Vol. XXXV, No. 4 THE REPORTER June 2014
THE ENVIRONMENTAL AND LAND USE LAW SECTION
Nicole C. Kibert, Chair • Jeffrey A. Collier, Editor • Douglas H. MacLaughlin, Co-Editor www.eluls.org
Koontz v. St. Johns River Water Management District Yet Again Badly Splits Yet Another Court: Tell Us Something We Didn’t Expect by Sidney F. Ansbacher, Esquire, Upchurch, Bailey and Upchurch, P.A.
A panel of the Fifth District Court last year. S. Ansbacher, Koontz v. St. Dolan test requires development ex- of Appeal split 2-1 in St. Johns Riv- Johns River Water Management Dis- actions to be “roughly proportionate” er Water Management District v. trict, 35 ELULS Rptr. 1 (Sept 2013) to a project’s individualized impact Koontz, Case No. 5D006-1116, 2014 (Ansbacher). and to bear an “essential nexus” to a WL 1703942 (Fla. 5th DCA, April 30, Koontz IV weighed whether a fee in project’s perceived impact. 2014)(Koontz V) in its interpretation lieu of mitigation to pay for off-site St. Nollan created the “essential nex- on remand of Koontz v. St. Johns Johns River Water Management Dis- us” standard. The Court held that a River Water Management District, trict needs was subject to the “Nol- permit condition would not constitute No. 11-1147, 2013 WL 3184628, 133 S. lan/Dolan” test. Nollan v. California a taking if it served the same purpose Ct. 2586, 540 U.S.— (June 25, 2013). Coastal Commission, 483 U.S. 825 as would a permit denial. A condi- (Koontz IV) I wrote a lengthy article (1987) and Dolan v. City of Tigard, tion that does not bear an “essential on Koontz IV in the ELULS Reporter 512 U.S. 374 (1994). The Nollan/ nexus” to the development impact, See “Koontz,” page 15 From the Chair by Nicole C. Kibert
“It is only the farmer who faithfully will meet on August 6th in the af- plants seeds in the Spring, who reaps ternoon. The CLE committee, led by INSIDE: a harvest in the Autumn.” David Bass, has planned an outstand- B. C. Forbes ing program this year which will take place over two days, August 7-8. In DEP Update...... 3 Spring greetings from ELULS! addition, we invite you to attend our June 2014 Florida Case Law Update...... 5 Your Executive Council has been substantive committee lunch meet- working hard throughout the spring ings (Energy; Land Use; Natural Re- On Appeal...... 9 to facilitate a smooth summer and sources; and Pollution Assessment, Law School Liaisons fall for ELULS activities. We would Remediation, Management and Pre- Florida International University Law love to tell you about these activi- vention) on August 7th. You are also School Update...... 10 ties in detail and help you get more invited to attend the meetings of our Nova Southeastern University (Shepard involved in the section. other committees: Affiliate, CLE, Flor- Broad Law Center) Report...... 10 A great way to get involved is to at- ida Bar Journal, Internet, Law School A Summer 2014 Update from the Florida tend the ELULS Annual Update from Liaison, Membership, Public Interest State University College of Law...... 11 August 6-9, 2014 at Amelia Island Representation, Section Reporter and UF Law Update...... 13 Plantation. Our Executive Council Young Lawyers, which take place on See “Chair’s Message,” page 2 CHAIR’S MESSAGE and the section. Live attendance at - Gary K. Hunter, Jr., Hopping from page 1 ELULS programs is an important Green & Sams revenue source for the section and we would like to invite you to attend • June 19, 2014 - Air Law Hot our live programs, especially the An- Topics: Fine Particulate Emis- August 9th. In addition to ELULS nual Update, and also to bring a col- sion Limits, NSR Enforcement meetings, the Annual Update will league with you. If you can’t attend & More have several networking receptions, in person, please purchase the CD or - Dorothy E. Watson, Foley & live music from The Non-Essentials download. The aftermarket sales of Lardner LLP and an EcoWalk. We’ll be sending out our live CLE programs make up for - Peter Anderson, Geosyntec detailed information about the Annual expenses of the live programs. We are Consultants Update soon via the section listserve. lucky that our section enjoys a close If you are interested in being a section relationship with our sponsors and Note: All webinar presentations are sponsor starting the with 2014 Annual that support remains stable. The Af- scheduled to occur between 12:00 noon Update, please visit http://eluls.org/ filiates Committee is working closely and 1:00 p.m. Eastern. For more in- our-sponsors/ or contact our Section with our sponsors to make sure we formation, please review the program Administrator, Calbrail L. Bennett, at are meeting their needs. information sheet at: http://eluls.org/ (850) 561-5623 or [email protected]. ELULS has been busy with activi- wp-content/uploads/2013/12/1626- ELULS has a strategic plan that ties including these highlights: Webseries.pdf. was drafted under the leadership of The Affiliates Committee hosted As always special thanks to our immediate Past Chair, Erin Deady. a lovely reception on March 27th 2013-2014 ELULS sponsors for their Part of that plan was to review quan- at N2 Wine Bar in The Hyatt Place support this year. titative data points to evaluate ef- Pineapple Grove which included a fectively how the section is doing. presentation from Carolyn Ansay, Platinum Level Our total membership has declined South Florida Water Management ARCADIS over the past few years though our District General Counsel. Thank you Geosyntec Consultants affiliate and student membership to our sponsors for making these re- Golder Associates Inc. has remained stable. Our Member- ceptions possible. Gray Robinson, P.A. ship Committee is working hard to The Natural Resources Committee both retain existing members while hosted a very successful and informa- Gold Level recruiting new members. Members tion webinar on April 16th entitled, Breedlove, Dennis & Associates, Inc. are the lifeblood of the section and “What’s New and What’s Next for Cardno TBE it crucial that the section stabilize Clean Water Act Jurisdiction.” You Carlton Fields, P.A. our membership. We are interested can download the program from the E Sciences, Inc. in hearing any feedback you may Committee’s webpage: http://eluls. Environmental Consulting & Tech- have in that regard. Please feel free org/natural-resources-committee/. nology, Inc. to email me at nicole.kibert@gmail. Our Environmental and Land Use HSW Engineering, Inc. com. Similar to what other sections Law Audio Webcast Series is under- Lewis, Longman & Walker, P.A. of the Florida Bar are experiencing, way. Here’s the schedule of events: Robert N. Hartsell, P.A. the section has experienced a de- cline in revenue based primarily on • May 20, 2014 - Annual Legisla- Silver Level lower attendance and a modification tive Wrap Up The Byrd Law Group to the manner in which expenses are - Janet E. Bowman, Nature Water and Air Research, Inc. allocated between the Florida Bar Conservancy As always, you are welcome to attend meetings of the Executive Council. The remaining 2013-2014 This newsletter is prepared and published by the Environmental and meeting dates for the ELULS Execu- Land Use Law Section of The Florida Bar. tive Council are listed below:
Nicole C. Kibert, Tampa...... Chair • June 26, 2014 – Gaylord Palms Kelly K. Samek, Tallahassee ...... Chair-elect Resort, Orlando (in conjunction Carl Eldred, Tallahassee ...... Secretary with The Florida Bar Annual Vivien J. Monaco, Orlando...... Treasurer Convention) Jeffrey A. Collier, West Palm Beach...... Editor • August 6, 2014 (4:00 p.m.) – Douglas H. MacLaughlin, West Palm Beach. . . . Co-Editor Omni Amelia Island Plantation Colleen Bellia, Tallahassee...... Production Artist Finally, please visit the section web- Calbrail L. Bennett, Tallahassee ...... Section Administrator site http://eluls.org for information Statements or expressions of opinion or comments appearing herein about section events and committee are those of the contributors and not of The Florida Bar or the Section. activities. I look forward to seeing you at the 2014 Annual Update at Amelia Island.
2 DEP Update by Randy J. Miller, II, Senior Assistant General Counsel
Rulemaking Update: activities, procedures for the evalua- matter on May 13. On May 19, 2014, Chapter 62-555, F.A.C., Permitting, tion of contractor performance, and the Final Order of Certification was Construction, Operation, and Main- procedures for the procurement of pe- issued. Notices of Appeal in the Third tenance of Public Water Systems: On troleum contaminated site rehabilita- District Court of Appeal have been April 15, 2014, FDEP filed with the tion services for state funded cleanup, filed by the city of Miami, the city of Department of State amendments including procedures to procure mul- South Miami, the city of Pinecrest, to the cross-connection control rules tiple agency term contractors. The and Miami-Dade County. in Chapter 62-555, “Permitting, Con- Department held a rule workshop in FDEP v. Carisbrooke Shipping struction, Operation, and Mainte- Orlando, Florida on June 19, 2013. Ltd., (Southeast District/Coral Reef nance of Public Water Systems.” These On October 4, 2013, the Department Conservation Program): On Decem- rule amendments became effective on published a Notice of Proposed Rule ber 2, 2011, after experiencing en- May 5 and significantly reduce the and held a rule hearing on October gine failure, the marine vessel Gabon overall regulatory burden of cross- 28, 2013. After receiving public com- dropped anchor off Broward County connection control requirements on ments and comments from the Joint waters. The anchor drop and drag community water systems (CWS) and Administrative Procedures Commit- caused approximately 684.56 square their residential customers by: tee the Department published a No- meters of coral reef damage. The De- (1) allowing a dual check device tice of Change on November 18, 2013 partment and the responsible party to be used as backflow protection at and on December 5, 2013. The rules attended pre-litigation mediation in residential service connections from were filed for adoption with the De- Miami on March 27, 2014 at which CWSs to premises where there is any partment of State on December 27, the parties reached a settlement in type of auxiliary or reclaimed water 2013. A majority of the rule sections the case. The parties executed a con- system; and, became effective on January 16, 2014. sent order that required the respon- (2) allowing biennial instead of A bill to ratify Rule 62-772.300 and sible party to pay the Department annual testing of backflow preventer 62-772.400, F.A.C., has been passed $350,000 in compensatory damages assemblies required at residential by the legislature and will become for the coral reef impacts and to pay service connections from CWSs. effective once signed by the Governor. all of the costs incurred in this matter, The Department estimates that totaling $35,649.55. these proposed rule amendments Litigation: FDEP v. BNK Real Estate, LLC, could reduce equipment installation Siting Board Hearing – IN RE: Flori- (Circuit Court, Leon County): A and operating costs for CWSs and da Power & Light, Turkey Point Units complaint was filed in November of their residential customers by a total 6 & 7 (DOAH): In June of 2009, the 2011 against BNK Real Estate, LLC, of approximately $199 million over Department received a Site Certifica- (Defendant) for a failure to comply five years, or approximately $39.8 tion Application from Florida Power with a final order of the Department million per year. and Light Company (FPL) for power that required (1) the payment of Chapters 62-771 and 62-772, plant site certification. The applica- $10,000.00 in civil penalties, (2) pay- F.A.C., Petroleum Restoration Pro- tion seeks certification for: two ad- ment of $1,000.00 in costs, and (3) gram: On May 30, 2013, the Division ditional nuclear generating units, proper closure and assessment of an of Waste Management published a each with an approximate electri- underground tank storage system in Notice of Rule Development to amend cal output of 1,100 MW; supporting Charlotte County. Earlier in litigation, Chapter 62-771, F.A.C., and to cre- buildings, facilities and equipment; the Department obtained admissions ate a new Chapter 62-772, F.A.C., in off-site facilities including nuclear ad- from the Defendant indicating that the Florida Administrative Register. ministrative building, training build- the Defendant had not complied with Chapter 62-771, F.A.C., related to ing, parking area; transmission lines any requirement of the Final Order. the priority ranking of petroleum and system improvements within Mediation was held on February contaminated sites, was amended Miami-Dade County; and other facili- 18, 2014 at which the parties reached for development of a definition of ties as necessary. a settlement in this case. The parties “Imminent Threat”; and to establish The hearing began July 8, 2013, executed a Consent Final Judgment procedures to re-score a petroleum in Miami and ran for five consecu- that provided for Defendant to com- contaminated site based on site spe- tive weeks, with an additional three plete the following: (1) compliance cific data. Chapter 62-772, F.A.C., weeks thereafter, ultimately conclud- with the final order within 60 days, was created to codify procedures ing on October 3, 2013. The Admin- (2) $13,000.00 in civil penalties, (3) for the competitive procurement of istrative Law Judge issued a recom- $2,000 in costs, and (4) payment of contractual services for the cleanup mended order on December 5, 2013, the Department’s cost of mediation. of state-funded petroleum contami- and the parties filed responses to the FDEP v. Wayne and Rose nated sites, including the establish- Recommended Order and exceptions Thibodeau, (Circuit Court, Charlotte ment of: minimum qualifications for to the responses. The Cabinet as Sit- County): The Department filed a contractors to perform rehabilitation ing Board heard the Turkey Point complaint against Wayne and Rose continued... 