Hillsborough County Developing Mobility Fee to Replace Concurrency and Impact Fee

As I wrote about with my colleagues recently, Hillsborough County is developing a mobility fee:

These fees are levied on development to pay for the development's impacts on offsite public facilities. While more familiar mechanisms like impact fees and concurrency focus on roads, mobility fees are intended to pay for even more forms of transportation infrastructure, including that used by vehicles, cyclists, pedestrians, and transit users. Pasco County was the first county in the state to adopt a mobility fee in 2011, and a handful of other local governments have followed suit, including the City of Jacksonville and Osceola County.

These fees come while Hillsborough County is focused on a number of transportation funding mechanisms, including Go Hillsborough, a half-cent sales tax that would be earmarked for transportation.

While staff has reported that this fee will replace both concurrency and the impact fee, the mobility fee is currently proposed at a rate that will be three to ten times higher than today's impact fee. New details are emerged recently through a "Terms Sheet" that outlines the key terms of a future mobility fee ordinance. Another recent update explained that the mobility fee will likely even affect ongoing projects that might initially seem to be "vested" against the new fees:

The Term Sheet, as drafted, subjects Proportionate Share Agreements approved after January 1, 2016 to the mobility fee. The Term Sheet also proposes new limitations for the amendment of both existing Development Agreements as well as Development of Regional Impact (DRI) Agreements. Consequently, it is unclear how these agreements will be processed in the near and long term. 

Obtaining extensions of agreements for ongoing projects may become difficult in the future. As drafted, the Term Sheet does not allow agreements to be extended, and mobility fees must be paid for all future development after the current expiration date.

Many questions remain, including how to treat the millions in credits that developers have received from projects where the offsite transportation improvements that they constructed cost more than the impact fees that the developers would otherwise have to pay. More details will emerge over the next 6-8 weeks, with a workshop scheduled to for staff to brief the Board of County Commissioners in February.

Are Florida's Rural Landowners Bearing Too Much of the Burden of Protected Species?

This week's Business Observer had an opinion piece that's worth a look. In it, Adrian Moore argues that Florida's rural landowners are bearing an unfair burden in managing Florida's listed and endangered species. He says, "[i]t is safe to say that virtually every farm of any kind in the region will be in the watershed of at least one new endangered species. Everyday farming activities that create sediments or runoff, or use fertilizers or pesticides, impact a watershed to some extent and thus all may come under restrictions to protect habitat."

Mr. Moore argues that the management techniques for these species are becoming more restrictive in Florida, as opposed to some other states, such as Texas. He writes:

The Texas approach combines:

- A government task force of state and local agencies that includes both environmental and economic goals to balance protection of species with economic costs.

- Integration of high-quality scientific research on species, habitat and the costs and effectiveness of protection options. - Conservation plans based on voluntary, market-based approaches similar to the U.S. Department of Agriculture’s Conservation Reserve Program in which state and local agencies share property owners’ cost of protecting habitat for endangered species and provide technical assistance.

- Confidentiality for landowners to protect them from punitive federal regulations if they comply with an approved conservation plan.

Mr. Moore's approach is worth considering. Landowners should take a look at the Florida Fish & Wildlife Commission's Imperiled Species Management Plan. The October 2015 draft plan is a good place to start in understanding what protected species may be on a property and how that species is being managed.

Opportunity Lost? Can Condemnation Blight be a Taking or a Substantive Due Process Violation?

Take note, property rights mavens: a takings claim is a separate and distinct claim from a substantive due process claim, and it's a mistake to treat them as coextensive. Fresh out of the Third District Court of Appeals is Teitelbaum v. South Florida Water Management District, No. 3D14-963 (Sep. 30, 2015), which focuses on condemnation blight and its relationship to inverse condemnation claims, but which may be more useful for its teachings on framing a property rights case.

A large group of plaintiffs sued the District for depressing the value of their properties that were long zoned as agriculture in order to pursue environmental goals related to the nearby Everglades. The District had bought up as much land as it could in the area, and when it could not acquire their properties, it passed a condemnation resolution. It did not make any attempts to actually acquire the properties, though. Slip Op. at 4. The plaintiffs further alleged that the District had prevented Miami-Dade County from rezoning the properties and that the District's acquisition of property in the area in a "checkerboard" fashion prevented the plaintiffs from developing their properties. Slip Op. at 5.

Because there was no physical taking and the plaintiffs had not applied for a development permit to test what could be permitted, the plaintiffs were stuck asserting a novel claim:

Likely recognizing that the Water District’s conduct would not constitute a taking under the traditional takings formulations, the Plaintiffs have not argued their claims under any ... well-established standards. Rather, the Plaintiffs urge this Court to recognize a new cause of action and adopt a new category of governmental activity that will result in a per se taking: condemnation blight. Under the Plaintiffs’ proposed formulation for a condemnation blight claim, a constitutional taking would occur when: (1) the government makes an official, publicly-announced declaration of its intent to condemn the property that goes beyond mere planning; (2) the government engages in some postannouncement unreasonable conduct, such as protracted delay in actual condemnation proceedings or interference with the property owner’s rights; and (3) the property suffers impairment of value or the property owner’s use and enjoyment of the property is disrupted. We decline to adopt this proposed standard as a per se taking.

Slip Op. at 10.

The Court's opinion isn't terribly surprising. In Florida, condemnation blight is about value: it precludes the government from depressing the value of a property before it subjects it to a de jure or de facto taking by calculating the property's value before it was depressed.Earlier this year, the court had held that condemnation blight does not itself give rise to a taking, although condemnation blight may be considered when the property is valued for the government's liability. On rehearing, the court withdrew that opinion and reissued one that held the same thing, with some further embellishment, explaining.

The interesting part about the opinion is in the court addressing the plaintiffs' focus on the District's "unreasonable" conduct rather than on the effect on their property." The court held that this "perspective confuses the aim of the Takings Clause, as the cases uniformly analyze the effect of the governmental actions and regulations on the property to determine whether they are so onerous as to constitute an ouster." Slip Op. 11.

