Congress Stays NPDES Permitting for Forest Roads

In a move that gives forest landowners a bit of comfort, Congress has stayed NPDES permitting for forest roads until October 1, 2012 through its Omnibus Appropriations Bill. The move was necessary because of a Ninth Circuit Court of Appeals decision that has been extremely unpopular, prompting legislators on both sides of the aisle to support action reversing it. Observers in the Ninth Circuit reported on the case below:

The Ninth Circuit [decision] will effectively require many timberland owners and logging companies to obtain permits for stormwater runoff from logging roads in the western U.S. The case, Northwest Environmental Defense Center (NEDC) v. Brown, involved two Oregon logging roads where stormwater runoff is collected in systems of ditches, channels, and culverts, and then discharged into adjacent rivers. The Ninth Circuit initially issued its decision in August 2010...On May 17, the court withdrew its earlier opinion and reissued a revised version. 

In the reissued opinion, the Ninth Circuit reiterated that the stormwater collection systems at issue unambiguously constitute “point sources” under the Clean Water Act (CWA), and that such discharges therefore require permits under the CWA’s National Pollutant Discharge Elimination System (NPDES) program. In so holding, the court significantly limited a decades-old regulation that had historically been viewed as excluding logging road runoff from the NPDES program and charged EPA with developing a general permit to handle the discharges.

The Ninth Circuit's decision could have big implications for forest landowners, and not just on the West Coast. EPA would likely develop forest roads permits for the entire country. This would be extremely difficult:

But while legal and Congressional challenges to the Ninth Circuit’s decision play out, the owners and users of forest roads in the western states (those within the Ninth Circuit’s jurisdiction) still must cope with the court’s holding that their discharges of channeled runoff fall under EPA’s Phase I stormwater regulations. The Ninth Circuit closed its opinion by saying “we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to” establish permitting for forest road discharges “effectively and relatively expeditiously.” That confidence does not appear to be well placed. 

To date, no general permits have been developed that are specifically tailored to channeled discharges from forest roads. Individual permits also are a theoretical possibility, but are unlikely to be developed given the resource commitments they would require for forest road owners and regulatory agencies. Absent a simpler solution, the discharges may have to fit within an existing general permit, although the effluent limits and discharge monitoring required by those permits are unlikely to be well suited to forest roads, and must be carefully evaluated. A closer examination of road networks with an eye toward whether runoff, even though channeled at some point, actually discharges to U.S. Waters from a point source may reduce somewhat the regulatory burden of the court’s decision. These and other regulatory strategies will likely be deployed if the court’s decision withstands the current challenges.

This comes just after the U.S. Supreme Court asked for the Solicitor General's position on the Ninth Circuit case. Forest landowners across the country are hoping the Supreme Court will accept the case and reverse the Ninth Circuit's opinion.

New Legislation May Allow Yankeetown to Keep Its Referedum Requirement

New comprehensive planning legislation that may interest my readers has been filed. For those who are not as familiar with comprehensive plans, the legislative staff analysis of one the bills that have been filed explains them briefly:

The Local Government Comprehensive Planning and Land Development Regulation Act (the Act), also known as Florida’s Growth Management Act, was adopted by the 1985 Legislature. The Act requires all of Florida’s counties and municipalities to adopt local government comprehensive plans that guide future growth and development. Comprehensive plans contain chapters or “elements” that address future land use, housing, transportation, water supply, drainage, potable water, natural groundwater recharge, coastal management, conservation, recreation and open space, intergovernmental coordination, capital improvements, and public schools. The state land planning agency that administers these provisions is the Department of Economic Opportunity. 

A local government may choose to amend its comprehensive plan for a host of reasons. It may wish to: expand, contract, accommodate proposed job creation projects or housing developments, or change the direction and character of growth. Some comprehensive plan amendments are initiated by landowners or developers, but all must be approved by the local government. The first step in the process is for the local government to develop a comprehensive plan amendment proposal. Public participation is a critical part of the comprehensive planning process. Citizens often want to be a part of planning their communities and landowners need to be aware of changes that could affect their property. A local government considering a plan amendment must hold at least two advertised public hearings on the proposed comprehensive plan or plan amendment. Notice must be published in a newspaper of general paid circulation in the jurisdiction of interest. The procedure for transmittal of a proposed or adopted comprehensive plan amendment requires the affirmative vote of a majority of the members of the governing body present at the hearing. 

As you may recall, as a part of last year's landmark growth management legislation, the Community Planning Act, ch. 2011-139, Laws of Fla. (HB 7207), prohibited referenda requirements. Yankeetown's charter requires it to hold a referendum for approval of any comprehensive plan changes, and Yankeetown wanted to keep the requirement. Consequently, Yankeetown filed a lawsuit alleging that the Community Planning Act was unconstitutional. St. Pete Beach later intervened in the case to protect its own referendum that had eliminated its referendum requirement (after years of court battles), and the state moved to dismiss Yankeetown's complaint.

On November 9, while the state's motion to dismiss was still pending, the parties filed a joint motion and settlement. The motion, which was approved by the court, holds the litigation while all parties use their best efforts to pass legislation to amend section 163.3167(8), Florida Statutes. The proposed legislation would allow Yankeetown's referendum requirement to stand, while banning other local governments from taking it up. If the required legislation is not passed, the litigation will likely continue.

Senator Mike Bennett has already filed the implementing legislation, SB 842. He was one of the principal authors of the Community Planning Act. The relevant language in the bill, with additions underlined, reads:

163.3167(8) An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment is prohibited. However, any local government charter provision that was in effect as of June 1, 2011, for an initiative or referendum process in regard to development orders or in regard to local comprehensive plan amendments or map amendments, may be retained and implemented.