3 DEP UPDATE decree, Miami-Dade will rehabilitate future contamination. from page 3 its wastewater treatment plants and On April 9, 2014 the Court grant- its wastewater collection and trans- ed the Department’s, EPA’s, and the mission system within 15 years. The County’s Motion to Enter the Consent county will also develop and imple- Decree. Thibodeau (Defendants) in December ment management operation and 2011 for an unpermitted discharge of maintenance programs to help en- Other Significant Matters: used oil, improper storage of hazard- sure the sewer system is properly Numeric Nutrient Criteria (NNC) ous waste, unauthorized open burn- operated and maintained in the fu- for Florida: As a result of a federal ing, and unauthorized operation of a ture. By implementing these mea- lawsuit, EPA made a necessity de- solid waste facility. The Department sures, Miami-Dade is expected to termination in 2009 that numeric obtained final judgment after default eliminate sanitary sewer overflows nutrient criteria (NNC) are neces- in March 2012. The Final Judgment from its wastewater collection and sary for the majority of surface wa- required Defendants to remove and transmission system and achieve ters in Florida. In December 2010, properly dispose of all solid and haz- compliance with its National Pollut- EPA promulgated in 40 CFR 131.43 ardous wastes, assess and remediate ant Discharge Elimination System NNC for Florida’s lakes, springs, the property, properly manage used (NPDES) permits. streams outside of south Florida, as oil containers, cease unauthorized Between January 2007 and May well as downstream protection values open burning, and pay $23,000 in 2013, Miami-Dade reported 211 san- (DPVs) for lakes and a procedure for civil penalties and $5,164.68 in De- itary sewer overflows totaling more obtaining site specific alternative partment costs. Subsequently, the than 51 million gallons. Such over- criteria. Subsequently, the Depart- Department filed for contempt in July flows included a number of large vol- ment adopted NNC for these waters 2012. The Court found Defendants ume overflows from ruptured force and EPA has approved these criteria in contempt and Defendant Wayne mains. At least 84 overflows, totaling as being consistent with the Clean Thibodeau was incarcerated until over 29 million gallons of raw sew- Water Act. EPA made amendments to he substantially complied with the age, reached navigable waters of the the necessity determination in 2012 Final Judgment by hiring and par- United States. Miami-Dade’s Cen- and 2013 that removed the require- tially paying a licensed contractor to tral District wastewater treatment ment for numeric DPVs as well as a perform clean-up at the property. The plant (WWTP) also experienced sev- limited subset of waters from its 2009 Department filed for contempt again eral violations of the effluent limits determination. Section 3 of Chap- in April 2013 upon learning that the contained in its NPDES permit. EPA ter 2013-71, Laws of Florida, allows contractor could not proceed because also documented numerous opera- Florida’s adopted NNC to become they had never received the remain- tion and maintenance violations at effective once EPA ceases further nu- ing payment to complete the work. this same WWTP during inspections trient rulemaking in the State, EPA The Court again found Defendants in September 2011, April 2012 and withdraws its federally-promulgated in contempt and incarcerated Wayne April 2013. Thibodeau until he fully paid the Miami-Dade estimates it will NNC in 40 CFR 131.43 and the De- contractor to proceed with the work. spend approximately $1.6 billion to partment notifies the Department of On February 18, the Department complete the upgrades required by State that EPA has completed the filed for contempt for the third time the consent decree and come into actions set forth in Chapter 2013-71. after being informed by the contrac- compliance with the Clean Water On April 2, EPA published in the tor that they could not complete the Act. Under the settlement, Miami- federal register notice of its proposed source removal report or conduct the Dade will also pay a civil penalty of repeal 40 CFR 131.43 and to cease necessary assessment until Defen- $978,100 ($511,800 to be paid to the further federal nutrient rulemaking dants had the excavated contami- United States and $466,300 to the in Florida. nated soils properly removed and Department) and be subject to stipu- disposed as mandated in the contract. lated penalties for delays in project Amendments to Impaired Waters U.S., State, FDEP v. Miami-Dade completion or future sanitary sewer List: County, (U.S. District Court for the overflows. Further, Miami-Dade must On January 27, the Department Southern District): On April 10, 2014, complete a supplemental environ- issued a final order that amended its a Miami Federal Judge Granted the mental project costing $2,047,200. impaired waters list for a handful of Department, U.S. EPA (“EPA”), and Miami-Dade’s supplemental envi- waters throughout the state. Included Miami-Dade County’s Motion to En- ronmental project involves the instal- in these amendments were five water ter a Consent Decree which calls for lation of approximately 7,660 linear segments in the Everglades relating Miami-Dade County to invest 1.6 feet of gravity sewer mains through to dissolved oxygen. US Sugar, Flor- billion dollars in major upgrades to the Green Technology Corridor, an ida Crystals, and the Sugar Grow- its wastewater treatment plants and area that is currently using septic ers Cooperative all filed motions for wastewater collection and transmis- tanks. Businesses in the area have extension of time to file petitions on sion systems in order to eliminate been unable to connect to the sewer these five segments. sanitary sewer overflows. The State system because sewer lines are lack- Ultimately, the petitioners with- of Florida and the Department are ing. Disconnecting industrial users drew their extension requests and co-plaintiffs with the United States in from septic tanks will improve water did not file petitions challenging the the case against Miami-Dade County. quality in the Biscayne aquifer and impaired water list amendments. The Under the terms of the consent nearby surface waters and prevent amendments are now final. 4 June 2014 Florida Case Law Update by Gary K. Hunter, Jr. & Thomas R. Philpot, Hopping, Green & Sams, P.A.
In the absence of evidence with prejudice, in part based on the L. Weekly D713 (Fla. 5th DCA April showing county commission de- court’s reasoning that the claim was 4, 2014). cisions take effect immediately untimely under the restrictions of On appeal for the second time, upon vote, the Bert Harris Act’s sec. 70.001(11), F.S. Under de novo the Fifth District Court of Appeal requirement that claims be pre- review on appeal, PIE argued that (5th DCA) considered whether a tri- sented within one year of when “first applied” should be interpret- al court properly determined that a law or regulation is “first ap- ed “in the context of a legal system the Florida Legislature’s mandated plied” may extend to the date where orders on written pleadings statutory fee formula for eminent a county commission’s permit and applications are reduced to writ- domain case attorney’s fees (see sec. denial is reduced to a written ing, signed, and ‘rendered’ by filing in 73.092(1), Fla. Stat., regarding at- decision, even when the deci- an appropriate public record,” thus torney’s fees, hereinafter the “statu- sion to deny is formalized in writ- relying on the written order of March tory formula”) was unconstitutional ing a month after the oral vote. 28, 2007. Conversely, DeSoto County as applied in this case so as to jus- P.I.E., LLC v. DeSoto County, 39 Fla. argued county regulations were “first tify the trial court’s award under the L. Weekly D405 (Fla. 2d DCA Feb. 21, applied” on the day the county com- alternative fee method prescribed 2014). mission voted (February 27, 2007). by sec. 73.092(2), Fla. Stat. (“alter- In this case, P.I.E., LLC (“PIE”), The Second District Court of Ap- native fee method”). Previously, on and DeSoto County (“County”) dis- peal (2nd DCA) concluded that the the first appeal, the 5th DCA had pute the date by which the one-year record did not provide information by reversed and remanded with instruc- limitation for presenting a claim which to make a determination as to tions that the fee be calculated by the under Florida’s Bert J. Harris, Jr. when a denial of a written application trial court pursuant to the statutory Private Property Rights Protection for a permit takes effect under the formula, unless the statute was de- Act (see sec. 70.001(11), F.S.) (“Act”) county’s code. Consequently, the 2nd clared unconstitutional, or in other should be measured when a county DCA reversed the lower decision, in- words, resulted in less than the “full commission denies an excavation per- dicating it must accept PIE’s position compensation” compelled by Art. X, mit application by oral vote on one that the regulation was “first applied” Sec. 6, Florida Constitution. date, then later formalizes that vote in the written order on March 28, Hearing the issue on remand, the in a written decision on a subsequent 2007, not in the oral vote on Febru- trial court declared the statutory date. ary 27, 2007. In doing so, the 2nd formula unconstitutional as applied PIE purchased fifty (50) acres DCA emphasized its decision did not based on the finding that “excessive of undeveloped property in DeSoto preclude DeSoto County from devel- litigation” caused by the Expressway County in 2005, planning to use it ini- oping the factual record and seeking Authority resulted in the landowner tially for the excavation of sand and summary judgment on this issue if expending substantial attorney time later for development. PIE submit- it can be established that ordinances that would not be fully compensat- ted an application for an excavation take effect immediately upon oral ed by the statutory formula of the permit in October 2006, and at the vote. The trial court’s dismissal of the statute. Thus, again the trial court permit hearing on February 27, 2007, separate takings count was affirmed turned to the alternative fee method the county commission unanimously for failure to state a cause of action available in sec. 73.092(2), Fla. Stat., denied the permit application in an under the theory presented. to award a fee based on the number oral vote. A written decision formal- of attorney hours and a reasonable izing the denial decided by the oral QUESTION CERTIFIED TO hourly rate, among other factors. vote was issued more than a month FLORIDA SUPREME COURT: In Relying on the Florida Supreme later on March 28, 2007. an eminent domain proceeding, Court’s decision in Pierpont v. Lee Among the pre-suit requirements when the condemning authority County, 710 So.2d 958, 960 (Fla. 1998), of the Act, section 70.001(11), F.S., engages in litigation tactics caus- which described circumstances under provides: “A cause of action may not ing excessive litigation and the which the statutory formula may be be commenced under this section application of the statutory fee unconstitutional as applied, the 5th if the claim is presented more than formula results in a fee that com- DCA determined none of the circum- [one] year after a law or regulation is pensates the landowner’s attor- stances apply in the immediate case. first applied by the governmental en- neys at a lower-than-market fee, Based on the 5th DCA’s calculation, tity to the property at issue” (empha- when measured by time involved, the statutory formula resulted in a sis added). Here, PIE submitted its is the statutory fee deemed un- $227,652.25 fee (or approximately presuit claim on March 26, 2008, just constitutional as applied, enti- $87 per hour for attorney and para- before the limitation would preclude tling the landowner to pursue a legal time), whereas the trial court’s seeking relief under the Act based on fee under section 73.092(2)? Or- award employing the alternative fee the written order date. At trial, PIE’s lando/Orange County Expressway method resulted in an $816,000 fee. amended complaint was dismissed Auth. v. Tuscan Ridge, LLC, 39 Fla. Such an award, the 5th DCA held, continued... 