Developments of Regional Impact to Surface in 2014 Legislative Session

Bruce Ritchie recently wrote a good summary in the Florida Current of a bill concerning Developments of Regional Impact (DRIs). Here's an excerpt:

A bill filed in advance of the 2014 legislative session would allow six more counties to avoid review by the state of some growth management decisions, continuing a trend in recent years of increasingly less state oversight. 

In 2009, the Legislature passed SB 360 exempting counties designated as "dense urban land areas" from state review for "developments of regional impact." Environmental groups requested a veto but then-Gov. Charlie Crist signed the bill. 

For years, developers and some cities and counties supported less review of those larger developments because of the longer timeframe required for approval. Some developers also try to avoid passing thresholds, such as the number of homes in a proposed project, that would trigger state review. 

The 2009 legislation exempted those developments of regional impact (DRIs) from state review in counties with populations of 900,000 and at least 1,000 people per square mile of land area, unless the proposed developments were in designated "urban service areas" around cities. 

In 2013, 242 cities met the requirement along with eight counties: Broward, Duval, Hillsborough, Miami-Dade, Orange, Palm Beach, Pinellas and Seminole. 

SB 372, filed by Sen. Bill Galvano, would provide the dense urban land area designation to counties with at least 300,000 or densities of 400 people per square mile. 

Fourteen cities would fall within the exemption along with six additional counties: Brevard, Lee, Manatee, Pasco, Sarasota and Volusia, according to Galvano's office.

There is commentary from interested parties, including yours truly. As I mention in the article, it seems like a good idea to continue to test the Legislature's renewed interest in letting communities run their own show. In the most populated local jurisdictions, there does not seem to be as much of a need for the cumbersome DRI process as there may have been in the past.

Florida's New Environmental Resource Permit Rules

As you may have heard, Florida environmental resource permit (ERP) process has been overhauled and streamlined with the Statewide Environmental Resource Permit (SWERP). The Florida Bar Journal recently ran a good piece on the subject, "New Environmental Resource Permit Rules," written by Susan Roeder Martin. Susan is a senior specialist attorney with the South Florida Water Management District. It's always nice to see pieces like this by agency attorneys to give those of us in private practice an insight into working with them. Ms. Martin begins with a quick backgrounder on the program:

Florida’s water resources are regulated pursuant to the Environmental Resource Permit (ERP) program under Part IV of F.S. Ch. 373. This broad regulatory program went into effect on October 3, 1995, and applies to activities that involve the alteration of surface water flows, including new activities in uplands that generate stormwater runoff from upland construction, as well as dredging and filling in wetlands and other surface waters. The program covers everything from residential and commercial development in wetlands and uplands, to construction of roads, to certain agricultural alterations that impede or divert the flow of surface waters.

ERP applications are processed by either the Department of Environmental Protection (DEP) or one of the state’s five water management districts in accordance with the division of responsibilities specified in operating agreements between DEP and the individual water management districts. The ERP program is in effect throughout the state. 

Each of the five water management districts has historically had different rules for processing ERPs. The rules of each of the water management districts were also adopted by DEP and are utilized by DEP in processing permits. While the environmental criterion was substantially the same in all the water management districts, the processing and administration varied.

The problem with ERP, though, was that this variety led to a lot of confusion and disagreements across the districts; hence the need for the SWERP. After discussing the Legislature's directive for development of the SWERP, Ms. Martin details the permit categories, statutory and rule-based exemptions, fees, and procedures. She then includes a detailed discussion of how under the new SWERP, there are still differences across the districts. The Applicant's Handbook now provides the mechanism by which the districts can differentiate their procedures:

In the pre-statewide ERP rules, each of the five water management districts’ technical criteria was set forth in a separate volume known as the applicant’s handbook (AH) or the basis of review (BOR), incorporated by reference into each water management district’s rules. Each AH or BOR was also adopted by reference by DEP. The pre-statewide ERP AHs and BORs include environmental, water quality, water quantity, and procedural criteria.

***

What was formerly referred to as the AH or BOR in each water management district is now called the Environmental Resource Permit Applicant’s Handbook Volume II for Use within the Geographic Limits of the Applicable Water Management District (AH II). AH II includes water quality and quantity design and performance standards, hydrologic basins, and regional watersheds applicable to each water management district. The retention of these provisions in the individual AH II and the retention of special basin criteria satisfies F.S. §373.4131(1)(c)2, which requires that the rules account for different physical or natural characteristics, including special basin considerations, of each water management district. AH II is not generally applicable to 1) projects that cause no more than an incidental amount of stormwater runoff, such as a single-family home up to a quadruplex, which is not part of a larger plan of development; 2) stand-alone in-water projects and shoreline stabilization type projects; 3) docks and piers; 4) activities that do not add more than a de minimis amount of impervious surface; 5) exempt activities; and 6) activities that qualify for a general permit.31

Importantly, water quality and quantity criteria from each water management districts’ AH or BOR are retained. With respect to design and performance standards for stormwater quality and quantity, each water management district, with DEP oversight, may continue to adopt rules on these subjects.32 The criteria set forth in AH II further the goal of meeting the water resource objectives in Part IV of F.S. Ch. 373. Performance criteria were used when possible.

Many thanks to Ms. Martin for this informative article. If you'd like more information, check out DEP's SWERP website, or the webinar produced by the Florida Bar's Environmental and Land Use Section.

The Aftermath of Koontz - An Update and Review of New Scholarship

What's going on with Koontz, you might be wondering? Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586 (2013). For readers just joining us, this was the exactions case where the U.S. Supreme Court ruled for landowners (1) that the Nollan-Dolan exactions test applies even where a permit is denied because an applicant rejects an exaction, and (2) that the Nollan-Dolan exactions test applies to exactions other than real property, such as where a permit applicant is required to pay for work.

For one, scholars are starting to crank out some interesting work on the case and its future effects:

• In Two Steps Forward for the 'Poor Relation' of Constitutional Law: Koontz, Arkansas Game & Fish, and the Future of the Takings Clause, Prof. Ilya Somin at George Mason describes how Koontz helped property rights enjoy a "modest revival" in the last term of the U.S. Supreme Court.
• In Koontz: The Very Worst Takings Decision Ever?, Professor Echeverria at Vermont, who has never seen a takings decision that he found supportable, discusses why he finds nothing redeeming in Koontz. Exaggerate much?
• In Fees, Expenditures, and the Takings Clause, Professor Pidot at Denver undertakes a rather strained analysis to find that Koontz's application of the Nollan-Dolan exactions test should only extend those monetary exactions "that require a permit applicant to pay money to the government"(which he calls a fee), but not to "those that require a permit applicant to engage in activities that cost money, but do not transfer money to the government" (which he calls an expenditure). He worries "that much of federal environmental law could become subject to" the Nollan-Dolan exactions test. Even if he is right, which I doubt, is there anything really that wrong with requiring that a permit regulation requiring the expenditure of money to be reasonably related to the purpose of the permit and be roughly proportionate the social harm of the permit?
• In Exactions Creep, Professors Fennell and Penalver at Chicago present a thoughtful analysis presenting the U.S. Supreme Court's exactions jurisprudence as the Court's attempt to deal with the problem of protecting property from the state with the power of the state. They argue - as I did in my amicus brief supporting the property owners in Koontz - that the Due Process Clause is the best way to balance the concerns of the government with property owners' rights.
• In Nollan and Dolan and Koontz – Oh My! The Exactions Trilogy Requires Developers to Cover the Full Social Costs of Their Projects, But No More, Christina Martin at the Pacific Legal Foundation, argues just what I have been saying since I first read Koontz: "Koontz, like Nollan and Dolan, recognizes that government may legitimately require landowners to carry their own weight, mitigating their development plans so that they do not impose costs on their community. But government cannot use the permitting process to coerce landowners into giving up more. That simple rule will not end land-use planning or permit negotiations."

Which brings us to the next update. Recall that the U.S. Supreme Court punted Koontz back to the Florida Supreme Court. Well, the Florida Supreme Court just punted the case back to the lower appellate court for further proceedings. The docket shows:

In light of the decision of the United States Supreme Court in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013), this case is hereby remanded to the Fifth District Court of Appeal for further proceedings consistent with that decision.

