewed as excluding logging road runoff from the NPDES program and charged EPA with developing a general permit to handle the discharges.

The Ninth Circuit's decision could have big implications for forest landowners, and not just on the West Coast. EPA would likely develop forest roads permits for the entire country. This would be extremely difficult:

But while legal and Congressional challenges to the Ninth Circuit’s decision play out, the owners and users of forest roads in the western states (those within the Ninth Circuit’s jurisdiction) still must cope with the court’s holding that their discharges of channeled runoff fall under EPA’s Phase I stormwater regulations. The Ninth Circuit closed its opinion by saying “we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to” establish permitting for forest road discharges “effectively and relatively expeditiously.” That confidence does not appear to be well placed. 

To date, no general permits have been developed that are specifically tailored to channeled discharges from forest roads. Individual permits also are a theoretical possibility, but are unlikely to be developed given the resource commitments they would require for forest road owners and regulatory agencies. Absent a simpler solution, the discharges may have to fit within an existing general permit, although the effluent limits and discharge monitoring required by those permits are unlikely to be well suited to forest roads, and must be carefully evaluated. A closer examination of road networks with an eye toward whether runoff, even though channeled at some point, actually discharges to U.S. Waters from a point source may reduce somewhat the regulatory burden of the court’s decision. These and other regulatory strategies will likely be deployed if the court’s decision withstands the current challenges.

This comes just after the U.S. Supreme Court asked for the Solicitor General's position on the Ninth Circuit case. Forest landowners across the country are hoping the Supreme Court will accept the case and reverse the Ninth Circuit's opinion.

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.

In Florida, Exactions Limitations Apply Only to Real Property, Not Personal Property

In a recent case, the Florida Supreme Court held that the law of exactions--a part of takings law--only applies to the dedication of real property for public use. St. Johns River Water Mgmt. Dist. v. Koontz, No. SC09-713 (Fla. Nov. 3, 2011). This case has important implications for landowners and city planners in Florida.

The Koontz Decision

In Koontz, a landowner requested permits from his local water management district to develop a greater portion of his commercial property than was authorized under existing regulations. The district agreed to grant the permit if the landowner would deed the remainder of the parcel into a conservation easement and pay for offsite mitigation measures unrelated to the landowner's property. The landowner agreed to the easement term but rejected the offsite mitigation. Consequently, the district denied the permit. The landowner sued, alleging a taking. After more than a dozen years in the Florida courts, the case ended up before the Florida Supreme Court.

The takings clause in the Florida Constitution is more or less equivalent to, or "coextensive" with, the takings clause in the U.S. Constitution. Id. at *2. Therefore, decisions by the U.S. Supreme Court about takings are the law in Florida. The Koontz case implicated two important U.S. Supreme Court decisions: Dolan v. Tigard, 512 U.S. 374, 384 (1994), and Nollan v. California Coastal Commission, 483 U.S. 825, 831-32 (1987). In a post at the Land Use Prof Blog on the Koontz decision, Ken Stahl of Chapman University provided background on Nollan and Dolan:

Some brief background on Nollan and Dolan for those who are not takings geeks: Taken together, the [they] hold that when a regulatory entity demands a condition in exchange for authorizing a use of land that would otherwise be prohibited (known as an "exaction") the condition imposed must have an "essential nexus" with (Nollan) and "rough proportionality" to (Dolan) some anticipated impact of the proposed use of land. Both Nollan and Dolan involved situations where the regulatory authority demanded the landowner physically dedicate some portion of his or her land for public use, and the Court in both cases emphasized that the condition demanded by the regulatory authority required the landowner to forfeit the sacrosanct "right to exclude." As a result, many commentators believed that Nollan and Dolan were limited to circumstances where the "exaction" was a requirement that real property be dedicated for public use, and did not extend, for example, to requirements that landowners pay an "impact fee" or other type of monetary payment in exchange for development permission. 