5 CASE LAW UPDATE of Appeal (Fifth DCA) in Koontz IV Supreme Court initially overturned. from page 5 (see St. Johns River Water Mgmt. There, the Fifth DCA had affirmed Dist. v. Koontz, 5 So. 3d 8 (Fla. 5th the trial court’s award of $376,000 DCA 2009), which as rephrased by in damages for a “temporary taking” the Florida Supreme Court, had of Koontz’s property during the time was error, noting the statutory fee did asked: “DO THE FIFTH AMEND- that the Water Management District not appear patently unconstitutional. MENT TO THE UNITED STATES withheld a permit. The dissent in the In reaching its conclusion, the 5th CONSTITUTION AND ARTICLE most recent Fifth DCA case explains DCA emphasized that other statu- X, SECTION 6(a) OF THE FLORI- that the Fifth DCA’s decision to adopt tory and procedural mechanisms, DA CONSTITUTION RECOGNIZE the prior opinion rests on tenuous not the alternative fee method, are AN EXACTIONS TAKING UNDER grounds and is inconsistent with the often remedies available when seek- THE HOLDINGS OF NOLLAN V. U.S. Supreme Court’s decision. Specif- ing compensation above the statu- CALIFORNIA COASTAL COM- ically, the dissent notes that all nine tory formula in instances of excessive MISSION, 483 U.S. 825 [107 S.Ct. justices of the U.S. Supreme Court litigation. Where the Expressway 3141, 97 L.Ed.2d 677] (1987), AND seemingly agreed that the Water Authority was allegedly abusive and DOLAN V. CITY OF TIGARD, 512 Management District did not “take” unnecessary in the time spent de- U.S. 374 [114 S.Ct. 2309, 129 L.Ed.2d any property, in the constitutional posing the landowner’s experts, the 304] (1994), WHERE THERE IS NO sense, when Mr. Koontz decided not landowner never sought sanctions COMPELLED DEDICATION OF to accept the permit. Thus, the dis- available by statute and Florida ANY INTEREST IN REAL PROP- sent concludes, the Fifth DCA’s most Rules of Civil Procedure. When the ERTY TO PUBLIC USE AND THE recent decision is inconsistent with Expressway Authority delayed the ALLEGED EXACTION IS A NON the U.S. Supreme Court’s decision. trial by introducing an expert witness LAND--USE MONETARY CONDI- An appeal of Koontz V, if sought by for a new, albeit late, theory based on TION FOR PERMIT APPROVAL the Water Management District, may false factual assumptions, the land- WHICH NEVER OCCURS AND again place this case before the Flori- owner again did not seek sanctions NO PERMIT IS EVER ISSUED?” da Supreme Court for consideration. when the testimony was excluded The Florida Supreme Court had con- and did not avail itself of the options cluded that Nollan and Dolan do not Denial of a property owner’s for requests for admissions that could apply when a government denies a motion to enforce the provi- enable recovery of additional fees for permit (thus failing to impose condi- sion of a takings order requir- proving or disproving matters not tions), and when the conditions are ing the replacement of trees and admitted under Rule 1.380, Fla. R. unrelated to a specific interest in real landscaping is not appealable Civ. P. Instead, the landowner turned property. On review, the U.S. Supreme as a non-final order under Rule to the court and sought relief from the Court reverses, holding that the gov- 9.130(a)(3)(c)(ii), Fla. R. App. P, statutory fee formula, which the 5th ernment must explain whether the when the motion seeks replace- DCA determined the court obliged in conditions it imposes on land use ment, not immediate possession, error. approvals are roughly proportionate of property. Walker v. Fla. Gas Notwithstanding its opinion re- and directly related to the harm it Transmission Co., 39 Fla. L. Weekly manding with instructions to enter hopes to avoid, minimize, or mitigate D660 (Fla. 1st DCA Mar. 27, 2014). a judgment in the amount derived even when the government denies the An order of taking impacting prop- from the statutory formula, the 5th relevant permit and even when its de- erty owned by the Walkers included DCA proceeded to certify the question mand is for money. Having provided an attached schedule which required, above to the Florida Supreme Court the appropriate legal standard, the among other things, the replacement as one of great public importance. U.S. Supreme Court sent the Koontz of trees, landscaping, grasses, shrub- case back to the Florida Supreme bery, and crops on the Walkers’ prop- Koontz V: On remand from the Court for the Florida Supreme Court erty. These landscape features had Florida Supreme Court, the Fifth to apply it to the proposed Koontz de- been clear cut and were effectively District Court of Appeal adopted velopment of approximately 3.7 acres non-existent on the property pending and reaffirmed its earlier Koontz of a 15 acre parcel in central Florida. replacement under the order’s sched- IV opinion as entirely consistent The Florida Supreme Court, in turn, ule. To ensure the replacement of the with the decision of the United sent the case back to the intermediate trees and landscape, the Walkers filed States Supreme Court in Koontz appellate court – the Fifth DCA – so a motion in the trial court seeking to v. St. Johns River Water Mgmt. that it might apply the legal standard enforce the pertinent provision of the Dist., 133 S.Ct. 2586 (2013). St. and decide any outstanding state law order. The motion was denied. The Johns River Water Mgmt. Dist. v. issues. property owners proceeded to appeal Koontz, 2014 Fla. App. LEXIS 6371 On April 30, 2014, a split panel under Rule 9.130(a)(3)(c)(ii), Fla. R. (Fla. 5th DCA Apr. 30, 2014). of the Fifth District issued its fifth App. P., which specifics the circum- In Koontz v. St. Johns River Water opinion in the case (Koontz V). In a stances in which certain non-final Mgmt. Dist., 133 S. Ct. 2856 (2013), short opinion, a two-judge major- orders may be appealed to the dis- the U.S. Supreme Court reviewed a ity of the Fifth DCA adopted and trict courts of appeal in Florida. Most decision of Florida Supreme Court reaffirmed “in its entirety” the Fifth relevant here, Rule 9.130(a)(3)(c)(ii), that decided a certified question sub- DCA’s earlier decision in the case – Fla. R. App. P., provides that appeals mitted by the Fifth District Court Koontz IV – the decision the Florida to the district courts of appeal of
6 non-final orders are limited, in part, parcel of the deed located within 100 Byrd Family Trust, 39 Fla. L. Weekly to those that determine the right to feet of the center line. D237 (Fla. 4th DCA Jan. 29, 2014). immediate possession of property. Ac- Majorland acquired one of the On second-tier certiorari review, cording to the First District Court of parcels of the 1945 deed in 2000, the Town of Jupiter (Town) sought Appeal, however, claiming a contrac- and thereafter, learned of the 1945 review of a circuit court decision re- tual right to replacement of unspeci- deed reservations when it sought to versing in part a magistrate’s code fied property is distinguished from replat the property for development. enforcement order that had imposed the claim of immediate possession to Because the Majorland parcel was finds on the Byrd Family Trust identifiable property (i.e. – trees, if less than 10 acres, Majorland argued (Trust) for the unauthorized removal existing on the property) when seek- neither reservation should apply to of mangrove trees. On the narrow ing an appeal of a non-final order. its property based on the preface scope of second-tier certiorari review, Because the property in this case, clause appearing above the reserva- the Fourth District Court of Appeal trees and landscaping, was not pres- tions. However, the DOT argued the (Fourth DCA) found no departure ent or identifiable on the property, the right-of-way reservation applied to all from a clearly established principle of First DCA held the Walkers did not tracts of the 1945 deed, not just the law, thus denying the Town petition. meet the immediacy requirement of tracts described by the preface clause In 2010, the Trust removed approx- the appellate rule, and therefore, the regarding parcels of 10 acres or more. imately 109 mangrove trees from its First DCA did not have jurisdiction The trial court concluded neither res- property without a permit. Respond- to review the non-final order. ervation applied to Majorland’s prop- ing to a complaint, the Town issued erty based on the clear language and a stop work order on the property to Where a deed from Trustees structure of the reservations in the prevent further mangrove remov- of Internal Improvement Trust 1945 deed, and additionally, based on als, and thereafter issued a Notice Fund provides clear and unam- a similar and controlling decision of of Violation to the Trust. The Trust biguous language in the reser- the First District Court of Appeal in challenged the special magistrate’s vation of an easement, further Mann v. State Road Department, 223 jurisdiction to regulate mangroves by review of minutes of the Trust- So.2d 383 (Fla. 1st DCA 1969), which filing a Motion to Dismiss the Notice ees’ meeting when the easement likewise had determined the ten- of Violation. However, the special reservation was considered is acre-or-more qualifier in a Murphy magistrate found that the Town has inappropriate for determining Act deed also applied to the second jurisdiction to enforce state law relat- applicability of the reservation. reservation listed in the deed for a ing to mangroves, and subsequently, Dep’t of Transp. v. Majorland, LLC, right-of-way easement. issued a Violation Order finding the Fla. L. Weekly D623 (2nd DCA March In the appeal, DOT argued the Trust had violated a section of the 26, 2014). application of the Mann case here Jupiter Town Code requiring adher- On appeal of final summary judg- because the First DCA in Mann did ence to state statutes regulating the ment in favor of Majorland, LLC (Ma- not consider minutes of TIIF meet- alteration of mangroves. The Viola- jorland), the Department of Trans- ings when the two deed reservations tion Order imposed a fine of $15,000 portation (DOT) seeks review of the were first introduced. As argued by for each mangrove tree removed and trial court’s determination regarding DOT, minutes of one TIIF meeting a total fine of $1,635,000. the applicability of an easement res- shows the right-of-way reservation On first-tier certiorari at the cir- ervation contained in the deed of Ma- was adopted without any mention cuit court, the Trust prevailed on jorland’s predecessor in title. In the of a limiting parcel size qualifier, its jurisdictional argument, and the 1945 deed of Majorland’s predecessor whereas the petroleum and mineral circuit court held that the Town was in title (1945 deed), the Trustees of rights reservation was adopted with without authority to regulate or en- the International Improvement Fund the qualifying parcel size language force mangrove trimming and re- (TIIF) conveyed several parcels of and with no further mention of a moval. The Town sought second-tier land and further reserved to the State right-of-way reservation. The Second certiorari review in the Fourth DCA. two sets of rights in the land. Both DCA observed these deed reserva- The Fourth DCA incorporated the reservations appeared under a single tions may be unrelated based on the circuit court’s analysis and opinion preface clause of the deed stating “AS TIIF minutes, but indicated that con- in denying the petition for second-tier TO LANDS IN TRACTS OR COM- sulting these minutes in the context certiorari review. Of particular sig- POSITE TRACTS AGGREGATING of otherwise clear and unambiguous nificance in the analysis, the courts TEN (10) ACRES OR MORE:.” The deed language is inappropriate. Ac- emphasized the plain language of first reservation listed in the 1945 cordingly, the Second DCA affirmed the Mangrove Act mandates that deed secured a reservation of title to the decision below. local governments seeking to regu- the State for a portion of petroleum late mangroves locally may request and mineral rights and the rights of Without a proper delegation delegation of authority from the exploration on the land. The second of authority, any local ordinance Florida Department of Environmen- reservation listed in the deed, which relating to mangrove regulation, tal Protection (FDEP), but absent is pertinent to the appeal, secured an even if merely requiring compli- such delegation, all other mangrove easement for a state road right of way ance with state regulations, is ef- regulation is preempted. In fact, the 200-feet wide on either side of the fectively preempted by the clear Mangrove Act even abolished all local center line of any state road existing and controlling language of the regulation then in effect within 180 on the date of the deed, including any Mangrove Act. Town of Jupiter v. days of adoption of the Act. The Town continued... 7 CASE LAW UPDATE apart from requiring compliance with from page 7 state standards, the assessment of the local fine against the Trust is an act of regulation preempted by the Mangrove Act. Once preempted, the Ease your legal never sought such delegation, and Fourth DCA noted, a single $15,000 instead attempted through its code fine is as improper as 109 $15,000 confusion. to require all trimming or removal of fines. Calling the Town’s ordinance an www.floridabar.org/SCOPE mangroves to subscribe to the regu- attempt to sidestep the statutory re- lations of FDEP. According to the quirement for requesting delegation, court, even where the Town did not the Fourth DCA denied the petition establish new mangrove regulations for second-tier certiorari review.
