tag:blogger.com,1999:blog-83082033924690201512024-03-13T02:17:29.739-04:00The Florida Land EnvironmentA look at environmental and land use law in Florida, considering private property rights, growth management, comprehensive planning, environmental law, and strategies for landowners.Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.comBlogger156125tag:blogger.com,1999:blog-8308203392469020151.post-31105007967308071532016-03-10T05:30:00.000-05:002016-03-14T18:03:42.648-04:00In Cementing Koontz's Legacy, the Florida Supreme Court Shows Why Taxpayers Will Foot an Enormous Bill for Government's MistakesRecently, the Florida Supreme Court <a href="https://efactssc-public.flcourts.org/casedocuments/2014/1092/2014-1092_disposition_134372.pdf">refused to hear</a> the <i>Koontz </i>case yet again. Too bad for taxpayers that it took the Court eighteen months to make a decision.<br />
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Recall that, in the long <i>Koontz </i>saga, in 1994, the government agreed to issue a permit to fill wetlands if the landowner paid to improve government culverts miles away. The landowner refused and sued when the government denied the permit. <a href="http://blog.pacificlegal.org/koontzs-decades-long-battle-for-property-rights-comes-to-a-just-end/">A decade ago</a>, in 2006, the trial court found a taking and awarded $477,000 in just compensation.<br />
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The Florida Supreme Court said the landowner could only challenge the unreasonable permit demand after giving in to it. The U.S. Supreme Court, though, ruled for landowners (1) that the <i>Nollan-Dolan</i> exactions test applies even where a permit is denied because an applicant rejects an exaction, and (2) that the <i>Nollan-Dolan</i> exactions test applies to exactions other than real property, such as where a permit applicant is required to pay for work. <i>Koontz v. St. Johns River Water Mgmt. Dist.</i>, 133 S.Ct. 2586 (2013). </div>
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Not long afterwards, in late 2013, the Florida Supreme Court <a href="http://www.jacobtcremer.com/2013/11/the-aftermath-of-koontz-update-and.html">punted the case</a> back to the appellate court for further proceedings. The 5th DCA made short work of the remand:<br />
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Because our decision in Koontz IV is entirely consistent with the decision of the United States Supreme Court, we adopt and reaffirm Koontz IV in its entirety and affirm the judgment below. We deny Appellant's request to reopen the briefing. The constitutional issues decided by the United States Supreme Court were fully briefed here, and that Court's holding does not set forth a new legal construct with which we must re-analyze these issues. To the extent that Appellant seeks to brief the state law issues left open by the Supreme Court, we conclude that those issues were either disposed of in Koontz I or Koontz IV, or they were not preserved and presented in those proceedings. </blockquote>
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Yet again, in June 2014, the government asked the Florida Supreme Court to review the case. Over a year and a half later, the Florida Supreme Court has finally concluded this long saga, and the Koontz family will now return to the trial court to collect their just compensation. </div>
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Which leads us to the difficult part for taxpayers: once the government made a bad decision, it doubled down for over twenty years. Now, taxpayers will be stuck not only with the bill for those bad decisions, but also the bill for the Koontz family's attorneys to prove that and the interest for the past two decades.</div>
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Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-47203762368540073892016-03-03T05:30:00.000-05:002016-03-03T05:30:08.218-05:00A new era of coastal construction in South Florida leads to new regulatory challenges and opportunities<div>
The booming coastal construction market in South Florida means that buildings are being built bigger, taller, and deeper. What does that mean for the developer? When it comes to Coastal Construction Control Line (CCCL) permitting, it means new challenges - and some new opportunities.</div>
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I recently coauthored a <a href="http://campaign.r20.constantcontact.com/render?ca=ccecd0b0-3eaf-4018-b684-4413d17a6df1&c=c32c7e40-12ae-11e4-b0d2-d4ae5292c973&ch=c36122d0-12ae-11e4-b0d2-d4ae5292c973">new legal update</a> with my <a href="http://files.ctctcdn.com/2da12ccf301/2c4f3f83-d3dc-4f3b-9485-ea8f1405af1c.pdf?utm_source=2016+News+Alert+-+Construction&utm_campaign=2016+News+Alert+construction&utm_medium=email">colleagues at Stearns Weaver</a> explaining the background to this new era and how regulators at the Florida Department of Environmental Protection (DEP) and within local governments are responding. We explained:<blockquote class="tr_bq">
In the past, many projects could accommodate excavated sand onsite. When they could not, offsite placement on dry, sandy beaches was relatively easy. Oftentimes now, though, sites are too constrained, and offsite placement is becoming more challenging for two reasons. </blockquote>
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First, projects in some areas are not located near dry beaches that need sand. Traditionally, FDEP has only allowed excavated sand to be placed on the dry sandy beach nearby the development. Recently, we developed a new approach with FDEP on several projects to allow sand excavated from constrained development sites to be placed in eroded "hotspot" areas located within the wet sandy beach, below the mean high water line. Each project site must be evaluated independently to assess whether this approach will work from a timing and cost feasibility standpoint, keeping in mind the applicable regulations and permit conditions that will be applied to provide FDEP the assurances needed regarding the quality of sand. Since sand sources in Florida for local governments to maintain beaches are limited and costly, this approach should be viewed as a positive alternative for addressing targeted eroded beaches. </blockquote>
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The second reason offsite placement is becoming more challenging is due to some local governments regulating and controlling the quality and placement of sand despite FDEP's role and authority, and imposing more stringent requirements on this activity. We are seeing a variety of approaches by local governments, including: </blockquote>
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<li>Regulating when and how sand may be removed from or placed on coastal properties, using conditions that are stricter than FDEP's regulations;</li>
<li>Providing for fines, penalties, or refusal to issue building permits if their sand management regulations are not met;</li>
<li>Conditioning development approvals on sand quality, placement, and other actions;</li>
<li>Requiring large bonds to be posted and/or agreements in order to assure future remediation of sand in the event the local government determines the sand quality does not meet their standards; and</li>
<li>Seeking to have FDEP adopt more stringent testing requirements for excavated sand as a part of FDEP's ongoing CCCL program.</li>
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It will take time, but I predict that we will see these innovations spreading to Florida's other coasts in the near future. </div>
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Please email me if you'd like to receive more legal updates like this as soon as they're released.</div>
Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-7619495679186143352016-02-26T07:00:00.000-05:002016-02-26T07:00:17.807-05:00Did the Supreme Court Mean It When It Said Landowners Must Have a Practical Way of Challenging an Agency's Jurisdiction?In <a href="http://www.jacobtcremer.com/2016/02/wotus-breaking-news-6th-circuit-to-hear.html">my last post</a>, I wrote about how the nationwide stay would likely remain in effect for WOTUS, the new rule written to redefine the meaning of the Waters of the United States under the Clean Water Act by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers. As I implied <a href="http://www.jacobtcremer.com/2016/01/new-brief-article-what-does-wotus-mean.html">last month</a>, if WOTUS survives the rule challenges, one effect may be that there are fewer Jurisdictional Determination (JDs).<br /><br />If that happens, then it would make two cases that are being litigated by the <a href="http://www.jacobtcremer.com/2015/04/consider-supporting-pacific-legal.html">Pacific Legal Foundation</a> before the U.S. Supreme Court even more important. In <i>U.S. Army Corps of Engineers v. Hawkes Co.</i>, <a href="http://www.scotusblog.com/case-files/cases/united-states-army-corps-of-engineers-v-hawkes-co-inc/">Case No. 15-290</a> (2015), The Supreme Court will decide whether a JD can be challenged in court, or whether a landowner has to face the unenviable choice of having to spend tens of thousands of dollars to get a permit denied versus moving forward with a project without asking permission and risking fines and criminal penalties. <br /><br />In Hawkes, a peat mining company wanted to mine in wetlands. The Corps issued a JD claiming jurisdiction, and issued the JD even after an administrative challenge. The peat company sued, but the district court dismissed, finding that the JD was not a challengeable final agency action. The Eighth Circuit reversed, splitting with the Ninth and Fifth Circuits. <br /><br />The Eighth Circuit said that all final agency actions for which there is no other adequate judicial remedy must be able to be challenged. To be final, an agency’s action must be the end of the decisionmaking process, and it must have legal consequences for someone. Like every other court that has addressed the issue, the Eighth Circuit found that a JD was the end of a decisionmaking process. It disagreed with other courts, though, and found that the JD jad legal consequences, since the “prohibitive costs, risk, and delay of these alternatives to immediate judicial review” were inadequate substitutes. It held that the Supreme Court had mandated judicial review as a remedy in such cases in <i>Sackett v. EPA</i>, 132 S.Ct. 1367 (2012).<br /><br />Another very similar case has been pending before the Supreme Court since late 2014. The Supreme Court initially denied certiorari of <i>Kent Recycling Services, Inc. v. U.S. Army Corps of Engineers</i>, <a href="http://www.scotusblog.com/case-files/cases/kent-recycling-services-llc-v-united-states-army-corps-of-engineers/">Case No. 13-30262</a> (2014) (also known by the name of another plaintiff below, <i>Belle Co., LLC</i>). After the <i>Hawkes </i>decision by the Eighth Circuit, PLF moved for rehearing, which has yet to be decided.<br /><br />Oral argument in <i>Hawkes </i>will be on March 30, 2016, so both cases should be decided soon. Ultimately, the Supreme Court will be decided a simple question: did it mean what it said in <i>Sackett</i>, that landowners must have a practical way to challenge an agency’s assertion of jurisdiction over their land?Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-47001488724697986942016-02-22T13:26:00.000-05:002016-02-22T13:26:46.799-05:00WOTUS Breaking News: 6th Circuit to Hear Rule Challenge, Stay Likely to Remain in EffectBig news today in the environmental world: the <a href="http://www.law360.com/environmental/articles/753120?nl_pk=6d7bd515-3d0d-4282-bd48-5ab55a6e2c9c&utm_source=newsletter&utm_medium=email&utm_campaign=environmental">6th Circuit has said</a> it will hear challenges to a new rule developed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, known as WOTUS ("Waters of the United States"). This mean that the nationwide stay that the 6th Circuit issued last year is likely to remain in place until it comes to a final decision on the merits of the 20-odd lawsuits filed against the rule.<div>
