Florida: Koontz spurs possible legislative fix to extortion
As our Managing Attorney for Hawaii, Robert Thomas, reports, a bill (HR 1077) is making its way through the Florida Legislature that would prohibit local governments from imposing any kind of exaction (including monetary ones) on land-use permit applicants, unless the exaction bears an essential nexus and rough proportionality to the impact of the project in question.
In essence, the bill would codify two Supreme Court decisions: Nollan v. California Coastal Commission (which requires an “essential nexus” and which, incidentally, PLF argued and won at the Supreme Court), and Dolan v. City of Tigard (which requires “rough proportionality”).
HB 1077 is an obvious response to PLF’s recent Supreme Court victory in Koontz v. St. Johns River Water Management District (2013). In Koontz, the Court made clear that even monetary exactions imposed in the land-use permit context–and not just real-property dedications–must satisfy Nollan and Dolan’s “essential nexus” and “rough proportionality” requirements. The Court reversed the Florida Supreme Court, which had held that monetary exactions are exempt from such requirements.
If HB 1077 becomes law, it will provide additional, statutory protection to land-use permit applicants in Florida (above and beyond federal constitutional protections under Nollan and Dolan) who face extortionate demands from local governments.
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St. Johns River Water Management District v. Koontz
Coy A. Koontz sought to develop commercial land, most of which lies within a riparian habitat protection zone in Orange County, Florida. He applied for a dredge and fill permit with the St. Johns Water Management District, which agreed to grant the permit only on the condition that he place a conservation easement over his land, and perform mitigation off-site by replacing culverts and plugging certain drainage canals on distant District-owned properties. When Koontz refused to perform the off-site mitigation, St. Johns denied the permit. PLF successfully represented Koontz before the U.S. Supreme Court, which held that a land-use agency cannot condition a permit on the payment of a mitigation fee to be used to pay for facilities that have no connection to the impacts of the permitted development.Read more