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Archive for May, 2009

Court Rules That “Off-Site” Mitigation Can Be An Improper Permit Condition

Tuesday, May 12th, 2009

Case involves a landowner, Mr. Koontz, who requested permits from St. John’s River Water Management District (WMD), in order to develop a greater portion of his commercial property than allowed by existing regulation.  To develop the property, Mr. Koontz sought a management and storage of surface waters permit to dredge 3.25 acres of wetlands.  WMD’s approval of the permits was conditioned on satisfaction of additional requirements, including deeding his excess land to a conservation area and “off-site” mitigation.  Mr. Koontz agreed to deed his excess land to a conservation area, however, he rejected the “off-site” mitigation condition.  Since not all conditions were agreed to, WMD denied the permit.

Mr. Koontz then brought an inverse condemnation suit claiming improper “exaction” (conditions attached to permit approval) by the WMD.  The issue in this case is what constitutes an exaction.  Is it only the taking of physical land?  If the disputed condition imposed does not involve a physical dedication of land, but instead a request for money to be spent to improve other property, does it qualify as an exaction?

The court based its decision on the Nollan/Dolan test (Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994)) and upon the U.S. Supreme Court’s decision in the later Ehrlich v. City of Culver Citycase (512 U.S. 1231 (1994)) in which a city conditioned a permit on payment of money to build tennis courts and purchase artwork (i.e., request for money to be spent to improve other property).  In Ehrlich, the U.S. Supreme court held that the exaction requested failed the “Dolan test”, in which there must be a “rough proportionality” between the condition required for permit approval and the impact of the proposed development.

Conclusion:Florida’s Fifth District Court of Appeal concluded that, like in Ehrlich, requests for  money may qualify as exactions, and thus must then satisfy the Nollan/Dolan test.  In this case, the trial court found that the imposed condition of “off-site mitigation” exceeded the Dolan’s “rough proportionality” threshold and that the conservation easement offered by Mr. Koontz was enough to off-set the proposed development.  In summary, the imposed condition of “off-site mitigation” was an exaction and was improper.

Case Name: St. Johns River Water Management District v. Coy a. Koontz, Jr. Et. Al., 5th District Court of Appeal, January 9, 2009.

Update: On March 20, 2009, the issue in this case was certified to the Florida Supreme Court.

Future Watch – How Will NEPA Be Used For Climate-Change Policies?

Tuesday, May 12th, 2009

The National Environmental Policy Act (NEPA) is a federal law that requires all major federal “actions” to consider the environmental impacts of their decisions.  For example, if a highway is being built, a NEPA analysis (an Environmental Impact Study or EIS) is required to be performed to determine the impact of that project to the environment.  The NEPA analysis also highlights alternative approaches to the project.

Some environmentalists are starting to look at NEPA as a new tool to push climate change issues.  Environmental groups have recently petitioned to amend NEPA to make it mandatory to address climate change as part of the NEPA analysis.  NEPA already requires that an EIS include evaluations of energy consumption.  The petitions have requested that NEPA regulations also require the project to be analyzed in terms of its emissions of global warming gases and impacts to future climate change.  As Seth Kaplan of the Conservation Law Foundation stated, “NEPA was intended to be, and can be, a vehicle for fundamentally questioning the purpose of the project.”

Environmental professionals and others involved in NEPA should keep abreast of any future changes to the law and might start investigating how global warming and future climate change can be evaluated for projects.  California (surprise, surprise) already has stricter regulations for NEPA than federal legislation and might serve as a useful indicator as to where NEPA regulations might progress in the future.

Before You Locate Your Business…

Monday, May 11th, 2009

A recent Reuters Article, entitled “Top Reasons to Consult an Attorney About Business Location,” described the top 8 reasons to consult an attorney before deciding on a location for your business.  The full Reuters Article can be viewed here:

The article identified the following reasons to have your attorney review your lease or contract before signing:

  1. To Review a Lease
  2. To Review a Purchase Agreement
  3. To Draft Critical Lease Clauses
  4. To Help You Decide Whether to Lease or Purchase
  5. To Negotiate a Lease
  6. To Research Zoning Laws
  7. To Review a Real Estate Agent’s Contract
  8. To Ensure Compliance with the ADA

In addition to the eight reasons discussed, two more reasons can be added:

Ninth Reason:  To Determine Your Liability From Any Existing or Potential Environmental Issues. 

Are you locating in an industrial setting?  Does your business handle hazardous waste? Are you locating in a commercial strip mall? Is the property currently under a Consent Order with the Florida Department of Environmental Protection to clean up existing contamination? The affect of these issues depends on your specific case, your type of business, and whether you have chosen to lease or buy.

Tenth Reason:  To Ensure Clear Title.

Are there any restrictive covenants on the property that might prohibit your type of business? Does the restrictive covenant prohibit a certain land use?  Does it require that the property be used for only certain businesses?

An attorney familiar with these areas of law can further assist you.

Legislation Watch – Access to Florida Beaches

Monday, May 11th, 2009

Bill in the Florida House, HB 527, would make it a misdemeanor crime for a private landowner to block access to the beach or to display signs indicating a beach is not accessible to the public (private only).  This law strengthens existing constitutional law that states that the public owns all the state shorelines seaward of the high water mark.  If approved, the effective date of this legislation would be July 1, 2009.

Update: Withdrawn from consideration on May 2, 2009 for the current legislative session.  The issue may be revisited in 2010.

Violation of Florida’s Litter Law Can Land Business Owners in Jail

Monday, May 11th, 2009

The owner of a contracting company (Mark Ross Carpeting, Inc.) in Escambia County was recently arrested by Florida Department of Environmental Protection (FDEP) law enforcement agents for violating the Florida Litter Law.  The owner, Mark Ross, allegedly disposed of 320 cubic yards of waste carpet and debris on wooded property adjacent to his business location.  Improper disposal of discarded waste, in any quantity for commercial purposes, or of waste that is considered hazardous is a third degree felony punishable by up to five years in prison and/or a fine up to $5,000.

Who is Responsible for Permitting Wells in Florida?

Monday, May 11th, 2009

A recent case involving a housing development, subject to a Development of Regional Impact (DRI) issued in 1977 by the Department of Community Affairs (DCA), determined which authority in Florida may restrict and permit installation of consumptive wells.  Several property owners had applied for permits from the Northwest Florida Water Management District (WMD) to extract non-potable water for irrigation purposes.  Since the 1977 DRI prohibited the installation of wells, DCA issued Notices of Violation (NOVs) to the property owners claiming that the proposed wells violated the DRI and that DCA’s approval for the proposed wells had not been obtained.

The court concluded that WMDs have “exclusive authority” to permit the consumptive use of water in Florida.  Therefore, the DCA has no authority in the permitting process of wells, and the installation of wells does not require approval through the DRI process.

Conclusion: Permitting by Water Management Districts is all that is required to obtain approval for consumptive use of water in Florida.

Case name: Northwest Florida Water Management District v. Department of Community Affairs, et al., Case No. 1D08-4993, 1st District Court of Appeal, Opinion, March 10, 2009.