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Readers of this blog have seen <a href="http://www.jacobtcremer.com/2015/09/federal-jurisdiction-over-wetlands.html">several posts</a> on this topic in recent months because of its importance to landowners in Florida. As I <a href="http://www.jacobtcremer.com/2016/01/new-brief-article-what-does-wotus-mean.html">wrote last month</a>,<blockquote class="tr_bq">
On August 28, 2015, a new rule promulgated by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers took effect in Florida. The rule, called WOTUS, seeks to clarify the definition of “waters of the United States,” which is critical to those agencies’ regulatory reach under the Clean Water Act (CWA). The CWA prohibits the discharge of pollutants into waters of the United States without a permit. Violators are subject to penalties of thousands of dollars per day (even if unintentional) or costly lawsuits by neighbors or environmentalists.</blockquote>
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Many of the waters subject to federal jurisdiction are easy to identify: navigable water bodies, rivers, streams, creeks, impoundments of those waters, and wetlands directly adjoining any of those waters. Beyond those, though, what qualifies has been unclear for decades. A series of U.S. Supreme Court cases created confusion because the justices could not agree on just how far federal agencies could reach. This meant that, for many small waters and wetlands, the Corps had to perform a site-specific jurisdictional determination. While burdensome to the agencies, this analysis at least forced them to use science to determine whether more-isolated waters and wetlands had a “significant nexus” with a water that was subject to federal jurisdiction.</blockquote>
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Now, the federal agencies have adopted WOTUS, a rule that will mean fewer case-by-case analyses. While this may make the process more “efficient” for the agencies, that comes at the expense of more areas automatically being deemed as falling under federal jurisdiction simply because the agency says so, rather than because of any scientific connection to another water.</blockquote>
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Many groups filed suit last year, and after one federal district (trial) court in North Dakota issued a stay limited to the states involved in that case, the 6th Circuit issued a nationwide stay on the application of WOTUS. Then, the fight became about whether federal district courts or circuit courts should hear the substance of the parties' challenges to WOTUS. In the meantime, the 11th Circuit, which has jurisdiction over Florida's challenge, cancelled oral arguments on its case, saying it would reschedule once the 6th Circuit had made a decision.</div>
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Today, the 6th Circuit did just that, ruling that it had jurisdiction over the challenges, and not district courts. <a href="http://thehill.com/policy/energy-environment/270281-court-to-hear-case-against-obamas-water-rule">Although it is not yet entirely clear</a>, the decision most likely means that the nationwide stay on any application of WOTUS will remain in place. Landowners should be pleased with the direction of this litigation so far.</div>
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Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-81161761262457001452016-01-20T05:30:00.000-05:002016-01-20T05:30:08.122-05:00New Brief Article: What Does WOTUS Mean for the Timber Industry and Forest Landowners?My friends at the <a href="http://www.swpa.ag/">Southeastern Wood Producers Association</a> recently published an article I wrote for them in their quarterly magazine, Out of the Woods: <i>What Does WOTUS Mean for the Timber Industry</i>. I've <a href="http://www.jacobtcremer.com/2016/01/new-brief-article-how-does-wotus-affect.html">written several times</a> about <a href="http://www.jacobtcremer.com/2015/09/federal-jurisdiction-over-wetlands.html">this issue</a> and the Waters of the United States Rule. The problem comes down to the extent of the federal government's reach over water bodies and wetlands, especially those that have nothing to do with navigation or interstate commerce. The article is excerpted below. <br />
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On August 28, 2015, a new rule promulgated by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers took effect in Florida. The rule, called WOTUS, seeks to clarify the definition of “waters of the United States,” which is critical to those agencies’ regulatory reach under the Clean Water Act (CWA). The CWA prohibits the discharge of pollutants into waters of the United States without a permit. Violators are subject to penalties of thousands of dollars per day (even if unintentional) or costly lawsuits by neighbors or environmentalists.</blockquote>
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Many of the waters subject to federal jurisdiction are easy to identify: navigable water bodies, rivers, streams, creeks, impoundments of those waters, and wetlands directly adjoining any of those waters. Beyond those, though, what qualifies has been unclear for decades. A series of U.S. Supreme Court cases created confusion because the justices could not agree on just how far federal agencies could reach. This meant that, for many small waters and wetlands, the Corps had to perform a site-specific jurisdictional determination. While burdensome to the agencies, this analysis at least forced them to use science to determine whether more-isolated waters and wetlands had a “significant nexus” with a water that was subject to federal jurisdiction.</blockquote>
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Now, the federal agencies have adopted WOTUS, a rule that will mean fewer case-by-case analyses. While this may make the process more “efficient” for the agencies, that comes at the expense of more areas automatically being deemed as falling under federal jurisdiction simply because the agency says so, rather than because of any scientific connection to another water.</blockquote>
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Thus, WOTUS now designates all tributaries and waters and wetlands “adjacent” to or “neighboring” other jurisdictional waters as under federal jurisdiction. In some cases, waters and wetlands 1,500 feet away from another water are considered “neighboring,” even if there is no hydrologic connection. Even ephemeral drains and ditches that water only flows in after a rain are now almost always under federal jurisdiction.</blockquote>
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These changes may not seem important at first, since the timber industry has traditionally been excluded from many permitting requirements. For example, CWA permits are not required to manage the runoff from common forestry practices, such as site preparation, thinning, control burns, and road construction, as long as they are undertaken in accordance with standard industry practice. Even so, WOTUS is important to watch because it will expand the need for obtaining CWA permits for some commonplace practices, such as for application of herbicide and fertilizers in and near wetlands and for construction of some roadside ditches near wetlands. Prudent professionals will need to think twice about past common knowledge.</blockquote>
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WOTUS has provoked fierce opposition. Legislation to block it is progressing, but it would likely face a presidential veto. At least half the states are challenging WOTUS in court. A federal judge has temporarily stopped the rule’s implementation, but it is not clear whether this will last. Therefore, the ultimate fate of WOTUS remains unclear. For now, the timber industry should be actively engaging elected officials to encourage them to take action.</blockquote>
As I mentioned last week in a <a href="http://www.jacobtcremer.com/2016/01/new-brief-article-how-does-wotus-affect.html">post about another article</a> I wrote on this topic, this issue is moving fast and there are a few updates since I wrote the article:<br />
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<li>The Government Accountability Office found that EPA broke <a href="http://www.nytimes.com/2015/12/15/us/politics/epa-broke-the-law-by-using-social-media-to-push-water-rule-auditor-finds.html?_r=0">federal lobbying and propaganda</a> laws in its zeal for pushing the rule forward. </li>
<li>The Senate voted to kill the rule; the House <a href="http://southeastagnet.com/2016/01/13/house-passes-resolution-to-disapprove-wotus-rule/">did the same recently</a>; and President Obama has vowed to veto any such measures.</li>
<li>A federal judge enjoined the rule's implementation <a href="http://www.environmentalleader.com/2015/12/14/new-waters-of-the-us-rule-on-hold-enduring-debate-creates-uncertainty-for-developers/">across the entire country</a>, including Florida. However, it's not clear how long this injunction will last, and the legal wrangling is <a href="http://www.bna.com/courting-wotus-b57982065714/">expected to continue for some time</a>.</li>
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I'll have a more comprehensive update on the status of the litigation in the coming week.<br />
<br />Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-85771575515465285652016-01-11T05:30:00.000-05:002016-01-11T05:30:04.860-05:00New Brief Article: How Does WOTUS Affect Your Clients' Wetlands?Many thanks to the <a href="http://www.hillsbar.com/">Hillsborough County Bar Association</a>, which published an article I wrote for their <i>Lawyer </i>magazine entitled <i><a href="http://c.ymcdn.com/sites/www.hillsbar.com/resource/resmgr/magazine/Nov-Dec_2015_Lawyer_magazine.pdf">How Does WOTUS Affect Your Clients' Wetlands</a>? </i>Readers of my blog will be <a href="http://www.jacobtcremer.com/2015/09/federal-jurisdiction-over-wetlands.html">familiar with my earlier posts</a> on the Waters of the United States Rule. The question this new rule raises is how far does the federal government's power reach over water bodies and wetlands, especially those that have nothing to do with navigation or interstate commerce? The article is excerpted below.<br />