Looks like the Koontz's long battle continues.

To Review Comprehensive Plan Consistency, Go With What The Development Order Says, Not What the Developer (Or Government) Says

My posting has been sparse lately, and there are a number of cases that deserve some attention.

First up is U.S. Sugar Corp. v. 1000 Friends of Florida, - So. 3d -, 38 Fla. L. Weekly D1687 (Fla. 4th DCA Aug. 7, 2013). This case is short and sweet, and it stands for a simple point: in a comprehensive plan consistency challenge, the development order is evaluated by what the development order authorizes, and not what the developer says she is going to do under that development order (or the government, for that matter). That is, because development orders approved by a local government must be consistent with the local government's comprehensive plan. If they are not, then it is not enough for a developer to say that he or she will not undertake certain activities that are authorized by the development order.

In the 4th DCA's words:

Whether a development order is consistent with a comprehensive plan is determined by comparing what the order permits, not what the current holder intends to do under the order. The current order permits general commercial mining, a use prohibited under the comprehensive plan. The burden is on the applicant to show that the development order conforms strictly to the comprehensive plan. Machado v. Musgrove, 519 So. 2d 629, 632 (Fla. 3d DCA 1987). The adopted order is inconsistent with the plan. If in fact U.S. Sugar wants to mine in a manner consistent with the plan, then it should reapply and limit its application so that any order which grants the application would be properly consistent with the comprehensive plan.

The solution for landowners and developers is clear: don't overreach. If your project is not clearly authorized by the comprehensive plan, and the local government is willing to permit it, then you should amend the comprehensive plan. Otherwise, you could end up like U.S. Sugar, trying over and over again to get the same project permitted.

New Florida Rule to Eliminate Water Management District Fees for Some Forestry-Related Activities

In good news for Florida's timberlands owners, the Florida Forestry Association reports:

The $250 fee for receiving a permit from the state's Water Management Districts (WMDs) for certain forestry-related activities is being eliminated with the adoption by Florida DEP of a revised environmental permitting system. Forestry activities, such as fill-road construction and stream crossings, that formerly required a "Noticed General Permit" (NGP) now qualify for the new "No-Fee Noticed Exemption for Minor Silvicultural Surface Water Management Systems" (Rule Number 62-330.0511 F.A.C). This new rule goes into effect on October 1, 2013, in each of the five WMDs. It's important to note that this very positive regulatory change is the direct result of FFA's Environmental Committee meeting with DEP officials last year to discuss the way silviculture was being regulated by the WMDs.

Review the full rule and all the activities for which there will no longer be a fee here.

Quick Update: Will Congress Act to Fix the Forest Roads Quagmire through the Farm Bill?

I've had some questions lately about the effects of the U.S. Supreme Court's decision in Decker v. NEDC, 568 U.S. _ (2013). As I've discussed, in that case, the Supreme Court held that the U.S. Environmental Protection Agency’s (EPA) rules properly exempt stormwater runoff from logging roads from permitting under the Clean Water Act. Because of complications from the new rule EPA issued just before oral argument in the Decker case, however, the NEDC had an opening to continue the litigation out in the Ninth Circuit. So the litigation and uncertainty for forest landowners continued.

These questions are timely. As my readers well know, I've been saying for years on this blog that the only way out of the forest roads quagmire and its resulting litigation is for Congress to act.

This year's Farm Bill process was a mess. While the bill sailed through the Senate, in the House nobody on either side of the aisle could agree on anything. Ultimately, the House was able to split the farm components of the bill from the food stamp provisions that have been a part of it for years. Into this "farm only" bill went the Forest Roads Amendment. This amendment would preserve EPA's 37-year-old interpretation that forest roads should be regulated as nonpoint sources (and therefore no permit is necessary). This amendment was basically the same as the Silvicultural Regulatory Consistency Act, which various legislators have been working to pass for several years.

This paves the way for a true legislative solution when the Senate and the House discuss the differences in the bills that were passed later this year--presumably before September 30, when the current Farm Bill expires. If you're a forest landowners or in the forestry industry, you'd do well to call your senators and representatives and encourage their support for the Forest Roads Amendment.

What Effect has the Community Planning Act had on Growth Management in Florida?

Robert Rhodes has a thoughtful piece in the Florida Bar's Environmental and Land Use Section Reporter, entitled "The 2011 Community Planning Act: Certain Change, Uncertain Reform." Bob served as the first chair of the section. In his piece, he focuses on the Community Planning Act's effects on the state's oversight role and its defects. Ultimately, he proposes:

[T]he Legislature should statutorily define the operative terms, important state resources and facilities, and adverse impact. This is core legislative policy-making and a legislative prerogative and responsibility. For reference points, the Legislature can review current state planning policies noted below, the statutory definitions of development of regional impact and the general law guidelines for designating an area of critical state concern. Other useful reference points are the SRPPS, which identify regionally significant resources and facilities.

Depending on the specificity of the statutory definitions, they can be further refined by rules developed by the Governor and Cabinet with the assistance of DEO and other review agencies. If the Legislature decides not to statutorily define the operative terms, rules should be developed and could be subject to legislative review and possible action.

Rulemaking is more than a policy choice. Standing alone, the undefined operative terms are vulnerable to constitutional attack because they are broad, vague, variable and delegate unrestrained legislative policy making to the executive branch review agencies.

He also discusses the state agency's burden of persuasion and how to clarify the act's compliance standards. Bob concludes:

The 2011 Act was branded by proponents as significant growth management reform. Reform means to change for the better, to improve. But it may also mean to end. I’m optimistic the recent legislation may be a catalyst in many communities for improvement and not the beginning of the end of the state planning program. But to borrow a phrase from The New York Times columnist Tom Friedman, I’m now a paranoid optimist.

Upcoming Presentation about Sustainability and Property Rights

On Friday, September 13th at 9 am, come out to the Florida Chapter of the American Planning Association's (APA) annual conference. I'm joining a distinguished panel to discuss sustainability and property rights in a presentation entitled "Where do property rights fit into sustainability? Recent developments affecting planners." We'll discuss a number of cases and developments that I've written about here, such as the Koontz, Ponce Inlet, and Hillcrest cases. Here's a brief description of what you'll learn about:

Are private property rights compatible with sustainability? The law is evolving: what do planners need to know? The U.S. Supreme Court is poised to decide a case from Florida that could have serious implications for how governments can use development exactions. At the same time, the legislature is considering exactions legislation. Another case from Florida could lead to bankruptcy for a local government in Florida if its takings and Bert Harris Act judgments are affirmed on appeal. The panelists will discuss the challenges, pitfalls, and even the opportunities that these developments present.

As I mentioned, we have a great lineup besides yours truly, including:

• Nancy E. Stroud, Esq., AICP, of Lewis, Stroud & Deutsch, P.L., who represents local governments in land use and development matters, drafted the Florida Chapter of the APA's amicus  brief in the Ponce Inlet case, and who serves on the APA's national amicus committee (which submitted a brief supporting the government Koontz)
• Linda R. Hudson, Esq., who is Senior Assistant City Attorney for the City of Tallahassee and is experienced in a variety of planning, environmental, growth management, and land use matters
• Seth. C. Behn, AICP, of Lewis, Longman, & Walker, P.A., who works with a law firm to represent developers in the land use entitlement process

The brochure for the conference is attached.

Sackett v. EPA: One Year Later

Now that the Pacific Legal Foundation has won another big property rights victory with the Koontz decision, it seems appropriate to return to last year's Sackett decision, which PLF also argued. Recall that, in Sackett , the U.S. Supreme Court held that landowners could bring a civil action to challenge a compliance order under the Administrative Procedure Act. In doing so, the Court decided that regulatory efficiency doesn't trump everything.

In a timely article, Russell Prugh at Marten Law has taken a look at the decisions decided under Sackett since that case came down. He writes:

What one finds from reviewing these early cases is that:

1. They are fact-specific;
2. They are not limited to the CWA;
3. They turn on the court’s finding of whether the action challenged was “final”; and
4. Whether the agency action is deemed final turns on whether the court sees it “just a step in the deliberative process” or as leaving nothing left to do but to refer the case to a government lawyer to enforce.