Attentive readers of this blog might think this sounds more like a Substantive Due Process argument, since it focuses on the government's means rather than on its ends. And you would be right. However, the court declined to take that issue up on rehearing, deeming it to have been abandoned:

One of the appellants’ primary arguments in their motion for rehearing is that this Court should have analyzed their Due Process Clause claims as a distinct cause of action separate and apart from their Takings Clause claims under the authority of Tampa-Hillsborough County Expressway Authority v. A.G.W.S. Corp., 640 So. 2d 54, 57-58 (Fla. 1994). While there is an interplay between these two constitutional clauses and many takings claims are analyzed coextensively with due process claims, the appellants are correct that these claims can be pled as distinct causes of action when the allegations involve governmental actions or regulations on private property. Id. The alleged unreasonableness of the Water District’s actions, while irrelevant for a takings analysis, would certainly have been germane to the Plaintiffs’ substantive due process claim, and their argument would likely require further consideration had it been raised prior to the Plaintiffs’ motion for rehearing. In this case, however, the trial court treated both causes of action as coextensive and made no separate findings or rulings regarding the Plaintiffs’ due process claim. The appellants did not challenge that aspect of the trial court’s decision below, did not brief or argue that issue before this court—indeed, they did not even independently cite the A.G.W.S. decision in their initial or reply brief—and now raise this point of error for the first time in their motion for rehearing. As such, the appellants have waived that issue ... and we do not comment on the merits of that claim.

Slip Op. at 11-12. Too bad. We could have used some more guidance here in Florida on Substantive Due Process challenges to the government's unreasonable actions to prevent development. 

Lesson learned: figure out whether you're challenging the government's means or its ends early on in a property rights challenge.

Takings of Personal Property: The Importance of Framing A Case

Suppose a local government suddenly bans the production and sale of widgets because public opinion is that the widgets contribute to obesity. Although the land where the widget factory is located could be used for other purposes, the widgets are now worthless because they can’t be sold. And the widget maker has lost a great deal of the capital that was invested in the widget factory and equipment. Does the widget maker have an inverse condemnation claim? It may depend on whether his taking claim is framed as one for tangible or personal property, and not of real property. A claim that the real property had been taken would not likely be successful, since in this hypothetical, it could be used for other purposes.

Most readers will recall that there are physical takings and regulatory takings. Regulatory takings can be complete takings of all economically beneficial uses of a property—or they can be less, in which case courts use a balancing test to determine whether there has been a taking. Most of us in the environmental and land use arena are at least familiar with these concepts when it comes to real property. But what about tangible property?

As recent decisions from the U.S. Supreme Court and Florida courts make clear, tangible or personal property is also protected by the Fifth and Fourteenth Amendments. In Horne v. Department of Agriculture, 576 U.S. _, No. 14-275 (2015), which was decided earlier this year and has been bouncing around the courts for years, the U.S. Supreme Court examined a federal regulation requiring raisin farmers to set aside a percentage of each year’s crop for the government’s benefit—without payment. The Supreme Court held this to be a taking, tracing back the law of personal property takings back to the Magna Carta. Further, it held that because the taking was physical (as opposed to merely a regulatory burden), there was a per se taking, without regard to whether any claimed public benefit or the economic impact on the owner.

Florida's First District Court of Appeal has agreed in a case involving Florida’s oft-ridiculed “pregnant pig” constitutional amendment that banned the use of gestation crates in 2002. State v. Basford, 119 So. 3d 478, 480 (Fla. 1st DCA 2013). There, a farmer who had made substantial improvements to his property and based his pork business on use of the crates brought an inverse condemnation suit against the state. Explaining that “real property, tangible property, and intangible property may be the subject of a takings claim,” the court emphasized that the farmer had not alleged a taking of real property. Id. at 483. Rather, he claimed that the constitutional amendment had taken all economically viable use of his business assets—which included barns, animal crates, a feed mill, and lab equipment. Id. at 481, 483.

In a colorful concurrence, Judge Wolf saw this taking as just as if the government decided, in lieu of seizing a tractor, that it would allow a farmer to keep the tractor but forbid the owner from turning it on. Id. at 484. This explanation should give property owners some cheer, since it hints that, as in Horne, complete restrictions in use of personal property should be compared to physical takings. And it gives the attorney a simple framework for thinking about these kinds of problems.

Both these cases are instances of a takings case being successfully (and creatively) framed. In Horne, there was no way to frame a real property takings claim, and in Basford, the court itself recognized that a real property takings claim would not have had much of a chance of success. Inverse condemnation claims are almost always tricky, so why make a case any more difficult than it needs to be? It seems that Ben Franklin would agree that, as for others, for property rights attorneys, an ounce of prevention is worth a pound of cure.

Have a Development Permit in Florida? You May Be Able to Extend It.

As I wrote about in a recent update with my Stearns Weaver colleagues Reggie Bouthillier and Ken Metcalf, two of Governor Scott's latest executive orders present opportunities for the holders of certain types of development permits in Florida. On August 6, 2015, Governor Scott declared an emergency due to severe flooding in Hillsborough, Pasco, Pinellas, Dixie, and Taylor Counties. On August 28, 2015, Governor Scott declared an emergency across the state due to the impending arrival of Tropical Storm Erika.

Section 252.363, Florida Statutes, provides for extensions in certain circumstances for some development-related permits:

252.363 Tolling and extension of permits and other authorizations.— 

(1)(a) The declaration of a state of emergency by the Governor tolls the period remaining to exercise the rights under a permit or other authorization for the duration of the emergency declaration. Further, the emergency declaration extends the period remaining to exercise the rights under a permit or other authorization for 6 months in addition to the tolled period. This paragraph applies to the following:
1. The expiration of a development order issued by a local government.
2. The expiration of a building permit.
3. The expiration of a permit issued by the Department of Environmental Protection or a water management district pursuant to part IV of chapter 373.
4. The buildout date of a development of regional impact, including any extension of a buildout date that was previously granted pursuant to s. 380.06(19)(c).
(b) Within 90 days after the termination of the emergency declaration, the holder of the permit or other authorization shall notify the issuing authority of the intent to exercise the tolling and extension granted under paragraph (a). The notice must be in writing and identify the specific permit or other authorization qualifying for extension.
(c) If the permit or other authorization for a phased construction project is extended, the commencement and completion dates for any required mitigation are extended such that the mitigation activities occur in the same timeframe relative to the phase as originally permitted.
(d) This subsection does not apply to:
1. A permit or other authorization for a building, improvement, or development located outside the geographic area for which the declaration of a state of emergency applies.
2. A permit or other authorization under any programmatic or regional general permit issued by the Army Corps of Engineers.
3. The holder of a permit or other authorization who is determined by the authorizing agency to be in significant noncompliance with the conditions of the permit or other authorization through the issuance of a warning letter or notice of violation, the initiation of formal enforcement, or an equivalent action.
4. A permit or other authorization that is subject to a court order specifying an expiration date or buildout date that would be in conflict with the extensions granted in this section.
(2) A permit or other authorization that is extended shall be governed by the laws, administrative rules, and ordinances in effect when the permit was issued, unless any party or the issuing authority demonstrates that operating under those laws, administrative rules, or ordinances will create an immediate threat to the public health or safety.
(3) This section does not restrict a county or municipality from requiring property to be maintained and secured in a safe and sanitary condition in compliance with applicable laws, administrative rules, or ordinances.