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On August 28, 2015, a new rule promulgated by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers took effect in Florida. 80 Fed. Reg. 37054 (June 29, 2015). The rule, called WOTUS, seeks to clarify the definition of “waters of the United States,” which is critical to those agencies’ regulatory jurisdiction under the Clean Water Act (CWA).<br /><br />The CWA prohibits the discharge of pollutants into waters of the United States without a permit. The outer boundaries of what qualifies as a jurisdiction water have been unclear for decades. A series of U.S. Supreme Court cases have indicated that, while the agencies’ jurisdiction is broad, it does not extend to the outer reaches of the Commerce Clause. <i>See Rapanos v. United States</i>, 547 U.S. 715 (2006); <i>Solid Waste Agency of Northern Cook Cnty. v. U.S. Army Corps of Eng’rs</i>, 531 U.S. 159 (2001); <i>Riverside Bayview Homes, Inc. v. United States</i>, 474 U.S. 121 (1985).<br /><br />One of these cases, Rapanos, created a great deal of confusion because the plurality, a concurrence by Justice Kennedy, and the dissent all developed different jurisdictional tests. The agencies have focused on Justice Kennedy’s “significant nexus” test. Under it, if a water has some appreciable impact on a traditionally-regulated water under the CWA (like a navigable water), then that water is also jurisdictional. This has meant that many small waters and most wetlands have been subject to the “significant nexus” analysis on a case-by-case basis. This led to a great deal of informal agency guidance, including wetland delineation manuals that attempted to use scientific methods to aid decision making.<br /><br />According to EPA and the Corps, WOTUS increases regulatory certainty by reconciling past practices, science, and case law. It does so by expanding the scope of waters and wetlands that are categorically classified as jurisdictional, rather than subject to a case-by-case review. Tributaries and waters and wetlands “adjacent” to or “neighboring” jurisdictional waters are now categorically jurisdictional. In some cases, waters and wetlands 1,500 feet from a jurisdictional water are considered “neighboring,” even if there is no hydrologic connection. See 33 CFR § 328.3(c)(2). WOTUS also codifies some exclusions that are are based on agency practice, including for minor ditches and small artificial ponds. See 33 CFR § 328.3(b).<br /><br />WOTUS has provoked fierce opposition. Legislation to block it is progressing, but it would likely face a presidential veto. At least ten federal law suits are challenging the rule (with at least half the states as plaintiffs), alleging that WOTUS expands federal jurisdiction beyond the CWA’s limits. A federal judge recently enjoined the rule’s implementation in thirteen states, but this did not include Florida. Therefore, while the ultimate fate of WOTUS remains unclear, what is certain is that Florida landowners will be required to comply with it in the short term. What is also certain that this new rule will result in more Florida wetlands being categorically defined as jurisdictional rather than being subject to case-by-case analysis.</blockquote>
I'll give a full update post on this topic soon, but since just since my article was published in late 2015:<br />
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<ul>
<li>The Government Accountability Office found that EPA broke <a href="http://www.nytimes.com/2015/12/15/us/politics/epa-broke-the-law-by-using-social-media-to-push-water-rule-auditor-finds.html?_r=0">federal lobbying and propaganda</a> laws in its zeal for pushing the rule forward. </li>
<li>The Senate voted to kill the rule; the House is <a href="http://www.agri-pulse.com/House-to-vote-to-kill-WOTUS-rule-01072016.asp">expected to do the same soon</a>; and President Obama has vowed to veto any such measures.</li>
<li>A federal judge enjoined the rule's implementation <a href="http://www.environmentalleader.com/2015/12/14/new-waters-of-the-us-rule-on-hold-enduring-debate-creates-uncertainty-for-developers/">across the entire country</a>, including Florida. However, it's not clear how long this injunction will last, and the legal wrangling is <a href="http://www.bna.com/courting-wotus-b57982065714/">expected to continue for some time</a>.</li>
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Stay tuned.This issue isn't going away anytime soon.</div>
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Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-26887037647147760732016-01-05T05:30:00.000-05:002016-01-05T22:08:40.143-05:00Development Permit Extension Deadline ApproachingI <a href="http://www.jacobtcremer.com/2015/09/have-development-permit-in-florida-you.html">previously wrote about</a> how the extensions to some development permits that were made available by Governor Scott's executive orders declaring states of emergency due to severe flooding and a tropical storm. Section 252.363, Florida Statutes, provides for deadlines for landowners and holders of these development permits who are seeking to take advantage of these extensions. While one deadline applicable to only a few counties has already passed, the deadline for the Governor's statewide emergency declaration is January 25, 2016. Landowners with eligible development permits should act quickly.<br />
<br />Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-82395866420635277202016-01-04T05:30:00.000-05:002016-01-04T05:30:08.398-05:00Why Exactions Law Should Bring Property Rights Advocates Cheer in the New Year<div class="tr_bq">
When even progressive scholars throw their hands up in the air over the strength of an area of property rights law, you know it's time for those of us who believe in strong property rights to take note. Professor <a href="https://law.tamu.edu/faculty-staff/find-people/faculty-profiles/timothy-m-mulvaney">Timothy Mulvaney</a> at Texas A&M has done just that in his latest paper, forthcoming in the <i>Harvard Environmental Law Review</i>, "<a href="http://works.bepress.com/timothy_mulvaney/">Legislative Exactions and Progressive Property</a>." </div>
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In it, Prof. Mulvaney covers the debate of whether the stringent judicial review of exactions provided to administrative exactions also applies to legislative exactions. The debate here is over what the government can demand from a landowner before approving a discretionary permit. In three important cases - <i>Nollan</i>, <i>Dolan</i>, and <i>Koontz -</i> the U.S. Supreme Court has held that the government must show that the demand is related to the harms that will be caused by the landowner's activities and that the demand is roughly proportionate to the ills the government seeks to remedy. </div>
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The Supreme Court has explained that these rules apply no matter whether the government ultimately approves or denies a permit application and no matter whether the government demands money, road building, or anything else. Compared to other areas of property rights law, the Supreme Court has been remarkably clear that the landowners must be protected from such "unconstitutional conditions" by government. Governments, though, dislike such strict rules, and some have argued that these rules only apply to "administrative" demands, such as those by an executive or bureaucrat, and not to "legislative" demands, such as an ordinance that makes demands from everyone. As <a href="http://blog.pacificlegal.org/no-there-is-no-legislative-exaction-exception-to-the-unconstitutional-conditions-doctrine/">others have argued</a> better than I can, the Takings Clause and the Due Process Clauses of the Constitution do not distinguish between the branches of government in protecting landowners. </div>
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In his article, Prof. Mulvaney essentially asks: should proponents of "progressive property" (read: fans of weak personal property rights) support making such a distinction for its practical consequences? He concludes:</div>
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Scholarly debate continues on the question of whether the heightened scrutiny of the Supreme Court’s decisions in <i>Nollan </i>and <i>Dolan </i>should be applicable in takings cases involving exactions that result from generally applicable legislation. Proponents of progressive conceptions of property have strong first-order reasons to support immunizing legislative exactions from such heightened scrutiny, reasons that are grounded in the checks and balances of democratic government, the likelihood of reciprocal advantages stemming from legislation, and an aversion to judicial usurpation of the legislative process. However, this Article raises the possibility that distinguishing between legislative and administrative exactions could produce two secondary effects that ultimately prove detrimental to progressive property’s aims. </blockquote>
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First, pressing the idea that administrative exactions are significantly more likely to abuse property owners than legislative exactions necessarily risks marginalizing case-by-case administration across the board, which could lead courts to incorporate the heightened scrutiny of <i>Nollan </i>and <i>Dolan </i>in takings cases involving administrative acts unrelated to exactions. Second, formally recognizing the legislative-administrative distinction could prompt governmental entities to shy away from administrative actions in favor of broad, unbending legislative measures to avoid heightened scrutiny, and deserting case-by-case administration can come with weighty social costs, given that it is administration that at least in certain instances can better respond to varied and unpredictable development impacts and invariably focuses attention on the affected parties’ human stories. </blockquote>
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It follows that both remaining options in the wake of <i>Nollan</i>, <i>Dolan</i>, and <i>Koontz</i>—subjecting legislative exactions to either a deferential level of takings scrutiny or the heightened standard to which administrative exactions currently are subject—pose significant complications for proponents of progressive conceptions of property. In the end, then, perhaps progressive property scholars might concentrate more readily on evaluating and advocating for other potential boundary principles in exaction takings law, or, even more dramatically, reinvigorate the long dormant and admittedly uphill battle to reverse <i>Nollan </i>and <i>Dolan </i>in their entirety.</blockquote>
That is, Constitutional questions aside, even proponents of weak personal property rights should be wary of making a distinction between administrative and legislative exactions. Why? Exactly because the Supreme Court has extended such clear, strong protections to administrative exactions. Those proponents would do better to focus their attention elsewhere, says Prof. Mulvaney.<br />
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Take heart, fans of private property rights: progress is being made. And that should bring you cheer in this New Year.Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-70012851101847621282015-12-14T06:00:00.000-05:002015-12-14T06:00:09.367-05:00Hillsborough County Developing Mobility Fee to Replace Concurrency and Impact FeeAs I wrote about with my colleagues recently, <a href="http://campaign.r20.constantcontact.com/render?ca=e57952a1-c612-4ed9-8615-bb624f656f04&c=c32c7e40-12ae-11e4-b0d2-d4ae5292c973&ch=c36122d0-12ae-11e4-b0d2-d4ae5292c973">Hillsborough County is developing a mobility fee</a>:<br /><blockquote class="tr_bq">
These fees are levied on development to pay for the development's impacts on offsite public facilities. While more familiar mechanisms like impact fees and concurrency focus on roads, mobility fees are intended to pay for even more forms of transportation infrastructure, including that used by vehicles, cyclists, pedestrians, and transit users. Pasco County was the first county in the state to adopt a mobility fee in 2011, and a handful of other local governments have followed suit, including the City of Jacksonville and Osceola County.</blockquote>
