In a case challenging a charter amendment that
would put specific restrictions on the use of certain publicly owned upland and
submerged land, the circuit court found the proposed ballot language was not
ambiguous, the amendment was not placed on the ballot in violation of the
governing statute, and the ballot did not violate the “anti-referendum”
provision of § 163.3167(12), Fla. Stat.
The District Court upheld the circuit court on all points.
With respect to the final matter, the City and
the Redevelopment Agency that owned the land argued that the prohibitions
eliminated uses permitted under the comprehensive plan and zoning, and
therefore would require amendments to the plan and zoning. The circuit court and district court
disagreed, and the district court found there were still uses for the affected
property, that were consistent with the Comprehensive Plan.
Given the findings, the result was not
surprising. For whatever reason, the
City did not challenge the amendment as an LDR that required hearings under §
163.3194. This points out a problematic
hole in § 163.3167(12), even after
recent amendments - while plan amendments and development orders are not
subject to referenda, land development code changes are subject to referenda. We’ll see if the statute is expanded to
include LDRs after some decisions like this which still leave the development
of specific sites subject to referenda.
In a divided 5-4 opinion, the U.S. Supreme
Court (“SCOTUS”) overturned the Florida Supreme Court (“SCOF”) decision in Koontz. The core and critical holdings: the
“unconstitutional conditions” doctrine underlying the Nollan and Dolan
decisions applies in the land use regulatory context to cash exactions as well
as demands for a direct interest in land (land or easements), and also can
apply (but may not always) where no cash or exaction changes hands because the
government agency denies the application at hand. I will let the majority opinion speak for the
Nollan and Dolan ….
allow the government to condition approval of a permit on the dedication of
property to the public so long as there is a “nexus” and “rough
proportionality” between the property that the government demands and the
social costs of the applicant's proposal. Dolan, supra, at 391, 114
S.Ct. 2309; Nollan, 483 U.S., at 837, 107 S.Ct. 3141. Our precedents thus enable permitting
authorities to insist that applicants bear the full costs of their proposals
while still forbidding the government from engaging in “out-and-out ... extortion”
that would thwart the Fifth Amendment right to just compensation. Ibid.
(internal quotation marks omitted). Under Nollan and Dolan the
government may choose whether and how a permit applicant is required to
mitigate the impacts of a proposed development, but it may not leverage its
legitimate interest in mitigation to pursue governmental ends that lack an
essential nexus and rough proportionality to those impacts.
The full complexity and ramifications of the
decision will be debated for years and cases to come, so I will touch only on a
few brief and important points.
First, the full application of the decision on
the case itself will not be resolved until the Florida Supreme Court addresses
it on remand because SCOTUS refused to address or resolve the large number of
Florida procedural and statutory law issues the SCOF dodged by (incorrectly)
interpreting the federal takings issues.
These include when and whether a plaintiff may proceed under special
statutory “compensation” provisions (like the one at play here) without going
through the full APA process to challenge the validity of the administrative
action. This was also mangled by
everyone in the Save Our Beaches case.
The particular Florida statute created the damages remedy that was at
issue here - SCOTUS left open the remedy for an illegal exaction in cases where
there is not a statutory damages remedy.