That interpretation, however, was rejected by one of the most significant lower court decisions to date dealing with Nollan and Dolan, the California Supreme Court's ruling in Ehrlich v. City of Culver City, 911 P.2d 429 (Cal. 1996). There, the court held that Nollan and Dolan did apply to certain types of impact fees, specifically fees imposed on a discretionary, individualized basis. The court emphasized what it saw as the underlying policy rationale of the Nollan/Dolan doctrine, to prevent regulatory authorities from using their monopoly power over the land use permitting process to extort concessions from politically powerless developers. This policy concern, the court noted, would apply equally regardless of whether the exaction was a physical dedication or an impact fee.

After a relatively brief analysis, the Florida Supreme Court concluded that Nollan and Dolan only apply to physical dedications of real property because (1) those cases only involved physical dedications and (2) regulatory agencies would by hamstrung and would likely deny more permits rather than face the uncertainty of negotiations.

The Implications

In the near future, this means that the protections of exactions law do not apply when governments and agencies request personal property, rather than real property, as a condition preceding development. As Robert Thomas pointed out in his blog, Inverse Condemnation, exactions are an important and topical issue these days.

The U.S. Supreme Court recently declined certiorari review of an Oregon case, where a city required a developer to pay money and for infrastructure costs. The developer wanted the city's requirements to be subject to the heightened standard of review set out by the U.S. Supreme Court in Nollan and Dolan. Although there were arguments that Oregon law supported the developer's position, after the case bounced into and out of the federal courts, the Oregon Supreme Court ruled otherwise in its West Linn decision. Just before Supreme Court of the United States denied certiorari, the developer filed a supplemental brief pointing out the Koontz decision here in Florida:

The Florida Supreme Court's decision in Koontz underscores the importance of the issue posed by the petition in this case. Moreover, it demonstrates the deepening divide between the courts such as the Supreme Courts of California and Texas which perceive no principled reason to distinguish between disproportional exactions of personal as opposed to real property and those Courts such as the Supreme Courts of Oregon and Florida, as well as the Ninth Circuit, that erroneously perceive in this Court's decision in Lingle an unstated intent to limit Nollan and Dolan. Only this Court can decide this important conflict and bring clarity to this area of Constitutional law.

The supplemental brief points to the heart of the matter: why should there be any distinction between exactions of personal property and exactions of real property? Unfortunately, because case was denied, we'll have to wait for the U.S. Supreme Court to clarify whether exactions law extends to personal property, as well as real property. Here in Florida, a motion for rehearing was filed on November 18 in the Koontz case. While rarely granted, a rehearing would give the Florida Supreme Court a chance to clarify its decision, which commentators have already said lacks clarity.

DCA files motion to dismiss Community Planning Act legislation

I've been following the Yankeetown v. DCA (37 2011 CA 002036) litigation. So far, I've written on Yankeetown's complaint alleging that the Community Planning Act is unconstitutional and on St. Pete Beach's motion to intervene in the litigation against Yankeetown.

The Department of Community Affairs was recently substituted in the litigation by its new administrative iteration, the Department  of Economic Opportunity. Just before that, DCA filed a motion to dismiss Yankeetown's complaint. DCA argues that officers of the state and state agencies must presume that laws affecting their duties are valid. Because the validity of the law must be assumed, the public officer is not given standing to challenge the law. That is, public officers are expected to uphold their office, not fight about it. Because this line of case law has been applied previously to both local governments and to growth management law, DCA argues, it should applied in this case.

If Yankeetown responds to the motion in writing before the hearing, I will post a summary here.

Third Quarter 2011: Recent Florida Environmental and Land Use Case Law

This post continues my series of case law updates for those interested in recent environmental and land use cases in Florida. Once again, these cases come from the case law update that I coauthor in the newsletter of the Environmental and Land Use Law Section of the Florida Bar. Below are the cases we reviewed this quarter.