These fees come while Hillsborough County is focused on a number of <a href="http://www.tampabay.com/news/localgovernment/facing-billions-in-transportation-needs-hillsborough-commissioners-set/2256245">transportation funding mechanisms</a>, including Go Hillsborough, a half-cent sales tax that would be earmarked for transportation.<br />
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While staff has reported that this fee will replace both concurrency and the impact fee, the mobility fee is currently proposed at a rate that will be three to ten times higher than today's impact fee. New details are emerged recently through a "Terms Sheet" that outlines the key terms of a future mobility fee ordinance. <a href="http://campaign.r20.constantcontact.com/render?ca=7533b1c3-b8a2-4dc8-9c9d-1a2fdea12b7b&c=c32c7e40-12ae-11e4-b0d2-d4ae5292c973&ch=c36122d0-12ae-11e4-b0d2-d4ae5292c973">Another recent update</a> explained that the mobility fee will likely even affect ongoing projects that might initially seem to be "vested" against the new fees:<br />
<blockquote class="tr_bq">
The Term Sheet, as drafted, subjects Proportionate Share Agreements approved after January 1, 2016 to the mobility fee. The Term Sheet also proposes new limitations for the amendment of both existing Development Agreements as well as Development of Regional Impact (DRI) Agreements. Consequently, it is unclear how these agreements will be processed in the near and long term. </blockquote>
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Obtaining extensions of agreements for ongoing projects may become difficult in the future. As drafted, the Term Sheet does not allow agreements to be extended, and mobility fees must be paid for all future development after the current expiration date.</blockquote>
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Many questions remain, including how to treat the <a href="http://www.tampabay.com/news/localgovernment/millions-owed-to-developers-loom-over-hillsboroughs-move-to-charge-more/2255627http://www.tampabay.com/news/localgovernment/millions-owed-to-developers-loom-over-hillsboroughs-move-to-charge-more/2255627">millions in credits</a> that developers have received from projects where the offsite transportation improvements that they constructed cost more than the impact fees that the developers would otherwise have to pay. More details will emerge over the next 6-8 weeks, with a <a href="http://www.tbo.com/news/politics/vote-on-go-hillsborough-tax-increase-not-likely-before-february-20151213/">workshop scheduled</a> to for staff to brief the Board of County Commissioners in February.</div>
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Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-78493238418656982962015-12-07T06:30:00.000-05:002015-12-07T06:30:03.791-05:00Are Florida's Rural Landowners Bearing Too Much of the Burden of Protected Species?This week's <i>Business Observer</i> had an <a href="http://www.businessobserverfl.com/opinion/detail/my-view-the-danger-of-the-endangered-species-act/">opinion piece that's worth a look</a>. In it, Adrian Moore argues that Florida's rural landowners are bearing an unfair burden in managing Florida's listed and endangered species. He says, "[i]t is safe to say that virtually every farm of any kind in the region will be in the watershed of at least one new endangered species. Everyday farming activities that create sediments or runoff, or use fertilizers or pesticides, impact a watershed to some extent and thus all may come under restrictions to protect habitat."<br /><br />Mr. Moore argues that the management techniques for these species are becoming more restrictive in Florida, as opposed to some other states, such as Texas. He writes:<br />
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The Texas approach combines:<br /> <br />- A government task force of state and local agencies that includes both environmental and economic goals to balance protection of species with economic costs.<br /> <br />- Integration of high-quality scientific research on species, habitat and the costs and effectiveness of protection options. - Conservation plans based on voluntary, market-based approaches similar to the U.S. Department of Agriculture’s Conservation Reserve Program in which state and local agencies share property owners’ cost of protecting habitat for endangered species and provide technical assistance.<br /> <br />- Confidentiality for landowners to protect them from punitive federal regulations if they comply with an approved conservation plan. </blockquote>
Mr. Moore's approach is worth considering. Landowners should take a look at the Florida Fish & Wildlife Commission's Imperiled Species Management Plan. The <a href="http://myfwc.com/media/3344480/draft-ismp-october-2015.pdf">October 2015 draft plan</a> is a good place to start in understanding what protected species may be on a property and how that species is being managed.<br /><br /><br />Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-66656475775611859172015-10-21T05:30:00.000-04:002015-10-21T05:30:00.118-04:00Opportunity Lost? Can Condemnation Blight be a Taking or a Substantive Due Process Violation?Take note, property rights mavens: a takings claim is a separate and distinct claim from a substantive due process claim, and it's a mistake to treat them as coextensive. Fresh out of the Third District Court of Appeals is <i><a href="http://www.3dca.flcourts.org/opinions/3D14-0963.rh.pdf">Teitelbaum v. South Florida Water Management District</a></i>, No. 3D14-963 (Sep. 30, 2015), which focuses on condemnation blight and its relationship to inverse condemnation claims, but which may be more useful for its teachings on framing a property rights case.<br />
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A large group of plaintiffs sued the District for depressing the value of their properties that were long zoned as agriculture in order to pursue environmental goals related to the nearby Everglades. The District had bought up as much land as it could in the area, and when it could not acquire their properties, it passed a condemnation resolution. It did not make any attempts to actually acquire the properties, though. Slip Op. at 4. The plaintiffs further alleged that the District had prevented Miami-Dade County from rezoning the properties and that the District's acquisition of property in the area in a "checkerboard" fashion prevented the plaintiffs from developing their properties. Slip Op. at 5.<br />
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Because there was no physical taking and the plaintiffs had not applied for a development permit to test what could be permitted, the plaintiffs were stuck asserting a novel claim:<br />
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Likely recognizing that the Water District’s conduct would not constitute a taking under the traditional takings formulations, the Plaintiffs have not argued their claims under any ... well-established standards. Rather, the Plaintiffs urge this Court to recognize a new cause of action and adopt a new category of governmental activity that will result in a per se taking: condemnation blight. Under the Plaintiffs’ proposed formulation for a condemnation blight claim, a constitutional taking would occur when: (1) the government makes an official, publicly-announced declaration of its intent to condemn the property that goes beyond mere planning; (2) the government engages in some postannouncement unreasonable conduct, such as protracted delay in actual condemnation proceedings or interference with the property owner’s rights; and (3) the property suffers impairment of value or the property owner’s use and enjoyment of the property is disrupted. We decline to adopt this proposed standard as a per se taking.</blockquote>
Slip Op. at 10.<br />
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The Court's opinion isn't terribly surprising. In Florida, condemnation blight is about value: it precludes the government from depressing the value of a property before it subjects it to a de jure or de facto taking by calculating the property's value before it was depressed.<a href="http://caselaw.findlaw.com/fl-district-court-of-appeal/1705485.html">Earlier this year</a>, the court had held that condemnation blight does not itself give rise to a taking, although condemnation blight may be considered when the property is valued for the government's liability. On rehearing, the court withdrew that opinion and reissued one that held the same thing, with some further embellishment, explaining.<br />
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The interesting part about the opinion is in the court addressing the plaintiffs' focus on the District's "unreasonable" conduct rather than on the effect on their property." The court held that this "perspective confuses the aim of the Takings Clause, as the cases uniformly analyze the effect of the governmental actions and regulations on the property to determine whether they are so onerous as to constitute an ouster." Slip Op. 11.<br />
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Attentive readers of this blog might think this sounds more like a Substantive Due Process argument, since it focuses on the government's means rather than on its ends. And you would be right. However, the court declined to take that issue up on rehearing, deeming it to have been abandoned:<br />
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One of the appellants’ primary arguments in their motion for rehearing is that this Court should have analyzed their Due Process Clause claims as a distinct cause of action separate and apart from their Takings Clause claims under the authority of <i>Tampa-Hillsborough County Expressway Authority v. A.G.W.S. Corp.</i>, 640 So. 2d 54, 57-58 (Fla. 1994). While there is an interplay between these two constitutional clauses and many takings claims are analyzed coextensively with due process claims, the appellants are correct that these claims can be pled as distinct causes of action when the allegations involve governmental actions or regulations on private property. <i>Id. </i>The alleged unreasonableness of the Water District’s actions, while irrelevant for a takings analysis, would certainly have been germane to the Plaintiffs’ substantive due process claim, and their argument would likely require further consideration had it been raised prior to the Plaintiffs’ motion for rehearing. In this case, however, the trial court treated both causes of action as coextensive and made no separate findings or rulings regarding the Plaintiffs’ due process claim. The appellants did not challenge that aspect of the trial court’s decision below, did not brief or argue that issue before this court—indeed, they did not even independently cite the <i>A.G.W.S. </i>decision in their initial or reply brief—and now raise this point of error for the first time in their motion for rehearing. As such, the appellants have waived that issue ... and we do not comment on the merits of that claim.</blockquote>
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Slip Op. at 11-12. Too bad. We could have used some more guidance here in Florida on Substantive Due Process challenges to the government's unreasonable actions to prevent development. </div>
