Planning in the courts by Nancy Stroud, James White & David Theriaque
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Planning in the courts by Nancy Stroud, James White & David Theriaque Planning in the courts by Nancy Stroud, James White & David Theriaque Presentation Transcript

  • Planning in the Courts APA Florida 2012 Public Policy Workshop February 8, 2012 Nancy Stroud, AICP JD Lewis Stroud & Deutsch, PL Boca Raton, FL
  • Two Cases
    • St. John’s River Water Management District v. Koontz , Fla. Supreme Court November 3, 2011
    • Herin v. Volusia County , DOAH recommended order January 24, 2012
  • Koontz
    • Exactions/Constitutional takings case
    • Long history beginning 1990s, three appeals
    • Florida Supreme Court took the case in 2009 when Fifth District Court of Appeal certified is as a case of Great Public Importance, issued decision in November, 2011
  • Koontz
    • Multiple amici curiae
      • Fla. League of Cities, State Assoc. of Counties
      • WMDs; DEP
      • National Audubon Society
      • Assoc. of Fla. Community Developers; Florida Homebuilders Assoc.; National Homebuilders Assoc.
      • Pacific Legal Foundation
  • Koontz
    • Issue:
      • Do the Florida and U.S. Constitutions recognize an exactions takings where
        • There is no compelled dedication of real property to public use; and
        • The exaction is a monetary condition for permit approval “which never occurs and no permit is ever issued”?
    • Conclusion:
      • 4 Justices – NO
      • 2 Justices – NO, because failure to exhaust administrative remedies
      • 1 Justice – NO (result only but no opinion)
  • Koontz - Facts
    • Mr. Koontz applied for WMD permit to develop commercial property in Orange County
    • 3.7 acre development area; 3.4 acres wetland and 0.3 acres upland (owns an additional 10.5 acres on which permits were not sought)
    • Sought permit to dredge 3.25 acres of the 3.4 acres of wetland
  • Koontz - Facts
    • WMD:
      • Develop 3.4 acres and place remainder in conservation area and perform offsite mitigation by replacing culverts (4.5 miles away) or plug drainage canals (7 miles away)
    • Koontz:
      • 3.7 acre development and remainder in conservation area
    • WMD: no deal; permit denied
  • Koontz – Circuit Court
    • Taking of property under Nollan/Dolan
      • Condition of exaction must serve the same governmental purpose as the developmental ban; and
      • The condition must be roughly proportional to the impact of the proposed development
  • Koontz – Circuit Court
    • Circuit court remedy:
      • Issue permit
      • Pay damages
      • Modify the decision to avoid takings
    • Result:
      • WMD issued permit
      • Court awarded $376,154 in temporary taking damages
  • Koontz – Appellate Court
    • WMD - nothing was taken from Koontz because permit was denied, no condition came into effect
      • Court – taking where there is an improper request from government
    • WMD – no physical appropriation of Koontz land, just improvements of WMD lands
      • Court – no clear distinction in federal law between physical appropriation and other condition
  • Koontz – Appellate Court
    • Dissent:
      • “ In what parallel legal universe or deep chamber of Wonderland’s rabbit hole could there be a right to just compensation for the taking of property under the Fifth Amendment when no property of any kind was ever taken by the government and none ever given up by the owner?”
  • Koontz – Supreme Court
    • Types of takings
      • Per se takings where permanent physical invasion of private property
      • Per se takings where complete derivation of all economically beneficial use of property
      • Penn Central balancing test where regulation has interfered with distinct investment backed expectations, balanced against pubic interests
      • Exactions takings (Nollan/Dolan)
  • Koontz – Supreme Court
    • Holding:
      • Nollan/Dolan does not apply where there is no exaction requiring dedication of private property
      • ( Lingle v. Chevron , U.S. Supreme Court 2005)
      • Nollan/Dolan does not apply where a permit is denied
    • Recognizes a split in decisions following Nollan/Dolan, and interprets the U.S. Supreme Court decision consistent with recent federal appellate court decisions
  • Koontz – Supreme Court
    • Explains this also avoids undesirable outcomes of decision otherwise
      • Land use regulation would become prohibitively expensive if such claims could be brought “transforming government regulation into a luxury few government could afford”
      • Agencies will opt to simply deny permits without negotiation, no opportunity for owners to amend applications or discuss mitigation options.