Second, it is very unclear how and when a
landowner will be able to bring a Koontz-based claim of extortionate
demands under the DRI (or more “standard” local government) development
procedures. Here, the District walked
(or was walked) into a documented denial based on the demand for off-site
improvements without any “formal” analysis or relationship between the impact
on wetlands and the demand for off-site improvements. I would note that the essential action
occurred in 1993, and could not happen under the current wetland
regulatory regime in Florida. In fact,
no demand for a valid impact fee or regulatory fee in Florida will fall afoul
However, programs like
Pasco County’s recently invalidated right-of-way dedication ordinance, that do
not tie required dedications to any rational evaluation (by the government) of
the impacts of the development, will either be invalidated, require
compensation, or both. And where local
governments – openly or through “suggestive” review practices – demand things
like parks, schools, sidewalks or other “contributions” in the rezoning or
other process that are above, beyond or separate from established impact fees
or exactions, those demands may subject the local government to claims – even
(and perhaps especially) where the developer was successful in getting the
However, the majority opinion is clear: like a “taking of all economic use” under Lucas,
a violation of the Nollan/Dolan/Koontz prohibition on unconstitutional
conditions is a per se taking. Here’s
the real warning and the potential problem for all sides: there is no meaningful difference between
treating development approvals like a benefit that has to be “bought” (what’s
in it for the community) and engaging in “out-and-out extortion.” Landowners are required to offset their
legitimate impacts in order to develop – they are not required to provide
benefits to the community.
My final point (at least today) is this: the parade of horribles in the SCOF opinion,
the SCOTUS dissent, and the dissent of a large number of the land use
commentators, all demonstrate an appalling lack of understanding of the
day-to-day abuses that occur in the development process today, and how easily
the Nollan/Dolan/Koontz test can be met by a government agency acting in
good faith. Methods for fairly
evaluating the impacts of development on public facilities/infrastructure and
environmental resources are readily available today. The problems occur almost entirely from lack
of planning and governmental over-reaching – and a culture of land use
regulation that has become corrupted (in the general sense – but also leading
to the specific) by the huge regulatory discretion enjoyed by local governments
and the lack of effective judicial oversight on the use of that discretion.
On October 30, 2013, the Florida Supreme Court
remanded the case to the Fifth DCA for further proceedings.
Below: Florida Supreme Court Mangles a
Difficult Takings Case.
I have condensed the background for this
tangled, fifteen year plus odyssey through the administrative process and three
trips for appellate review, as the complete story would take far too long to
repeat. Koontz owns a 14.7 acre property
that includes a significant proportion of wetlands and is also largely within a
“Riparian Habitat Protection Zone of the Econlockhatchee River Hydrological
Basin.” Koontz sought to fill 3.4 acres
of wetlands for a project. The SJRWMD
staff recommended approval with many conditions, one of which was that Koontz
pay to perform offsite mitigation by replacing culverts in systems four and a
half miles from the property or plug drainage canals seven miles away. The District never introduced any evidence
that these actions would mitigate direct impacts created by the proposed
development or that they were in any way proportionate to the impacts of the
proposed development. Koontz refused to
accept the conditions, and the District denied the permit. Koontz then sued under § 373.617, which provides a statutory
process and remedies for claims that a permitting action would constitute a
taking. In its first and second trips up
and down the appellate chain to the Fifth DCA, the ripeness and other issues
were addressed. On remand after the
second appeal, the circuit court found the condition would create a taking, and
the District chose to grant Koontz the permit (after receiving additional
evidence that the jurisdictional wetlands on the property were significantly
less extensive than originally thought).
The circuit court then awarded Koontz $376,154 for a temporary taking by
The 5th DCA upheld the circuit
court, holding the demand for off-site mitigation was an exaction under Nolan
and Dolan. The Fifth rejected the
District’s assertion that Nolan and Dolan did not apply to “cash”
demands for mitigation, but only to conditions that require a grant or
dedication of lands or easements. The
dissent objected to lack of ripeness based on Koontz’s failure to litigate its
validity in an administrative challenge, and also asserted that a takings claim
is not available for mitigation conditions that do not involve dedications of
land or easements.
The Florida Supreme Court overturned the Fifth
DCA. It held that while Florida follows
federal takings law, it was not clear under existing decisions that Nollan
and Dolan apply to exactions that do not take the form of dedications of
land or easements, and it would not “extend” those holdings to include such exactions. It also held takings claims are available
“only where the regulatory agency actually issues the permit sought, thereby
rendering the owner’s interest in the property subject to the dedication imposed.” Justice Polston, joined by Justice Canady,
concurred in the result, and would have held the entire issue was an attack on
the propriety of the agency action and should have been subject to exhaustion
by a challenge to the permit action under the APA.
