Koontz: Could it Get Any Worse?Posted: June 18, 2014 Filed under: Exactions | Tags: Dolan, Florida, Koontz, Nollan, Permits, Wetlands Leave a comment
Just when you thought the Koontz litigation couldn’t get any worse (see my article, Koontz: the Very Worst Takings Decision Ever?),the Florida Court of Appeals has issued a decision in the Koontz case on remand. The Court split 2 to 1.
To recap, the case arose from the St John’s Water Management District’s denial of a permit to fill wetlands after the plaintiff and the District failed to come to terms on a combination of easement restrictions and off-site mitigation measures that would have allowed the District to issue the requested permit. The Florida Supreme Court, reversing a decision by the Florida Court of Appeals, ruled that the Nollan/Dolan “exactions” standards do not apply to a permit denial when the government has imposed no “exactions.” The U.S. Supreme Court reversed, holding that Nollan/Dolan do apply to a permit denial following a landowner’s refusal to accede to a demand for an exaction.
In this latest ruling in the case, on remand from the U.S. Supreme Court, the Court of Appeals reasoned that, since the court’s 2009 decision was “entirely consistent” with the Supreme Court’s 2013 decision, and since the Supreme Court’s opinion “does not set forth a new legal construct” for analyzing the issues in the case, it should “reaffirm” its prior decision upholding the finding of a taking and a compensation award without the benefit of further briefing. Given that the Court of Appeals previously awarded “just compensation” for a “taking” of private property, and the Supreme Court subsequently declared that the claim in Koontz was NOT based on a “taking,” the majority’s logic is more than a little suspect.
Judge Jacqueline Griffin, who dissented from the Court of Appeals’ prior ruling, dissented once more, in an opinion that is twice as long as the majority opinion. She argued that the majority’s summary reaffirmance of its prior ruling “without any further work” was “both incorrect and unfair.” As she saw the case on remand, it presented the question whether the plaintiff was entitled to a monetary recovery under section 373.617 of the Florida statutes, which authorizes “damages” awards for an agency action that was an “unreasonable exercise of the state’s police power constituting a taking without just compensation.” She reasoned that since the Supreme Court explicitly said this case does not involve a taking, any summary disposition of the case must be in favor of the District, not Koontz. At a minimum, Judge Grifin said, “there [was] much for this court to do” if it wished to reaffirm its prior finding of a taking. In either event, she concluded, the majority erred in reaffirming its prior ruling without the benefit of additional briefing.
One of mysteries of the Supreme Court’s Koontz decision is what is the basis for what the Court called “a Nollan/Dolan unconstitutional conditions violation.” This latest offering from the Florida Court of Appeals underscores the depth of the mystery.