• Walthour v. Malibu Lodging Investments, LLC, 2011 WL 2135594 (Fla. 3d DCA June 1, 2011), a city ordinance with no variance provision is constitutional as long as it does not create a “unique hardship” for the landowner.
• Wilson v. Palm Beach Cnty., 62 So. 3d (Fla. 4th DCA June 15, 2011), holding that the Right to Farm Act does not prohibit the enforcement of local government ordinances regulating farming activities adopted prior to June 2000 (although this holding was likely reversed by Ch. 2011-007, Laws of Fla.)
• Pembroke Ctr., LLC v. Dep’t of Transp., 2011 WL 2555569 (Fla. 4th DCA June 29, 2011), not allowing an inverse condemnation claim where the government is merely planning for future events and access is not lost.
• Heritage 5, LLC v. Estrada, 2011 WL 2848664 (Fla. 4th DCA July 20, 2011), applying the reasonable use rule to man-made drainage schemes that further natural flows.
• Highwoods DLF EOLA, LLC v. Condo Dev., LLC, 51 So. 3d 570 (Fla. 5th DCA 2010), establishing in potential conflict with the 2d DCA that quasi-judicial proceeding participants cannot be barred from subsequent certiorari proceedings. 

You can find more details in this quarter's newsletter. Please email me as you become aware of cases we should review.

St. Pete Beach intervenes in Constitutional Challenge to Community Planning Act

Another city has piled onto Yankeetown's constitutional challenge to the Community Planning Act (HB 7207, signed into law as ch. 2011-139, Laws of Fla.). Recall that Yankeetown challenged the Community Planning Act on grounds that it unconstitutionally delegates power to the State Land Planning Agency to define certain terms. Yankeetown also challenged the Act for more technical reasons, including that it was adopted in contravention of the single subject requirement and that it was read by a misleading and inaccurate title.

The twist is that the new local government has moved to intervene as a defendant. In late August, St. Pete Beach moved to intervene in Yankeetown v. DCA (37 2011 CA 002036). If its motion succeeds, it will enter the case aligned with the State Land Planning Agency and possibly the State. St. Pete Beach would then be opposed to Yankeetown. In this case, St. Pete Beach claims an interest in the action through an adopted plan amendment that would be uncertain if the act were struck down. Section 76 of the Act states:

A comprehensive plan amendment adopted pursuant to s. 163.32465, Florida Statutes, subject to voter referendum by local charter, and found in compliance before the effective date of this act, may be readopted by ordinance, shall become effective upon approval by the local government, and is not subject to review or challenge pursuant to the provisions of s. 163.32465 or s. 163.3184, Florida Statutes.

St. Pete Beach's motion to intervene doesn't tip its hand beyond showing the city is clearly interested in the outcome of the case. However, the backstory hints at the city's intentions. St. Pete Beach, readers will remember, formerly had a referendum requirement similar to sought by advocates of Hometown Democracy. It's now embroiled in even more lawsuits - the most recent seeks to overturn the city's referendum that eliminated its comprehensive plan referenda requirement and to overturn the city's reinstatement of a comprehensive plan that was invalidated by a circuit court judge.

We should see more filings in the case soon.

Yankeetown Files Complaint to Declare Community Planning Act Unconstitutional

Well, that didn't take long.

Tiny Yankeetown, with a population of less than a 1,000, has challenged HB 7207, this session's landmark growth management overhaul. I've written several times about the Community Planning Act. The Second Judicial Circuit has labeled the case as high profile, which means the docket is available online. I'll be following it to provide updates to all who are interested. Yankeetown filed an expedited complaint on August 1st and an amended complaint on August 8th.

In Yankeetown v. DCA (37 2011 CA 002036), Yankeetown requests that HB 7207 (ch. 2011-139, Laws of Fla.), be declared unconstitutional because it:

1. contains more than one subject, was adopted in violation of the single subject rule, and was read by a misleading and inaccurate title; and because it
2. contains an unconstitutional delegation, in violation of the non-delegation doctrine, to the State Land Planning Agency to define the vague terms "important state resources and facilities" and "important regional resources and facilities."