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Lesson learned: figure out whether you're challenging the government's means or its ends early on in a property rights challenge.</div>
Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-91619135087055957482015-09-29T05:30:00.000-04:002015-09-29T05:30:01.065-04:00Takings of Personal Property: The Importance of Framing A CaseSuppose a local government suddenly bans the production and sale of widgets because public opinion is that the widgets contribute to obesity. Although the land where the widget factory is located could be used for other purposes, the widgets are now worthless because they can’t be sold. And the widget maker has lost a great deal of the capital that was invested in the widget factory and equipment. Does the widget maker have an inverse condemnation claim? It may depend on whether his taking claim is framed as one for tangible or personal property, and not of real property. A claim that the real property had been taken would not likely be successful, since in this hypothetical, it could be used for other purposes. <br /><br />Most readers will recall that there are physical takings and regulatory takings. Regulatory takings can be complete takings of all economically beneficial uses of a property—or they can be less, in which case courts use a balancing test to determine whether there has been a taking. Most of us in the environmental and land use arena are at least familiar with these concepts when it comes to real property. But what about tangible property?<br /><br />As recent decisions from the U.S. Supreme Court and Florida courts make clear, tangible or personal property is also protected by the Fifth and Fourteenth Amendments. In <a href="http://www.supremecourt.gov/opinions/14pdf/14-275_c0n2.pdf"><i>Horne v. Department of Agriculture</i></a>, 576 U.S. _, No. 14-275 (2015), which was decided earlier this year and has been <a href="http://www.jacobtcremer.com/search?q=horne">bouncing around the courts for years</a>, the U.S. Supreme Court examined a federal regulation requiring raisin farmers to set aside a percentage of each year’s crop for the government’s benefit—without payment. The Supreme Court held this to be a taking, tracing back the law of personal property takings back to the Magna Carta. Further, it held that because the taking was physical (as opposed to merely a regulatory burden), there was a per se taking, without regard to whether any claimed public benefit or the economic impact on the owner. <br /><br />Florida's First District Court of Appeal has agreed in a case involving Florida’s oft-ridiculed “pregnant pig” constitutional amendment that banned the use of gestation crates in 2002. <i><a href="http://caselaw.findlaw.com/fl-district-court-of-appeal/1639952.html">State v. Basford</a></i>, 119 So. 3d 478, 480 (Fla. 1st DCA 2013). There, a farmer who had made substantial improvements to his property and based his pork business on use of the crates brought an inverse condemnation suit against the state. Explaining that “real property, tangible property, and intangible property may be the subject of a takings claim,” the court emphasized that the farmer had not alleged a taking of real property. <i>Id. </i>at 483. Rather, he claimed that the constitutional amendment had taken all economically viable use of his business assets—which included barns, animal crates, a feed mill, and lab equipment. <i>Id. </i>at 481, 483. <br /><br />In a colorful concurrence, Judge Wolf saw this taking as just as if the government decided, in lieu of seizing a tractor, that it would allow a farmer to keep the tractor but forbid the owner from turning it on. <i>Id. </i>at 484. This explanation should give property owners some cheer, since it hints that, as in Horne, complete restrictions in use of personal property should be compared to physical takings. And it gives the attorney a simple framework for thinking about these kinds of problems. <br /><br />Both these cases are instances of a takings case being successfully (and creatively) framed. In <i>Horne</i>, there was no way to frame a real property takings claim, and in <i>Basford</i>, the court itself recognized that a real property takings claim would not have had much of a chance of success. Inverse condemnation claims are almost always tricky, so why make a case any more difficult than it needs to be? It seems that Ben Franklin would agree that, as for others, for property rights attorneys, an ounce of prevention is worth a pound of cure.Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-6612993850655307892015-09-21T06:15:00.000-04:002015-09-21T06:15:00.381-04:00Have a Development Permit in Florida? You May Be Able to Extend It.As I wrote about in a <a href="http://www.stearnsweaver.com/news.php?category=news&headline=Governor%27s+Executive+Orders+Present+Opportunities+To+Extend+Expiration+Of+Development+Permits">recent update</a> with my Stearns Weaver colleagues <a href="http://www.stearnsweaver.com/attorneys-info.php?name_first=Reggie+L.+&name_last=Bouthillier&utm_source=2015+News+Alert+-+Governor%27s+Executive+Order+&utm_campaign=land+dev&utm_medium=email">Reggie Bouthillier</a> and <a href="http://www.stearnsweaver.com/attorneys-info.php?name_first=Kenneth+B.&name_last=Metcalf%2C+AICP&utm_source=2015+News+Alert+-+Governor%27s+Executive+Order+&utm_campaign=land+dev&utm_medium=email">Ken Metcalf</a>, two of Governor Scott's latest executive orders present opportunities for the holders of certain types of development permits in Florida. On August 6, 2015, Governor Scott <a href="http://www.flgov.com/wp-content/uploads/2015/08/EO-15-158.pdf">declared an emergency</a> due to severe flooding in Hillsborough, Pasco, Pinellas, Dixie, and Taylor Counties. On August 28, 2015, Governor Scott <a href="http://www.flgov.com/wp-content/uploads/2015/08/EO-15-173.pdf">declared an emergency</a> across the state due to the impending arrival of Tropical Storm Erika. <br /><br />
Section 252.363, Florida Statutes, provides for extensions in certain circumstances for some development-related permits:<br />
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<b>252.363 Tolling and extension of permits and other authorizations.—</b> </blockquote>
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(1)(a) The declaration of a state of emergency by the Governor tolls the period remaining to exercise the rights under a permit or other authorization for the duration of the emergency declaration. Further, the emergency declaration extends the period remaining to exercise the rights under a permit or other authorization for 6 months in addition to the tolled period. This paragraph applies to the following:<br />1. The expiration of a development order issued by a local government.<br />2. The expiration of a building permit.<br />3. The expiration of a permit issued by the Department of Environmental Protection or a water management district pursuant to part IV of chapter 373.<br />4. The buildout date of a development of regional impact, including any extension of a buildout date that was previously granted pursuant to s. <a href="http://www.flsenate.gov/Laws/Statutes/2012/380.06">380.06</a>(19)(c).<br />(b) Within 90 days after the termination of the emergency declaration, the holder of the permit or other authorization shall notify the issuing authority of the intent to exercise the tolling and extension granted under paragraph (a). The notice must be in writing and identify the specific permit or other authorization qualifying for extension.<br />(c) If the permit or other authorization for a phased construction project is extended, the commencement and completion dates for any required mitigation are extended such that the mitigation activities occur in the same timeframe relative to the phase as originally permitted.<br />(d) This subsection does not apply to:<br />1. A permit or other authorization for a building, improvement, or development located outside the geographic area for which the declaration of a state of emergency applies.<br />2. A permit or other authorization under any programmatic or regional general permit issued by the Army Corps of Engineers.<br />3. The holder of a permit or other authorization who is determined by the authorizing agency to be in significant noncompliance with the conditions of the permit or other authorization through the issuance of a warning letter or notice of violation, the initiation of formal enforcement, or an equivalent action.<br />4. A permit or other authorization that is subject to a court order specifying an expiration date or buildout date that would be in conflict with the extensions granted in this section.<br />(2) A permit or other authorization that is extended shall be governed by the laws, administrative rules, and ordinances in effect when the permit was issued, unless any party or the issuing authority demonstrates that operating under those laws, administrative rules, or ordinances will create an immediate threat to the public health or safety.<br />(3) This section does not restrict a county or municipality from requiring property to be maintained and secured in a safe and sanitary condition in compliance with applicable laws, administrative rules, or ordinances.</blockquote>
Some local governments, <a href="https://www.co.palm-beach.fl.us/pzb/planning/monitoring/SB%202156%20TE%20Application%20TS%20Erika%208-15.pdf">like Palm Beach County</a>, have already created forms to help permit holders in exercising their right to an extension. Even where they have, though, permit holders need to pay particular attention to whether one or both extensions apply and whether other statutory procedures provide further benefits. <div>
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In any case, as the <a href="http://www.myfloridalegal.com/ago.nsf/Opinions/0DF58A091F0DDBEC852579EB00743D48">Florida Attorney General has explained</a>, the burden is always on the landowner or permit holder to obtain the extension in the proper manner. They should act quickly to exercise their rights to these extensions.<br />
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Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-32430375873326546372015-09-03T05:30:00.000-04:002015-09-03T05:30:02.391-04:00Federal Jurisdiction over Wetlands Significantly Expanded in Florida I've had a lot of questions and calls lately about the Army Corps of Engineers' and the EPA's "Clean Water Rule." It is otherwise known as the Waters of the United States Rule (WOTUS), and it significantly expands the federal government's regulatory jurisdiction, especially in Florida. The question is this: how far does the federal government's power reach over water bodies and wetlands, especially those that have nothing to do with navigation or interstate commerce?<br />
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As most of you know by now, <a href="http://www.stearnsweaver.com/attorneys-info.php?name_first=Jacob+T.&name_last=Cremer">I've joined</a> the Tampa office of Stearns Weaver. My Tallahassee colleague <a href="http://www.stearnsweaver.com/attorneys-info.php?name_first=Reggie+L.+&name_last=Bouthillier">Reggie Bouthillier</a>, our summer clerk William Anderson, and I wrote an in-depth briefing to update Florida landowners and consultants on how this new rule might affect them. At a conference this summer, a well-known environmental scientists quipped that the new rule of thumb in Florida is that when it rains, there are enough puddles to make the entire state subject to federal jurisdiction. He was only half joking.<br />