The Court (and other courts that reached the
same conclusion) was simply wrong in holding that the takings analysis does not
reach “cash” mitigation. The
“unconstitutional conditions” doctrine on which this branch of takings
jurisprudence is based, prohibits the government from conditioning a license,
permit or benefit on the relinquishment of a constitutional right or protected
interest. The doctrine protects against
regulatory over-reaching in any context - government employment (which is
otherwise wholly discretionary), welfare (you can’t condition receipt), other
forms of licenses (you can’t be required to swear allegiance to the United
States in order to get a driver’s license), and the list goes on.
Furthermore, it is clear a regulation that requires
a person to forego cash or its equivalent can be a taking. This was the issue in Webb’s Fabulous
Pharmacy v. Beckworth, 101 S. Ct. 446 (1980), which held a statute allowing
the clerk to keep interest on private funds deposited into the registry of the
court violated the takings clause. Furthermore,
(and directly on point) the Supreme Court characterized the statutory provision
that awarded the interest to the clerk as an “exaction [that] is a forced
contribution to general governmental revenues and is not reasonably related to
the costs of using the courts.” It went
on to note that the Fifth Amendment “was designed to bar Government from
forcing some people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.” The Supreme Court went on to state that “the
county’s appropriation of the beneficial use of the fund is analogous to the
appropriation of the use of private property in United States v. Causby. . .
In addition, this case is a minefield for a
number of reasons. If the Court
determined that the denial of a permit cannot cause a taking, why did it have
to reach the other issue? Moreover, if
the denial could not have such effect, why did the majority not agree with
Justice Polston that the issue was subject to exhaustion and avoid making a
constitutional ruling? The answer is
very troubling: the Court wanted to
assert that regulatory agencies can, should, and must impose such conditions on
permits without fear of takings claims.
The Court states:
It is both necessary and logical to limit
land-use exactions doctrine to these narrow circumstances. Government agencies
must have the authority and flexibility to independently evaluate permit
applications and negotiate a permit award that will benefit a landowner without
causing undue harm to the community of the environment. If a property owner is authorized to file an
inverse condemnation claim on the basis of the exactions theory any time
regulatory negotiations are not successful and a permit is denied, two
undesirable outcomes inevitably ensure.
First, the regulation of land use, deemed by the United States Supreme
Court to be “peculiarly within the province of state and local legislative
authorities,” would become prohibitively expensive. . . .
Second, and as a result of the first consequence, agencies will opt
simply to deny permits outright without discussion or negotiation rather than
risk the crushing costs of litigation.
Property owners will have no chance to amend their applications or
discuss mitigation options because the regulatory entity will be unwilling to
subject itself to potential liability.
Land development in certain areas of Florida would come to a standstill. We decline to approve a rule of law that
would place Florida land-use regulation in such an unduly restrictive position.
I cannot understand how the Court allowed
itself to take this extreme position, one that cannot be justified by evidence
or the law. The Supreme Court had
previously held the public interest in the development process is protected by
the “local regulations [or statutes], which must be uniformly administered.” Broward County v. G.B.V. Intern’l, Inc,
787 So. 2d 838 (Fla. 2001). Under Florida impact fee vs. tax, delegation
of authority/rule adoption and similar requirements, most mitigation
requirements are established by statute, rule or ordinance with respect to the
extent and nature of required mitigation.
Is the Court really saying that government entities are and must be free
to demand unauthorized, illegal exactions in order to protect the public
interest? The Court seemed frightened by
a parade of horribles if it upheld the Fifth’s decision, and ignored the
implications of overturning it in the way that it did: Under this decision, agencies and local
governments will feel that the Florida Supreme Court has expressly authorized
them to demand whatever exactions they want during negotiations. If they are smart, they won’t put those
demands in writing. They will simply
inform developers that if they don’t “voluntarily donate” to whatever the local
issue de jour may be, they won’t get a permit approval, and they will be secure
in the inability of the developer to challenge the resulting condition. It will be worse when “negotiating” with
elected officials who may hear permit applications.