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8 On Appeal by Lawrence E. Sellers, Jr.
Note: Status of cases is as of June “Under the holding of Department of objections by neighbors that the plan 5, 2014. Readers are encouraged to Banking & Finance v. Osborne Stern does not comply with the requirements advise the author of pending appeals & Co., 670 So. 2d 932 (Fla. 1996), is of the Global RBCA Rule, Chapter 62- that should be included. a state governmental agency which 780, Fla. Admin. Code. Status: Notice of brings a civil action in circuit court Appeal filed February 3, 2012; all briefs FLORIDA SUPREME COURT required to prove the alleged regula- filed by September 4, 2012. Herrin v. City of Deltona, Case No. tory violation by clear and convincing SC 13-2003. Petition for review of 5th evidence before the court may assess THIRD DCA DCA decision confirming the trial monetary penalties.” 37 Fla. L. Weekly Padron v. Ekblom and DEP, Case court’s summary judgment in favor D2528a (5th DCA, Oct. 26, 2012). Sta- No. 3D13-2446. Appeal from final order of the City of Deltona and rejecting tus: On May 22, 2014, the Florida Su- adopting recommended order deter- the plaintiff’s claim that the City preme Court answered the rephrased mining that Ekblom’s application to violated the Florida Sunshine Law by question in the negative and held that install a boat lift on an existing dock in not allowing Herrin to speak at the where the Legislature statutorily au- a man-made body of water is exempt Deltona City Commission meeting, thorizes a state governmental agency from the need for an ERP. Status: Oral ruling that the public did not have to recover a “civil penalty” in a “court argument to be held on June 16, 2014. the right to participate in the City’s of competent jurisdiction” but does not decision making process. 38 Fla. L. specify the agency’s burden of proof, the FOURTH DCA Weekly D1767a (5th DCA 2013). Sta- agency is not required under Osborne Conservation Alliance of St. Lucie, tus: Petition denied on May 28, 2014. to prove the alleged violation by clear et al. v. DEP, Case No. 4D13-3504. Ap- DOT v. Clipper Bay Investments, and convincing evidence, but rather by peal from a final order adopting a rec- LLC, Case No. SC 13-775. Petition for a preponderance of evidence. 39 Fla. L. ommended order of dismissal, which review of 1st DCA decision determin- Weekly S345b (Fla. May 22, 2014). dismissed for lack of standing a chal- ing that the Marketable Record Title lenge to a settlement agreement re- Act’s exception for easements in right- FIRST DCA solving an enforcement action relating of-ways is applicable to land held as a Florida Fish and Wildlife Conserva- to alleged contamination of soil and fee estate for the purpose of a right-of- tion Commission v. Wakulla Fisher- groundwater at a bleach-manufactur- way, so long as competent substantial men’s Association, Inc., et al., Case No. ing and chlorine-repackaging facility. evidence establishes the land is held 1D13-5115. Appeal from final judg- DOAH Case No. 10-3807 (Final Or- for such a purpose. The court reversed ment enjoining any and all further der entered August 21, 2013). Among the trial court’s award of a portion of enforcement of the net ban amendment other things, the order concludes that the land north of the I-10 fence line as set forth in Article X, §16 of the petitioners were “foreclosed from as- and remanded with instruction to quiet Florida Constitution, and restricting serting their interests under subsec- title to all of the land north of the I-10 the Commission’s authority to adopt tion 403.412(6), Florida Statutes, in a fence line in Clipper Bay, except for the rules to regulate marine life with re- proceeding where DEP took enforce- portion used by Santa Rosa County. spect to the use of a “gill net” or an ment action.” Status: Notice of appeal 38 Fla. L. Weekly D271a (Fla. 1st DCA “entangling net” pursuant to Article IV, filed September 19, 2013. Oral argu- 2013). Status: Oral argument held on §9, and Rules 68B-4.002, 68B-4.0081 ment to be held on July 8, 2014. April 8, 2014. and 68B-39.0048, Fla. Admin. Code. Conservation Alliance of St. Lucie SFWMD v. RLI Live Oak, LLC, Case Case No. 2011-CA-2195 (2d Cir. final County and Roman v. DEP, Case No. No. SC12-2336. Petition for review judgment entered October 22, 2013). 4D13-2925. Appeal from final order of 5th DCA decision reversing in part Status: Oral argument held May 15, adopting recommended order deter- the declaratory judgment determining 2014. mining that the petition for hearing that RLI participated in unauthorized Putnam County Environmental was filed untimely and that petition- dredging, construction activity, grad- Council v. SJRWMD, Case No. 1D13- ers failed to demonstrate standing to ing, diking, culvert installation and fill- 2669. Petition for review of FLWAC fi- request a hearing. Status: Notice of ing of wetlands without first obtaining nal order denying the Council’s request appeal filed August 8, 2013. Oral argu- SFWMD’s approval and awarding the for review pursuant to s. 373.114, Fla. ment to be held on July 15, 2014. District $81,900 in civil penalties. The Stat., of the Fourth Addendum to SJR- Archstone Palmetto Park LCC v. appellate court determined that the WMD’s Water Supply Plan, relating Kennedy, et al, Case No. 4D12-4554. trial court improperly based its finding to identification of withdrawals from Appeal from trial court’s order grant- determining the amount of civil penal- the St Johns and Ocklawaha Rivers ing final summary judgment deter- ties on a preponderance of the evidence as alternative water supplies. Status: mining that the 2012 amendment to standard and not on the clear and Reversed on April 25, 2014, 39 Fla. L. section 163.3167(8), Florida Statutes, convincing evidence standard. 37 Fla. Weekly D881a. does not prohibit the referendum pro- L. Weekly D2089a (5th DCA, Aug. 31, Family Oriented Community United cess described in the City charter prior 2012). Subsequently, the district court et al. v. DEP, Case No. 1D12-590. Appeal to June 1, 2011. Status: Reversed on of appeal granted SFWMD’s request of DEP final order approving a site in- January 29, 2014. 39 Fla. L. Weekly and certified the following question: vestigation and cleanup plan over the D230a. 9 Law School Liaisons Florida International University Law School Update Submitted by Lauren Dellacona, Student President of the FIU Environmental Law Society
The Florida International Uni- FIU Law is pleased to offer envi- students are assisting a group of pub- versity College of Law is pleased to ronmental and land use courses by lic interest activists with administra- provide this update for the Environ- Professor Ryan Stoa (Ocean and tive challenges to FDEP’s permitting mental & Land Use Law Section June Coastal Law), Professor Pearl (Toxic of wildcat oil exploration wells in the Section Reporter. and Environmental Torts), Profes- Everglades and seismic oil exploration FIU Law is pleased to announce sor Lehtinen (Administrative Law), testing in primary panther habitat. that Ms. Kalyani Robbins will be join- Professor Coffey (Land Use and Plan- Finally, the FIU Environmental ing its faculty this fall. Professor Rob- ning), and Professors Porter and Slap Law Society (ELS) is wrapping up a bins has established herself as one of (Environmental Law Clinic). year which was devoted to communi- the emerging scholars and leaders in Over the course of the 2013-14 aca- ty service and outreach. In one of the the field of environmental law and demic year students participating in more popular events, for example, the natural resources law. She has served the Environmental Law Clinic assist- ELS brought friends and members on the faculty at the University of Ak- ed in the representation of Biscayne to Oleta River State Park, located on ron School of Law since 2008 where Bay Waterkeeper, Tropical Audubon Biscayne Bay, where they participat- she taught Environmental Law, Nat- Society, and other local public interest ed in a beach cleanup, cleared inva- ural Resources Law, Criminal Law organizations in a variety of matters. sive species of plants from bike paths, and Criminal Procedure. Robbins has Most recently, the Clinic joined with and rebuilt walking paths throughout produced scholarly works in research a team of attorneys in a Clean Water the park. Additionally, in commemo- areas of Biodiversity and Ecosystem Act citizen suit against Miami-Dade ration of Earth Day, on April 22, 2014, Management, Environmental Policy, County in a first in the nation effort the ELS hosted a Water Rights Panel Climate Change, Renewable Energy, to compel the County to implement Discussion. Teaming with the school’s Eco-Federalism and the Intersection climate impact protection and adapta- Real Property, Probate and Trust Law of Law, Science and the Environment. tion measures as it rebuilds its three Society, the groups brought together Professor Robbins will be teaching a coastal wastewater treatment plants three expert panelists to discuss how Biodiversity Seminar and Environ- at a cost of $1.6 billion pursuant to a water rights and law impact property mental Law in the fall. Consent Decree negotiated with the rights, development and agriculture In addition to Professor Robbins, Department of Justice. Other Clinic in South Florida.
Nova Southeastern University (Shepard Broad Law Center) Report by Richard Grosso, Professor of Law
The Environmental and Land Use Science and the Lawyering Process Director of Restoration Initiatives Law Program at Nova Southeast- courses. This semester’s field trips for the United States Department of ern University’s Shepard Broad Law included an all-day driving and walk- the Interior, all of whom generously Center enjoyed a robust semester ing tour of several sites of Everglades discussed with the students their during the winter of 2014. and other environmental litigation respective roles in environmental law During the winter 2014 semes- or controversy, observing a meeting and policy. ter, four students participated in the of the Governing Board of the South During the clinical component of Environmental and Land Use Law Florida Water Management District, the semester, three interns worked Practice Clinic, directed by Profes- and other out of classroom experienc- for the in–house clinic, where they sor Richard Grosso, and assisted by es. Students also attended a ground- performed work for several public adjunct Professor Robert Hartsell, breaking ceremony for an Everglades interest and public sector lawyers Esq. As usual, this full-time, 12 credit Storm Water Treatment Area that throughout the state under the su- clinic began with an initial three – will treat polluted agricultural run- pervision of Clinic Director Grosso. A week intensive set of courses, during off. While there, they met with several fourth student “externed” with Robert which the students received intensive public officials, including Department Hartsell, PA in Pompano Beach. The instruction in the Advanced Envi- of Environmental Protection Secre- students drafted litigation memos, ronmental and Land Use Law, En- tary Hershel Vinyard, Everglades complaints and legal memoranda vironmental and Land Use Practice National Park Superintendant Dan and brainstormed strategy under and Procedure, and Environmental Kimball, and Shannon Estenoz, the the federal Endangered Species Act. Law School Liaisons continued.... 10 They researched and draft motions, http://www.nsulaw.nova.edu/events/ the political committee of the Florida responses, complaints under federal symposium.cfm. Professors Black- Chapter of the Sierra Club, and as and state law. They made public com- welder, Mintz and Grosso, assisted by President of the South Florida Wild- ment at a NEPA Scoping hearing. several students, coordinated, moder- lands Association, Inc. and taught The interns engaged in numerous ated and spoke on panels, and several Ocean and Coastal Law for the NSU legal strategy calls with lawyers and students attended throughout the Oceanographic Center. Professor Rich- clients. The substance of their work two – day event, learning from and ard Grosso, in addition to directing the related to the Endangered Species meeting with experts from around clinic and representing and advising Act, sea level rise and erosion issues, the country. clients in various forums, participat- water quality in the Indian River La- The Law School’s Environmental ed in a documentary and televised goon lawsuit, property rights, includ- and Land Use Law Society was very panel discussion on sea level rise in ing the Harris Act, and draft state active this semester. The Society host- southeast Florida that has aired on legislation. ed a Career Panel, featuring, among local and national public television On February 6 and 7 the Law others, Sara Fain, Esq., Executive stations. He also spoke, along with Center hosted a major Symposium, Director of the non-profit Everglades his fellow panelists, at a sea level entitled “New Directions in Energy Law Center, Inc., and Shannon, Es- rise public forum on Miami Beach. Law and Policy, Climate Disruption tenoz, the Director of Restoration Professor Joel Mintz participated in and Sea Level Rise”. This interdisci- Initiatives for the United States De- a distinguished expert committee of plinary conference, co-sponsored by partment of the Interior. Several ELS the National Academies that advised the Center for Progressive Reform students travelled to Gainesville to the U.S. Army and its contractors on and Nova Southeastern University attend the Annual Public Interest ways to safely dispose of the Nation’s Law Center, featured presentations Environmental Conference at UF stockpile of assembled chemical weap- by nationally prominent scientists, Law. The Society also went on an ons. He also participated actively in law professors, federal, state and local overnight camping trip to the magical the work of the Washington, DC-based government officials, and representa- Fisheating Creek Campground, just Center for Progressive Reform, served tives of NGOs on the threats posed by north of Lake Okeechobee. on the board of a not-for-profit envi- climate disruption and sea level rise Earlier this Spring NSU Law sent ronmental law firm, the Everglades nationally and in Florida, and ways a 3-member team to the National En- Law Center, Inc. and co-led a work in which national and state energy vironmental Law Moot Court Com- group of members of the American law and policy can be applied now petition in White Plains, NY, where Law Institute (ALI) that proposed and reformed in the future to better 70 schools competed over complex an ALI project on environmental law. mitigate and adapt to those threats. environmental enforcement issues. Nova Southeastern University named The symposium was well attended Our professors had an active se- Professor Mintz the Shepard Broad and well received, and the blending of mester beyond the academic program. Law Center Professor of the Year “in perspectives and disciplinary exper- Associate Professor Brion Blackweld- recognition of significant contribu- tise was provocative and informative. er served on the Broward County Wa- tions to research and scholarship and The proceedings may be viewed at ter Advisory Board, as a member of exceptional instruction.”