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Here's <a href="http://www.stearnsweaver.com/news.php?category=News&headline=EPA+and+Army+Corps+Release+New+Clean+Water+Act+Rule+Interpreting+and+Expanding+Jurisdiction">the summary</a> of our briefing:<br />
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On May, 27, 2015, the United States Environmental Protection Agency ("EPA") and the United States Army Corps of Engineers ("Corps") issued the final "Clean Water Act Rule," aimed at clarifying the jurisdictional definition of "waters of the United States" ("jurisdictional waters") under the Clean Water Act ("CWA"). The new rule attempts to increase regulatory certainty by reconciling past agency practices, science, and U.S. Supreme Court decisions. As a result, Florida landowners and developers will likely need CWA permits where they were not previously necessary. </blockquote>
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The CWA prohibits the discharge of pollutants into jurisdictional waters. Even though this concept is key to the agencies' regulatory jurisdiction, its outer boundaries have been unclear and have been subject to numerous court challenges. While navigable waters have traditionally been viewed as jurisdictional, most other waters (including wetlands) have been subject to case-by-case analysis to determine whether those waters had a "significant nexus" with navigable waters. Under the Clean Water Act Rule, however, many more waters and wetlands will be categorically defined as jurisdictional waters, in some cases even if the water is relatively isolated and wholly intrastate. Consequently, the rule does give more regulatory certainty, but that certainty gives landowners and developers less flexibility and makes challenges to jurisdictional determinations more difficult. </blockquote>
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On August 28, 2015, the Clean Water Act Rule will go into effect and land owners and developers will face increased regulation, translating into additional costs, timing, and permitting requirements for projects. It is unclear whether efforts to delay the rule's implementation will be successful. Legislation blocking implementation of the rule has passed the House and is pending in the Senate, but it would likely face a presidential veto. At least ten federal law suits are challenging the rule, and several seek preliminary injunctions against the rule's enforcement. </blockquote>
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In light of this new rule and the uncertainty surrounding it, landowners and developers need to be vigilant in protecting their rights in the federal permitting process.</blockquote>
Read the <a href="http://www.stearnsweaver.com/files/Memo%20on%20Clean%20Water%20Act%20Rule%20NEWLOGO.pdf">full article here</a>. Since this was published, you should know that a <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/28/north-dakota-district-court-blocks-controversial-waters-of-the-united-states-rule/">federal judge</a> in North Dakota has issued an injunction against the rule's implementation. At this time, the federal agencies are taking the position that the order only applies to implementation in those states involved in that particular lawsuit. <a href="http://thehill.com/policy/energy-environment/252140-judge-blocks-obamas-water-rule">Florida is not one of them</a> - so the Corps and EPA have been implementing the new rule since last Friday, August. 28, 2015.Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-24273957744499912112015-07-15T06:00:00.000-04:002015-07-15T09:24:49.929-04:00The Intersection of Florida's Homestead Protections and Irrevocable Licenses<div style="text-align: justify;">
This post is a bit different than previous posts. It stems from a real-world issue I dealt with several years ago, and then morphed into an article that I've tinkered with since then. When I tried to publish it, the feedback I received from a state bar section was that it was too narrow to be publishable. I am skeptical of that, but it very well could be true. In any case, I decided to self-publish it, in hopes that it may be useful to someone tasked with dealing with the perplexing intersection of Florida's powerful homestead protections and its murky law of irrevocable licenses. I welcome any feedback.<br />
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<b><u>Florida’s Homestead Protections and Irrevocable Licenses </u></b><br />
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<span style="text-align: justify;">This article explores the limitations that the homestead protections in the Florida Constitution place on irrevocable license claims. You may already be skeptical: everyone knows that the homestead protections do not extend to licenses because they are not property interests. Are you sure? I argue that irrevocable licenses may well be captured by the homestead protections against alienation. This could have important implications for both your transactional and litigation practices. </span><br />
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<b>I. Florida’s Constitution Protects against Alienation of the Homestead</b><br />
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<span style="text-align: justify;">Let’s work through the basics quickly. Article X, section 4 of the Florida Constitution provides for several homestead protections. We are concerned with the protection against alienation in subsection 4(c): “[t]he owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.” This requires joinder of both husband and wife for the alienation of homestead property, even if only one spouse is the title owner.</span><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn1" style="text-align: justify;">[i]</a><span style="text-align: justify;"> Consequently, defective attempts to alienate homestead property are ineffectual and possibly void.</span><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn2" style="text-align: justify;">[ii]</a><br />
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<span class="MsoEndnoteReference">As an interpretative matter, like other constitutional homestead protections, the protection against alienation is a creature of equity that “must be liberally construed.”<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn3">[iii]</a> It should be construed in the “interest of the family home,”<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn4">[iv]</a> and “for the benefit of those whom it was designed to protect.”<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn5">[v]</a> These rules of interpretation mean, for instance, that because intent and substance are more important than form, the homestead protections may not be avoided indirectly.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn6">[vi]</a> They also mean that the protection against alienation extends beyond the mere sale of the homestead. The dictionary definition of “alienation” is a conveyance of property to another.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn7">[vii]</a> The constitutional meaning encompasses the broadest possible understanding of this definition: conveyance of “any right, title, or interest whatever in the homestead real estate.”<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn8">[viii]</a> </span></div>
<span class="MsoEndnoteReference"><br /><b>II. Irrevocable Licenses are Subject to the Protection against Alienation </b></span><br />
<span style="text-align: justify;"><br /></span>
<span style="text-align: justify;">Consider, for example, the wide variety of interests subject to homestead protections: easements,</span><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn9" style="text-align: justify;">[ix]</a><span style="text-align: justify;"> possessory rights subject to a third-party trust,</span><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn10" style="text-align: justify;">[x]</a><span style="text-align: justify;"> mortgages,</span><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn11" style="text-align: justify;">[xi]</a><span style="text-align: justify;"> contracts for purchase and sale,</span><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn12" style="text-align: justify;">[xii]</a><span style="text-align: justify;"> leases,</span><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn13" style="text-align: justify;">[xiii]</a><span style="text-align: justify;"> and other contracts concerning interests in land.</span><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn14" style="text-align: justify;">[xiv]</a><span style="text-align: justify;"> But licenses are not interests in property: they are personal rights to use the property of another for a specific purpose, which are revocable at the will of the grantor.</span><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn15" style="text-align: justify;">[xv]</a><span style="text-align: justify;"> How then can licenses be subject to the protection against alienation? </span><br />
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<span class="MsoEndnoteReference">Florida courts have not directly addressed whether the protection against alienation applies to licenses. The evidence suggests, however, that it does apply to some licenses: namely irrevocable licenses. In Florida, unlike in some other jurisdictions, irrevocable licenses are distinct from easements.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn16">[xvi]</a> Irrevocable licenses are remedial creatures of equity<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn17">[xvii]</a> that usually arise as a defense or counterclaim.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn18">[xviii]</a> Licenses in Florida only become irrevocable under certain narrow circumstances: where a licensee: (1) is granted use of “property for a particular purpose or in a certain manner,” and (2) “in the execution of that use [expends] large sums or incurred heavy obligations for its permanent improvement.”<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn19">[xix]</a> In that case, the grantor’s right of revocation is “compromised.”<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn20">[xx]</a> Therefore, the licensee’s reliance investment is protected for a reasonable duration.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn21">[xxi]</a> Even an oral license can become irrevocable.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn22">[xxii]</a> </span></div>
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<span class="MsoEndnoteReference">Despite this guidance, Florida and other courts have at times struggled to differentiate between easements and licenses.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn23">[xxiii]</a> This is not surprising, since there are numerous cases with interests that share characteristics of both easements and license, such as irrevocable licenses and easements terminable upon a condition subsequent.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn24">[xxiv]</a> Consider, for example, that easements are usually permanent but do not have to be, just as licenses are usually revocable at the will of the grantor but do not have to be.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn25">[xxv]</a> </span></div>
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<span class="MsoEndnoteReference"><br /></span></div>