Some local governments, like Palm Beach County, have already created forms to help permit holders in exercising their right to an extension. Even where they have, though, permit holders need to pay particular attention to whether one or both extensions apply and whether other statutory procedures provide further benefits. 

In any case, as the Florida Attorney General has explained, the burden is always on the landowner or permit holder to obtain the extension in the proper manner. They should act quickly to exercise their rights to these extensions.

Federal Jurisdiction over Wetlands Significantly Expanded in Florida

I've had a lot of questions and calls lately about the Army Corps of Engineers' and the EPA's "Clean Water Rule." It is otherwise known as the Waters of the United States Rule (WOTUS), and it significantly expands the federal government's regulatory jurisdiction, especially in Florida. The question is this: how far does the federal government's power reach over water bodies and wetlands, especially those that have nothing to do with navigation or interstate commerce?

As most of you know by now, I've joined the Tampa office of Stearns Weaver. My Tallahassee colleague Reggie Bouthillier, our summer clerk William Anderson, and I wrote an in-depth briefing to update Florida landowners and consultants on how this new rule might affect them. At a conference this summer, a well-known environmental scientists quipped that the new rule of thumb in Florida is that when it rains, there are enough puddles to make the entire state subject to federal jurisdiction. He was only half joking.

Here's the summary of our briefing:

On May, 27, 2015, the United States Environmental Protection Agency ("EPA") and the United States Army Corps of Engineers ("Corps") issued the final "Clean Water Act Rule," aimed at clarifying the jurisdictional definition of "waters of the United States" ("jurisdictional waters") under the Clean Water Act ("CWA"). The new rule attempts to increase regulatory certainty by reconciling past agency practices, science, and U.S. Supreme Court decisions. As a result, Florida landowners and developers will likely need CWA permits where they were not previously necessary. 

The CWA prohibits the discharge of pollutants into jurisdictional waters. Even though this concept is key to the agencies' regulatory jurisdiction, its outer boundaries have been unclear and have been subject to numerous court challenges. While navigable waters have traditionally been viewed as jurisdictional, most other waters (including wetlands) have been subject to case-by-case analysis to determine whether those waters had a "significant nexus" with navigable waters. Under the Clean Water Act Rule, however, many more waters and wetlands will be categorically defined as jurisdictional waters, in some cases even if the water is relatively isolated and wholly intrastate. Consequently, the rule does give more regulatory certainty, but that certainty gives landowners and developers less flexibility and makes challenges to jurisdictional determinations more difficult. 

On August 28, 2015, the Clean Water Act Rule will go into effect and land owners and developers will face increased regulation, translating into additional costs, timing, and permitting requirements for projects. It is unclear whether efforts to delay the rule's implementation will be successful. Legislation blocking implementation of the rule has passed the House and is pending in the Senate, but it would likely face a presidential veto. At least ten federal law suits are challenging the rule, and several seek preliminary injunctions against the rule's enforcement. 

In light of this new rule and the uncertainty surrounding it, landowners and developers need to be vigilant in protecting their rights in the federal permitting process.

Read the full article here. Since this was published, you should know that a federal judge in North Dakota has issued an injunction against the rule's implementation. At this time, the federal agencies are taking the position that the order only applies to implementation in those states involved in that particular lawsuit. Florida is not one of them - so the Corps and EPA have been implementing the new rule since last Friday, August. 28, 2015.

The Intersection of Florida's Homestead Protections and Irrevocable Licenses

This post is a bit different than previous posts. It stems from a real-world issue I dealt with several years ago, and then morphed into an article that I've tinkered with since then. When I tried to publish it, the feedback I received from a state bar section was that it was too narrow to be publishable. I am skeptical of that, but it very well could be true. In any case, I decided to self-publish it, in hopes that it may be useful to someone tasked with dealing with the perplexing intersection of Florida's powerful homestead protections and its murky law of irrevocable licenses. I welcome any feedback.

Florida’s Homestead Protections and Irrevocable Licenses 

This article explores the limitations that the homestead protections in the Florida Constitution place on irrevocable license claims. You may already be skeptical: everyone knows that the homestead protections do not extend to licenses because they are not property interests. Are you sure? I argue that irrevocable licenses may well be captured by the homestead protections against alienation. This could have important implications for both your transactional and litigation practices. 

I. Florida’s Constitution Protects against Alienation of the Homestead

Let’s work through the basics quickly. Article X, section 4 of the Florida Constitution provides for several homestead protections. We are concerned with the protection against alienation in subsection 4(c): “[t]he owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.” This requires joinder of both husband and wife for the alienation of homestead property, even if only one spouse is the title owner.[i] Consequently, defective attempts to alienate homestead property are ineffectual and possibly void.[ii]

As an interpretative matter, like other constitutional homestead protections, the protection against alienation is a creature of equity that “must be liberally construed.”[iii] It should be construed in the “interest of the family home,”[iv] and “for the benefit of those whom it was designed to protect.”[v] These rules of interpretation mean, for instance, that because intent and substance are more important than form, the homestead protections may not be avoided indirectly.[vi] They also mean that the protection against alienation extends beyond the mere sale of the homestead. The dictionary definition of “alienation” is a conveyance of property to another.[vii] The constitutional meaning encompasses the broadest possible understanding of this definition: conveyance of “any right, title, or interest whatever in the homestead real estate.”[viii]

II. Irrevocable Licenses are Subject to the Protection against Alienation 

Consider, for example, the wide variety of interests subject to homestead protections: easements,[ix] possessory rights subject to a third-party trust,[x] mortgages,[xi] contracts for purchase and sale,[xii] leases,[xiii] and other contracts concerning interests in land.[xiv] But licenses are not interests in property: they are personal rights to use the property of another for a specific purpose, which are revocable at the will of the grantor.[xv] How then can licenses be subject to the protection against alienation? 