  • Farmton – Herrin v. Volusia County
    • Recommended order issued January 24, 2012 by Fla. Division of Administrative Hearings judge
    • Compliance challenge by citizen and Sierra Club to Volusia County comprehensive plan amendments regarding a Future Land Use Plan Amendment for 47,000 acres in Volusia County (associated with 11,000 in Brevard County)
  • Farmton
    • Reviewed under Community Planning Act standards
    • Challenges:
      • Does not discourage urban sprawl under Section 163.3177(6)(a)(9)
        • 13 indicators of urban sprawl
        • 8 factors regarding development patterns or urban forms
      • Internal inconsistency (conservation/sprawl)
      • Public School facilities
  • Farmton
    • Other Public Facilities (water supply, stormwater, roads, CIE)
    • Lack of meaningful and predictable standards (conservation)
  • Farmton
    • History
      • 2010 DCA finding of noncompliance, first DOAH administrative hearing
      • Stipulated settlement between DCA, County and landowner (post Gov. Scott election). Remedial amendments adopted, DCA finds in compliance
      • Herrin and Sierra Club petition; Community Development Act enacted
      • Administrative Law Judge determines that new law applies
      • 2011 DOAH hearing
  • Farmton
    • What the Community Planning Act changed:
      • Definition of “in compliance”
      • Urban sprawl redefined in statute; “need” rules repealed
      • Petitioner’s burden shifted; now must prove that the plan amendment is not fairly debatable (vs. prove by preponderance of the evidence)
  • Farmton
    • Property at issue
      • Forestry land since 1952; no services
      • 47,000 acres in Volusia County vested for 1,700 subdivision lots; original FLUE allowed up to 4,692 residential units in low density (1/10 -1/25 units/acre) and 820,217 square feet nonresidential
      • Farmton FLUM: 23,100 residential units and 4.7 million square feet nonresidential through 2060 (first phase, only after five years, 4692 units residential and 820,217 s.f. nonresidential)
  • Farmton
    • Original Plan
      • Natural resource management area designation because of “large, relatively uninterrupted expanses of rich natural resource areas.”
      • “ Extremely significant to the area’s watershed”
    • Farmton Features
      • Clustered development
      • 67% of site as GreenKey (preservation), with management plans for Black Bear, wildlife corridors, permanent conservation easements
  • Farmton
    • Development allowed in “Sustainable Development Area” within which are also Resource Based Open Space areas (minimum 25%), and four types of development areas, 40% mandatory civic space.
    • Key findings:
      • Adjacent Brevard County plan amendment (compliance settlement) allows urban area
  • Farmton
    • Abuts approved DRI and PUD, City of Edgewater
    • Clustered density, net density high compared to cities in Volusia
    • Urban village form
    • Development required to be fiscally neutral; capital improvements outside CIE timeframe
    • Separation of urban and rural uses within the development; rural uses not prevented
    • More environmental protection
  • Farmton
    • Is this a well designed development in the wrong location?
  • APA Florida’s 10 th Annual Public Policy Workshop Planning in the Courts Tallahassee, Florida   [email_address] February 8, 2012
  • Martin County Conservation Alliance v. Martin County , 73 So.3d 856 (Fla. 1st DCA 2011) After losing a challenge to a comprehensive plan amendment, Martin County Conservation Alliance and 1000 Friends of Florida filed an appeal to the First DCA. The First DCA denied the appeal and then issued an order to show cause why sanctions should not be imposed against the Petitioners “for the filing of an appeal for which standing clearly is not present.”
  • The First DCA imposed “a sanction of an award to Appellees of all appellate fees and costs ‘to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney.’” $$$$$$$$$$$$$$$$$$$$$$$$ The majority decision was written by Judges Hawkes and Thomas.
  • Judge Van Nortwick wrote a dissenting opinion, strenuously objecting to the majority decision: “ In my view, this case is not close to providing a basis to impose sanctions. . . . The record reflects that there are material facts that support appellate standing which are more than sufficient to demonstrate that the assertion of appellate standing was not so without record basis to justify the imposition of sanctions. . . . Further, the sanction order creates precedent that will severely chill appellate advocacy, especially for non-profit environmental organizations like the appellants here.
  • FLORIDA SUPREME COURT MCCA and 1000 Friends have requested that the Florida Supreme Court hear this case – there is no legal obligation that the Court agree to do so. Due to the potential chilling effect of this decision on citizens who seek to exercise their legal rights under the Community Planning Act, FAPA has agreed to support the efforts of MCCA and 1000 Friends to overturn the First District’s imposition of sanctions against MCCA and 1000 Friends.