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<span class="MsoEndnoteReference">Only one case appears to have considered an irrevocable license in the context of the protection against alienation. In <i>High v. Jasper Manufacturing Co.</i>, 49 So. 156, 156 (Fla. 1909), Mr. Register sold the rights to cut and remove timber from his homestead to Mr. High. When Jasper Manufacturing began cutting and removing the timber, Mr. High sued for an injunction.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn26">[xxvi]</a> Although the trial court originally issued a preliminary injunction, after an evidentiary hearing, it dissolved the injunction because Mrs. Register had not joined in the conveyance in violation of the protection against alienation.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn27">[xxvii]</a> Even though there was apparently a bill of sale, the Florida Supreme Court questioned whether the sale of standing timber was written or oral—if it were oral, then the Supreme Court appeared to believe it would operate as an irrevocable license. Ultimately, the Supreme Court did not make a determination, seemingly holding in affirming the trial court that the protection against alienation applied whether the contract was an interest in land or an irrevocable license.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn28">[xxviii]</a> Therefore, the Supreme Court may have held that an irrevocable license is subject to the protection against alienation, but it did not do so clearly. </span></div>
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<span class="MsoEndnoteReference">The unfortunate lack of clarity in the <i>High </i>case can be overcome, however, in considering the nature of an irrevocable license. As described above, it is primarily a remedial and equitable claim. Florida courts generally do not allow defenses to homestead claims, other than fraud. Statutes of limitation and laches generally are not defenses.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn29">[xxix]</a> Neither are estoppel<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn30">[xxx]</a> or waiver.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn31">[xxxi]</a> Similarly, courts shy from affirmatively applying documents that violate the protection against alienation.<a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_edn32">[xxxii]</a> Consequently, between <i>High </i>and this skepticism of Florida courts in allowing defenses to homestead protections, the protection against alienation probably applies to irrevocable licenses. </span></div>
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<span class="MsoEndnoteReference"><b>III. Implications for the Practitioner</b> </span><br />
<span class="MsoEndnoteReference"><span style="text-align: justify;"><br /></span></span>
<span class="MsoEndnoteReference"><span style="text-align: justify;">So what does this mean for the practitioner? Two hypotheticals illustrate the importance of understanding that irrevocable licenses are subject to homestead protections. First, suppose you are drafting a license for the benefit of your client over his neighbor’s homestead. Both parties agree to provisions that restrict the ability of the neighbor to terminate the license. At first glance, it may only seem necessary to have a title owner of the property execute the license. It is not an interest in land, after all. But if the spouse of the neighbor is not a title owner and later wants to terminate the license, your client may have no defense. Therefore, it is prudent to have all beneficial owners of the property execute the license in order to protect against disagreements later. This article suggests it may be most prudent to draft and execute the document as an easement to avoid the problems of interpretation discussed here. </span></span><br />
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</span>
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<span class="MsoEndnoteReference"><br /></span></div>
<span class="MsoEndnoteReference">
<div style="text-align: justify;">
<span style="font-family: inherit;">Second, suppose your client believes he has a valid, recorded easement over his neighbor’s property leading to the entrance of your client’s property. In reliance on that interest, your client has built a road, fence, and extensive landscaping on his neighbor’s property. After an argument, however, the neighbor sues to declare the easement void. You believe that the neighbor has a strong claim because his wife, who lives with him on the property as their homestead, did not sign it. Could you at least ask the court to award your client an irrevocable license in equity? Probably not, according to my analysis. </span></div>
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<br /></div>
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In conclusion, as with most real estate questions in Florida, when confronted with a license, practitioners must be ever mindful of the Florida Constitution’s homestead protections. </div>
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<br /></div>
<span style="font-family: inherit;"><br /> <!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref1" title="">[i]</a></span></span><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref1" title=""><!--[endif]--></a></span></span><span style="font-family: inherit;"> <i>Taylor v.
Maness</i>, 941 So. 2d 559, 563 (Fla. 3d DCA 2006) (enough that wife lived on homestead property with husband, who
was the title owner).<o:p></o:p></span></div>
<div id="edn2">
<div class="MsoEndnoteText">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref2" name="_edn2" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-family: "Calibri","sans-serif"; font-size: 10.0pt; line-height: 115%; mso-ansi-language: EN-US; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US;">[ii]</span></span><!--[endif]--></span></a>
<i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">See Pitts v. Pastore</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">, 561 So. 2d 297, 301 (Fla. 2d DCA 1990)</span><o:p></o:p></span></div>
</div>
<div id="edn3">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref3" name="_edn3" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[iii]</span></span><!--[endif]--></span></a> <i>Butterworth
v. Caggiano,</i> 605 So.2d 56, 58 (Fla.1992); <i>accord Hillsborough Inv. Co.
v. Wilcox</i>, 13 So. 2d 448, 450 (Fla. 1943) (“Equity has complete
jurisdiction over homesteads and exemptions.”).<o:p></o:p></span></div>
</div>
<div id="edn4">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref4" name="_edn4" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[iv]</span></span><!--[endif]--></span></a> <i>Havoco of
Am., Ltd. v. Hill,</i> 790 So.2d 1018, 1021 (Fla. 2001); <i>Heath v. First Nat.
Bank in Milton</i>, 213 So. 2d 883, 888 (Fla. 1st DCA 1968) (applying
interpretative rule to the alienation protection). In <i>Jones v. Carpenter</i>,
106 So. 127, 130 (Fla. 1925), the Florida Supreme Court explained:<o:p></o:p></span></div>
<div class="MsoEndnoteText" style="margin-bottom: .0001pt; margin-bottom: 0in; margin-left: .3in; margin-right: .3in; margin-top: 0in; text-align: justify;">
<span style="font-family: inherit;">A homestead in
this country is for the benefit of the family, where it can be sheltered and
live beyond the reach of financial reverses. It is one of the issues of our
republican government designed to encourage freeholders, those citizens who are
the prop and mainstay of all free government. It is designed to keep sacred and
inviolate the home for the family …. It cannot be alienated except as the law
directs, and when the parties are sui juris and dealing at arm's length it is
notice to the world of all these facts and more.<o:p></o:p></span></div>
</div>
<div id="edn5">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref5" name="_edn5" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[v]</span></span><!--[endif]--></span></a> <i>Taylor</i>,
941 So. 2d at 56.<o:p></o:p></span></div>
</div>
<div id="edn6">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref6" name="_edn6" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[vi]</span></span><!--[endif]--></span></a> <i>Norton v. Baya</i>, 102 So. 361, 363 (Fla.
1924).<o:p></o:p></span></div>
</div>
<div id="edn7">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref7" name="_edn7" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[vii]</span></span><!--[endif]--></span></a> Black’s Law
Dictionary (8th ed. 2004).<o:p></o:p></span></div>
</div>
<div id="edn8">
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref8" name="_edn8" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[viii]</span></span><!--[endif]--></span></a> <i>High v. Jasper Mfg. Co.</i>, 49 So. 156, 157
(Fla. 1909); <i>Thomas v. Craft</i>, 46 So.
594, 596 (Fla. 1908); <i>see also </i><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Bessemer Properties v. Gamble</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">, 27 So. 2d 832, 833 (Fla. 1946) (Homestead protections
extend to “any right or interest.”).<o:p></o:p></span></span></div>
</div>
<div id="edn9">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref9" name="_edn9" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[ix]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">In re Minnig</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">,
119 B.R. 326, 327 (Bankr. M.D. Fla. 1990); <i>Dotson
v. Wolfe</i>, 391 So. 2d 757, 759 (Fla. 5th DCA 1980).</span><o:p></o:p></span></div>
</div>
<div id="edn10">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref10" name="_edn10" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[x]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Callava v. Feinberg</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">,
864 So. 2d 429, 432 (Fla. 3d DCA 2003) (possessor of home protected by
homestead, where her name was not on the title, which was held in trust by an
unrelated party).</span><o:p></o:p></span></div>
</div>
<div id="edn11">
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref11" name="_edn11" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xi]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Pitts</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">, 561 So.
2d at 301</span>
(mortgage).<o:p></o:p></span></div>
</div>
<div id="edn12">
<div class="MsoEndnoteText">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref12" name="_edn12" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-family: "Calibri","sans-serif"; font-size: 10.0pt; line-height: 115%; mso-ansi-language: EN-US; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US;">[xii]</span></span><!--[endif]--></span></a>
<i>Taylor</i>, 941 So. 2d at 562 (contract to sell
homestead).<o:p></o:p></span></div>
</div>
<div id="edn13">
<div class="MsoEndnoteText">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref13" name="_edn13" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-family: "Calibri","sans-serif"; font-size: 10.0pt; line-height: 115%; mso-ansi-language: EN-US; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US;">[xiii]</span></span><!--[endif]--></span></a>
<i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">In re Alexander</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">, 346 B.R. 546, 551 (Bankr. M.D. Fla. 2006).</span><o:p></o:p></span></div>
</div>
<div id="edn14">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref14" name="_edn14" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xiv]</span></span><!--[endif]--></span></a> <i>Adams v.