Florida courts have not directly addressed whether the protection against alienation applies to licenses. The evidence suggests, however, that it does apply to some licenses: namely irrevocable licenses. In Florida, unlike in some other jurisdictions, irrevocable licenses are distinct from easements.[xvi] Irrevocable licenses are remedial creatures of equity[xvii] that usually arise as a defense or counterclaim.[xviii] Licenses in Florida only become irrevocable under certain narrow circumstances: where a licensee: (1) is granted use of “property for a particular purpose or in a certain manner,” and (2) “in the execution of that use [expends] large sums or incurred heavy obligations for its permanent improvement.”[xix] In that case, the grantor’s right of revocation is “compromised.”[xx] Therefore, the licensee’s reliance investment is protected for a reasonable duration.[xxi] Even an oral license can become irrevocable.[xxii]

Despite this guidance, Florida and other courts have at times struggled to differentiate between easements and licenses.[xxiii] This is not surprising, since there are numerous cases with interests that share characteristics of both easements and license, such as irrevocable licenses and easements terminable upon a condition subsequent.[xxiv] Consider, for example, that easements are usually permanent but do not have to be, just as licenses are usually revocable at the will of the grantor but do not have to be.[xxv]

Only one case appears to have considered an irrevocable license in the context of the protection against alienation. In High v. Jasper Manufacturing Co., 49 So. 156, 156 (Fla. 1909), Mr. Register sold the rights to cut and remove timber from his homestead to Mr. High. When Jasper Manufacturing began cutting and removing the timber, Mr. High sued for an injunction.[xxvi] Although the trial court originally issued a preliminary injunction, after an evidentiary hearing, it dissolved the injunction because Mrs. Register had not joined in the conveyance in violation of the protection against alienation.[xxvii] Even though there was apparently a bill of sale, the Florida Supreme Court questioned whether the sale of standing timber was written or oral—if it were oral, then the Supreme Court appeared to believe it would operate as an irrevocable license. Ultimately, the Supreme Court did not make a determination, seemingly holding in affirming the trial court that the protection against alienation applied whether the contract was an interest in land or an irrevocable license.[xxviii] Therefore, the Supreme Court may have held that an irrevocable license is subject to the protection against alienation, but it did not do so clearly. 

The unfortunate lack of clarity in the High case can be overcome, however, in considering the nature of an irrevocable license. As described above, it is primarily a remedial and equitable claim. Florida courts generally do not allow defenses to homestead claims, other than fraud. Statutes of limitation and laches generally are not defenses.[xxix] Neither are estoppel[xxx] or waiver.[xxxi] Similarly, courts shy from affirmatively applying documents that violate the protection against alienation.[xxxii] Consequently, between High and this skepticism of Florida courts in allowing defenses to homestead protections, the protection against alienation probably applies to irrevocable licenses. 

III. Implications for the Practitioner 

So what does this mean for the practitioner? Two hypotheticals illustrate the importance of understanding that irrevocable licenses are subject to homestead protections. First, suppose you are drafting a license for the benefit of your client over his neighbor’s homestead. Both parties agree to provisions that restrict the ability of the neighbor to terminate the license. At first glance, it may only seem necessary to have a title owner of the property execute the license. It is not an interest in land, after all. But if the spouse of the neighbor is not a title owner and later wants to terminate the license, your client may have no defense. Therefore, it is prudent to have all beneficial owners of the property execute the license in order to protect against disagreements later. This article suggests it may be most prudent to draft and execute the document as an easement to avoid the problems of interpretation discussed here. 

Second, suppose your client believes he has a valid, recorded easement over his neighbor’s property leading to the entrance of your client’s property. In reliance on that interest, your client has built a road, fence, and extensive landscaping on his neighbor’s property. After an argument, however, the neighbor sues to declare the easement void. You believe that the neighbor has a strong claim because his wife, who lives with him on the property as their homestead, did not sign it. Could you at least ask the court to award your client an irrevocable license in equity? Probably not, according to my analysis. 

In conclusion, as with most real estate questions in Florida, when confronted with a license, practitioners must be ever mindful of the Florida Constitution’s homestead protections. 

[i] Taylor v. Maness, 941 So. 2d 559, 563 (Fla. 3d DCA 2006) (enough that wife lived on homestead property with husband, who was the title owner).

[ii] See Pitts v. Pastore, 561 So. 2d 297, 301 (Fla. 2d DCA 1990)

[iii] Butterworth v. Caggiano, 605 So.2d 56, 58 (Fla.1992); accord Hillsborough Inv. Co. v. Wilcox, 13 So. 2d 448, 450 (Fla. 1943) (“Equity has complete jurisdiction over homesteads and exemptions.”).

[iv] Havoco of Am., Ltd. v. Hill, 790 So.2d 1018, 1021 (Fla. 2001); Heath v. First Nat. Bank in Milton, 213 So. 2d 883, 888 (Fla. 1st DCA 1968) (applying interpretative rule to the alienation protection). In Jones v. Carpenter, 106 So. 127, 130 (Fla. 1925), the Florida Supreme Court explained:

A homestead in this country is for the benefit of the family, where it can be sheltered and live beyond the reach of financial reverses. It is one of the issues of our republican government designed to encourage freeholders, those citizens who are the prop and mainstay of all free government. It is designed to keep sacred and inviolate the home for the family …. It cannot be alienated except as the law directs, and when the parties are sui juris and dealing at arm's length it is notice to the world of all these facts and more.

[v] Taylor, 941 So. 2d at 56.

[vi] Norton v. Baya, 102 So. 361, 363 (Fla. 1924).

[vii] Black’s Law Dictionary (8th ed. 2004).

[viii] High v. Jasper Mfg. Co., 49 So. 156, 157 (Fla. 1909); Thomas v. Craft, 46 So. 594, 596 (Fla. 1908); see also Bessemer Properties v. Gamble, 27 So. 2d 832, 833 (Fla. 1946) (Homestead protections extend to “any right or interest.”).

