Agenda - Planning Commission - 11/07/2013

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.............. pies of "nexus" and "proportionality" circum- scribe the types and extent of public facilities and resources for which land developers are responsible based on their developments' impacts. In Nollan, the U.S. Supreme Court held that, in order to withstand scrutiny under the Takings Clause of the Constitution, there must be an "essential nexus" between real property dedications required by government as a condition of development approval and the governmental objective to be achieved. In the Nollan case, the Court held that this nexus did not exist because the California Coastal Commission's demand for an easement run- ning north -south along the beach was not sufficiently related to the "east -west" objec- tive of protecting public access to (not along) the beach. It is often said that Nollan requires that "the nature" of the required dedication be related to the governmental objective. Seven years later, in Dolan, the U.S. Supreme Court clarified that a taking also may occur if a required dedication is not related in extent, as well as in nature, to the govern- mental objective to be accomplished; in that case, mitigating the impacts of a proposed development on the local floodplain and bike and pedestrian paths. The Dolan Court over- turned the governmental condition for land dedication because there was no evidence in the record that the amount of land to be dedicated was "roughly proportionate" to the extent of impact the new development would have on the public. There were, however, a few questions Nollan and Dolan left unanswered, such as, for example, whether they apply to exactions of money and not just to dedications of real prop- erty. In addition, and perhaps more esoteri- cally, what if a potential dedication is merely discussed between governmental officials and a property owner, but the conditional approval is never consummated, only talked about? Is there a point in discussions when the property owner can stand up from the conference room table, declare that staff's proposals violate Nol- lan and Dolan, and dart out to the courthouse? After all, ifa proposed condition is rejected, no property (or money) is actually converted to public ownership. Most agree, nonetheless, that the principles of nexus and proportional- ity remain the standards by which even failed negotiations should be governed. What to do? KOONTZ V. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT Coy Koontz Sr. purchased a 14.9-acre property in the St. Johns River Water Management Dis- trict (the District), east of Orlando, Florida, in 1972. The northern 3.7 acres of the property, though classified as wetlands, were viewed as the most appropriate for development. Pur- suant to state law, two District permits were required to develop the property. In order to meet state law requirements, the District required applicants to offset environmental impacts through mitigation either on -site or by "creating, or preserving wetlands else- where" (Koontz Slip Opinion p. 3). In 1994, Koontz applied for permits to develop the 3.7-acre portion of his property and, in order to meet his mitigation require- ments, he offered to give the District a con- servation easement over the remaining 11.2 acres. As a counterproposal, if you will, the District proposed approval under two different scenarios: (a) that only one acre be developed, with the conservation easement then applying to the remaining 13.9 acres; or (b) that the 3.7 acres be developed as proposed (along with the proposed conservation easement for the rest) and that off -site mitigation be provided either by (1) enhancing 5o acres of off - site District wetlands or (2) an equiva- lent off -site alternative. The District also invited Koontz to pro- pose equivalent mitigation alternatives. How- ever, believing the District's alternatives to be excessive, he instead filed suit in state court. Based on expert testimony at trial, the state court found that the 11.2-acre easement originally proffered by Koontz sufficiently offset the development's impacts and, there- fore, the alternatives proposed by the District failed to meet Nollan's "essential nexus" and Dolan's "rough proportionality" requirements. The intermediate appellate court affirmed, but, distinguishing Nollan and Dolan from Koontz's situation, the Florida Supreme Court reversed in favor of the District. ZONINGPRACTICE 1o.13 AMERICAN PLANNING ASSOCIATION ipage3