Agenda - Planning Commission - 11/07/2013

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The Florida Supreme Court found Nollan and Dolan inapplicable because, since the District never approved Koontz's application, the mitigation never occurred and, therefore, no taking ever occurred. In addition, it dis- tinguished the property -based dedications of Nollan and Dolan from the mitigation that required Koontz to spend money. Since there has been a division ofau- thority among the lower courts on exactly these points, the U.S. Supreme Court agreed to review the case. It is worth noting, of course, that within a day of the Koontz deci- sion, the Supreme Court also issued headline - grabbing decisions related to affirmative ac- tion, the Voting Rights Act, adoption and the Indian Child Welfare Act, and the Defense of Marriage Act. The Koontz Holding The government's demand for prop- erty from a land -use permit applicant must satisfy the requirements of Nollan and Dolan even when the gov- ernment denies the permit and even when the government's demand is for money. Nonetheless, the reasoning that the majority lays out and the oppor- tunity it took to comment on and to characterize land -use negotiations the way it did, are significant and undoubtedly will result in conflicting interpretations. KOOPJTZ: WHAT THE U.S. SUPREME COURT HELD AND WFIY Some believe that the holdings in Koontz, on their face, do not necessitate a significant change of course for most planners who al- ready use Nollan and Dolan as their guide; or, as the Koontz dissent put it, no evidence was presented that local officials "routinely short-circuit Nollan and Dolan to extort the surrender of real property interests having no relation to a development's costs." Holding 1: Nollan and Dolan Apply Even in Permit Denials The majority held that the principles of Nollan and Dolan apply regardless of "whether the government approves a permit on the condi- tion that the applicant turn over property or denies a permit because the applicant refuses to do so." In other words, Nollan and Dolan can be violated regardless of whether mitiga- tion is required as a condition of final ap- proval or is demanded and rejected, resulting in denial. In reaching its holding, the majority touched on four key areas. Excessive conditions may not be used to withhold a governmental benefit to a person who exercises a constitutional right. Specifi- cally, government cannot deny a land -use permit (a benefit) on the condition that an applicant makes a dedication in excess of its proportionate impact on the public facilities or resources (a constitutional right violation). The majority makes this well -settled point, it seems, to demonstrate the potential for gov- ernment to "coerce" property owners to dedi- cate more property or contribute more mitiga- tion than their impacts require by threatening to withhold approval. The government's authority to deny ap- proval outright is not a basis for exacting an excessive demand. The majority goes on to say that the government's authority to with- hold approval does not mean it may do so simply because "someone refuses to give up constitutional rights" (i.e., the right to have mitigation limited only to the development's proportionate impact). Conversely, it would follow that approval may be lawfully withheld if an applicant refuses to make a dedication that does meet nexus and proportionality requirements. The question on this point and the preceding point, for the planner, will turn out to be whether the exaction does, in fact, comply with Nollan and Dolan. More on this below. The Takings Clause may be violated even where there is no taking. "Extortionate de- mands 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," the majority writes. It goes on to conclude that "[w]here the permit is denied and the condition is never imposed, nothing has been taken." The idea that the Takings Clause can be violated without there being a taking was a point of disagreement among the lower courts (and land -use attorneys) since Dolan was decided, which usually boils down to the question of the appropriate remedy if a demand for mitigation is rejected and, there- fore, the transfer of land (or money) to the government never occurs. The majority concluded that if Nollan and Dolan are violated, but no property is taken, just compensation is not available as a remedy. The dissent suggests that the appro- priate remedy in this circumstance would be removal of the unconstitutional condition and recovery of any damages available under state law. The majority leaves this question to the Florida courts to resolve on remand. Mitigation alternatives complying with Nollan and Dolan preclude a taking. As noted, the District offered several mitigation alterna- tives to Koontz and invited him to propose others. This raised the question of whether a taking can be found if alternatives determined to be constitutional under Nollan and Dolan are among those rejected by an applicant. The Koontz opinion is clear on the point: "so long as a permitting authority offers the landowner at least one alternative that would satisfy Nol- lan and Dolan, the landowner has not been subjected to an unconstitutional condition." Holding a: Plollan and Dolan Apply Even if the Demand Is for Money The District argued that an obligation to spend money does not amount to a taking. The majority disagreed and held that where there is a "direct link between the govern- ment's demand and a specific parcel of real property" the monetary exaction is sufficiently land -based to trigger the Nolan/Dolan analy- sis. The dissent, conversely, viewed the Dis- trict's off -site mitigation option as simply im- posing "an obligation to perform an act (the improvement of wetlands) that costs money." In sum, the Court's majority concluded Nollan and Dolan would apply to the monetary exaction in Koontz because the off -site mitiga- tion Koontz could have paid for "several miles away" was sufficiently related to the property proposed for actual development. On Remand Beyond the holdings themselves, the majority leaves to the Florida courts a number of key points to resolve, including: 1. whether the manner in which the case was brought precludes adjudication of the un- constitutional conditions claim; 2. what damages, if any, are appropriate in the case; ZONINGPRACTICE io.13 AMERICAN PLANNING ASSOCIATION I page 4