Yankeetown also seeks a declaratory judgment that it still apply its referenda provisions, requiring voters to approve all comprensive land use changes affecting more than five parcels. because they existed before HB 7207 was passed. The amended complaint adds allegations concerning the title of the bill and whether it was enacted properly.

Because HB 7207 went into effect upon being signed by Governor Scott in early June, local governments around Florida had to learn its provisions quickly. They must continue implementing the Community Planning Act, despite this challenge. If Yankeetown is successful, Florida land use and growth management law could get very messy, very quickly.

New Institute in Florida Pledges to Protect Property Rights

The Pacific Legal Foundation has created the Wade L. Hopping Institute for Private Property Rights. The Institute will fight to protect property rights through education and litigation. It will work, in part, through a network of pro bono attorneys to fight government abuse of property rights. It's a fitting tribute to Justice Hopping, with whom I had the privilege of working for at the firm he founded, Hopping Green & Sams.


The Institute already has environmental journalists and nonprofits worried. Their hand-wringing shows how much the Foundation's work is needed. Private property rights are about "individual autonomy and the enjoyment of liberty." But for folks like Monica Reimer of Earthjustice, private property rights can be reduced to nuisance claims. Ms. Reimer believes that growth management and environmental laws "were all intended to protect private property rights." Really? Those laws may have been intended, ostensibly, to protect the public health and safety. They may have intended to recognize "public environmental rights." Yet they have never been said to have been intended, first and foremost, to protect private property rights.


It's a testament to American's support for free enterprise that even environmentalists have hijacked the rhetoric of property rights advocates.

A Professional Planner's Take on the Community Planning Act

The president of the Florida Chapter of the American Planning Association, Merle Bishop, FAICP, recently responded to an article by St. Pete Times reporter Craig Pittman. The article  appeared in the July 2011 issue of Planning, the American Planning Association's magazine. Pittman's article is reproduced here. That blog shows that Pittman's article has given many a mistaken impression of what has happened to land use planning and growth management in Florida. 

I haven't been able to find a copy of Mr. Bishop's letter online so it is reproduced below. It gives some perspective on how planning professionals are dealing with the Community Planning Act and HB 7207.

Craig,

 

I was somewhat disappointed in reading your article in the July 2011 issue of Planning, titled “Florida Kills Growth Management Act.” I understand that the article appeared in the “News Briefs” section of the magazine which does not provide sufficient column space to fully explain a complex topic as House Bill (HB) 7207 and the recent changes to Florida’s Growth Management Act. Your article certainly offers a very disheartening viewpoint regarding the recent legislative changes in Florida. Especially, to any reader who has not followed the legislative process, much less read HB 7207. I say this because it is my belief, which I believe is shared by many of my planning colleagues, that Florida did not kill the Growth Management Act. I understand the argument that changes to the role of DCA as a strong, centralized state planning agency in the oversight and approval process of Comprehensive Plans weakens the overall planning effort in Florida. However, I also recognize that there is a lot of good planning that is taking place at the local level and does not need a “top down” planning structure or state oversight to be successful. In a sense, I believe it boils down to some people seeing the glass as half empty while others see it as half full.

 

Most of the planning requirements of the Growth Management Act remain unchanged and, while Rule 9J-5 was repelled, several of the provisions of the rule have been incorporated into the Growth Management Act (Chapter 163, F.S.) In fact, if you step back and take a look at the new law in its totality, there remains a decent planning process, that if followed, will provide local governments the necessary tools to guide their futures. Your article states that the new legislation bans cities and counties from imposing impact fees on non-residential development for two years. This is simply not the case. This provision was discussed earlier in the legislative process, but not included in the final, adopted version of the legislation.