And he concludes:

The theme that emerges from the early cases interpreting Sackett is that courts have focused on a case-by-case analysis of whether the agency action challenged subjects the complainant to enforcement, or rather is simply a step in the decision-making process. The answer is often not clear, and different trial courts could go either way, adding uncertainty to the outcome of any challenged action. Courts are most apt to allow pre-enforcement review in cases factually similar to Sackett – cases involving administrative enforcement orders under the CWA. See Hardesty. But the core holding in Sackett could also find a place in challenges to other types of agency action, even outside the environmental context, as it did in Furie. As cases such as Furie demonstrate, the key inquiry continues to be whether the action challenged is “just another step in the deliberative process” or whether the only action left to be taken is government enforcement.

As a matter of fact, as another blogger points out, EPA has recognized that Sackett applies to a wide variety of cases:

EPA has now formally acknowledged that the Sackett decision has implications for other statutes. In a memorandum dated March 21, 2013, EPA’s Office of Enforcement and Compliance Assurance has concluded that it is important to advise recipients of EPA unilateral orders under other programs of their opportunity to seek pre-enforcement judicial review of such orders.

In particular, EPA has directed enforcement staff to immediately begin adding the following language to typical unilateral orders under FIFRA, Clean Air Act, Safe Drinking Water Act and EPCRA: “Respondent may seek federal judicial review of the Order pursuant to [insert applicable statutory provision providing for judicial review of final agency action.]”

The foregoing language applies, inter alia, to stop sale, use or removal orders under FIFRA §13, stop work or compliance orders under Clean Air Act §§113(a) and 167, and emergency and compliance orders under EPCRA §§ 325(a).

With respect to compliance and corrective action orders under RCRA §§3008(a), 3008(h), 9003(h) and 9006(a), EPA’s Memorandum directs enforcement staff to include language advising respondents that they may seek administrative review in accordance with 40 CFR Part 22 or 24 as applicable.

EPA’s March 21, 2013 Memorandum states that EPA believes that the reasoning in Sackett does not lead EPA to believe that similar language is appropriate for unilateral orders issued under statutory authorities other than those discussed in the Memorandum, and it is noteworthy that the EPA Memorandum makes no reference to unilateral orders under CERCLA.

This is good news for landowners facing all sorts of environmental enforcement actions by EPA.

Early Roundup of Koontz Commentary

Earlier today, I wrote about the win for landowners in Koontz v. St. Johns River Water Mgmt. Dist., No. 11-447 (June 25, 2013). On reading the opinion, my favorite line so far:

Extortionate demands for property in the land use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation. As in other unconstitutional conditions cases in which someone refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cognizable injury.

Here's a roundup of commentary thus far:

• Paul Beard with the Pacific Legal Foundation (who argued the landowner's case) offers a great plain-language summary of the decision.
• Brian Hodges at the Pacific Legal Foundation offers more musings on the case.
• Robert Thomas, as always, has a good initial analysis of the high points of the case. His take? The Court was "right on the money," and it's "growing weary of silly procedural arguments." 
• Legal Planet writes that while the effects of the decision on governments may not be clear, "[w]hat is clear is that property owners have achieved a clean sweep in the three Takings Clause cases decided by the Supreme Court this Term."
• Eric Giunta, for Sunshine State News, grudgingly reports that Koontz continues to soldier on after 20 long years.
• Daniel Fisher at Forbes points out that the unconstitutional conditions doctrine cuts both ways, since the Court pointed to precedent that most conservatives don't care for.
• Tejinder Singh at SCOTUSblog probably has a good point: "The decision has the potential to significantly expand property-owners’ ability to challenge local land use regulations and fees, though it is not clear that this expansion will result in a significant number of successful challenges.
• Prof. Rick Hills (NYU) doesn't care much for the opinion:

So how will the federal courts eventually exit this quagmire? The answer might be remedial equivocation. Nollan-Dolan has so far mostly been a dead letter in zoning litigation, because the remedy in lower courts has usually (although not universally) been restoration of the pre-exaction status quo in which the developer is unconditionally denied the desired permission to build. (See Goss v. City of Little Rock, (8th Cir. 1996), for an example of how this remedy guts the right, or read Mark Fenster's Failed Exactions). Such a remedy means that developers will rarely sue, and the ones that do sue get nothing for their troubles. Koontz did nothing to disturb this remedial equivocation, declaring that "[b]ecause petitioner brought his claim pursuant to a state law cause of action,the Court has no occasion to discuss what remedies might be available for a Nollan/Dolan unconstitutional conditions violation either here or in other cases" (Slip op. at 11). 

This may be the most important sentence in the opinion -- a hint at the SCOTUS's "exit strategy" when developers start challenging plazas, parks, playgrounds, and the like. San Remo Hotel v. San Francisco severely limits developers' power to bring a federal takings claim in federal court: If state courts can continue to define the Nollan-Dolan remedy as invalidation of the illegal condition and denial of the zoning permission, then Koontz will be a practical dead letter. And a good thing, too, if one cares about federalism and believes, as I do, that Nollan-Dolan was always a quixotic expedition to control land-use decisions far too numerous and fact-specific to be amenable to federal judicial policing.

• But Prof. Ilya Somin (George Mason) begs to disagree: "Overall, Koontz is the most important victory for property rights in the Supreme Court for a long time." That's because "Koontz addresses two major issues that previous Supreme Court cases had not covered: Whether the requirements of Nollan and Dolanapply when the government denies a permit, as opposed to issuing it with attached conditions, and whether those requirements apply to cases where the burden imposed by the government is an obligation to finance off-site “mitigation” as opposed to requiring the property owner to allow a physical invasion of his land. The Supreme Court majority answered “yes” to both questions. I think they got both of them right."

U.S. Supreme Court Says Government Demands for Property Must Satisfy Exactions Law, Even Where Permit is Denied and Where Demands are for Money

In an important win for landowners everywhere, the U.S. Supreme Court has ruled for landowners in the exactions case I've been writing about for quite some time. Koontz v. St. Johns River Water Mgmt. Dist., No. 11-447 (June 25, 2013). Recall that this is the case where Koontz asked the Court to establish (1) that the Nollan-Dolan exactions test applies even where a permit is denied because an applicant rejects an exaction, and (2) that the Nollan-Dolan exactions test applies to exactions other than real property, such as where a permit applicant is required to pay for work. My colleague Dave Smolker and I submitted an amicus brief in support of the property owners in this case.

The Court agreed with Koontz on both points, overturning the decision of the Florida Supreme Court. I'll post some analysis once I've had time to digest the opinion. In the meantime, here are some excerpts. On the first question:

The principles that undergird our decisions in Nollan and Dolan do not change depending on whether the government approves a permit on the condition that the applicant turn over property or denies a permit because the applicant refuses to do so. We have often concluded that denials of governmental benefits were impermissible under the unconstitutional conditions doctrine. See, e.g., Perry, 408 U. S., at 597 (explaining that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests” (emphasis added)); Memorial Hospital, 415 U. S. 250 (finding unconstitutional condition where government denied healthcare benefits). In so holding, we have recognized that regardless of whether the government ultimately succeeds in pressuring someone into forfeiting a constitutional right,the unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them. 

A contrary rule would be especially untenable in this case because it would enable the government to evade the limitations of Nollan and Dolan simply by phrasing its demands for property as conditions precedent to permit approval. Under the Florida Supreme Court’s approach, a government order stating that a permit is “approved if ”the owner turns over property would be subject to Nollan and Dolan, but an identical order that uses the words “denied until” would not. Our unconstitutional conditions cases have long refused to attach significance to the distinction between conditions precedent and conditions subsequent. See Frost & Frost Trucking Co. v. Railroad Comm’n of Cal., 271 U. S. 583, 592–593 (1926) (invalidating regulation that required the petitioner to give up a constitutional right “as a condition precedent to the enjoyment of a privilege”); Southern Pacific Co. v. Denton, 146 U. S. 202, 207 (1892) (invalidating statute “requiring the corporation, as a condition precedent to obtaining a per- mit to do business within the State, to surrender a right and privilege secured to it by the Constitution”). See also Flower Mound, 135 S. W. 3d, at 639 (“The government cannot sidestep constitutional protections merely by rephrasing its decision from ‘only if’ to ‘not unless’”). To do so here would effectively render Nollan and Dolan a dead letter.

