First Quarter 2012: Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted my column on the environmental and land use cases in Florida that you need to know about in the first quarter of 2012.

• Graves v. Pompano Beach, 74 So. 3d 595 (Fla. 4th DCA 2011), establishing that plat approval does constitute a development order under section 163.3215, Florida Statutes, reversing the court's previous opinion upon rehearing.
• Martin County Conservation Alliance v. Martin County, 73 So. 3d 856 (Fla. 1st DCA 2011), confirming on rehearing sanctions imposed on environmental organizations under section 57.105, Florida Statues, as they were held to have pursued appellate review without any foundation in law or fact.
• St. Johns River Water Mgmt District v. Koontz, 2011 WL 5218306 (Fla. Nov. 2, 2011), declining to recognize an exaction under U.S. Supreme Court precedents Nollan and Dolan because the theory is applicable only to exactions involving real property.
• Venice v. Gwynn, 2011 WL 6934531 (Fla. 2d DCA Dec. 30, 2011), stating that ordinances that do not deprive all or substantially all of a property’s value fail the Penn Central test and thus do not violate the Constitution as uncompensated taking of property.

Take a look at past posts for previous cases I've summarized. As usual, please email me with recent cases that others need to know about.

Community Planning Glitch Bill Headed to Gov. Scott's Desk

House Bill 7081 is headed to Governor Scott's desk after being passed by the Senate yesterday. The bill approves language settling Yankeetown v. DEO (37 2011 CA 002036). Yankeetown had asked the court to declare that the Community Planning Act, HB 7207 (ch. 2011-139, Laws of Fla.), was unconstitutional. The real rub for Yankeetown was that the Act did not grandfather previously-enacted local government comprehensive planning referendum requirements when it prohibited them. This glitch reportedly also affected Longboat Key, Key West, and Miami Beach.

The House staff analysis is available here. It notes some other effects of the bill:

• clarifying provisions relating to the coordination between local governments and military installations regarding local land use decisions;
• providing criteria for municipalities and the unincorporated area within a county to use in determining population projections;
• removing criteria that exempts certain municipalities from being signatories to the school interlocal agreement as a prerequisite to implementing school concurrency, because school concurrency is now optional, and restoring criteria to exempt certain municipalities from being a party to the school interlocal agreement; 
• extending the time for the state land planning agency and the Administration Commission to issue recommended and final orders, since the current time requirement is unworkable, and providing a time requirement for the state land planning agency to issue a notice of intent for a plan amendment adopted pursuant to a compliance agreement;
• deleting a required annual report by the Department of Economic Opportunity related to the optional sector plan pilot program.

Environmental and Land Use Considerations for Real Estate Transactions 2012

The Environmental & Land Use Law Section and the Real Property, Probate & Trust Law Section of the Florida Bar are jointly hosting an upcoming Continuing Legal Education Seminar that should interest real property attorneys. It will also be useful to attorneys involved at any stage of the development process who want to gain a better understanding of the environmental and land use components of that process.Past feedback from this CLE has been very positive.

The CLE, entitled "Environmental and Land Use Considerations for Real Estate Transactions 2012," will be April 20, 2012, at the Tampa Airport Marriott. The schedule is below. I am co-chairing this CLE program, so please email me if you have any questions.

8:00 a.m. – 8:30 a.m. Late Registration

8:30 a.m. – 8:45 a.m. Welcome & Case Study Introduction
Eleanor W. Taft, Eleanor W. Taft, P.A.
Jacob T. Cremer, Hopping Green & Sams, P.A.

8:45 a.m. – 9:30 a.m. Contract Issues for Land Transactions for Properties with Environmental & Land Use Concerns
Barry B. Ansbacher, Ansbacher & Associates, P.A.

9:30 a.m. – 10:15 a.m. Practical Considerations for Incorporating Sustainable Development into Real Estate Projects
Nicole C. Kibert, Carlton Fields

10:15 a.m. – 10:30 a.m. Break

10:30 a.m. – 11:15 a.m. Growth Management after the Community Planning Act
Adam J. Gormly, Hillsborough County Attorney’s Office

11:15 a.m. – 12:00 noon Local Government Land Use Hearings: What Does QuasiJudicial Mean, Anyway?
Laura B. Belflower, Laura B. Belflower, P.A.

12:00 noon – 1:15 p.m. Lunch (on your own)

1:15 p.m. – 2:00 p.m. Old & New: Bert Harris Issues and Property Rights Cases (Including Koontz)
Ronald L. Weaver, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.

2:00 p.m. – 2:45 p.m. Who Controls Entitlements and Permits after Foreclosure?
Jason E. Merritt, Hopping Green & Sams, P.A.

2:45 p.m. – 3:00 p.m. Break

3:00 p.m. – 3:45 p.m. Wetlands Permitting Issues
Amy Wells Brennan, SWFWMD

3:45 p.m. – 4:30 p.m. Sovereign Submerged Lands Issues: Permitting & Leasing
Virginia C. Dailey, Hopping Green & Sams, P.A.

Legislation Settling Yankeetown Case Approved by House & Senate

I wrote back in December about the legislation that would settle the Yankeetown litigation. In Yankeetown v. DEO (37 2011 CA 002036), Yankeetown asked the court to declare that the Community Planning Act, HB 7207 (ch. 2011-139, Laws of Fla.), was unconstitutional.

As readers of this blog will recall, the parties reached a settlement agreement that required them to use their best efforts to pass legislation that would cure Yankeetown's main issue and allow it to continue to use its referendum process for its comprehensive plan amendments. Language that appears to meet the requirements of the settlement agreement has been passed in both chambers, although the chambers will have to settle the other diferences.

House Bill 7081 passed in the House on February 16th. Senate Bill 440 passed in the Senate yesterday. The bill was sponsored by Senator Bennett, 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.

The Governor will still have to approve this language for it to become law. Judging by the strong support in both chambers for it, it seems likely that he will. The status of his action on bills is here. Then the parties would have to go back before the court to finish the settlement process. Stay tuned for this and other legislative updates. I'll be watching as the 2012 legislative session winds down.