[ix] In re Minnig, 119 B.R. 326, 327 (Bankr. M.D. Fla. 1990); Dotson v. Wolfe, 391 So. 2d 757, 759 (Fla. 5th DCA 1980).

[x] Callava v. Feinberg, 864 So. 2d 429, 432 (Fla. 3d DCA 2003) (possessor of home protected by homestead, where her name was not on the title, which was held in trust by an unrelated party).

[xi] Pitts, 561 So. 2d at 301 (mortgage).

[xii] Taylor, 941 So. 2d at 562 (contract to sell homestead).

[xiii] In re Alexander, 346 B.R. 546, 551 (Bankr. M.D. Fla. 2006).

[xiv] Adams v. Malloy, 70 So. 463, 465 (Fla. 1915) (lease of timber growing on homestead, with right of ingress and egress for 10 years); High, 49 So. at 157 (whether the sale of timber was a contract concerning an interest in land or a license, it violated homestead alienation protection).

[xv] Dotson, 391 So. at 759; Dance v. Tatum, 629 So. 2d 127, 128 (Fla. 1993).

[xvi] Dance, 629 So. 2d at 128-29.

[xvii] Tatum v. Dance, 605 So. 2d 110, 113 (Fla. 5th DCA 1992) app’d, 629 So. 2d 127 (Fla. 1993).

[xviii] See, e.g., id. at 110 (pleaded defensively by a third party to a foreclosure); Brevard Cnty. v. Blasky, 875 So. 2d 6, 13 (Fla. 5th DCA 2004) (affirmative defense); Dupont v. Whiteside, 721 So. 2d 1259, 1261 (Fla. 5th DCA 1998) (counterclaim).

[xix] Dance, 629 So. 2d at 129. It is unclear whether Florida courts would accept the theory that a license is made irrevocable when it is couple with an interest. See James Ely & Jon Bruce, The Law of Easements & Licenses in Land § 11:8. Such a case may be presented in Richbourg v. Rose, 44 So. 69 (Fla. 1907) (license to cut trees may be irrevocable to the extent of removing trees already cut when license terminated because it was “coupled with an interest”), but it is unclear whether Dance overruled or narrowed it.

[xx] Blasky, 875 So. 2d at 12.

[xxi] Id.; see Tatum, 605 So. 2d at 113.

[xxii] Id.

[xxiii] Dotson, 391 So. at 758 ("The distinction between an easement and a license is often so metaphysical, subtle, and shadowy as to elude analysis.”); Burdine v. Sewell, 109 So. 648, 652 (Fla. 1926) (“An easement is distinguished from a license, though it is often difficult to make out whether a particular case is the one or the other.”).

[xxiv] See Dotson, 391 So. at 759.

[xxv] See id.; Seaboard Air Line Ry. Co. v. Dorsey, 149 So. 759, 761 (Fla. 1932).

[xxvi] Id.

[xxvii] Id. at 157.

[xxviii] Id.

[xxix] Reed, 145 So. 2d at 870 (declining to apply laches or statute of limitations to bar homestead alienation protections, where deed had been recorded for over twenty years).

[xxx] Sigmund v. Elder, 631 So. 2d 329, 331 (Fla. 1st DCA 1994); Moore v. Moore, 237 So. 2d 217, 220 (Fla. 4th DCA 1970).

[xxxi] DeMayo v. Chames, 934 So. 2d 548, 551 (Fla. 3d DCA 2006) approved, 972 So. 2d 850 (Fla. 2007); Callava v. Feinberg, 864 So. 2d 429, 432 (Fla. 3d DCA 2003); In re Estate of Nicole Santos, 648 So. 2d 277, 282 (Fla. 4th DCA 1995).

[xxxii] Taylor, 941 So. 2d 559, 564 (Fla. 3d DCA 2006) (refusing to enforce contract for purchase and sale in a way that would violate the protection against alienation).

Exciting Announcement

You'll now find me at the Tampa office of Stearns Weaver. Next time you're in the Tampa area, stop by our offices and say hello.

Those of you who know me well know that change excites me. That's why I jumped at the chance to join the state's premier environmental and land use team that includes, locally, Ron Weaver and Vin Marchetti, and, in Tallahassee, Reggie Bouthillier. Expect to see some great entitlements, permitting, and regulatory work coming from this team. I couldn't be more pleased to be a part of it.

And, of course, I'll continue my constitutional and property rights practice, as well. We all know that landowners in Florida need somebody to do it.

The Florida Legislature Creates a Cause of Action for Illegitimate Exactions

Although the Florida House may have gone home early, they at least got down to business and strengthened the property rights of Florida landowners before leaving Tallahassee. Both houses of the Legislature passed an illegitimate exaction bill nearly unanimously. Judging by Governor Scott's strong property rights record, you can bet he'll let this one become law.

HB 383 was aimed at addressing guidance provided by the U.S. Supreme Court in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2596 (2013). The legislative bill analysis explains:

Of particular significance to the bill, the Koontz court found that while the government's conditions unconstitutionally burdened the landowner's Fifth Amendment rights, no constitutional taking has occurred that qualifies for the constitutionally mandated remedy of just compensation to the landowner. Instead, the Court left it up to the states to determine what remedies would be available to a landowner who has been subject to an unconstitutional demand where no actual taking has occurred. 

The Court explained: "Where the permit is denied and the condition is never imposed, nothing has been taken. While the unconstitutional conditions doctrine recognizes that this burdens a constitutional right, the Fifth Amendment mandates a particular remedy—just compensation—only for takings. In cases where there is an excessive demand but no
taking, whether money damages are available is not a question of federal constitutional law but of the cause of action—whether state or federal—on which the landowner relies." 

Consequently, the Court left unanswered the question of whether the landowner in Koontz could recover damages for unconstitutional conditions claims predicated on the Takings Clause because the landowner's claim was based on Florida law, s. 373.617, F.S. Specifically, because s. 373.617, F.S., allows for damages when a state agency's action is "an unreasonable exercise of the state's police power constituting a taking without just compensation," it is a question of state law as to whether that provision covers an unconstitutional conditions claim.