On the second question:

Respondent’s argument rests on a mistaken premise. Unlike the financial obligation in Eastern Enterprises, the demand for money at issue here did “operate upon . . . an identified property interest” by directing the owner of a particular piece of property to make a monetary payment. Id., at 540 (opinion of KENNEDY, J.). In this case, unlike Eastern Enterprises, the monetary obligation burdened petitioner’s ownership of a specific parcel of land. In that sense, this case bears resemblance to our cases holding that the government must pay just compensation when it takes a lien—a right to receive money that is secured by a particular piece of property. See Armstrong v. United States, 364 U. S. 40, 44–49 (1960); Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555, 601–602 (1935); United States v. Security Industrial Bank, 459 U. S. 70, 77–78 (1982); see also Palm Beach Cty. v. Cove Club Investors Ltd., 734 So. 2d 379, 383–384 (1999) (the right to receive income from land is an interest in real property under Florida law). The fulcrum this case turns on is the specific parcel of real property.2 Because of that direct link, this case implicates the central concern of Nollan and Dolan: the risk that the government may use its substantial power and discretion in land-use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed new use of the specific property at issue, thereby diminishing without justification the value of the property. 

In this case, moreover, petitioner does not ask us to hold that the government can commit a regulatory taking by directing someone to spend money. As a result, we need not apply Penn Central’s “essentially ad hoc, factual inquiry],” 438 U. S., at 124, at all, much less extend that“already difficult and uncertain rule” to the “vast category of cases” in which someone believes that a regulation is too costly. Eastern Enterprises, 524 U. S., at 542 (opinion of KENNEDY, J.). Instead, petitioner’s claim rests on the more limited proposition that when the government commands the relinquishment of funds linked to a specific,identifiable property interest such as a bank account or parcel of real property, a “per se [takings] approach” is the proper mode of analysis under the Court’s precedent. Brown v. Legal Foundation of Wash., 538 U. S. 216, 235 (2003).

Second Quarter 2013: Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted its column on the environmental and land use cases in Florida that you need to know about for the second quarter of 2013. This is the column that I formerly coauthored. Here is what we've got this quarter:

• Clipper Bay Invs., LLC v. Dep’t of Transp., No. 1D11-5496, 2013 WL 425882 (Fla. 1st DCA Feb. 5, 2013). "The Marketable Record Title Act’s exception for easements and right-of-ways is applicable to land held as a fee estate for the purpose of a right-of-way, so long as competent, substantial evidence establishes the land is held for such a purpose."
• Wendler v. St. Augustine, 108 So. 3d 1141 (Fla. 5th DCA 2013). As I pointed out previously, the statute of limitations for filing a Bert Harris Act claim in court is within 4 years of the government’s act. Section 70.001(11), it held, is a pre-suit condition merely requiring that a claim be presented to a local government within 1 year of its act.
• Alachua Land Investors, LLC v. Gainesville, 107 So. 3d 1154 (Fla. 1st DCA 2013). As I discussed, for an inverse condemnation claim to be ripe, the plaintiff should prove (1) the regulation denies substantially all economically beneficial or productive use of the land; (2) alternative uses were applied for and conclusively denied by the regulatory body; and (3) at least one meaningful application has been filed under the existing regulations.
• Nieto v. Mobile Gardens Ass’n of Englewood, Inc., No. 2D11-4958, 2013 WL 1489377 (Fla. 2d DCA Apr. 12, 2013). "A homeowners association lacks standing to enforce restrictive covenants unless it is the direct assignee of the developer’s right to enforce deed restrictions or it is a successor in interest of the developer."
• Martin Cnty. Conservation Alliance v. Martin Cnty., No. SC11-2455, 2013 WL 1908644 (Fla. May 9, 2013). As I've discussed previously, the Florida Supreme Court dismissed review of a case from the 1st DCA sanctioning environmental organizations for advancing legal positions unsupported by material law or fact.

For those interested, there are about two years' worth of analysis and these summaries on new environmental and land use cases in Florida in my archives.

Upcoming Presentation about Ethics for Environmental and Sustainability Reporting

On Thursday, August 8th, come out to the Florida Bar Environmental and Land Use Section's 2013 Annual Update in Ponte Vedra Beach to learn about Ethics for Environmental and Sustainability Reporting. I'll be riding the coattails of my co-presenter, Thea Dunmire, who has taught me much of what I know on this subject. Thea is President of ENLAR Compliance Services, Inc. and has a unique back ground: she has an engineering degree and a law degree, and she is a Certified Safety Professional (CSP), a Certified Industrial Hygienist (CIH), and an RABQSA-certified EMS Lead Auditor. Thea has worked both as an environmental health and safety professional and as an attorney for EPA and a private law firm.

Here's a brief description of the presentation.

More and more companies are engaging in environmental and sustainability reporting. Some companies are required to prepare reports under federal laws, such as EPCRA and OSHA. Others voluntarily report on environmental and sustainability efforts due to customer and shareholder pressure. Companies also comment on their sustainability efforts in press releases and during various environmental permitting processes. 

This presentation will focus on ethical issues related to environmental and sustainability reporting that attorneys and consultants may face. Should ethical standards be different if a reporting program is voluntary than if the program is legally mandatory? What is the role of the attorney and the consultant in ensuring a client’s public statements about its environmental and sustainability reporting are accurate? These questions, and others, will be explored through the use of case studies.

Check out the Annual Update materials--there are a lot of other great presentations!

U.S. Supreme Court Carefully Avoids Commerce Clause Implications of Water Rights Dispute

The U.S. Supreme Court recently decided this this year's water law case, Tarrant Regional Water District v. Herrmann, 569 U. S. _, No. 11-889 (2013). I've written about how those of us in Florida and the Southeast should watch this one since it may have implications if our states enter into water compacts in the future. I've also written about how although this case has constitutional law implications in the dormant commerce clause, the U.S. Supreme Court didn't seem interested in addressing that issue. And indeed, it was not, which is probably why the opinion was unanimous.

Over at SCOTUSblog, Columbia Law Professor Thomas Merrill offers a good one-paragraph summary of the meat of the opinion, which interpreted the water compact between the states:

The Red River Compact allocates water between four states, including Texas and Oklahoma. Among other things, it provides that each of the four states can take twenty-five percent of the excess water in a particular subbasin in the river. Texas argued that, under the compact, it could take twenty-five percent of all of the excess water, and that it had could go into Oklahoma’s part of the subbasin to do that. Oklahoma disagreed, arguing that Texas could only take twenty-five percent of the excess water from its own part of the subbasin. The Court agreed with Oklahoma, ruling that Texas was not authorized to take water from tributaries in Oklahoma without Oklahoma’s consent.

On the question that readers of the blog are likely more interested in--the commerce clause issue--Prof. Merrill writes:

The Court also rejected the Texas water district’s dormant Commerce Clause claim, but did so in a way that deprives this part of the decision of any significance. The Court read the water district to argue that the Commerce Clause was violated because Oklahoma was discriminating against out-of-state users with respect to water that was left “unallocated” under the Compact. The argument failed, according to the Court, because there would be no unallocated water in Oklahoma unless Texas could show that Oklahoma was taking more than twenty-five percent of the excess water, and it had not asked for an accounting to establish this fact. In effect, the Court read the compact as superseding the dormant Commerce Clause with respect to the twenty-five percent share allocated to each state; a constitutional issue would be presented only if it could first be established that water was available in a state above this threshold and the state was discriminating against interstate sources with respect to the excess.

At this point you, like me, are probably asking what the significance of Tarrant will be going forward. Prof Merrill continues:

What then is significant about this decision for those not directly engaged in battles over the Red River Compact? The Court establishes, in a footnote, that a congressionally approved compact, as federal law, preempts state law that conflicts with the compact under the Supremacy Clause. It also establishes, in another footnote, that the presumption against preemption does not apply to interstate compacts, because “the States themselves have drafted and agreed to the terms” of the compact. There is some quotable language in the section about the states’ sovereign prerogative to control water resources within their territories, which will undoubtedly be trotted out in future cases involving apportionment of waters, the public trust doctrine, and the like. And portions of the Court’s opinion provide an excellent example of “pragmatic” interpretation, especially where it talks about the administrative difficulties that would be created by recognizing a cross-border right to divert water without additional guidance from Congress or the affected states.