The Florida Supreme Court’s opinion could have
an additional, unintended result that agencies and local governments may like
less: frustrated landowners and
developers will be able to take claims of illegal “cash” mitigation demands
direct to federal court, because Florida has construed its takings clause to
exclude a remedy.
The Fifth District reversed a non-final order
of the circuit court finding the Town of Ponce Inlet liable under the Bert
Harris Act. While it is not discussed in
the District Court opinion, the circuit court’s order demonstrated that the
trial judge was incensed by the pattern of the facts: one set of Town officials had encouraged the
plaintiff to assemble a set of parcels of waterfront land in order to come in
with a comprehensive redevelopment plan and a comprehensive plan amendment to
implement it; the project then attracted political opposition, and a later set
of Town officials not only refused to amend the comprehensive plan to allow the
project, but amended the charter and codes to prohibit future approvals.
The Fifth District, applying the earlier Halls’ River case and Florida
law on vested rights, found that there was no basis under which the landowner
could claim a “vested right” to the plan amendments necessary to allow the
desired development, and therefore no right that was burdened by the Town’s
action or inaction. Therefore, there was
no basis for liability under the Bert Harris Act.
The City of North Port created a road
improvement district to maintain and improve roads throughout the City. The Court ruled that the City lacked home
rule power to levy the assessments against various parcels of vacant land owned
by West Villages, a CDD with special legislative powers:
In this case, NPRDD’s special assessments on
West Village’s property fall within the limitations on home rule delineated in
section 166.021(3) because (1) West Villages is not authorized by law to pass
through the special assessments to property assessed separately by West
Villages, and (ii) NPRDD is prohibited by the constitution from compelling
payment by the Florida Legislature. In
other words, there is no way for West Villages to lawfully pay the assessments.
It is difficult to determine at this point
whether the Court has created an exception that will swallow the more general
rule that state agencies are liable to pay user fees and similar charges,
unless specifically exempted by statute. What is also interesting is that the fight
here had to start as a certiorari challenge to the City’s levy of the special
assessments under the Chapter 170 process.
This constrained West Village’s ability to argue that the assessments
are patently unreasonable because West Villages (and the property within it) already
maintains the roads within that area, and the funds would be used to improve
roads in other areas of the City that would clearly not be used by, or benefit,
the assessed parcels, or any lands within the West Villages.
The Fifth District upheld the trial court determination that
Marion County could impose a special assessment on property specially
benefited by recently completed roadway improvements within MSBUs, through the
While not stated in the opinion, it appears that the County
established the MSBUs or the assessment methodologies after making the road
improvements. Based on the opinion, it
does not appear that the plaintiffs claimed there was no special benefit or
that the benefits were unreasonably apportioned to the property. Instead, the argument was that the County
could not assess because it did not have “jurisdiction” to assess when the
improvements were made. The District
Court rejected this argument based on earlier decisions allowing reassessment
where benefitted property was not properly or fully assessed.
This decision could have significant impact and create new
avenues for broad based funding for future improvements by confirming that
local governments can recover from existing development the costs for
improvements that benefit that development.
In other words, local governments can use special assessments to recover
“sunk” costs in existing improvements, allowing them to use that revenue to
maintain, replace or expand other improvements or to repay general obligation
bonds and free up other funds.