A Summer 2014 Update from the Florida State University College of Law by David Markell, Associate Dean for Environmental Programs and Steven M. Goldstein Professor
The Florida State University Col- address current policy challenges in Law at the University of California, lege of Law is delighted that the latest the absence of new legislation. En- Berkeley, and former FSU professor U.S. News & World Report has again titled Environmental Law Without J.B. Ruhl, now the David Daniels ranked our Environmental Law Pro- Congress: An Interdisciplinary Con- Allen Distinguished Chair of Law gram among the best in the United ference on Environmental Law, this at Vanderbilt Law School. Panelists States. We are pleased to provide this important conference, organized by and audience participants discussed update on the Spring 2014 semester’s Professor Shi-Ling Hsu, featured a variety of disciplinary perspectives events for the Environmental Law & leading environmental law scholars on environmental lawmaking, and Land Use Section Newsletter. from throughout the United States. how it might look in the years ahead Professor Richard J. Lazarus, the if Congress remains on the sidelines Events Howard and Katherine Aibel Profes- The College of Law’s Spring 2014 The College of Law has had a very sor of Law at Harvard Law School, Environmental Forum on the Apala- busy spring. In February, we hosted a delivered the keynote address. Other chicola-Chattahoochee-Flint River significant conference on the future of prominent scholars participating in System explored the legal, scientific, environmental law with a particular the conference included Daniel A. and policy issues associated with the focus on the capacity of agencies to Farber, the Sho Sato Professor of State of Florida’s recently filed, and
Law School Liaisons continued.... 11 LAW SCHOOL LIAISONS from page 11 ongoing, effort to have the United States Supreme Court equitably ap- portion the waters of the System. Participants in the Forum included Jonathan A. Glogau, Florida Office of the Solicitor General, Ted Hoehn, Florida Fish and Wildlife Conserva- tion Commission, and Matthew Z. Shannon Dolson, James Parker-Flynn, Claire Armagnac, Jeremy Susac, Alex Brick, Jake Whealdon, George Reynolds, David Markell, Shi-Ling Hsu, Lauren Brothers, Kurt Schrader, Leopold, General Counsel, Florida Hannah Wiseman. • Joseph Whealdon, An Argu- ment for the Implementation of a Car- bon Tax Under Section 111(d) of the Clean Air Act
Outstanding J.D. Student Presenters • Claire Armagnac, Worse than the Tourists: Non-Native Invasive Spe- cies in Florida, Lionfish, Pythons, and What New Laws and Federal Funding Harold “Bud” Vielhauer, Ted Hoehn Matthew Z. Leopold, Sara Spacht, Jonathan A. Glogau and Can Do to Help David Markell. • Shannon Dolson, Finding A Department of Environmental Pro- students and several outstanding J.D. Way Back Into Darkness: Regulating tection. Sarah Spacht (College of students and provided them with the Light Pollution in Florida and Beyond Law ’14) introduced the program and opportunity to present their papers on • Lauren Brothers, Florida’s Professor David Markell served as environmental topics. Student partici- Growing Problem: Addressing the moderator. pants and their topics are listed below: Threat of Invasive Exotic Plants to A third significant event this spring Florida’s Natural Areas in the Face of was the College of Law’s continuing Environmental LL.M. Presenters Climate Change legal and judicial education program • Alex Brick, A Summary of Rele- on hydraulic fracturing. Organized vant Legal Issues for the Florida Solar Alumni Accomplishments and by Professor Hannah Wiseman, “The Photovoltaic Business Honors Evolving Law of Hydraulic Fractur- • James Parker-Flynn, Resource • Justin B. Green (’04) has been ing and Unconventional Oil and Gas” Production Limits: Implementing Up- promoted to Program Administer of featured Timothy Riley and Rich- stream Regulation of Fossil Fuels the Florida Department of Environ- ard Brightman of Hopping Green • George Reynolds, Nollan mental Protection’s Siting Coordi- & Sams, Dale Calhoun of G. David and Dolan 2.0: Koontz v. St. Johns nation Office, which is in charge of Rogers and Associates, Floyd R. Self Water Management District and Its licensing power plants in Florida. of Gonzalez Saggio & Harlan, and Consequences • Andrew Missel (’14) will be Professor Hannah Wiseman. • Kurt Schrader, Coastal Risk clerking for Judge Mark Walker of the The College of Law also welcomed Mitigation and Adaptation in Flor- Northern District of Florida, begin- three distinguished faculty mem- ida—The Problematic Incentives of ning in August 2015. bers to campus for workshops this Insurance Cross-Subsidy Schemes semester: Robert Ellickson, Walter • Jeremy Susac, Balance En- We hope you will join us for one or E. Meyer Professor of Property and ergy Florida & The Role of Exporting more of our programs. For more infor- Urban Law, Yale Law School, John LNG in the Newly-Drawn State of mation, please consult our web site at: Nagle, John N. Matthews Professor, Saudi-America http://www.law.fsu.edu, or please feel University of Notre free to contact Prof. Dame Law School, David Markell, at and Oren Perez, Pro- [email protected]. fessor of Law, Bar- Please contact Assis- Ilan University. tant Dean for Place- A final significant ment Rosanna Catala- event this semester no, [email protected]. was our Spring 2014 edu, if you are inter- Environmental Collo- ested in interviewing quium. The Colloqui- any of our students, um honored our En- either in-person or by vironmental LL.M. Floyd R. Self, Dale Calhoun, Hannah Wiseman, Timothy Riley, and Richard S. Brightman. videoconference. Law School Liaisons continued.... 12 UF Law Update Submitted by Mary Jane Angelo, Director, Environmental and Land Use Law Program, University of Florida Levin College of Law
ELULP Awards Degrees, Certifi- UF Environmental Moot Court Costa Rica Summer Program cates Team Named Quarterfinalist Announced The Environmental and Land Use The UF law Environmental Moot “Conservation and Sustainable Law Program awarded LL.M. degrees Court team was named a quarter- Development: Law, Policy and Profes- to two students, Chelsea Ann Dalziel finalist at the Pace Law National sional Practice” is the focus of the UF and Jaclyn Marie Lopez. Environmental Law Moot Court Law Costa Rica Summer Program. An additional seven J.D. graduates Competition, which took place Feb. This interdisciplinary policy-focused received certificates in environmental 20-22. program consists of three linked and land use law. They are Nicholas Elizabeth Turner (2L), Melissa courses integrating international and Barshel, Amanda Broadwell, Brian Fedenko (2L) and Zachary Rogers comparative sustainable develop- Davis, Carly Grimm, Jon Morris, Zach- (3L) competed against teams from ment law and policy, contemporary ary Rogers and Alexander Wilkins. more than 75 other schools, and issues in tropical conservation and were judged on oral argument per- development, and professional skills ELULP Students Plan Extern- formance and brief writing skills. for practitioners. ships This year’s competition focused on The 2014 program will consist of a Twelve ELULP students will work issues in the Clean Water Act re- foundational course in international in externships this summer. They are lating to citizen suits, navigabil- sustainable development law and Gentry Mander (2L), The World Bank, ity of waterways and point source policy; a topical course in water, wet- Guatemala City, Guatemala; Christo- definitions. lands and wildlife conservation, and a pher Johns (2L), Harvard Food Law Rogers also received an award sustainable development practitioner and Policy Clinic, Boston, MA; Eliza- for Best Oralist Honorable Mention, skills course. All three courses are beth Turner (2L), U.S. Environmental among more than 200 participants. integrated through practicums based Protection Agency, Office of General around current issues of conservation Counsel, Honors Program, Washing- First Rumberger Fellows Selected and development in Costa Rica and ton, D.C.; Melissa Fedenko (2L), U.S. UF law students Chris Johns elsewhere, jointly developed by U.S. Environmental Protection Agency, (2L) and Elizabeth Turner (2L) were and Costa Rican faculty. Costa Rican Office of Enforcement, Washington, selected as the inaugural E. Thom law and graduate students as well as D.C.; Bruce Groover (2L), Defenders Rumberger Everglades Foundation young professionals will also partici- of Wildlife, Washington, D.C.; Daniel Fellows. The fellows program was led pate. The course will include lectures Fontana (2L), Alachua County Envi- by Rumberger’s law firm, Rumberger, at the Organization for Tropical Stud- ronmental Protection Department, Kirk & Caldwell, and UF law to honor ies headquarters, site visits to inter- Gainesville; William White (2L), the late attorney known for his work national and domestic institutions in Hopping Green & Sams, Tallahas- on landmark environmental and con- San Jose such as the Inter-American see; Nathalie Vergoulias (2L), Florida stitutional cases. Court for Human Rights, and field Inland Navigation District, Miami; The two students were introduced trips to biological field stations of Sara Frick (1L), Hillsborough County to the Everglades Foundation Board topical relevance to the course. Environmental Protection Commis- in February. “For the rest of the day sion; Amanda Hudson (1L), Public the staff and Board were talking Wolf Lecture Examines Property Trust Environmental Law Institute; about how proud they were to be Rights, Climate Change Adrian Mahoney (1L), Audubon, Mi- part of preparing new environmen- Professor Daniel A. Farber of the ami; and Jennifer Lomberk (1L), Ala- tal leaders,” said Jon Mills, UF Law University of California at Berkley de- chua County Forever, Gainesville. Dean Emeritus and Director of the livered the seventh annual Wolf Fam- Center for Governmental Respon- ily Lecture at the UF Levin College of UF Law Conservation Clinic sibility. Mills serves on the Ever- Law in March. He spoke on “Property Joins BioBlitz glades Board and worked with Rum- Rights and Climate Change: Chal- UF law Conservation Clinic stu- berger on numerous cases. He also lenges and Opportunities.” dents joined the UF Watershed Ecol- worked to establish the Rumberger Farber is the Sho Sato Professor of ogy Lab and the Withlacoochee Gulf Fellowship. Law and the co-director of the Cen- Preserve to hold a citizen science ter for Law, Energy, and the Envi- BioBlitz in Yankeetown, Florida, on ELULP Fellowships Awarded ronment at UC Berkeley. A member March 15-16. The teams allowed citi- Three ELULP students received of the American Academy of Arts zens to work with naturalists, biolo- fellowships from the ELULP pro- and Sciences and a Life Member of gists and ecologists. gram. Conservation Law Fellowships the American Law Institute, Farber The activity featured ecological were awarded to Melissa Fedenko serves on the editorial board of Foun- tours, biological flora and fauna in- (2L) and Adrian Mahoney (1L). Bi- dation Press and as editor-in-chief of ventories and education programs, anca Lherisson (2L) was awarded the Issues in Legal Scholarship. and nature exhibits. ELULP Minority Fellowship. The Wolf Family Lecture Series Law School Liaisons continued.... 