The Tarrant Regional Water District has now been sent packing and needing to develop new water sources quickly. Its director is already facing some tough questions about whether the $6M+ dollars spent in the battle were worth it.

Defending against Enforcement Actions with the Takings Clause: Good News for Agriculture and Property Owners in U.S. Supreme Court

What's that, you say? The U.S. Supreme Court has just decided a second Takings Clause case this term, unanimously--and in the property owner's favor?

Indeed. In today's opinion by Justice Thomas, the Supreme Court again ruled favorably for property owners. Horne v. U.S. Department of Agriculture, No. 12-236 (June 10, 2013). Recall that this is the case where raisin producers raised the Takings Clause as a defense to the  imposition of fines for a New Deal agricultural marketing law. In response, the government argued that the raisin producers can try their hand at bringing a separate lawsuit but cannot use it as a weapon against government enforcement. The Ninth Circuit bought the government's argument, but the U.S. Supreme Court did not.

While carefully noting that it was not ruling on the merits of the raisin producers' takings claim, the Supreme Court held that a "takings-based defense may be raised by a handler in the context of an enforcement proceeding initiated by the USDA under §608c(14)." Slip Op. at 14. The practical result of this holding is that the raisin producers will get to assert their takings defense below. So, their saga continues, but as in a case decided last year, Sackett v. EPA, the good news is that landowners continue to open the door to judicial review of abusive government processes. That is, the takings clause has been strengthened as a weapon for the property owner to use when the government brings enforcement actions against the property owner.

There's no media coverage of the case yet, but I'll update you when it becomes available. In the meantime, to catch up on the background of this case, see my archives. Stay tuned. We're still waiting on a decision in Koontz v. St Johns River Water Management District, No. 11-1447 (argued Jan. 15, 2012), which has some theoretical similarities to Horne. Here's hoping property owners go three-for-three at the U.S. Supreme Court this term.

The Forest Roads Litigation: A Win for Landowners, but the Long Journey Continues

I'm grateful to the editors of the South Carolina Forest Steward, sponsored by Clemson's University's Cooperative Extension Service and the South Carolina Forestry Commission, for asking me to provide their readers with an update on the forest roads litigation following the U.S. Supreme Court's recent decision. This is a great newsletter that forest landowners throughout the Southeast may be interested in.

The article is reproduced below. This article was written as an analysis of the Court's decision, so it is not an up-to-the-minute update. I'll be providing that update in an upcoming post over the next couple of weeks.

The Forest Roads Litigation: A Win for Landowners, but the Long Journey Continues

Imagine if you needed to ask the federal government’s permission to harvest timber. Recently, the U.S. Supreme Court rejected an environmental organization argument to require just that. In March, the Court reversed a Ninth Circuit Court of Appeals decision that required forest and logging roads to be permitted under the Clean Water Act. See Decker v. Nw. Envtl. Def. Ctr., 568 U.S. _ (2013) (consolidated cases 11-338 and 11-347). You may recall that the Ninth Circuit is the court that gave us the highly-publicized decisions protecting the spotted owl in the Pacific Northwest and eliminating timber harvesting in many communities. It is also the court that the Supreme Court overturned last year in an important case that for the first time gave landowners the right to take the U.S. Environmental Protection Agency (“EPA”) to court when it issues fines and penalties against the landowners. See Sackett v. EPA, 132 S. Ct. 1367 (2012).

Forestry professionals and forest landowners were paying attention to this case because it addressed two important questions. First, would all forest and logging roads require a time-consuming and expensive permit? Second, would forest landowners be exposed to the risks of citizen suits by environmental organizations seeking to enforce the Clean Water Act? These questions made the Decker case the most important environmental regulatory decision for forestry professionals and forest landowners in recent memory. For the small landowner in the Southeast, permitting costs alone had been estimated at minimum to be $3.13 per acre per year—and as high as $21.46 per acre per year. See http://nafoalliance.org/wp-content/uploads/Road-Permit-Costs-in-South1.pdf.

Although the Decker decision was a big win for the forestry community, it poses some risks for the future. Ultimately, environmental and regulatory problems are political problems; you should continue paying attention to this issue and discuss it with your elected officials.

The Forest Roads Litigation

The Supreme Court’s decision in Decker is just the latest in a long fight over the murky provisions of the federal Clean Water Act. The parties have already been litigating this issue for about seven years. Some background about the Clean Water Act will help frame this discussion. Under the Clean Water Act, pollutants may not be put into waters of the United States by a “point source” without a National Pollutant Discharge Elimination System (“NPDES”) permit. A point source is more or less any discreet conveyance that could discharge pollutants, such as a pipe, ditch, channel, tunnel, or conduit. Nonpoint sources are not regulated. Congress chose to regulate pollution this way because the technology of the 1970’s could only feasibly regulate point sources. Over the past 40 years, we have become very good at assessing and treating point source pollution. We have not been as successful dealing with pollution from non-point sources, and so environmental organizations have been attempting to cast ever-wider nets using outdated laws.

In a lawsuit attempting to do just that, in 2006, a nonprofit organization based at Lewis & Clark Law School called the Northwest Environmental Defense Center (“NEDC”) sued a group of landowners—the Oregon State Forester, the Oregon Board of Forestry, and various timber companies—in federal court. NEDC argued that the system of ditches, culverts, and channels that collected stormwater on two forest roads that the landowners used in the Tillamook State Forest required were point sources.

The landowners argued that the roads and their associated natural stormwater systems were exempt from NPDES permitting because they fell under EPA’s longstanding Silvicultural Rule. The Silvicultural Rule was developed in 1976. It exempts most silvicultural activities from classification as a “point source”, including “nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.” 40 C.F.R. § 124.85 (1976).

The federal trial court dismissed NEDC’s case. It agreed with the landowners that the timber road runoff collected into a system of ditches, culverts, and conduits and were exempt from permitting requirements under the Silvicultural Rule. Nw. Envt’l Def. Center v. Brown, 476 F. Supp. 2d 1188 (D. Or. 2007). On appeal, however, a panel of judges on the Ninth Circuit struck down the Silvicultural Rule in August 2010. The landowners asked the Ninth Circuit to reconsider the issue before a much larger panel of judges. It agreed and issued a new decision in May 2011, but it still held that the Silvicultural Rule was invalid. See Nw. Envtl. Defense Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). It said that when agencies adopt rules, those rules must be consistent with the statutes they are developed under—and the Silvicultural Rule was inconsistent with the Clean Water Act.

The state of Oregon appealed the ruling to the U.S. Supreme Court, with the support of 25 other states, as well as a number of forest landowners and forest industry organizations. As the parties submitted their written arguments, most observers thought that the forestry interests had the stronger case. On the eve of oral arguments, however, EPA surprised everyone by issuing—in record time—a new rule to replace the rule that the Ninth Circuit struck down. EPA said the new rule left the U.S. Supreme Court with no reason to hear the case. Consequently, instead of talking about the substance of the case, the parties spent all their time arguing about what should happen to the case after the new rule. The Supreme Court Justices, as you might imagine, were not happy that they had not been told about this new development, and so they ordered the parties to submit additional written arguments about the new EPA rule.

Meanwhile, out in the Ninth Circuit, NEDC immediately sued EPA seeking to have the new rule declared invalid. Forest industry groups requested to intervene in the case, which the Ninth Circuit allowed. The industry groups were concerned because the new rule only addresses logging roads, which are temporary roads. The new rule specifically stated that EPA was still considering what to do with more permanent forest roads. Don’t expect the Ninth Circuit to determine whether the rule is valid before the end of 2013.

Implications

This brings us to the U.S. Supreme Court’s decision in Decker. After the complications of EPA’s new rule, most observers thought it was unlikely that the Supreme Court would address the actual Clean Water Act permitting issues. In a pleasant surprise for the forestry community, the Supreme Court did, saying that EPA’s rules exempt “discharges of channeled stormwater runoff from logging roads form the NPDES permitting scheme.” It reasoned that EPA’s interpretation of its own regulations was reasonable, was longstanding, and complied with the intent of the Clean Water Act.

