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We wrote here previously about the U.S. Supreme Court ruling in the “takings” case of Koontz v. St. Johns River Water Management District in 2013, which was an appeal by a property owner from an adverse ruling of the Florida Supreme Court with respect to permit conditions requiring off-site mitigation work.    The U.S. Supreme Court’s opinion in Koontz expanded and clarified the unconstitutional conditions doctrine.     House Bill 383, which was signed into law by Governor Scott on June 11, 2015,   creates a statutory cause of action for injunctive relief and damages  for extortionate exactions by local and state governmental bodies, codifying the decision in Koontz and eliminating any uncertainty under Florida law on the availability of monetary damages.   The new statute defines a “prohibited exaction” to include “any condition imposed by a governmental entity on a property owner’s proposed use of real property that lacks an essential nexus to a legitimate public purpose and is not roughly proportionate to the impacts of the proposed use that the governmental entity seeks to avoid, minimize, or mitigate.”  The governmental entity must prove that the exaction is not prohibited and the property owner must prove its damages resulted from the exaction.   Pre-suit written notice to the governmental body is required, providing the government with the opportunity to cure or explain the alleged exaction before litigation commences.  The prevailing party is entitled to recovery of reasonable attorneys’ fees and costs. Continue Reading New Florida Statute Codifies U.S. Supreme Court Ruling in Koontz and Provides Relief Against ‘Extortionate’ Exactions

Companion bills (H.B. 1077 and S.B. 1310) have been filed in the Florida Senate and House  that would prohibit local governments from imposing permit conditions or “development exactions” on a project that extend “beyond the direct impact of a proposed development.”  This legislation builds upon the U.S. Supreme Court’s ruling in Koontz v. St. Johns River Water Management District, a case about a Florida permitting dispute that we described last June.

The impetus of the Florida legislation is to create another layer of protection against extortionate permit conditions, beyond the holding in Koontz, which itself expanded the restrictions against the unconstitutional taking of private property to include instances when a permit was denied or  monetary demands were made as a condition of approval.  The Bills also attempt to reduce regulatory overlap, requiring the local government to accept the impact analysis provided by any federal or state agency.

It is unclear whether property rights supporters will promote the enactment of similar “takings-related” legislation in other states.

The passage of the Florida legislation is also far from certain, as at least one land use attorney has openly criticized the bills as unduly restricting the ability of local governments and developers to address the “real impact of development.”

Stay tuned for further updates as the Florida legislative session unfolds.

The US Supreme Court’s forthcoming decision in Koontz v. St. Johns River Water Management District promises to be one of the most important property rights rulings in many years. In addition to affecting a wide range of real estate development projects that are subject to local, state or federal permit requirements, the decision may also affect negotiations with government regulatory authorities outside the real estate context.

Previous decisions of the Court have established a doctrine of “unconstitutional exactions,” which requires payment of just compensation when a land use authority unreasonably conditions a development permit on the developer’s dedication of some other, unrelated property to public use (like a remote bike path or conservation easement).

In Koontz, the conditions imposed by the state agency were so onerous that the developer refused them, and as a result, was denied a development permit. The threshold question before the Court is whether the unconstitutional exactions doctrine applies to such a permit denial, and more generally, whether these facts constituted a taking of Koontz’s property.

A “no” answer could sanction excessively hard bargaining by government agencies, whereas a “yes” answer could inhibit regulators from imposing conditions that are reasonable in fact, but nevertheless invite takings claims and the attendant burden and expense of litigation. Most broadly, Koontz involves the bounds that federal, state and local agencies must observe when negotiating with developers or other regulated entities.

Following the decision, Kerri Barsh, co-chair of GT’s National Environmental practice, and Jerry Stouck, shareholder in GT’s Litigation practice, will be hosting a webinar with Paul Beard, III of the Pacific Legal Foundation, who argued on behalf of Koontz in the U.S. Supreme Court, to discuss the implications of the ruling.

The date and time of the webinar will be announced once the Koontz decision is issued. Please check back for further details.

On Friday, October 5, 2012, the U.S. Supreme Court granted certiorari in Koontz v. St. Johns River Water Management District, an appeal from the Florida Supreme Court.  The questions presented in Koontz are twofold : (1) whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), and (2) whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use. Petitioner Koontz argues in his Petition for Certiorari (a copy of which is attached) that the demands imposed by the St. Johns River Water Management District on the Koontz family as a condition of issuance of the permit were confiscatory and violated the 5th and 14th Amendments of the US. Constitution.
 
 Follow this blog for additional details of this appeal.
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On June 25th, the U.S. Supreme Court issued an important Takings Clause decision with far-reaching implications for real estate developers and others who rely on federal or state permits. In Koontz v. St. Johns River Water Management District, the Court extended the doctrine of “unconstitutional conditions” established in the Court’s Nollan and Dolan cases. By declaring that the Takings Clause in the U.S. Constitution requires permitting authorities nationwide to adhere to the “logical nexus” and “rough proportionality” requirements of Nollan and Dolan — regardless of whether a permit is ultimately granted or denied — Koontz promises to help level the playing field for property owners in a wide variety of permitting contexts by limiting the ability of government agencies to impose “extortionate” permit conditions.

A more in depth discussion of the Koontz decision and its implications will be offered in a webinar on July 17th at 2 p.m. EDT. Speakers will include Greenberg Traurig shareholders Jerry Stouck and Kerri Barsh as well as Paul Beard of the Pacific Legal Foundation, who argued for Mr. Koontz before the U.S. Supreme Court. For more information about the webinar and to register, click here.

The GT Alert — Supreme Court Decision Limits Ability of Government Agencies to Impose ‘Extortionate’ Permit Conditions on Landowners was prepared by Jerry Stouck and Kerri Barsh.

To view the GT Alert on www.gtlaw.com, please click here.

To view the GT Alert as a PDF, please click here.