13 LAW SCHOOL LIAISONS Springs Institute; Wayne Flowers (JD elections were examined during the from page 13 75), an attorney from Lewis, Long- 13th annual Richard E. Nelson Sym- man & Walker, P.A.; and MacKay posium in February, presented by the talked about agricultural water use University of Florida Levin College of and how it affects Florida springs. Law, and co-sponsored by The Florida was endowed by a gift from UF Law Agriculture is the second largest sec- Bar’s City, County and Local Govern- Professor Michael Allan Wolf, who tor in Florida’s economy and is one of ment Law section, and Environmen- holds the Richard E. Nelson Chair in the biggest competing interests for tal and Land Use Law sections. Local Government Law, and his wife, water, Flowers said. The question is, Elections experts addressed topics Betty. to whom should the limited number including voter identification laws, of consumptive (water) use permits felon disenfranchisement, voter roll Environmental Conference Ex- go, and why? Making the case for ag- purges, campaign disclosure for ballot amines Sustainable Agriculture riculture as a top competing interest, measures, ballot-box zoning, and the Issues Flowers noted that if agriculturists status of the Voting Rights Act after Former Florida Gov. Buddy MacK- don’t have access to water, food sup- the U.S. Supreme Court’s 2013 deci- ay and Colombia University Profes- ply would go down and prices would sion in Shelby County v. Holder. sor and Vertical Farm Project Direc- shoot up. What use best serves the Symposium speaker Janai Nelson, tor Dickson Despommier headlined public interest?” he said. “Agriculture professor of law at St. John’s Univer- the 20th annual Public Interest Envi- has a very important place.” sity School of Law, asked audience ronmental Conference at UF law in Gov. MacKay, who worked on sev- members to think about the election February. eral water projects as the late Gov. debacle of 2000 and consider what Environmental and legal experts Lawton Chiles’ lieutenant governor, had changed in 13 years. “The very discussed “Feeding the Future: said the competition for water in disturbing answer is that there are Shrinking Resources, Growing Pop- Florida is not a new problem. He now more legal barriers to exercis- ulation and a Warming Planet” with compared the current issue to when ing voting rights than there were in more than 200 participants in tracks he was faced with Hillsborough and 2000,” Nelson continued. “Actual legal on agricultural frontiers, natural re- Pinellas counties sucking down water barriers — not sort of the procedural sources, and legal/regulatory issues. while competing for growth in the gaps and the administrative gaps Jack Payne, senior vice president 1990s. Their overconsumption left that occur — I mean actual structural for agriculture and natural resources nearby Pasco County nearly dry. “I barriers. … And there are increas- at the University of Florida’s Insti- have seen this movie before. I know ingly fewer legal protections.” tute of Food and Agricultural Sci- the plot, and some of the players are Other presenters included Michael ences, kicked off the central theme even the same,” MacKay said. S. Kang, professor of law, Emory Law with an opening talk on the current Pasco County represents Florida’s School; Kenneth A. Stahl, associate challenges and opportunities Florida springs, and Hillsborough and Pinel- professor of law, Fowler School of Law, agriculturists face. Sarah Bittleman, las represent today’s competing in- Chapman University; Terry Smith, senior agricultural counselor for the terests, including agriculture — one professor of law, DePaul University Environmental Protection Agency, of the biggest, he said. In order to College of Law; Mark H. Scruby, coun- discussed how agriculturists, envi- protect the springs, the most endan- ty attorney, Clay County; Ilya Shapiro, ronmentalists and others can collabo- gered ecosystem in Florida, it’s going senior fellow, Cato Institute; Daniel rate to meet common interests — an to take more than policy framework A. Smith, professor, Department of ongoing theme of the conference. or regulation. “When all else fails,” Political Science, University of Florida; “Thirsty Agriculture, Thirsty MacKay said, “we’re going to have to Nicholas M. Gieseler and Steven Geof- Springs: Who Gets to Drink from the work together.” frey Gieseler, Gieseler & Gieseler, P.A., CUP?” kept with that theme of collab- Port St. Lucie; Suh Lee and Emma oration from its diverse panel mem- Nelson Symposium Tackles Elec- Morehart, J.D. candidates, University bers to its topic. Robert L. Knight, a tion Law of Florida Levin College of Law; and scientist and president of the Florida Issues facing local and national UF Law Professor Michael Allan Wolf.
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KOOTZ just compensation when property is remanded to the Fifth District. Koontz from page 1 taken for a public use – in exchange V’s 2-1 split indicates the Higher for a discretionary benefit conferred Court’s schism in Koontz IV has not by the government where the benefit clarified the issue. has little or no relationship to the By now one would be shocked if property.” Id. at 547. any group, let alone a court, agreed on must fail. Nollan, 483 U.S. at 837. The The doctrine has existed for over any aspect of Koontz IV. Or, frankly, Nollan Court summed up that “unless a century. Richard Epstein traces its on any aspect of what the case has the permit condition serves the same roots in the 19th Century, and yet ever been about. The most recent, governmental purpose as the develop- acknowledges its amorphousness: and by no means the last, Koontz de- ment ban, the building restriction is cision showed one Florida Fifth Dis- Originating in the nineteenth cen- not a valid regulation of land use but trict Court of Appeal panel could not tury, the doctrine of unconstitutional an ‘out-and-out plan of extortion.’” Id. agree on what the Koontz IV Supreme exactions is no new judicial concoc- The Court noted one must determine Court majority even said. Whatever tion in the post-New Deal Welfare how proportionate the exaction is to one might think of this era of split Su- state. Nor is the doctrine anchored the impact, but only in dicta. Id. at preme Court decisions, Koontz V bodes to any single clause of the Constitu- 838. Dolan buttressed the dicta in Nol- poorly for Koontz IV’s precedential tion. Like the police power, it is a lan by requiring exactions to not just value. creature of judicial implication. It bear an essential nexus, but to also Judge Torpy wrote the major- roams about constitutional law like bear a “rough proportionality” to the ity opinion in Koontz V. Judge Orfin- Banquo’s ghost, invoked in some development’s expected impact. The ger joined. The majority concluded: cases, but not in others. resulting Nollan/Dolan test requires “[Koontz IV] concluded that an exac- the government to “make some sort of R. Epstein, Unconstitutional Condi- tions taking may occur even in the ab- individualized determination that the tions, State Power, and the Limits of sence of a compelled dedication of land required [exaction] is related both in State Power, 102 HARV L. REV. 4, and even when the unconstitutional nature and extent to the impact of the 11 (1988). Little surprise that schol- condition is refused and the permit is proposed development.” Dolan, 512 ars, courts, regulators and regulated denied.” Koontz V at 1, quoting Koontz U.S. at 391. If either prong fails, the questioned whether and how Nollan/ IV, 133 S. Ct. at 2596. The Koontz V exaction fails. Id. Dolan applied to monetary exactions majority emphasized the Koontz IV The Supreme Court amplified the such as fees in lieu of mitigation. See, majority’s refusal to address Florida standard in Lingle v. Chevron U.S.A., e.g., C. Hall and L. Reynolds, Exactions state issues in remanding the case to Inc.. 544 U.S. 528 (2005). It repudiated and Burden Distribution in Takings the Florida Supreme Court for resolu- any implication that Nollan/Dolan re- Law, 47 WM. & MARY L. REV. 1513 tion. Id. The Florida Supreme Court, quired a governmental action to “sub- (2006). As I explicate below, however, in turn, remanded the matter to the stantially advance” a public purpose. the Supreme Court seemingly an- Fifth District. Id. Lingle held that the court should not swered that question in the affirma- The Koontz V majority held that analyze whether an exaction is based tive in a one paragraph opinion the the Supreme Court majority in Koontz on a legitimate policy. The unconstitu- same year it decided Dolan. Two de- IV “concluded that an exactions tak- tional conditions doctrine, like the tak- cades before Koontz. Ehrlich v. City of ing may occur even in the absence of ings doctrine, assumes the underly- Culver City, 512 U.S. 1231 (1994). Of a compelled dedication of land and ing governmental action’s legitimacy. course, Ehrlich was decided 5-4. even when the unconstitutional con- The government must, however, meet The Koontz IV Supreme Court held, dition is refused and the permit is both Nollan/Dolan criteria. Lingle, 5-4, that the test applies to fee in denied.” Koontz V at 1, citing Koontz 544 at 547-48. Lingle explained that lieu and other monetary exactions. IV, 133 S. Ct. at 2596. The majority the doctrine bars government from The Court remanded the matter to held that all state claims were either “requir[ing] a person to give up a con- the Florida Supreme Court to apply resolved or waived. Koontz V at 1. The stitutional right – here the right to this standard, and the latter court Fifth District panel majority opinion continued.... 15 KOOTZ the right not to have property taken been taken without just compensa- from page 15 without just compensation. As in tion and the District always con- other unconstitutional conditions tended that it never “took” anything cases in which someone refuses to from Koontz, neither property nor cede a constitutional right in the money. Now that the United States expounded on and distinguished the face of coercive pressure, the imper- Supreme Court has clarified what state exhaustion of remedies issue un- missible denial of a governmental an exactions taking is and what it der Key Haven Associated Enterprises benefit is a constitutionally cogni- is not, it is for the Florida courts to v. Board of Trustees of the Internal zable injury. determine what, if any, remains for Improvement Trust Fund, 427 So.2d Koontz V at 43 (Griffin, J. diss.), the violation of Koontz’s rights by 153 (Fla. 1982), cited by Koontz V at quoting Koontz IV, 133 S. Ct. at 2596. the District. 1, fn. 2. Key Haven held generally that Judge Griffin emphasized theKoontz Id. Judge Griffin concluded that the one must exhaust administrative rem- IV majority’s distinction between the procedural posture rendered impos- edies before one may sue for inverse remedies available under takings and sible any summary disposition affirm- condemnation. Judge Torpy’s opinion extortionate demands: ing a taking. Id. at 6. (Griffin, J. diss.) noted the enactment of s. 373.617, One must note here that Koontz Fla. Stat., after the facts that led to That is not to say, however, that went to trial on a complaint under Key Haven occurred. One of Koontz’s there is no relevant difference be- which he had eliminated a previous- principal claims was addressed under tween a consummated taking and ly express unlawful exaction claim. that statute. the denial of a permit based on Count VI of his First Amended Com- The footnote does not explicate the an unconstitutionally extortion- plaint, dated February 27, 1995, pled: statute. Florida Law 78-85 included ate demand. Where the permit is s. 373.617, entitled “Judicial review denied and the condition is never 93. At all material times, as alleged relating to permits and licenses”. The imposed, nothing has been taken. in paragraph 15 above, the permit statute authorizes a person to file in While the unconstitutional condi- requirements which the Defendants circuit court within 90 days of a “fi- tions doctrine recognizes that this imposed, or sought to impose, upon nal action of any agency with respect burdens a constitutional right, the the Plaintiff were an unconstitution- to a permit.” The statute solely con- Fifth Amendment mandates a par- al exaction or attempted exaction, of fines the circuit court “to determining ticular remedy – just compensation Plaintiff’s property. Specifically, in whether [the] final agency action is an – only for takings. In cases where imposing such requirements upon unreasonable exercise of the state’s there is an excessive demand but Plaintiff’s property as a condition police power constituting a taking no taking, whether money damages to reasonable use of his property, the without just compensation.” Id. at (2). are available is not a question of Defendants have violated the Plain- If a court determines the agency ac- constitutional law but of the cause tiff’s rights generated under the tion triggered the statutory standard of action – whether state or federal Fourteenth Amendment and Fifth for a taking, the court remands to the – on which the land-owner relies. Amendment to the United States agency, which may agree to: issue the Because petitioner brought his claim Constitution. permit; pay monetary damages; or under a state cause of action, the modify the agency decision to avoid (Emphasis added) Paragraph 15 in Court has no occasion to discuss that prior complaint, cited above, read: an unreasonable exercise of police what remedies might be available power. Id. at (3)(a)-(c). The agency for a Nollan/Dolan unconstitutional 15. At a meeting before the [Dis- must respond within 90 days, or “the conditions violation either here or in trict] Governing Board on May 10, court may order the agency to perform other cases. 