The bill gives landowners just that statutory cause of action, providing for injunctive relief and damages for a "prohibited exaction," defined as "any condition imposed by a governmental entity on a property owner's proposed use of real property that lacks an essential nexus to a legitimate public purpose and is not roughly proportionate to the impacts of the proposed use that the governmental entity seeks to avoid, minimize, or mitigate." Here's the key provision:

In addition to other remedies available in law or equity, a property owner may bring an action in a court of competent jurisdiction under this section to recover damages caused by a prohibited exaction. Such action may not be brought until a prohibited exaction is actually imposed or required in writing as a final condition of approval for the requested use of real property. The right to bring an action under this section may not be waived. This section does not apply to impact fees adopted under s. 163.31801 or non-ad valorem assessments as defined in s. 197.3632.

That is, if the exaction doesn't measure up to the U.S. Supreme Court's exactions trio (Nollan, Dolan, and Koontz), a landowner can make a claim for damages (which is defined to include injunctive relief, which might include invalidation of the offensive condition). Just as those cases command (but which many courts have misunderstood), the government has the "burden of proving the exaction has an essential nexus to a legitimate public purpose and is roughly proportionate to the impacts of the proposed use that the governmental entity is seeking to avoid, minimize, or mitigate." Sensibly, the landowner must give the government written notice of the claim to give the government a chance to rescind or reduce the exaction. If the landowner wins a lawsuit, the court must award attorney's fees.

What does all this mean, in layman's terms? Simply put, if, in exchange for a development permit, the government demands more than it fairly should, or demands something that doesn't relate to the permit, than landowners have another tool at their disposal to challenge the government demand and get damages for their injuries. All in all, this was a great way to celebrate the Bert Harris Act's twentieth birthday.

And speaking of the Bert Harris Act, there were a few "glitch" fixes to it this year (as has been the case over the past few years):

• The bill clarifies that property must be "directly" affected by government action. Presumably, this means to distinguish properties that are merely tangentially or indirectly affected by a government action to another property.
• It clarifies that the landowner and the government can use the flexibility of the Bert Harris Act settlement process both before and after a lawsuit is filed. This was an important amendment because the Bert Harris Act allows settlements to protect the landowner from application of contrary local laws and ordinances, and last year an appellate court refused to allow a settlement agreement because it was entered after a lawsuit was filed. Collier County v. Hussey, 147 So. 3d 35 (Fla. 2d DCA 2014).
• Sensibly, the bill also prohibits actions against local governments that adopt federal flood maps as a requirement of the National Flood Insurance Program.

Consider Supporting the Pacific Legal Foundation

As litigators fighting for property rights (or any other type of litigation), the long slog of the work in the trenches can sometimes bring us down or cause us to lose sight of the big picture. That's what it's great to have the support of great organizations like Pacific Legal Foundation.

The Managing Attorney of PLF's Atlantic Center in Palm Beach Gardens, Mark Miller, recently discussed my practice in a post on PLF's Liberty Blog. Perhaps most notably, Mark, a double Gator graduate of the University of Florida, was forced to say a few kind words my alma mater, The Florida State University. The cause of property rights really can bring good people together!

PLF has been doing great work in the field since 1973: it has chalked up seven victories in the U.S. Supreme Court. PLF also supported my firm and client with an amicus brief when I was working in Tallahassee on the briefing of a case defending the riparian rights of beachfront property owners before the U.S. Supreme Court. Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592 (2010). PLF also supported my client before the 11th Circuit in a case I've written about here that we are trying to get the U.S. Supreme Court to review. Hillcrest Property, LLP v. Pasco County, No. 14-864.

Please consider supporting PLF, and if you are an attorney with a property rights issue, call Mark to discuss getting amicus support from PLF.

Hillcrest Property, LLP v. Pasco County - Property Owner's Reply Brief

Those who follow this blog will be familiar with our petition to the U.S. Supreme Court, Hillcrest Property, LLP v. Pasco County, No. 14-864. You'll also be familiar with the County's brief in opposition to the U.S. Supreme Court taking this case up on certiorari, and with the overwhelming amici support we received from the National Association of Home Builders, the National Association of Realtors, the National Federation of Independent Small Businesses, the International Council of Shopping Centers, the National Multifamily Housing Council, and the Florida Home Builders.

And you'll probably recall that this case raises due process, exactions, and unconstitutional conditions issues that are similar to those the U.S. Supreme Court recently dealt with in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2596 (2013). The Eleventh Circuit, though, ruled that any issues dealing with the facial constitutionality of the County's ordinances had to be raised within four years of their adoption. This case asked the U.S. Supreme Court to weigh in, and the reply brief was recently filed.

As is my tradition when my firm or I am on a case or a brief, I leave commentary to others. For an interesting writeup, see Robert Thomas's post on the issue, where he concludes: "But regardless of the claim made or the remedy sought, if the challenge is in federal court, the plaintiff must show Article III standing, and must demonstrate some injury to itself as a result of the ordinance that is different from that of the general public. And we're not sure how that happened in Hillcrest until Hillcrest actually presented development proposal which triggered application of the Right of Way Preservation Ordinance."

Keep an eye on this one. It was on the conference list for Friday, April 17, so we could have an answer as soon as today on whether the Supreme Court will take it up.

Hillcrest Property, LLP v. Pasco County - SCOTUS Brief in Opposition

Pasco County has filed its brief in opposition in Hillcrest Property, LLP v. Pasco County.

You might recall that this case has some Due Process issues that sound awfully familiar to the exactions reviewed by the U.S. Supreme Court in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2596 (2013). After the district court struck down an exactions ordinance as unconstitutional for violating Substantive Due Process, the Eleventh Circuit reversed on statute of limitations grounds. Hillcrest Property, LLP filed a petition for certiorari to the U.S. Supreme Court asking whether local governments can have their unconstitutional ordinances immunized from challenge by mere passage of time. The petition has garnered a lot of attention, including an amici brief by the National Association of Home Builders and others.

Here's the County's summary of its arguments:

This Court should deny Hillcrest’s petition for certiorari because the Eleventh Circuit’s decision applying a statute of limitations to bar Hillcrest’s facial substantive due process claim against the Ordinance neither conflicts with this Court’s decisions nor with decisions from other circuit courts of appeals nor with a state court of last resort. Moreover, Hillcrest below never raised and the magistrate judge, the district court and the Eleventh Circuit never considered the key components of Hillcrest’s petition, to wit, 42 U.S.C. § 1988 and “the federal Continuing Violation Doctrine.” Finally, Hillcrest’s and the amici’s extended parade of horribles stemming from the Eleventh Circuit’s decision is grossly exaggerated, if not completely wrong. 

