Town of Yankeetown v. DCA
The town filed suit, seeking a declaration that HB 7207 (2011) is unconstitutional. The town argues that the single subject law was violated and that it contains unlawful delegations of authority. The suit is in preliminary stages and has been put in abeyance during the 2012 legislative session.
Exactions
St. Johns River Water Management District v. Koontz
Case No. 5D6-1116, Fifth DCA
Case No. SC 09-713, Fla Supreme Court
The Koontz decision from the Fifth District Court of Appeals held that a temporary taking of property occurs when a government entity conditions development approval upon a requirement that a circuit court Judge determines is an unreasonable exercise of the police power, after a de novo review of the evidence. Moreover, in the circuit court inverse condemnation suit, it is government’s burden to show that the challenged condition is a reasonable exercise of the police power. The Fifth District’s decision greatly extends the bounds of Florida takings law. Link to opinion here.
The facts in Koontz are relatively straight forward. Mr. Koontz wanted to destroy almost 4 acres of wetlands to develop part of his property. As mitigation for wetland impacts he offered to preserve the remaining 11 acres of his property. The St. Johns’ Governing Board determined that the proposed mitigation was less than the amount called for under St. Johns’ mitigation guidelines. Therefore, the Governing Board denied Mr. Koontz’s permit application. The final order of denial pointed out that Mr. Koontz could build his desired project if he were to provide additional mitigation or, alternatively, could reduce the size of his project so that only one acre of wetlands would be destroyed, with mitigation being preservation of the remainder of the property. Mr. Koontz declined to pursue either alternative and chose not to pursue his administrative remedies under Chapter 120 of the Florida Statutes. Instead he proceeded directly to circuit court under Article X, section 6(a) of Florida’s Constitution, claiming an exaction taking of his property. The trial court found that additional mitigation was an unreasonable exercise of the police power, invalidated any requirement for additional mitigation, found a temporary regulatory taking, and awarded over $300,00 as damages for the temporary loss of use of the property. The trial court's decision was affirmed by the Fifth District, which denied rehearing en banc but certified the following question as one of great public importance:
Where a landowner concedes that permit denial did not deprive him of all or substantially all economically viable use of the property, does Article X, section 6(a), of the Florida Constitution recognize an exaction taking under the holdings of Nollan and Dolan where, instead of a compelled dedication of real property to public use, the exaction is a condition for a permit approval that the circuit court finds unreasonable?
The Supreme Court accepted jurisdiction. The briefs are currently being filed. Link to them here. The Florida League of Cities and FAC filed a joint amicus brief on behalf of the water management district.
On November 3, 2011, the Supreme Court issued its long awaited opinion, reversing the Fifth DCA and holding "that under the takings clauses of the United States and Florida Constitutions, the Nollan/Dolan rule with regard to "essential nexus" and "rough proportionality" is applicable only where the condition/exaction sought by the government involves a dedication of or over the owner’s interest in real property in exchange for permit approval; and only when the regulatory agency actually issues the permit sought, thereby rendering the owner’s interest in the real property subject to the dedication imposed." Accordingly, there is no "taking" when negotiations break down between a governmental entity and a developer over conditions related to permit applications.