Yesterday, dozens of organizations and business weighed in to support the property owner in Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). Even if you're an expert in land use exactions, chances are you'll learn something from these briefs.
There are some great folks writing these briefs. My colleague David Smolker and I authored the Hillcrest brief. My former colleagues at Hopping Green & Sams wrote the Florida industry association brief. That team includes Gary Hunter and Kent Safriet, who led the team that I privilege of working on representing the property owners in Stop the Beach Renourishment, Inc v. Florida Dept. of Environmental Protection, 130 S. Ct. 2592 (2010). Finally, my fellow property rights advocate Robert Thomas, who has an excellent blog, authored the Owner's Counsel of America Brief.
The Hillcrest Property, LLP brief focuses on the grounding of exactions law in the unconstitutional conditions doctrine and relates that concept to due process. It also gives the Court a vivid example of the abuse that property owners are facing: "This Court developed the unconstitutional conditions doctrine as a calculated and limited check on government discretion. It applied the doctrine to exactions because the realities of modern land use regulation had resulted in constant expansion of the police power. The Florida Supreme Court summarily disposed of this check on government power–going so far as to base its decision on the grounds that government needs more power, not less. Now beyond merely making adjudicative permitting decisions that occasionally cross constitutional lines, governments will brazenly legislate around the Constitution. The Pasco County ordinance that Hillcrest has endured will be a mere precursor. This Court should take this opportunity to put an end to such chicanery."
The Institute for Justice and Cato Institute brief attempts to draw the "Court’s attention to the widespread abuse of non-real property exactions in the absence of judicial scrutiny," explaining many situations where property owners were treated unfairly. It concludes that, "[l]imiting the application of Nollan/Dolan to exactions of real property would effectively eliminate the exactions doctrine as a check on government extortion."
The Land Use Institute brief explains why there is no significant danger of permitting authorities arbitrarily denying permits without negotiation, questioning the Florida Supreme Court's suspect policy argument: "One observation in the wake of Nollan and Dolan is that planners have demonstrated new creativity in imposing conditions, often favoring impact fees in many instances, which can be more readily tailored to specific circumstances. Id. at 137. This demonstrates that agencies can and do easily comply with the requirements of Nollan and Dolan and that they need not and will not fear takings liability because compliance with constitutional requirements can be readily and predictably accomplished."
The Owner's Counsel of America brief shows why compliance with the Constitution makes for better planning, and why there is really no difference when a government exacts real property or exacts something else, like money: "It is no great stretch to apply the nexus and proportionality standards to all exactions, and not just those demanding land. Like land, money is property, and should be subject to the same rules. Requiring compliance with Nollan and Dolan when government seeks money or other property in exchange for discretionary permits will not impose a significant burden on land planners, other than the requirement that they, like other officials, follow the Constitution. If the constable must understand the limitations the Constitution places on her powers, so must the planner."
The National Industry Association brief discusses how the Fifth Amendment is designed to restrict government action, and why the burden is on placed on the government to show its compliance with the Constitution: "Put still another way, the exercise of the power to govern — whether by eminent domain or by far-reaching regulations that de facto deprive the owners of their right to make productive use of their land or by exactions that seek to compel individual citizens to pay for public services or projects that are properly the burden of society at large — is not a tort. Nor is it per se wrongful — unless the government refuses to pay the just compensation required by the Constitution. That the District may prefer to foist the cost of wetlands protection onto the convenient citizen seeking a land use permit is not relevant. The general public, which benefits from such public action, must constitutionally bear the cost.
The Florida Industry Association brief sketches the practicalities of the land development negotiation process. "If a project cannot “pencil out” because of a disputed exaction, then forcing the applicant to accept a permit as a condition precedent to challenging the disputed exaction would force the applicant to accept an approval for a project it would not build in order to challenge the condition which rendered it infeasible. Stated differently, if upheld, the Florida Supreme Court’s decision would require an applicant to accept a condition – binding itself in the process – before challenging the condition’s constitutional validity. This would surely discourage applicants from relying on the Nollan/Dolan doctrine when it matters most, when a condition stands between a feasible or infeasible project."
This case will be argued on January 15. Until then, catch up on the case in my archives.