The Supreme Court could have stopped there, but it went on to congratulate Oregon on a job well done in implement its forestry best management practices. The Supreme Court seemed to recognize, as commentators and scientists have pointed out, that a nationwide Clean Water Act permitting regime might actually lead to less clean water. In doing so, it recognized the importance of allowing landowners and the forestry community to work together voluntarily to address environmental problems, rather than requiring a control-and-command regulatory environment.

The Decker decision, however, was not all good news for the forestry community. The Supreme Court said that it was proper for the NEDC to bring its challenge to the Silvicultural Rule, which was over 30 years old. Normally, a rule created by an agency can only be challenged for a short period of time before it becomes law. The Supreme Court ruled that because the challenge was actually to whether the landowners had proper permits under the Clean Water Act, they were not actually challenging the rule directly. This will, unfortunately, lead to more litigation by environmental organizations that do not like longstanding rules. Landowners may be open to these lawsuits, even if they follow all of the agencies’ rules and recommendations. With this risk, and the new outstanding lawsuit out in the Ninth Circuit, the Clean Water Act remains an issue that the forestry community must stay abreast of.

What can you do? To keep from being surprised, forest landowners and forestry professionals may want to start thinking through their contracts. It was already a good idea to keep track of who is responsible for getting environmental and land use permits, but with legal uncertainty still looming, it may also be a good idea to include in contracts language that determines who should pay for, draft, and submit permit applications that are developed after a contract is signed.

As for a long-term solution, congressional action permanently exempting silviculture in all its forms from the Clean Water Act would be the best solution. Recent election-year politics have not yielded results, but now that the Supreme Court has ruled, this issue may not be as contentious as it once was. Bills have been filed over the last couple of years that would have solved all of this litigation, but they were not passed. You can help by calling your U.S. senators, congressmen, and congresswomen and asking them to reintroduce or support the Silvicultural Regulatory Consistency Act (last year’s bills were numbers H.R. 2541 and S. 1369). Remember, as I mentioned, that with all environmental law and regulatory problems, the real solution is political.

Jacob T. Cremer practices property rights, environmental, and land use law at Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., based in Tampa, Florida. His passion for these areas of the law comes from growing up in a family that has been involved in forestry in Florida for five generations and in South Carolina for thirty years. He assisted counsel of record before the U.S. Supreme Court for the landowners in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592 (2010). He co-authored an amicus brief to the U.S. Supreme Court in support of the landowner in Koontz v. St Johns River Water Management District, No. 11-1447 (argued Jan. 15, 2012). Follow the developments on the cases discussed here and others at his blog, The Florida Land Environment, www.jacobtcremer.com.

Legislative Session Wrap-Up Part 2: Land Development

In addition to some of the bills I mentioned in Part 1 of my legislative session wrap-up, these bills will be of interest to the land development community.

Land Development Bills

HB 319: This bill clarified and amended transportation concurrency, which was overhauled by the 2011 Community Planning Act. The legislative staff report on the bill summarizes its effects:

[The bill places] new requirements on local governments that implement alternative mobility funding systems. The bill requires these alternative systems to allow developers to “pay and go” for new development. Under the bill, once a developer pays for its identified transportation impacts, the local government must allow the development process to move forward. The bill encourages local governments without a transportation concurrency funding system to implement an alternative mobility funding system.  

The bill prohibits alternative mobility funding systems that are not mobility fee based from requiring developers to pay for existing transportation deficiencies. Local governments must apply revenue they collect from alternative funding systems to implement the needs upon which the revenue collection was based and mobility fees must comply with the dual rationale nexus test. Under the dual rationale nexus test, a court will find an impact fee reasonable if: 1) it offsets needs that are sufficiently attributable to the new development and 2) the fees collected are adequately earmarked for the benefit of the residents of the new development. 

The bill makes the following changes to transportation concurrency mechanisms: (1) Allows developers to satisfy the transportation concurrency requirements of a local comprehensive plan by making a good faith offer to enter a binding agreement to pay for or construct its proportionate share of impacts; (2) Allows local government to pool contributions from multiple applicants to apply toward one regionally significant transportation facility; (3) Requires local governments to provide the basis upon which landowners will be assessed a proportionate share of cost addressing the transportation impacts from a proposed development; (4) Clarifies that s. 163.3180(5)(h), F.S., applies to local governments that continue to implement transportation concurrency; (5) Clarifies when local governments are not required to approve new development.

HB 357: This bill is aimed at increasing Florida's competitiveness in the manufacturing sector. Again, the legislative staff report provides an excellent analysis. Local governments are encouraged to establish local manufacturing development programs aimed increasing capital investment and job creation within the manufacturing industry. The Department of Economic Opportunity (DEO) is charged with developing a model ordinance for local governments to do so. Most importantly for business owners, the bill creates a coordinated approval process for development approvals and permits for manufacturers managed by DEO in order to streamline the process for manufacturers participating in local manufacturing development programs. Finally, DEO and Enterprise Florida are to develop and distribute materials indicating which areas have developed local manufacturing development programs.

HB 375: This bill reduces permitting and inspection requirements for septic tanks and related systems (technically called onsite sewage treatment and disposal systems). For landowners, the biggest changes is that some single-family homeowners may now operate and maintain their own systems with approval by the Department of Environmental Protection.

Finally, there was HB 999--this session's bill that every environmental organization loved to hate. There was a great deal of press about this bill, much of it negative. But what this bill did do was decrease a number of environmental permitting burdens. For that reason, I've included in it my land use and development roundup, even though it might have been better left to Part 3 of my legislative session wrap-up, where I will review environmental and natural resource bills. Below is a summary of changes taken from the legislative staff report.

• Limiting to three the number of times a local government may request additional information when reviewing an application for a development permit, unless the applicant waives the limit; 
• Expanding the activities that qualify as "phosphate-related expenses" for the purpose of receiving severance tax proceeds;
• Providing lease fee calculation for certain marinas, boatyards, and marine retailers and providing conditions for the discount and waiver of these fees;
• Providing general permits for local governments to construct certain mooring fields;
• Increasing the size of certain multi-family docks on sovereign submerged lands that are exempt from paying lease fees;
• Prohibiting water management districts (WMDs) from reducing allocations due to additional water supplies resulting from developing of desalination plants;
• Providing that the issuance of well permits is the sole responsibility of WMDs, delegated local governments, or local county health departments, and prohibiting government entities from imposing certain requirements and fees;
• Providing that licensure of water well contractors by a WMD must be the only water well contractor license required in the state or any political subdivision;
• Exempting certain farm ponds and wetlands from regulatory requirements;
• Increasing the amount the Department of Environmental Protection (DEP) is authorized to enter into a contract for preapproved advanced cleanup work for designated contaminated sites in each fiscal year;
• Allowing a person to bring a cause of action for damages resulting from a discharge or certain pollution if not authorized pursuant to chapter 403, F.S.;
• Extending the payment deadline of permit fees for major sources of air pollution;
• Specifying that field procedures and lab methods for certain water quality testing must be adopted by rule or approved by order;
• Prohibiting a local government from using a recovered materials dealer's registration information to compete unfairly with the dealer for a period of 90 days after it is submitted; 
• Authorizing DEP to establish permits for special events relating to boat shows;
• Authorizing expedited permitting for natural gas pipelines and for summary hearings; and
• Ratifying certain leases on state-owned uplands in the Everglades Agricultural Area.

Because of the implications of this bill to agriculture (explicitly relating to farm ponds and implicitly in other ways), I've now cross-referenced this post with Part 1 of my legislative session wrap-up.

A Cautionary Tale for Environmental and Land Use Practitioners: Florida Supreme Court Declines to Review Environmental Organization Sanctions

Today, the Florida Supreme Court decided not to a review a 1st DCA decision sanctioning environmental organizations. Martin Cnty. Conservation Alliance v. Martin County, - So. 3d. -, 2013 WL 1908644, No. SC11-2455 (May 9, 2013), dismissing as improv. granted Martin Cnty. Conservation Alliance v. Martin Cnty., 73 So. 3d 856 (Fla. 1st DCA 2011) (original opinion revised on motion for rehearing). The Court originally accepted jurisdiction of the case on the grounds that the 1st DCA opinion expressly and directly contradicted with a decision by another district court of appeal. After further review, the Court determined that jurisdiction was improvidently granted and declined review of the case.

