Planning in the Courts

APA Florida 2012 Public Policy Workshop

February 8, 2012Nancy Stroud, AICP JD

Lewis Stroud & Deutsch, PLBoca Raton, FL

Two Cases

St. John’s River Water Management District v. Koontz, Fla. Supreme Court November 3, 2011

Herin v. Volusia County, DOAH recommended order January 24, 2012

Koontz

Exactions/Constitutional takings case Long history beginning 1990s, three

appeals Florida Supreme Court took the case in

2009 when Fifth District Court of Appeal certified is as a case of Great Public Importance, issued decision in November, 2011

Koontz

Multiple amici curiae Fla. League of Cities, State Assoc. of Counties WMDs; DEP National Audubon Society Assoc. of Fla. Community Developers; Florida

Homebuilders Assoc.; National Homebuilders Assoc.

Pacific Legal Foundation

Koontz

Issue: Do the Florida and U.S. Constitutions recognize an

exactions takings where There is no compelled dedication of real property to public

use; and The exaction is a monetary condition for permit approval

“which never occurs and no permit is ever issued”? Conclusion:

4 Justices – NO 2 Justices – NO, because failure to exhaust administrative

remedies 1 Justice – NO (result only but no opinion)

Koontz - Facts

Mr. Koontz applied for WMD permit to develop commercial property in Orange County

3.7 acre development area; 3.4 acres wetland and 0.3 acres upland (owns an additional 10.5 acres on which permits were not sought)

Sought permit to dredge 3.25 acres of the 3.4 acres of wetland

Koontz - Facts

WMD: Develop 3.4 acres and place remainder in conservation area and perform offsite mitigation by replacing culverts (4.5 miles away) or plug drainage canals (7 miles away)

Koontz: 3.7 acre development and remainder in conservation area

WMD: no deal; permit denied

Koontz – Circuit Court

Taking of property under Nollan/Dolan Condition of exaction must serve the same

governmental purpose as the developmental ban; and

The condition must be roughly proportional to the impact of the proposed development

Koontz – Circuit Court

Circuit court remedy: Issue permit Pay damages Modify the decision to avoid takings

Result: WMD issued permit Court awarded $376,154 in temporary taking

damages

Koontz – Appellate Court

WMD - nothing was taken from Koontz because permit was denied, no condition came into effect Court – taking where there is an improper request

from government WMD – no physical appropriation of Koontz

land, just improvements of WMD lands Court – no clear distinction in federal law between

physical appropriation and other condition

Koontz – Appellate Court

Dissent:

“In what parallel legal universe or deep chamber of Wonderland’s rabbit hole could there be a right to just compensation for the taking of property under the Fifth Amendment when no property of any kind was ever taken by the government and none ever given up by the owner?”

Koontz – Supreme Court

Types of takings Per se takings where permanent physical invasion

of private property Per se takings where complete derivation of all

economically beneficial use of property Penn Central balancing test where regulation has

interfered with distinct investment backed expectations, balanced against pubic interests

Exactions takings (Nollan/Dolan)

Koontz – Supreme Court

Holding: Nollan/Dolan does not apply where there is no

exaction requiring dedication of private property(Lingle v. Chevron, U.S. Supreme Court 2005)

Nollan/Dolan does not apply where a permit is denied

Recognizes a split in decisions following Nollan/Dolan, and interprets the U.S. Supreme Court decision consistent with recent federal appellate court decisions

Koontz – Supreme Court

Explains this also avoids undesirable outcomes of decision otherwise Land use regulation would become prohibitively

expensive if such claims could be brought “transforming government regulation into a luxury few government could afford”

Agencies will opt to simply deny permits without negotiation, no opportunity for owners to amend applications or discuss mitigation options.