Disclaimer – I was the attorney for the Islandside
This case involves an extended and torturous set of
proceedings to approve a major amendment to a PUD, originally approved in 1976,
to allow redevelopment of a small commercial parcel and two recreational
parcels with 300 multifamily and hotel units, a spa, restaurant and conference
facilities. The Town amended the zoning
code in the middle of the proceedings, and approved the amendment. When it became obvious that both the
amendments and the approval would violate the comprehensive plan, it amended
the comprehensive plan and further amended the zoning code to try to “save” the
The approval was challenged in both declaratory and
certiorari actions. In the certiorari
action, the Circuit Court entered an order finding that the approval violated
the clear and unambiguous language of zoning code in multiple ways, and that the
Town applied an ambiguous provision in a way that was unreasonable and
therefore illegal. In the introduction
to the opinion, the Circuit Court noted comments by the Town’s Planning
Director, that were adverse to the project.
The Town and the developer challenged the Circuit Court’s
opinion to the Second District, claiming that (1) the Circuit Court reweighed
the evidence, and (2) that the Circuit Court misapplied the law by failing to
give deference to the Commission’s interpretation of the code and failing to
construe the code broadly to favor the developer.
The District Court upheld the Circuit Court. The District Court rejected the reweighing
claim, finding that the Circuit Court’s analysis focused with precision on the
specific words in the Code. The District
Court also found not merit in the Town’s claim that the Circuit Court decision
was based on improper reweighing of the evidence. In particular, the District Court rejected
the Town’s argument that the Circuit Court’s mere recitation of negative
comments in the record as part of the background section of the opinion established
that the circuit court reweighed the evidence.
The District Court noted that “ the Town’s argument reaches too far and
would encourage a judge to omit any meaningful background information in an
order lest he or she be accused of impropriety.
This hardly promotes judicial transparency, sound explanation and
The District Court also found that, given the language of
the Code and the Circuit Court’s analysis, it was not required to defer to the
Town’s interpretation. It found that the
Circuit Court had correctly focused on the language of the Code and applied
dictionary definitions to interpret undefined terms.
The District Court rejected the Town’s claim
that the previous approval of other development under the same language
demonstrated that the language was ambiguous and, therefore, required deference
to the Town’s interpretation:
The Town’s longstanding interpretation of its
Code cannot tie the circuit court’s hands.
To allow such a result would countenance a shifting sands approach to
Code construction that would deny meaningful judicial review of local
quasi-judicial decisions. The meaning of
a code would remain in flux. Such an
approach does not promote consistency in the application of law. As the wording of its laws binds a
legislature, the Town is bound by the wording of its Code. This mounts a bulwark against the Town’s
unfettered exercise of power.
This opinion (and practitioners should also review the
circuit court opinion, which is available on Fla. L. Weekly Supp)
provides ammunition to attorneys on both sides of an issue with a local
government – the local zoning code (or comprehensive plan) is not “ambiguous”
simply because the local government wants to reinterpret it in a particular
case. Local governments are obligated to
apply the plain meaning of their codes, as are the circuit courts. Failure to do so is a departure from the
essential requirements of law.
This case involved a variance from an ordinance that
requires all fences or walls to be set back 25’ from the front/street lot line
unless they are less than 3 feet tall or “see through.”
At issue were portions of a side fence consisting of 6’
stockade fencing. The applicants/owners
originally wanted this fence to extend to 1’ from the road, but after seeing
negative staff reports, they used permissible iron fencing along the side. However, it was not clear that the permitted fencing
actually met the 25’ setback. The Board
of Adjustment denied the application, finding that the requested variance did
not meet the published criteria. The
owners appealed to the County Commission under a “de novo” appeal
provision. The Commission granted the
variance, but also found it unnecessary despite the evidence that showed a 6’
stockade fence within 25’ of the front property line. The circuit court upheld this decision,
finding and upholding the Commission on the basis that it could find that the
variance was not necessary, and paradoxically therefore, could be granted.