Keep in mind that, under Article V, Section 3 of Florida's Constitution, the Florida Supreme Court's jurisdiction is fairly limited. It has much stricter limitations on the cases it can hear than does the United States Supreme Court. In Florida, our court system has been set up so that the five district courts of appeal are the courts of last resort except in certain circumstances. This was not one of those circumstances.

That means the 1st DCA's opinion from 2011 is now final. As a reminder, I said previously that this case would be important to watch for anyone interested in environmental, land use, or administrative law in Florida. In a previous post, I explained:

[The Alliance] challenged two ordinances amending the Martin County comprehensive plan .... The Administrative Law Judge (“ALJ”) concluded the amendments would not cause environmental harm, and the Department of Community Affairs affirmed via issuance of an “in compliance” final order. The appellants appealed, but the First DCA dismissed the appeal for lack of standing, and it ordered appellants to show cause why sanctions should not be imposed for filing an appeal where appellate standing was lacking. The court, on its own initiative, has since withdrawn that order and replaced it with one holding the appeal to be in violation of section 57.105(1), Florida Statutes, and imposing sanctions .... Consequently, the First DCA imposed sanctions, stating that by advancing legal positions unsupported by material facts or law, appellants were statutorily subject to section 57.105 sanctions.

For a much more in-depth analysis, see my review of the 1st DCA opinion in the April 2012 edition of the Florida Bar's Environmental & Land Use Law Section Reporter.

This case serves as a cautionary tale to environmental and land use practitioners--and their clients--that advocacy in support of a position can sometimes go too far. That's not to denigrate the advocates in this case. There were good lawyers on both sides of this issue. But it should certainly go into the calculus of thinking about cases now. Per the 1st DCA's order, the sanctions will now be borne in equal part by the environmental organizations and their attorneys.

EDIT 5/10/2013: Bruce Ritchie has an article up at the Florida Current about the decision.

EDIT 5/29/2013: I've made some slight adjustments in the article to indicate that the Florida Supreme Court actually dismissed the case as improvidently granted, meaning that it accepted the case for review, and after considering it further, declined to review it.

Legislative Session Wrap-Up Part I: Land Use, Agricultural, and Adverse Possession Bills

After a long legislative session, it's time to see which bills made it through the sausage factory and are on their way to the Governor's desk. I've discussed most of these bills previously. This is Part I of a series; environmental bills will be addressed in a future post. For land use issues generally, it was a tame session with few important developments. Agricultural landowners were the real winners in land use issues this session. At the end of this post I also summarize the bills the did not make it through session, but which you may have heard about.

Land Use Bills of Interest

HB 537: This is the glitch bill for the glitch bill. Recall that Yankeetown sued for a declaration that the 2011 Community Planning Act was unconstitutional. That litigation was settled last year when the Legislature passed a bill to allow local governments like Yankeetown keep their referenda processes. The only problem was the language was not narrow enough and a Palm Beach County judge interpreted the language to include a broad swath of referenda. The Legislature came back to fix it this year. After this, very very few local governments in Florida will be able to have referenda on land use issues. The bill states:

(b) An initiative or referendum process in regard to any local comprehensive plan amendment or map amendment is prohibited. However, an initiative or referendum process in regard to any local comprehensive plan amendment or map amendment that affects more than five parcels of land is allowed if it is expressly authorized by specific language in a local government charter that was lawful and in effect on June 1, 2011; a general local government charter provision for an initiative or referendum process is not sufficient.  

(c) It is the intent of the Legislature that initiative and referendum be prohibited in regard to any development order. It is the intent of the Legislature that initiative and referendum be prohibited in regard to any local comprehensive plan or map amendment, except as specifically and narrowly permitted in paragraph (b) with regard to local comprehensive plan or map amendments that affect more than five parcels of land. Therefore, the prohibition on initiative and referendum stated in paragraphs (a) and (b) is remedial in nature and applies retroactively to any initiative or referendum process commenced after June 1, 2011, and any such initiative or referendum process that has been commenced or completed thereafter is hereby deemed null and void and of no legal force and effect.

The bill also repeals the agricultural enclave language passed in last year's Chapter 2012-75, Laws of Florida. This should not affect many one way or the other, since that language was aimed at a narrow pet project.

HB 7019 - This bill includes the same language as HB 537, above, and some other miscellaneous provisions. Of note to the land-use community is that it extend the deadline for notifying a local government or agency that a permit holder wishes to extend a permit for two years (for the holder of "any building permit, and any permit issued by the Department of Environmental Protection or by a water management district pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from January 1, 2012, through January 1, 2014, is extended and renewed for a period of 2 years after its previously scheduled date of expiration").

Agricultural Bills of Interest

HB 203 - The 2003 Agricultural Lands & Practices Act preempted counties from adopting any new ordinance regulating a farm or forestry operation beyond adopted BMPs. This bill extends the preemption to nearly all local governments (water management and drainage districts are excluded). It also extends the preemption so that local governments may not assess any fees on farm and forestry operations subject to BMPs.

SB 1106 - Provides that a "local government may not adopt an ordinance, regulation, rule or policy that prohibits, restricts, regulates, or otherwise limits an agritourism activity on land classified as agricultural…” An agritourism activity is “any activity consistent with a bona fide farm or ranch that allows members of the general public…to view or enjoy agricultural-related activities….” The bill also limits the liability for landowners using their land for agrictourism, where land is posted in a specific manner.

HB 1193 -This bill makes the greenbelt assessment more favorable for landowners. Under the current law, the greenbelt assessment can be removed when: (1) the landowner changes the zoning of the land, even if it remains agricultural; (2) land classified as agricultural is surrounded by development and the county commission determines that it acts as a deterrent to further development; and (3) agricultural land is sold and the purchase price of land is three or more times the agricultural assessment. The bill removes these 3 provisions, making the only cause for removal of an agricultural assessment to be that it is no longer being used for an agricultural use. It also eliminates the ability of a value adjustment board to review the classifications made by the property appraiser unless a request is made by the landowner.

HB 7087 -  Tucked away inside this bill is a directive to FWCC to develop wildlife BMPs for agricultural lands. After these are developed, they could provide significant protection to landowners who follow them, as, under the Agricultural Lands & Practices Ac, the BMPs would likely preempt local governments from regulating issues that they encompass.

Best management practices for wildlife.-The department and the Fish and Wildlife Conservation Commission recognize that agriculture provides a valuable benefit to the conservation and management of fish and wildlife in the state and agree to enter into a memorandum of agreement to develop and adopt by rule voluntary best management practices for the state's agriculture industry which reflect the industry's existing contribution to the conservation and management of freshwater aquatic life and wild animal life in the state. 

(1) The department shall enter into a memorandum of agreement with the Fish and Wildlife Conservation Commission for the purpose of developing the best management practices pursuant to this section and applying such best management practices on agricultural lands within the state. The agreement may allow for selected pilot projects in order to better facilitate the development of the best management practices. 

(2) The department may adopt rules establishing the best management practices pursuant to this section. The rules must include provisions for a notice of intent to implement the best management practices and a system to assure the implementation of the best management practices, including recordkeeping requirements. 

(3) Notwithstanding any other provision of law, including s. 163.3162, the implementation of the best management practices pursuant to this section is voluntary and except as specifically provided under this section and s. 9, Art. IV of the State Constitution, an agency, department, district, or unit of local government may not adopt or enforce any ordinance, resolution, regulation, rule, or policy regarding the best management practices on land classified as agricultural land pursuant to s. 193.461.

EDIT 5/20/13: HB 999 also contains some provisions exempting farm ponds from some water regulations. For more detailed information, see my legislative session wrap-up Part 2.

Property Bills of Interest

HB 903: The adverse possession bill I wrote about previously was passed in a watered-down form. Adverse possession will be more difficult, as has been the trend in recent sessions, but not as much as in some of the bill proposals we saw earlier in the session. The big changes are (1) that an adverse possessor must pay all taxes and assessments in the first year and continuously throughout the possession and (2) anyone who occupies a structure solely by adverse possession is guilty of trespass. The second requirement will make it difficult to achieve some of the squatting we have seen in the news here in Florida.