Hillcrest’s petition is saturated with references to 42 U.S.C. § 1988 and “the federal Continuing Violation Doctrine.” Indeed, the second of the two questions Hillcrest presents for review involves only one issue: “whether the federal Continuing Violation Doctrine” applies. Hillcrest, however, never raised Section 1988 or any “Continuing Violation Doctrine” in the district court or in the Eleventh Circuit. Neither the magistrate judge nor the district court judge nor the Eleventh Circuit in their respective recommendation and decisions mentioned Section 1988 or any “Continuing Violation Doctrine.” This Court almost never considers issues, such as Section 1988 and any “Continuing Violation Doctrine” here, which were neither raised nor decided below. 

The other question which Hillcrest presents, “[w]hether a state statute of limitations should apply to a claim . . . seeking to enjoin enforcement of a county ordinance” claimed to be facially unconstitutional, asks this Court to jettison well-established principles from this Court and from the circuit courts of appeals. Federal courts have consistently applied state statutes of limitations against facial claims against ordinances and statutes, at least where defendants, such as the County here, raised the statute of limitations, at least outside the First Amendment and race contexts, and at least where, as the Eleventh Circuit found here, the “injury should have been apparent to Hillcrest upon the Ordinance’s passage” (Appendix 9). Moreover, there is no need to discard well-established principles here: Hillcrest’s as-applied substantive due process claim remains pending and Hillcrest may pursue damages and injunctive relief in connection with its as-applied claim. 

Hillcrest and the amici have peppered their petition and brief, respectively, with fears that the Eleventh Circuit’s decision applying a statute of limitations to bar Hillcrest’s facial claim would effectively “immunize” an ordinance or statute from constitutional challenge. What Hillcrest and the amici forget is that, while Hillcrest’s facial substantive due process claim against the Ordinance has wound its way through the Eleventh Circuit up to this Court, Hillcrest’s as-applied substantive due process claim against the Ordinance remains to be tried in district court. Moreover, circuit courts of appeals have consistently held that the bar of a statute of limitations against a facial claim against an ordinance or statute does not bar an as-applied claim against the ordinance or statute, on which the statute of limitations only begins to run once the ordinance or statute is “applied.” 

Hillcrest also has suggested that it would be unfair to bar its facial substantive due process claim because the statute of limitations could run prior to a landowner being aware that it had, or should have, a claim against the Ordinance. What Hillcrest overlooks is that the Eleventh Circuit held that the four year statute of limitations expired on Hillcrest’s facial substantive due process claim on November 22, 2009, four years from the enactment of the Ordinance on November 22, 2005. Hillcrest had applied for preliminary site plan approval on December 18, 2006, almost three years prior to November 22, 2009, and the County definitively “applied” the Ordinance against Hillcrest at least by August 23, 2007, two years, three months prior to November 22, 2009. Thus, even if Hillcrest were unaware of the Ordinance (or its impacts) prior to August 23, 2007, Hillcrest had two years three months to bring its facial substantive due process claim against the Ordinance within the four-year period the Eleventh Circuit applied. Hillcrest, however, did not sue prior to April 7, 2010, more than two years seven months after the Ordinance was definitively “applied” to Hillcrest and almost six months after the four-year statute of limitations on facial claims had expired.

Look for the reply soon. In the meantime, check out Robert Thomas's post on the amici brief.

New SCOTUS Amicus Brief in Hillcrest: Landowner and Development Groups Support Landowner

I've written about our petition to the U.S. Supreme Court before, Hillcrest Property, LLP v. Pasco County, No. 14-864. At its core, the petition asks whether local governments can immunize their unconstitutional ordinances from facial challenges by waiting to apply them to landowners, so that the statute of limitations runs out. That is, does a local government have a right to keep enforcing an unconstitutional law that is on its books, just by the passage of time?

We recently learned that a number of organizations focused on advancing the interests of landowners and developers filed an amicus brief in support of the landowner in this case, Hillcrest Property, LLP.  The National Association of Home Builders, the National Association of Realtors, the National Federation of Independent Small Businesses, the International Council of Shopping Centers, the National Multifamily Housing Council, and the Florida Home Builders all signed onto the brief, explaining:

What unites amici in this single brief is the fundamental belief in protecting the rights of private property owners, particularly against extortive and unconstitutional government regulation. Amici have a particular interest in this case, because the Eleventh Circuit Court of Appeals’ decision insulates the Respondent’s unconstitutional law from a facial substantive due process challenge. This decision now provides local government with an incentive to freely pursue constitutional mischief by enacting an unconstitutional law, and then waiting until the statute of limitations passes before enforcing it. Amici’s members, many of whom are small business owners, will now have to expend limited financial resources to bring a premature facial substantive due process claim, only to find out that their claim has no opportunity to be heard. Amici seek clarification that this Court’s precedents prevents such an outcome.

Here's the summary of their argument:

The Eleventh Circuit erred by creating a blanket rule of law that the mere enactment of an ordinance always commences a statute of limitations for a facial substantive due process claim. Such a rule creates an untenable scenario since property owners will often lack Article III standing to bring a claim within the time allowed under a statute of limitations, thereby effectively shutting the courthouse door. In cases where courts have found that the enactment of a law starts the statute of limitations clock, there have been concrete and particularized injuries to the plaintiffs. 

To uphold the Eleventh Circuit’s decision will waste precious judicial resources by requiring property owners to prematurely initiate lawsuits. At the same time, many of the amici members are small businesses, and are unable to mount a long and costly legal challenge before suffering a concrete injury. 