The Fifth District reversed, finding that the Board of
Adjustment applied the right law, and that the County Commission and circuit
court did not. While the District Court
did not say so, it clearly viewed the Commission’s action as an impermissible
attempt to rewrite the zoning regulation through interpretation. The Fifth District stated:
We believe that the methodology utilized by
the Board and approved by the circuit court of granting a variance in violation
of the Code provisions yet concurrently concluding that the variance is not
necessary is wrong, and its use needs to stop. Otherwise, others will be
encouraged to employ the same or similar methods to work their will without
regard to applicable laws and ordinances. Such methods not only disregard valid
laws, they deprive others living in the neighborhood and surrounding areas of
the valid application of ordinances that ensure the landscape of the
neighborhood is kept in conformity with orderly growth and development.
The District Court recognized what the circuit court did
not: that the County Commission was
using the variance appeal process to simply reinterpret the code and apply it as
it saw fit to individual cases. The
Commission clearly thought that the established setback requirement was somehow
unreasonable under the circumstances, so refused to enforce it – and refused to
apply the published variance criteria.
The District Court correctly found this process to be the application of
the wrong law and a miscarriage of justice.
W.A.R. challenged a development order for a lime rock mine
as inconsistent with plan policies that protected “high quality” wetlands from
development and required the protection of environmentally sensitive lands from
mining operations. The development order
at issue included a condition that prohibited mining excavation until all other
regulatory permits had been granted, including an excavation and fill permit.
Both the circuit court and the district court agreed with
the developer that this condition was sufficient to require compliance with the
comprehensive plan, and that the development order was therefore consistent
with the plan.
“Early” development orders such as rezonings, DRI development
orders, or general site plans are frequently challenged for compliance with
policies that can only be evaluated based on more specific plans and
programs. This case demonstrates that
these “general” development orders can be granted without doing all of the
comprehensive studies that may be required prior to actual development, by
including appropriate conditions requiring later development orders that will
The plaintiffs/appellants own lots that are accessible only
by an “Old A1A,” which is a County road that runs along the beach. Old A1A was originally a state road; the
state deeded the road to the County when it relocated US 1A further west. Given its location, the road was frequently
damaged or washed out by storms and erosions.
The County’s answer to the problem was to limit maintenance of the road
and to adopt an ordinance imposing a temporary moratorium on residential
building permits for lands served by the road.
A group of landowners filed suit: (1) asking for a declaration that the County
had the obligation to maintain the road, (2) requesting an injunction to
require the County to maintain the road, (3) inverse condemnation for loss of
access, and (4) for declaratory relief and inverse condemnation for the
moratorium. The circuit court entered
summary judgment for the County on all counts and the landowners appealed.
The District Court found that the circuit court
erred in granting summary judgment to the County on the claims for declaratory
relief and inverse condemnation that were based on the failure to maintain the
road. The District Court agreed with the
First District’s opinion in Ecological Development Inc. v. Walton County,
548 So.2d 1069 (Fla. 1st DCA 1990), that a local government cannot
accept ownership of a road and then refuse to repair or maintain it, but cannot
be ordered to repair or maintain it in a specific manner. The District Court held that “the County must
provide a reasonable level of maintenance that affords meaningful access,
unless or until the County formally abandons the road.” The District Court went on to hold that
“government inaction – in the face of an affirmative duty to act – can support
a claim for inverse condemnation.” These
issues were then remanded to the circuit court to determine: (1) whether the
County had, de facto, abandoned the road, (2) whether the County’s maintenance
of the road was reasonable, and (3) to determine damages if the County had
failed to provide reasonable maintenance.
The holding of this case should have been predictable and in my opinion
it is lamentable that the case was necessary
I'm an attorney with the Sarasota, Florida, law firm of Robert K. Lincoln, P.A. My practice focuses practice focused on helping public and private clients, other attorneys and professionals avoid, manage, settle and litigate complex disputes involving land development, exactions, enforcement/violations, and Government in the Sunshine. I speak frequently on land use issues at CLE seminars.
I've been a planner and taught planning and planning law as an associate professor at Michigan State and as an adjunct professor at both Florida State and Florida Atlantic University.
I also have been a hi-tech marketing executive, yacht captain and computer programmer/salesman.
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