1994 to review KOONTZ’ applica- any of the alternatives specified in tion the District staff, in particular, Id., citing Koontz V at 2597. subsection (3).” Id. at 4. That statute, ELLEDGE, made it clear that the and two parallel ones passed along property could not be developed or Judge Griffin stated that the with it (ss. 253.763 and 403.90) have utilized without the unconstitution- Koontz IV majority therefore intended been interpreted to allow an inverse al implementation of a mitigation remand to determine any unconstitu- condemnation or administrative ac- plan which would require KOONTZ tional conditions damages to be deter- tion. See, Bowen v. FDER, 448 So.2d to enhance fifty acres of state owned mined by state courts interpreting s. 566 (Fla. 2nd DCA 1984) (citing the property and clean and maintain 373.617. Id. at 4. She stated that stat- latter two statutes). drainage culverts situated off-site. ute provided no remedy under Koontz Judge Griffin vehemently dis- In other words, the mitigation would IV. The statute stated, and states, that sented. She distinguished between require KOONTZ to pay an enor- damages are available for “‘unreason- takings of property and extortionate mous amount of money to the State able exercise of the state’s police power demand claims, quoting extensively through the purchase of property constituting a taking without just from Judge Alito’s majority opinion in and the expenditure of funds just Koontz IV: compensation.’” Id., quoting s. 373.617. to utilize his own property which Judge Griffin emphasized: Extortionate demands for property would have a direct and consequen- in the land use permitting context One thing that is clear through- tial affect [sic] upon the remaining run afoul of the takings clause, not out the years of litigation between economical, viable use of his own because they take property, but be- the parties is that Koontz always property. Upon the circumstances, cause they impermissibly burden contended that his property had this mitigation plan and all mitiga-
16 tion plans proposed by the SJR- “the most haunting jurisprudential the “dual rational nexus test” to im- WMD at all material times would problem in the field of contemporary pact fees. See, e.g., Homebuilder Assn render any development or use of land-use law … one that may be the v. City of Beavercreek, 729 N.E. 2d 349 KOONTZ’ property economically un- lawyer’s equivalent of the physicist’s (Ohio 2000); St. Johns County v. N. viable, in light of the increased costs. hunt for the quark.” San Diego Gas v. E. Fla. Builders Assn. 583 So.2d 635 In addition, the proposed mitigation City of San Diego, 450 U.S. 621, 649 (Fla. 1991). The Ohio Supreme Court requirements, at all material times, n. 15 (1981). (Brennen, J. diss.) That, noted the Nollan/Dolan lineage: “The bore no rough proportionality to the combined with Epstein’s reference to underlying basis of the ‘dual rational proposed impact of the project, and Banquo’s ghost, creates an unsettling nexus’ test, the Nollan and Dolan were excessive in scope and dura- theme. Koontz IV and V do little to ex- cases, for instance, dealt with land tion. Furthermore, the SJRWMD did orcise the exactions/takings pantheon. use exactions that forced property not, at any material time, engage in owners to dedicate a certain portion any meaningful quantitative deter- PRE-KOONTZ DECISIONS CON- of their land to public use. Although mination of the proposed impacts of CERNING EXACTIONS AND FEES impact fees do not threaten property KOONTZ’ project, and any quanti- THAT ALLEGEDLY WENT TOO FAR rights to the same degree as land use tative determination made by the A review of pre-Koontz IV deci- exactions or zoning laws, there are SJRWMD was arbitrary and capri- sions shows why the Court’s explica- similarities.” Beavercreek, 729 N.E. cious. Furthermore, and at all mate- tion was arguably beneficial. Aside 2d at 355. Accordingly, a variation on rial times, the SJRWMD engaged in from the line of decisions addressed in Nollan/Dolan applied to many fees an unconstitutional and improper my prior Koontz IV ELULS Reporter in numerous jurisdictions prior to presumption against KOONTZ with article concerning fees that were al- Koontz. respect to the projected adverse im- legedly taxes, numerous decisions Limits existed. For example, Torsoe pacts to the subject property. addressed the topic throughout the Bros. Const. Corp. v. Bd. of Trustees of (Emphasis added). United States before Koontz IV. Most Incorp. Village of Monroe, N.Y., 49 A.D. Courts held that fees need not match 2d 461, 375 N.Y. S.2d 612 (2d Dept The [Second] Amended Complaint benefits provided, as long as they are 1975), hold that a $30,000 tie-in fee was dated March 5, 1997. That com- “roughly proportionate.” was an illegal tax. The fee did not just plaint contained four counts. The For example, the Alabama Supreme reflect the cost of accommodating the Count VI, previously expressly ad- Court in St. Clair County Home Build- new user. The Court held that “[t]o the dressing extortionate exactions, was ers Assn. v. City of Pell City, 61 So.3d extent that fees charged are exacted eliminated. Various vestiges of the 992 (Ala. 2010) upheld challenges to for revenue purposes or to offset the allegations remained, interspersed an ordinance that authorized sewer cost of general governmental fractions throughout the later complaint. Para- impact fees and capital-recovery fees they are invalid as an unauthorized graph 10 in that complaint paralleled for water connections. The Court em- tax.” paragraph 15, but it eliminated the phasized that “the ordinance limits U.S. v. Sperry Corp., 493 U.S. 52, Nollan/Dolan language concerning the use of the impact fees and the capi- 110 S. Ct. 387 (1989), was typical of proportionality, and emphasized that tal recovery fees collected to capital pre-Koontz IV deference up to the “this mitigation plan and all mitiga- improvements to its water and sewer Supreme Court level, albeit that it ad- tion plans proposed by the SJRW- systems; the fees are not considered dressed federal fees. The fee in ques- MD at all material times would deny general revenue to be used for any tion there was a statute that autho- economically viable use of Koontz’ purpose.” The Court rejected the ar- rized fees on awards the Iran-United property.” Paragraph 8 alleged Koontz gument that the fees were arbitrary. States Claims Tribunal issued. The presented on-site mitigation “[u]nder It used a “substantial indirect benefit Supreme Court held such fees need duress and extortion…,” but that was test.” The standard did not require only “fair[ly] approximat[e] … the rejected, and reiterated at 14 that each owner to receive a proportionate, cost of benefits supplied.” TheSperry Koontz’ rejected on-site mitigation direct benefit. Rather, each person Court rejected a takings claim on two was “coerced.” Count III pled for a received a substantial, indirect benefit grounds: (1) “money is fungible”; and taking, but noted at paragraph 50 that from being connected to sewer and wa- (2) a reasonable fee cannot be a tak- the rules of the District “do not bear a ter. The St. Clair Court distinguished ing regardless “if it is imposed for the reasonable relationship between the Dolan, holding it did not apply at the reimbursement of the cost of govern- required dedication and the impact legislative ordinance level, nor did the ment services.” of the proposed development and are standard apply outside of dedication A tax appeal decision also held that thus not roughly proportional.” of property. Id. at 1008, quoting City the obligation to pay money is “‘not a I write one week later, as we await of Monterey v. Del Monte Dunes, 526 taking of property.’” Kitt v. U.S., 277 the next, inevitable procedural step. U.S. 687 (1999). Many commentators F. 3d 1330, 1336-37 (Fed. Cir. 2002), To quote Robert Frost: “It is the future asserted that no functional difference quoting, inter alia, Atlas Corp. v. U.S., that creates his present. All is an in- existed between legislatively adopted 895 F. 2d 745, 756 (Fed. Cir. 1990). Kitt terminable chain of longing.” and quasi-judicial exactions. See, e.g., was modified on other grounds at 288 W. Martin, Order for the Courts: Re- F. 3d 1355. BACKGROUND forming the Nollan/Dolan Threshold The Supreme Court did apply One distinguished commentator Inquiry for Exactions, 33 SEATTLE U. Dolan to fee exactions in Ehrlich v. has characterized the attempt to dif- L. REV. 1494 (2012). City of Culver City, 512 U.S. 1231, 114 ferentiate ‘regulation’ from ‘taking’ as Courts around the country applied S. Ct. 2731 (1994). Ehrlich applied for continued.... 17 KOOTZ Christopher Goodin stated: Dolan v. City of Tigard, (1994), 319 from page 17 Or. 567, 877 P. 2d 1201 (the case The court ruled that Dolan applied is “remanded to the City of Tigard to the discretionary in lieu fee, thus for further proceedings.”)) … . The requiring a showing of nexus and determination of such a fee will, proportionality, because discretion- of course, require the city to make a building permit to build a condomin- ary decisions carry the threat of specific findings supported by sub- ium project to replace a closed private regulatory leveraging. The court stantial evidence – that is, the city athletic club. The city required the reasoned as follows: First, Dolan is “must make some effort to quan- owner to pay various fees, particularly triggered by cases “exhibiting cir- tify the findings” supported by sub- $280,000 to allow the city to replace cumstances which increase the risk stantial evidence – that is, the city the “lost” tennis courts. The Supreme that the local permitting authority “must make some effort to quantify Court vacated state court dismissal will seek to avoid the obligation to the findings” supporting any fee, for failure to state a takings claim, pay just compensation.” Second, beyond “conclusory statements,” and remanded for further proceedings such circumstances are present although “[n]o precise mathemati- consistent with Dolan. Id. chiefly in the discretionary context, cal calculation is required” either On remand, the California Su- which “present an inherent and by the takings clause or the [state] preme Court reversed and remanded heightened right that local govern- Act. (Dolan, supra, 512 U.S. at ___, an intermediate appellate decision, ment will manipulate the police 114 S.Ct. at 2322). again after analyzing Dolan’s impact. power to impose conditions unre- Ehrlich v. City of Culver City, 911 P.2d lated to legitimate land use regu- Ehrlich at 449-50. 429 (Cal. 1996). The lengthy majority latory ends, thereby avoiding what opinion expressly applied Dolan and would otherwise be an obligation My prior ELULS article cited a Nollan to the fees in lieu of mitigation: to pay just compensation.” Third, series of prior Supreme Court deci- sions that held regulatory require- [W]e conclude that the tests formu- that type of manipulation was not ments that private funds be convert- lated by the high court in its Dolan present in ministerial “legislatively ed to public hands can constitute and Nollan opinions for determin- formulated,” “broadly applicable a compensable taking. Ansbacher, ing whether a compensable regula- fees,” which are thus subject to a lesser standard of scrutiny. 1-20, and decisions cited therein. As tory taking has occurred under the I noted there, the dissenters in deci- takings clause of the Fifth Amend- C. Goodin, Dolan v. City of Tigard and sions holding no compensation due ment to the Federal Constitution the Distinction between Administra- where “technical takings” of nominal apply, under the circumstances of tive and Legislative Exactions: “A amounts occurred are now joined in this case, to the monetary exac- Distinction Without a Constitutional the Supreme Court majority. Id. at 20. tion imposed by Culver City as a Difference.” 