Note that the language is quite strict: not only must local governments have already adopted their referendum requirements, but the requirements must also have adopted them as part of their charters. Charters are generally much more difficult to amend than simply passing an ordinance.

SB 440, also filed by Senator Bennett, contains the same language and appears to be moving through the committee structure even faster than SB 842. There is not yet a House companion bill.

For those interested, you can track SB 842 and SB 440 online.

In Florida, Exactions Limitations Apply Only to Real Property, Not Personal Property

In a recent case, the Florida Supreme Court held that the law of exactions--a part of takings law--only applies to the dedication of real property for public use. St. Johns River Water Mgmt. Dist. v. Koontz, No. SC09-713 (Fla. Nov. 3, 2011). This case has important implications for landowners and city planners in Florida.

The Koontz Decision

In Koontz, a landowner requested permits from his local water management district to develop a greater portion of his commercial property than was authorized under existing regulations. The district agreed to grant the permit if the landowner would deed the remainder of the parcel into a conservation easement and pay for offsite mitigation measures unrelated to the landowner's property. The landowner agreed to the easement term but rejected the offsite mitigation. Consequently, the district denied the permit. The landowner sued, alleging a taking. After more than a dozen years in the Florida courts, the case ended up before the Florida Supreme Court.

The takings clause in the Florida Constitution is more or less equivalent to, or "coextensive" with, the takings clause in the U.S. Constitution. Id. at *2. Therefore, decisions by the U.S. Supreme Court about takings are the law in Florida. The Koontz case implicated two important U.S. Supreme Court decisions: Dolan v. Tigard, 512 U.S. 374, 384 (1994), and Nollan v. California Coastal Commission, 483 U.S. 825, 831-32 (1987). In a post at the Land Use Prof Blog on the Koontz decision, Ken Stahl of Chapman University provided background on Nollan and Dolan:

Some brief background on Nollan and Dolan for those who are not takings geeks: Taken together, the [they] hold that when a regulatory entity demands a condition in exchange for authorizing a use of land that would otherwise be prohibited (known as an "exaction") the condition imposed must have an "essential nexus" with (Nollan) and "rough proportionality" to (Dolan) some anticipated impact of the proposed use of land. Both Nollan and Dolan involved situations where the regulatory authority demanded the landowner physically dedicate some portion of his or her land for public use, and the Court in both cases emphasized that the condition demanded by the regulatory authority required the landowner to forfeit the sacrosanct "right to exclude." As a result, many commentators believed that Nollan and Dolan were limited to circumstances where the "exaction" was a requirement that real property be dedicated for public use, and did not extend, for example, to requirements that landowners pay an "impact fee" or other type of monetary payment in exchange for development permission. 

That interpretation, however, was rejected by one of the most significant lower court decisions to date dealing with Nollan and Dolan, the California Supreme Court's ruling in Ehrlich v. City of Culver City, 911 P.2d 429 (Cal. 1996). There, the court held that Nollan and Dolan did apply to certain types of impact fees, specifically fees imposed on a discretionary, individualized basis. The court emphasized what it saw as the underlying policy rationale of the Nollan/Dolan doctrine, to prevent regulatory authorities from using their monopoly power over the land use permitting process to extort concessions from politically powerless developers. This policy concern, the court noted, would apply equally regardless of whether the exaction was a physical dedication or an impact fee.

After a relatively brief analysis, the Florida Supreme Court concluded that Nollan and Dolan only apply to physical dedications of real property because (1) those cases only involved physical dedications and (2) regulatory agencies would by hamstrung and would likely deny more permits rather than face the uncertainty of negotiations.

The Implications

In the near future, this means that the protections of exactions law do not apply when governments and agencies request personal property, rather than real property, as a condition preceding development. As Robert Thomas pointed out in his blog, Inverse Condemnation, exactions are an important and topical issue these days.

The U.S. Supreme Court recently declined certiorari review of an Oregon case, where a city required a developer to pay money and for infrastructure costs. The developer wanted the city's requirements to be subject to the heightened standard of review set out by the U.S. Supreme Court in Nollan and Dolan. Although there were arguments that Oregon law supported the developer's position, after the case bounced into and out of the federal courts, the Oregon Supreme Court ruled otherwise in its West Linn decision. Just before Supreme Court of the United States denied certiorari, the developer filed a supplemental brief pointing out the Koontz decision here in Florida:

The Florida Supreme Court's decision in Koontz underscores the importance of the issue posed by the petition in this case. Moreover, it demonstrates the deepening divide between the courts such as the Supreme Courts of California and Texas which perceive no principled reason to distinguish between disproportional exactions of personal as opposed to real property and those Courts such as the Supreme Courts of Oregon and Florida, as well as the Ninth Circuit, that erroneously perceive in this Court's decision in Lingle an unstated intent to limit Nollan and Dolan. Only this Court can decide this important conflict and bring clarity to this area of Constitutional law.

The supplemental brief points to the heart of the matter: why should there be any distinction between exactions of personal property and exactions of real property? Unfortunately, because case was denied, we'll have to wait for the U.S. Supreme Court to clarify whether exactions law extends to personal property, as well as real property. Here in Florida, a motion for rehearing was filed on November 18 in the Koontz case. While rarely granted, a rehearing would give the Florida Supreme Court a chance to clarify its decision, which commentators have already said lacks clarity.