Bills of Interest that were not Passed

HB 321 / SB 1716 - Would have exempted some small developments from transportation concurrency, proportionate fair share, and impacts fees.

HB 673 / SB 772 - Would have limited the ability of local governments to impose land use exactions.

HB 33 / SB 466 - Would have allowed landowners with lands contiguous to state-owned lands to submit a request to the state to exchange state-owned land for a conservation easement on privately-held land.

HB 901 / SB 584 - Would have require governments purchasing conservation lands to return an equal amount to private hands.

HB 7149 - Would have made the campus master planning process drastically simpler.

First Quarter 2013: Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted its column on the environmental and land use cases in Florida that you need to know about for the first quarter of 2013. This is the column that I formerly coauthored. There are a number of interesting cases this quarter:

• Galleon Bay Corp. v. Bd. of County Comm’rs, No. 3D11-1296, 2012 WL 6027768 (Fla. 3d DCA Dec. 5, 2012). As I discussed in an early post, "in determining whether a landowner’s investment-backed expectations are met in an inverse condemnation case, trial courts should not factor commonly owned but separately platted subdivisions in the analysis."

• Bd. of Supervisors v. Fla. Dep’t of Transp., 103 So. 3d 218 (Fla. 4th DCA 2012). I also covered this case previously. In an inverse condemnation proceeding, attorneys’ fees must be awarded based on all work relating to the suit. This includes work performed before the date a suit is filed. 

• Bischoff v. Walker, No. 5D11-2194, 2012 WL 6213271 (Fla. 5th DCA Dec. 14, 2012). "Where a deed references a property boundary defined by a natural monument, such as a canal or lake, Florida law follows the general rule that a rebuttable presumption exists in favor of finding the boundary at the centerline of the monument, absent evidence of contrary intent."

• Jass Properties, LLC v. N. Lauderdale, 101 So. 3d 400 (Fla. 4th DCA 2012). "Florida law does not expressly prohibit a municipality from declining to contract with tenants for utility services and instead restricting service agreements to property owners."

• Clark v. Bluewater Key RV Ownership Park, No. 3D11-884, 2012 WL 6602657 (Fla. 3d DCA Dec. 19, 2012). "An association of property owners at a recreational vehicle park is not subject to regulations of homeowners’ associations under chapter 720, Florida Statutes, where the park prohibits any permanent or semi-permanent structures intended or used as permanent living quarters."

• Florida Attorney General Opinion 12-32 (2012). "A proposed county ordinance that would condition acceptance of an application for rezoning on the consent of a specified number of property owners may be an illegal delegation of legislative power." 

My archives have about two years' worth of analysis and these summaries on the new environmental and land use cases, for those who are interested.

Water Law and the Dormant Commerce Clause - Is the Tarrant Case Much Ado about Nothing?

I've written previously about this year's water law case before the U.S. Supreme Court. Tarrant Regional Water District v. Herrmann, 11-889 (argued April 23, 2013). I've written about how this case has constitutional law implications, and that those of us in Florida and the Southeast should watch this one.

It may end up being much ado about nothing. (Sound familiar this term?) In today's oral argument, the implications of the dormant commerce clause on water law were barely mentioned. In fact, the dormant commerce clause was only mentioned three times. Suffice it to say the Justices don't seem interested in addressing that issue.

But in addressing what they were interested in, the Justices had a great deal of questions on this complex area of the law. As one report describes it,

Some questions sounded sympathetic to the thirsty Tarrant Regional Water District, which seeks Oklahoma water to serve Fort Worth-area customers. Other questions seemingly supported Oklahoma. Many questions, though, simply underscored the legal and technical complications now confronting justices dealing with what may be the biggest water law case of the year. “You read this brief that you submitted,” Justice Elena Kagan told the Obama administration attorney at one point, “and it gives you a kind of a headache.” 

At another point, Justice Antonin Scalia told a lawyer, “I don’t understand what you just said,” while Justice Sonia Sotomayor acknowledged that she “can’t make rhyme or reason” out of some provisions of a water deal. And following one drawn-out scenario that seemed to reach a dead end, Justice Stephen Breyer offered a simple one-word verbal shrug: “Anyway.” 

While some of the uncertainty may have been professed, in order to make a point, it did make clear what a different world water law can be. “They don’t address a lot of questions like this one,” attorney Charles A. Rothfeld, who represented Tarrant, noted following the seemingly inconclusive hourlong oral argument.

If you're as perplexed about all this as the Justices seemed to be, here is a great backgrounder article, complete with a graphic of exactly what water rights this compact covers. In the end, though, the Supreme Court will be addressing a very basic question: can Oklahoma keep Texas away from its water?

What Does the U.S. Supreme Court's Decker Decision Mean in Plain Language?

Once again, thanks to the Southeastern Wood Producers Association for inviting me to give its membership an update on the forest roads litigation in the latest edition of its newsletter, Out of the Woods. See Decker v. NEDC, 568 U.S. _ (2013) (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). This short, readable article is excerpted below.

U.S. Supreme Court Decides Forest Roads Case 

In good news for the forestry community, federal permits will not be required anytime soon for logging roads. In Decker v. NEDC, the U.S. Supreme Court decided that the U.S. Environmental Protection Agency’s (EPA) rules properly exempt stormwater runoff from logging roads from permitting under the Clean Water Act.

In the last issue of Out of the Woods, you may recall that I mentioned this case because it addressed two important questions. First, would all forest and logging roads require a time-consuming and expensive permit (permitting costs in the Southeast had been estimated as high as $21.46 per acre per year)? Second, would forest landowners be exposed a greater risk of environmental lawsuits? These questions made the Decker case the most important regulatory decision for forestry professionals and forest landowners in recent memory.

In the 1970s, EPA had developed the Silvicultural Rule, excluding logging roads from Clean Water Act permitting. No one had ever challenged that interpretation until an environmental organization, NEDC, sued Oregon and several timber companies. Although the defendants had acted legally under the EPA’s standards, NEDC argued that they should have had a permit because EPA’s rule was invalid. A federal trial court dismissed the case, but the appellate court invalidated the rule.

By the time the case got to the Supreme Court and was ready for oral arguments in December, the forestry community looked poised to win. EPA, though, complicated things by issuing a new rule on the eve of arguments that was supposed to fix the problem. After these complications, most observers thought it was unlikely that the Supreme Court would address the actual Clean Water Act permitting issues.

In a pleasant surprise for the forestry community, however, the Supreme Court did. It ruled that EPA’s rules exempt “discharges of channeled stormwater runoff from logging roads” from Clean Water Act permitting, reasoning that EPA’s interpretation of its own regulation was reasonable, was longstanding, and complied with the intent of the Clean Water Act. The Supreme Court could have stopped there, but it went on to congratulate Oregon on a job well done in implement its forestry best management practices. The Supreme Court seemed to recognize, as foresters and scientists have pointed out, that a nationwide Clean Water Act permitting regime might actually lead to dirtier water. In doing so, the Supreme Court recognized the importance of allowing landowners and the forestry community to work together voluntarily to address environmental problems, rather than requiring a command-and-control regime.

The Decker decision, however, was not all good news for the forestry community. The Supreme Court said the NEDC could bring its challenge to the Silvicultural Rule, which was over 30 years old. Normally, a rule can only be challenged for a short period of time before it becomes law. The Supreme Court ruled that because the challenge was to whether the landowners had proper permits, they were not actually challenging the rule directly. This will, unfortunately, lead to more litigation by environmental organizations that do not like longstanding rules. Landowners may be subject to these lawsuits, even if they follow all of the agencies’ rules and recommendations. With this risk, and the fact that NEDC has already filed a new lawsuit challenging EPA’s new rule, the Clean Water Act remains an issue that the forestry community must be aware of.

With all environmental law and regulatory problems, the real solution is political. Therefore, congressional action permanently exempting silviculture in all its forms from the Clean Water Act would still be the best solution. Recent election-year politics have not yielded results, but now that the Supreme Court has ruled, this issue may not be as contentious as it once was. You can help by calling your elected representatives.

Jacob T. Cremer is an attorney at Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., in Tampa. His practice focuses on property rights, environmental, and land use law. He grew up in a family that has been involved in forestry in Florida for many generations. Follow the developments on these cases and others at his blog, The Florida Land Environment, www.jacobtcremer.com.