28 U. HAW. L. REV. 139, Nonetheless, the Court had not previ- condition of approving the Plain- 151 (2005). ously expressly addressed whether tiff’s request that the real prop- compensation was due where no mon- erty in suit be rezoned to permit REMEDIES PRIOR TO KOONTZ IV ey changed hands before Koontz IV. the construction of a multi-unit In the breach, decisions prior to Id. Ehrlich cited Dolan as authority, residential condominium. We thus Koontz focused generally on the dis- but remanded in three sentences. reject the city’s contention that the parity between an appropriate fee heightened takings clause standard exaction and the allegedly excessive ANALYSIS OF WHY UNACCEPTED formulated by the court in Nollan amount. For example, the Ehrlich WETLANDS FEE IN LIEU OF MITI- and Dolan applies only to cases in California Supreme Court majority GATION SHOULD BE SUBJECT TO which the local land use authority said: TAX V. FEE ANALYSIS requires the developer to dedicate We cannot say, on this incomplete Justice Kagan’s dissent in Koontz real property to public use as a record, what, if any, recreational IV explains the fundamental reason condition of permit denial. fee the evidence might justify. Al- a takings analysis should not apply Id. at 433. Accordingly, Ehrlich terse- though in calculating its net cost as where an applicant refuses to accept ly applied Nollan/Dolan to monetary a result of upzoning the Overland an allegedly extortionate exaction. exactions, and the California Su- Avenue parcel the city must take Nothing changes hands. Koontz IV, preme Court on remand expounded into account any relative benefit at 2609 (Kagan, J. diss.) Additionally, on that application two decades be- that Plaintiff’s project would con- background principles of law estab- fore Koontz. One wonders why, then, tribute to the public interest for lish that private property containing the Supreme Court needed to accept which the fee is imposed, the record wetlands is subject to substantial, jurisdiction in Koontz. Perhaps the suggests that some exaction may multi-level regulation. The questions majority felt compelled to explain its be warranted. It is thus appropri- of the degree of appropriate regula- three sentence Ehrlich decision. ate to return the case to the city to tion is necessarily fact-specific. See, reconsider its valuation of the fee Palazzalo v. Rhode Island, 533 U.S. An article on Nollan/Dolan thor- in light of the principles we have 606 (2001), distinguishing between oughly analyzed the California Su- articulated. Remand to the city was the existence of wetlands regulation, preme Court Ehrlich ruling, conclud- apparently what occurred in Dolan versus overly burdensome wetlands ing the court shows that Nollan/ itself after the case was returned regulation. Dolan applied to monetary exactions. to the Oregon Supreme Court. (See State and local government may
18 regulate private property under the the power to tax and the Constitution Le Roy v. Hurlbut, 24 Mich. 44, 108 police power. The Tenth Amendment did so. Id. at 64. (1871) (Cooley, J. , conc.). The Cooley reserves this power to the states. Doctrine held that local government Penn Central Transportation Co. v. EXACTIONS had inherent authority. Id. The Su- City of New York, 438 U.S. 104 (1978), Modern exactions are virtually a preme Court rejected the Cooley Doc- provides a good analysis of the po- century old. The Standard Planning trine in Hunter v. City of Pittsburgh, lice power and its application. That Enabling Act of 1928 is the princi- 207 U.S. 161 (1907). decision set forth the fundamental pal source. In the past half-century, The modern Fordham Rule derives regulatory standard that a regula- exactions have been required for an from Jefferson Fordham, Model Con- tion that deprives an owner of any increasingly large number of off-site stitutional Provisions for Municipal real economic use of a property takes impacts and perceived impacts. M. Home Rule (Chi. AMA 1953). The that property. Just compensation is Kersten, Exactions, Severability and home rule authority he expounded due. Merely burdensome regulation Takings: When Courts Should Sever is preeminent today. Municipalities is not a compensable taking. Unfor- Unconstitutional Conditions from and charter counties have substan- tunately, the necessarily fact-specific Development Permits, 27 B. C. EN- tial authority where not preempted, application of a panoply of judicial VTL. AFF. L. REV. 279 (2000). “Pay albeit their certain powers must be takings standards render difficult the as you go” or “fee-in-lieu” are common legislatively delegated. But see, G. determination of when a regulation methods. The most attenuated fees Frug, The City as a Legal Concept, has gone too far. are “linkage fees,” associated with the 93 HARV. L. REV. 1059 (1980), which The Palazzalo Court held that a perceived secondary impacts of a de- argues essentially that modern cities takings claim is ripe when the gov- velopment. These fees are commonly are often “powerless.” ernment will not authorize any wet- used to pay for affordable houses and As many as 48 states may be la- lands development on the parcel. the like for persons who will use or belled “home rule” jurisdictions. J. 533 U.S. at 613-26. Similarly, City work at the proposed development. Polley, Uncertainty for the Energy of Monterey v. Del Monte Dunes, The more creative the exaction, the Industry: A Fractured Look at Home 526 U.S. 687 (1999), held that re- greater the risk of a Nollan/Dolan Rule, 24 ENERGY L. J. 261, 268 peated rejections presented a jury issue. Id. at 281-82. (2013). Florida is a home rule state question. Exactions at the local level are based under FLA. CONST. VIII, s. 1, and ch. on varieties of home rule and statutory 166 FLA. STAT. See, J. Wolf and S. H. HISTORY OF TAX LAW delegation by jurisdiction. “Dillon’s Bolinder, The Effectiveness of Home A recent Columbia article expli- Rule,” named for mid-19th Century Rule, FLA. B. J. 92 (June 2009). cates the impact of the development Iowa Chief Justice John Forest Dillon, Broadly speaking, exactions are of tax laws on English and United held that local government authority authorized by the Tenth Amendment, States political and legal institutions. deraigns from legislature. 4 National which reserves power to the States A. Cockfield and J. Mayles, The Influ- Municipal Review 13, 14 (1915). The except as specifically stated in the ence of Historical Tax Law Develop- rule originated in his opinion in Clin- Constitution. Home rule and delega- ments on Anglo-American Laws and ton v. Cedar Rapids & Missouri River tion grant many of these rights to Politics, 5 COL. J. OF TAX LAW 40 R. R. Co., 24 Iowa 455, 475 (1868). He local government. Local governments (2013). The authors argue that tax described the rule as follows: have become more creative over time, reform is central to our tradition. largely due to reduced federal and It is a general and undisputed prop- “Taxes have always been interwoven state funds while populations ex- osition that a municipal corporation with a nation’s fabric because a state pand. J. Delaney, L. Gordon and K. possesses and can exercise the fol- needs revenues and resources to pur- Hess, The Needs-Nexus Analysis: A lowing powers, and no others: first, sue its goals.” Id. at 43. The Charter Unified Test for Validating Exactions, those granted in express words; of Liberties in 1100, and the Magna User Fees and Linkage, 50 LAW AND second, those necessarily or fairly Carta of 1215 and the Confirmation of CONT. PROBLEMS 139 (1987). Flori- implied in or incident to the pow- Charters were “the world’s first ‘good’ da is a bellwether state for infrastruc- ers expressly granted; third, those tax laws that restricted the ability ture exactions due to its explosive essential to the accomplishment of of the king to tax his subjects as he growth and low tax structure. J.C. the declared objects and purposes saw fit… .”Id . at 42. The Declaration Juergensmeyer, Infrastructure and of the corporation – not simply con- of Independence itself was largely a the Law: Florida’s Past, Present and venient, but indispensable. Any fair, “democratic constraint [ ] on the use Future, 23 FSU J. LAND USE 7 EN- reasonable, substantial doubt con- of state power to collect taxes.” Re- VTL. L. 441 (2008). cerning the existence of a power is gardless, our institutional opposition resolved by the courts against a cor- to taxation without representation, HISTORY OF WETLANDS poration, and the power is denied. or without due process right to chal- Thomas E. Dahl and Gregory J. Al- lenge taxation, exists side-by-side 1 J. F. DILLON, COMMENTARIES lord’s USGS publication explicates the with the needs of a government to ON THE LAW OF MUNICIPAL history of wetlands loss in the United collect taxes. The article argues that CORPS. 449-50 (5th ed. 1911). States. T. Dahl and G. Allord, His- the Constitution has lasted over 200 tory of Wetlands in the Coterminous years, succeeding the Articles of Con- Justice Thomas M. Cooley respond- United States. water.usgs.gov/nwsum/ federation that survived a mere sev- ed almost immediately by creating WSP2425/history.html. They say the en, because the latter did not confer the “Cooley Doctrine,” in People ex rel. future continental United States had continued.... 19 The Florida Bar 651 E. Jefferson St. Tallahassee, FL 32399-2300
KOOTZ articles address the ethics and science takings determination. Brian Hodges from page 19 of this transformation. D. Tarlock, En- was co-counsel for Koontz before the vironmental Law: Ethics or Science?, Supreme Court. He quoted the Koontz 7 DUKE ENVTL. L & POLY F 193 IV majority: “‘Extortionate demands (1996); M. Sagoff, Settling America or for property in the land use permit- about 221 million acres of wetlands in the Concept of Place in Environmen- ting context run afoul of the Takings the early 1600s. Over half were lost by tal Ethics, 12 J. ENERGY NAT. RE- Clause not because they take prop- the mid 1980s. Id. The loss rate has SOURCES & ENVTL. L. 349 (1993). erty but because they impermissibly dropped substantially since swamp- My prior ELULS Reporter arti- burden the right not to have property buster and similar programs starting cle discusses the history of wetlands taken without just compensation.’” about a half-century ago. My prior Re- mitigation at great length. Roy Gard- Koontz IV, 133 So.2d at 2596 (e.a.b. porter article addresses this in great ner provides a good summary in R. Hodges), quoted by B. Hodges, Koontz detail at the national and Florida Gardner, Banking on Entrepreneurs: v. St. Johns River Water Management levels at pp 22, et seq. See generally, Wetlands, Mitigation Bankings and District and Its Implications for Tak- USFWS, National Wetlands Inven- Takings, 81 IOWA L. REV. 527 (1996). ings Law, 14 ENGAGE: S. FEDERAL- tory. www.fws.gov/wetlands/status- Thomas Ledman addresses environ- IST SOCIETY PRAC. GROUPS 39 and-trends/index.html. Nonetheless, mental mitigation fees at the local at 6 (2013). Hodges says this means the battle between private property level in T. Ledman, Local Government two things. First, a government may rights and wetlands resource protec- Environmental Mitigation Fees: De- violate the unconstitutional exactions tion continues. velopment Exactions, the Next Gen- doctrine without a taking. Second, eration, 45 FLA. L. REV. 835 (1993). “where a permit is denied based on an HISTORY OF ENVIRONMENTAL Regardless of the deference these two owner’s objection to an unlawful con- MITIGATION suggest, Koontz IV clearly applies Nol- dition and the owner is not deprived My Koontz IV article discussed at lan/Dolan to such fees. of a property interest, a taking is not length the United States’ and Florida’s consummated, and just compensation transition from seeing wetlands as ob- AS APPLIED IN KOONTZ may not be available as a remedy.” Id., stacles to be filled to resources to be One expert explains Koontz IV citing Koontz IV at 2597. If Hodges is protected. Id. at 20. Two outstanding as an unlawful exaction case, not a right, so too is Judge Griffin.