Farmton – Herrin v. Volusia County Recommended order issued January 24,

2012 by Fla. Division of Administrative Hearings judge

Compliance challenge by citizen and Sierra Club to Volusia County comprehensive plan amendments regarding a Future Land Use Plan Amendment for 47,000 acres in Volusia County (associated with 11,000 in Brevard County)

Farmton

Reviewed under Community Planning Act standards

Challenges: Does not discourage urban sprawl under Section

163.3177(6)(a)(9) 13 indicators of urban sprawl 8 factors regarding development patterns or urban forms

Internal inconsistency (conservation/sprawl) Public School facilities

Farmton

Other Public Facilities (water supply, stormwater, roads, CIE)

Lack of meaningful and predictable standards (conservation)

Farmton

History 2010 DCA finding of noncompliance, first DOAH

administrative hearing Stipulated settlement between DCA, County and

landowner (post Gov. Scott election). Remedial amendments adopted, DCA finds in compliance

Herrin and Sierra Club petition; Community Development Act enacted

Administrative Law Judge determines that new law applies

2011 DOAH hearing

Farmton

What the Community Planning Act changed: Definition of “in compliance” Urban sprawl redefined in statute; “need” rules

repealed Petitioner’s burden shifted; now must prove that

the plan amendment is not fairly debatable (vs. prove by preponderance of the evidence)

Farmton

Property at issue Forestry land since 1952; no services 47,000 acres in Volusia County vested for 1,700

subdivision lots; original FLUE allowed up to 4,692 residential units in low density (1/10 -1/25 units/acre) and 820,217 square feet nonresidential

Farmton FLUM: 23,100 residential units and 4.7 million square feet nonresidential through 2060 (first phase, only after five years, 4692 units residential and 820,217 s.f. nonresidential)

Farmton

Original Plan Natural resource management area designation

because of “large, relatively uninterrupted expanses of rich natural resource areas.”

“Extremely significant to the area’s watershed” Farmton Features

Clustered development 67% of site as GreenKey (preservation), with

management plans for Black Bear, wildlife corridors, permanent conservation easements

Farmton

Development allowed in “Sustainable Development Area” within which are also Resource Based Open Space areas (minimum 25%), and four types of development areas, 40% mandatory civic space.

Key findings: Adjacent Brevard County plan amendment

(compliance settlement) allows urban area

Farmton

Abuts approved DRI and PUD, City of Edgewater Clustered density, net density high compared to

cities in Volusia Urban village form Development required to be fiscally neutral; capital

improvements outside CIE timeframe Separation of urban and rural uses within the

development; rural uses not prevented More environmental protection

Farmton

Is this a well designed development in the wrong location?

APA Florida’s 10th AnnualPublic Policy Workshop

Planning in the Courts

Tallahassee, Florida

 dat@theriaquelaw.comFebruary 8, 2012

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Martin County Conservation Alliance v. Martin County, 73 So.3d 856 (Fla. 1st DCA 2011)

After losing a challenge to a comprehensive plan amendment, Martin County Conservation Alliance and 1000 Friends of Florida filed an appeal to the First DCA.

The First DCA denied the appeal and then issued an order to show cause why sanctions should not be imposed against the Petitioners “for the filing of an appeal for which standing clearly is not present.”

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The First DCA imposed “a sanction of an award to Appellees of all appellate fees and costs ‘to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney.’”

$$$$$$$$$$$$$$$$$$$$$$$$

The majority decision was written by Judges Hawkes and Thomas.

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Judge Van Nortwick wrote a dissenting opinion, strenuously objecting to the majority decision:

“In my view, this case is not close to providing a basis to impose sanctions. . . . The record reflects that there are material facts that support appellate standing which are more than sufficient to demonstrate that the assertion of appellate standing was not so without record basis to justify the imposition of sanctions. . . . Further, the sanction order creates precedent that will severely chill appellate advocacy, especially for non-profit environmental organizations like the appellants here.

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FLORIDA SUPREME COURT

MCCA and 1000 Friends have requested that the Florida Supreme Court hear this case – there is no legal obligation that the Court agree to do so.

Due to the potential chilling effect of this decision on citizens who seek to exercise their legal rights under the Community Planning Act, FAPA has agreed to support the efforts of MCCA and 1000 Friends to overturn the First District’s imposition of sanctions against MCCA and 1000 Friends.