 

Certainly, the statutory changes did not diminish the importance of local governments ability to make sound decisions that are based on plans developed over decades of hard work, public investment and public participation. The big question, in light of the changes, is how will local governments respond to those changes? Will they remove concurrency for transportation, schools and park facilities? Will they remove their School Facilities Element from their Comprehensive Plan? Will they make bad planning decisions that result in sprawl and adverse environmental impacts? Will citizen involvement in the planning process and public opinion have any influence or bearing on local decisions and choices? I guess these questions remain to be answered as we move into future with the changes in HB 7207. It can be argued that planning requirements contained in state law and rule are not essential to achieve good planning. In fact, changes in these requirements can present new opportunities for local governments to be proactive and creative in making planning decisions and securing a better future for existing and future populations. As a planning profession, I believe it is critical that planners in the state provide leadership in identifying those creative and innovative solutions.

 

One of the more frustrating aspects of the legislative debate, was that it appeared to focus heavily on comprehensive plans as a regulatory impediment to economic development. Seemingly lost in the debate is the strong linkage between good planning and economic development, including job creation. A comprehensive plan is not an end unto itself but it is a tool to guide a community towards economically vibrant, sustainable and active communities. It is my opinion that most local communities throughout Florida “get this” and will “stay the course” by maintaining concurrency, including a school facilities element, as part of their plans. Additionally, they will “step up” and make good planning decisions without having DCA as a “backstop” for bad planning decisions. Craig, I hope that you take the time and opportunity to speak with other planners in leadership roles around the state to get different perspectives from professionals who work with the growth management act and the recent changes on a daily basis. I realize that planners don’t make the decisions, elected official do and when local politics are involved, anything can happen. I acknowledge that some bad choices and decisions will occur. However, many of the elected officials that I know sincerely want to do the right thing and understand the significance of sound planning and a following a good plan for the future of their community.

 

In closing, I encourage you to point out that there is still a planning requirement in place in Florida and local governments are now more accountable to existing and future populations to make good decisions based on their plans developed over the years. I believe that local citizens also have a very important role in the new planning structure for Florida. They should be encouraged to become educated and more aware of their community’s planning efforts and to get involved – participate in local planning and visioning efforts to provide guidance to appointed planning and zoning boards and local elected officials. Planning is definitely alive and well in the state. Governments have taken on different roles and local governments are capable of implementing the plans and vision of their local community.

 

Thanks,

Merle

 

Merle H. Bishop, FAICP

APA Florida President

Resource for Recent Florida Environmental and Land Use Case Law

For those who are interested in recent environmental and land use case law in Florida, the Environmental and Land Use Section of the Florida Bar publishes its newsletter, the Section Reporter, online. As of the June 2011 edition, I am now coauthoring the Florida Case Law Update column with my colleague at Hopping Green & Sams, Gary K. Hunter, Jr.

Each quarter, we review and summarize the most important cases in the Florida appellate courts dealing with environmental, land use, growth management, property rights, and natural resources law. This quarter, we review the following cases:

• Miami-Dade County v. DCA, 54 So. 3d 633 (Fla. 1st DCA Feb. 28, 2011), explaining the judicial review powers of the Administration Commission, and judicial review of the Commission itself.
• Hasselback v. DEP, 54 So. 3d 637 (Fla. 1st DCA 2011), regarding proper legal notice of permits to be issued by the Department of Environmental Protection.
• City Nat’l Bank of Fla. v. Tampa, 2011 WL 1295874 (Fla. 2d DCA 2011), allowing state court review of federal equal protection claims under 42 U.S.C. section 1983.
• Graves v. Pompano Beach, 2011 WL 1376617 (Fla. 4th DCA 2011), establishing that plat approval does not constitute a development order under section 163.3215, Florida Statutes.
• Allen v. Key West, 2011 WL 1485992 (Fla. 3d DCA 2011), declaring a nonconforming land use where the previous owner relied on the city's actions and maintained all required licenses.
• Atwater v.  Weston, 2011 WL 1634234 (Fla. 1st DCA 2011), which I previously reviewed, dismissing a challenge to the 2009 growth management bill, SB 360.

As you come across relevant cases, please forward them to me.