Further, this is not a Fifth Amendment Takings Clause case. Yet, the Eleventh Circuit incorrectly utilized statute of limitations rules from Takings jurisprudence by holding that Petitioner’s facial substantive due process claim was time-barred, because the statute of limitations commenced from themere enactment of Respondent’s unconstitutional Right-of-Way Preservation Ordinance (“Ordinance”). The court below held that the event of the Ordinance enactment, by itself, devalued Petitioner’s property. Hillcrest Prop., LLC v. Pasco County, 754 F.3d 1279, 1283 (“We are persuaded by the reasoning expressed by our sister circuit’s . . . . Hillcrest’s land became encumbered immediately upon the Ordinance’s enactment in 2005. Its property would have decreased in value at that time because any current or future development plans would have been subject to the Ordinance’s requirement that, in exchange for granting a commercial development permit, Hillcrest would have to deed part of the land to the county without payment for the acquisition.”). The Eleventh Circuit’s reliance on a purported “decrease[] in value” is in error. As this Court has explained, devaluation of property is part of the analysis of whether just compensation is due under the Takings Clause, but devaluation does not play a role in substantive due process analysis. Lingle v. Chevron, 544 U.S. 528 (2005). 

Finally, in cases where lower courts have found that the statute of limitations commences from the enactment of a law, the injury sustained by the plaintiff was fully effectuated by the enactment of the statute. Such an injury did not occur here.

As usual where yours truly is on the brief, I leave the commentary to others. There's an article over at Law 360 and an announcement by the Florida Home Builders Association.

New Petition for Certiorari - Hillcrest Property, LLP v. Pasco County - The Next Koontz?

In a new petition for certiorari, Hillcrest Property, LLP v. Pasco County, No. 14-864, to the U.S. Supreme Court asks whether local governments can immunize their unconstitutional ordinances from facial challenges by waiting to apply them to landowners. The introduction follows. Because yours truly was on the brief, look to Law 360 or Robert Thomas for the commentary.

In Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2596 (2013), this Court held that governments cannot make extortionate demands for land because they “impermissibly burden the right not to have property taken without just compensation.” This Court explained the “reality” that “landuse permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the government often has broad discretion to deny a permit that is worth far more than property it would like to take.” Id. at 2595.

Pasco County enacted and enforced an Ordinance that, in every application, violates Koontz, while depriving affected property owners of the substantive and procedural protections of eminent domain. Hillcrest attacked the Ordinance as violating Due Process both on its face and as-applied under 42 U.S.C. § 1983. On summary judgment, the district court held the Ordinance facially unconstitutional, finding that it leveraged the police power to exact land that the County would otherwise have to pay for in violation of the Due Process Clause. Characterizing the Ordinance is as “an unmistakable, abusive and coercive misapplication of government power, perpetrated to cynically evade the Constitution,” App. 69, the district court then enjoined the County from prospectively enforcing the Ordinance.

On appeal, the Court of Appeals for the Eleventh Circuit held that Hillcrest’s facial claim was barred by Florida’s four-year personal injury statute of limitations. Without analyzing the propriety under 42 U.S.C. § 1988 of applying a statute of limitations to a law that is facially void ab initio, and therefore not law at all, the Eleventh Circuit assumed that Florida’s four-year statute of limitations applied. By so doing, the Eleventh Circuit decided an important federal question that has not been settled by this Court: namely, whether a state statute of limitations can bar a federal court from prospectively enjoining enforcement of an unconstitutional law.

Even assuming that a statute of limitations can be applied to a claim that a law is facially unconstitutional (and therefore void ab initio), the Eleventh Circuit ignored the federal rules of accrual and the Continuing Violation Doctrine. First, the Eleventh Circuit conflated the remedial distinction between facial and as-applied challenges with the unrelated jurisdictional question of statutes of limitations, creating different and unworkable accrual rules for facial and as-applied Due Process claims. Second, the Eleventh Circuit barred Hillcrest’s facial Due Process claim, despite the fact that the injury upon which Hillcrest’s facial claim was based was not fully effectuated and complete until, as the district court found, the County first applied the Ordinance to Hillcrest, well within the statutory period after the Ordinance was enacted. Third, even if Hillcrest’s facial Due Process claim accrued upon enactment of the Ordinance, the Eleventh Circuit ignored the Continuing Violation Doctrine, which prevented the enforcement of the County’s facially unconstitutional ordinance from being insulated by a statute of limitations. The Ordinance subjected Hillcrest to the continuing and ongoing threat of extortionate leveraging of the police power. While this Court has clearly held that the doctrine is applicable to suits under § 1983, the courts of appeals are now intolerably split on whether the doctrine must be applied to facial Due Process challenges under § 1983.

In sum, the Eleventh Circuit has forever immunized from facial challenge a regulatory scheme that cannot ever be applied constitutionally. This enables the County to continue to extortionately leverage its police power every time it applies the Ordinance, enabling it to continue to coerce landowners into dedicating land for free the County would otherwise have to pay for. This should not be the law. The Due Process Clause prohibits government from extortionately leveraging its police power to evade the substantive and procedural protections of eminent domain. A law purposefully designed to evade this prohibition cannot stand.

Which brings us to the Questions Presented:

1. Whether a state statute of limitations should apply to a claim brought pursuant to 42 U.S.C. § 1983 seeking to enjoin enforcement of a county ordinance that, on its face, and in violation of the Fifth Amendment’s Due Process Clause, extortionately leverages the police power every time it is applied to coerce landowners into dedicating road right-of-way the county would otherwise have to pay for. 

2. If there is a statute of limitations, whether the federal Continuing Violation Doctrine applies, such that a landowner whose property is subject to the ordinance may elect to bring a facial Due Process claim either upon enactment of the ordinance or later, within the limitations period following application of the ordinance to that landowner.

Should Florida Scrap the Development of Regional Impact Process?

One of my goals in the new year is to get back on the horse here at my blog. Last year was a great year for personal and professional development, but the blog suffered. I've been encouraged to receive so many emails from readers asking me to continue working on it in 2015.

First up is something to watch for in this year's legislative session. Over at Context Florida, Bruce Ritchie has a good piece on whether Florida's Development of Regional Impact (DRI) should be scrapped. The genesis of the article was Bob Rhodes's article in Florida Planning asking the same question. Bob's opinion goes a long way, since he was the first administrator of the DRI program and he chaired the State of Florida Environmental and Land Management Study committee (ELMs II).

Think of the DRI process as a significant layer of state and regional regulation placed on top of Florida already robust growth management regime for big projects. Over time, the significance of the DRI program has eroded, but it causes a great deal of headache when it does come up. Management of legacy DRIs takes an enormous amount of time that might be better spent elsewhere.

The legislature reduced its importance to some degree with the Community Planning Act in 2011, and it considered reducing its importance even more just last session. Looks like it may well surface again this session.