Malloy</i>, 70 So. 463, 465 (Fla. 1915) (lease of timber growing on homestead,
with right of ingress and egress for 10 years); <i>High</i>, 49 So. at 157 (whether the sale of timber was a contract
concerning an interest in land or a license, it violated homestead alienation
protection).<o:p></o:p></span></div>
</div>
<div id="edn15">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref15" name="_edn15" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xv]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Dotson</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">, 391 So. at 759; <i>Dance
v. Tatum</i>, 629 So. 2d 127, 128 (Fla. 1993).<o:p></o:p></span></span></div>
</div>
<div id="edn16">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref16" name="_edn16" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xvi]</span></span><!--[endif]--></span></a> <i>Dance</i>,
629 So. 2d at 128-29.<o:p></o:p></span></div>
</div>
<div id="edn17">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref17" name="_edn17" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xvii]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Tatum v. Dance</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">,
605 So. 2d 110, 113 (Fla. 5th DCA 1992) <i>app’d,</i> 629 So. 2d 127 (Fla.
1993).</span><o:p></o:p></span></div>
</div>
<div id="edn18">
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref18" name="_edn18" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xviii]</span></span><!--[endif]--></span></a> <i>See, e.g.</i>, <i>id.</i> at 110 (pleaded defensively by a third party to a foreclosure);
<i>Brevard Cnty. v. Blasky</i>, 875 So. 2d 6, 13 (Fla. 5th DCA 2004)
(affirmative defense); <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Dupont v.
Whiteside</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">, 721 So. 2d 1259, 1261 (Fla. 5th
DCA 1998) (counterclaim).<o:p></o:p></span></span></div>
</div>
<div id="edn19">
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref19" name="_edn19" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xix]</span></span><!--[endif]--></span></a> <i>Dance</i>,
629 So. 2d at 129. It is unclear whether Florida courts would accept the theory
that a license is made irrevocable when it is couple with an interest. <i>See </i>James Ely & Jon Bruce, <span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">The Law of Easements & Licenses in Land § 11:8. Such a
case may be presented in</span><i> </i><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Richbourg v. Rose</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">,
44 So. 69 (Fla. 1907) (license to cut trees may be irrevocable to the extent of
removing trees already cut when license terminated because it was “coupled with
an interest”), but it is unclear whether <i>Dance</i>
overruled or narrowed it.</span><o:p></o:p></span></div>
</div>
<div id="edn20">
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref20" name="_edn20" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xx]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Blasky</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">, 875 So.
2d at 12. <o:p></o:p></span></span></div>
</div>
<div id="edn21">
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref21" name="_edn21" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxi]</span></span><!--[endif]--></span></a> <i>Id.; see </i><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Tatum</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">, 605 So.
2d at 113.<o:p></o:p></span></span></div>
</div>
<div id="edn22">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref22" name="_edn22" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxii]</span></span><!--[endif]--></span></a> <i>Id.<o:p></o:p></i></span></div>
</div>
<div id="edn23">
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref23" name="_edn23" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxiii]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Dotson</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">, 391 So. at 758 ("The distinction between an easement
and a license is often so metaphysical, subtle, and shadowy as to elude
analysis.”); <i>Burdine v. Sewell</i>, 109 So. 648, 652 (Fla. 1926) (“An
easement is distinguished from a license, though it is often
difficult to make out whether a particular case is the one or the other.”).<o:p></o:p></span></span></div>
</div>
<div id="edn24">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref24" name="_edn24" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxiv]</span></span><!--[endif]--></span></a> <i>See </i><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Dotson</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">, 391 So. at 759.</span><o:p></o:p></span></div>
</div>
<div id="edn25">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref25" name="_edn25" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxv]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">See id.</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">; </span><i>Seaboard
Air Line Ry. Co. v. Dorsey</i>, 149 So. 759, 761 (Fla. 1932).<o:p></o:p></span></div>
</div>
<div id="edn26">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref26" name="_edn26" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxvi]</span></span><!--[endif]--></span></a> <i>Id.</i><o:p></o:p></span></div>
</div>
<div id="edn27">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref27" name="_edn27" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxvii]</span></span><!--[endif]--></span></a> <i>Id.</i> at 157.<o:p></o:p></span></div>
</div>
<div id="edn28">
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref28" name="_edn28" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxviii]</span></span><!--[endif]--></span></a> <i>Id.</i><o:p></o:p></span></div>
</div>
<div id="edn29">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref29" name="_edn29" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxix]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Reed</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-bidi-font-style: italic; mso-fareast-font-family: "Times New Roman";">, 145 So. 2d at 870 </span><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">(declining
to apply laches or statute of limitations to bar homestead alienation
protections, where deed had been recorded for over twenty years).</span><o:p></o:p></span></div>
</div>
<div id="edn30">
<div class="MsoEndnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref30" name="_edn30" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxx]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Sigmund v. Elder</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">,
631 So. 2d 329, 331 (Fla. 1st DCA 1994); <i>Moore v. Moore</i>, 237 So. 2d 217,
220 (Fla. 4th DCA 1970).</span><o:p></o:p></span></div>
</div>
<div id="edn31">
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref31" name="_edn31" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxxi]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">DeMayo v. Chames</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">,
934 So. 2d 548, 551 (Fla. 3d DCA 2006) <i>approved,</i> 972 So. 2d 850 (Fla.
2007); <i>Callava v. Feinberg</i>, 864 So. 2d 429, 432 (Fla. 3d DCA 2003); <i>In
re Estate of Nicole Santos</i>, 648 So. 2d 277, 282 (Fla. 4th DCA 1995).<o:p></o:p></span></span></div>
</div>
<div id="edn32">
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;">
<span style="font-family: inherit;"><a href="file:///C:/Users/jtc/Downloads/Homestead%20alienation%20and%20licenses%20JTC%20edits%202-25-13.docx#_ednref32" name="_edn32" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="line-height: 115%;">[xxxii]</span></span><!--[endif]--></span></a> <i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Taylor</span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">, 941 So.
2d 559, 564 (Fla. 3d DCA 2006) (refusing to enforce contract for purchase and
sale in a way that would violate the protection against alienation).</span></span></div>
</div>
</div>
Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-53734458510481481782015-06-18T16:39:00.000-04:002015-06-18T16:39:16.815-04:00Exciting AnnouncementYou'll now find me at the Tampa office of <a href="http://www.stearnsweaver.com/attorneys-info.php?name_first=Jacob+T.&name_last=Cremer">Stearns Weaver</a>. Next time you're in the Tampa area, stop by our offices and say hello.<br />
<br />
Those of you who know me well know that change excites me. That's why I jumped at the chance to join the state's premier environmental and land use team that includes, locally, <a href="http://www.stearnsweaver.com/attorneys-info.php?name_first=Ronald+L.&name_last=Weaver">Ron Weaver</a> and <a href="https://www.linkedin.com/pub/vin-marchetti/3b/64/b55">Vin Marchetti</a>, and, in Tallahassee, <a href="http://www.stearnsweaver.com/attorneys-info.php?name_first=Reggie+L.+&name_last=Bouthillier">Reggie Bouthillier</a>. Expect to see some great entitlements, permitting, and regulatory work coming from this team. I couldn't be more pleased to be a part of it.<br />
<br />And, of course, I'll continue my constitutional and property rights practice, as well. We all know that landowners in Florida need somebody to do it.<br />
<br />
<br />Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-41612985426010953882015-04-30T20:49:00.001-04:002015-04-30T20:59:18.998-04:00The Florida Legislature Creates a Cause of Action for Illegitimate ExactionsAlthough the Florida House may have <a href="http://www.tampabay.com/news/politics/stateroundup/florida-house-declares-end-to-regular-session/2227342">gone home early</a>, they at least got down to business and strengthened the property rights of Florida landowners before leaving Tallahassee. Both houses of the Legislature passed an illegitimate exaction bill <a href="http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=53371">nearly unanimously</a>. Judging by Governor Scott's strong property rights record, you can bet he'll let this one become law.<br />
<br />
<a href="https://www.flsenate.gov/Session/Bill/2015/0383/BillText/e1/PDF">HB 383</a> was aimed at addressing guidance provided by the U.S. Supreme Court in <i>Koontz v. St. Johns River Water Management District</i>, 133 S. Ct. 2586, 2596 (2013). The legislative <a href="http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=h0383g.JDC.DOCX&DocumentType=Analysis&BillNumber=0383&Session=2015">bill analysis explains</a>:<br />
<blockquote class="tr_bq">
Of particular significance to the bill, the <i>Koontz </i>court found that while the government's conditions unconstitutionally burdened the landowner's Fifth Amendment rights, no constitutional taking has occurred that qualifies for the constitutionally mandated remedy of just compensation to the landowner. Instead, the Court left it up to the states to determine what remedies would be available to a landowner who has been subject to an unconstitutional demand where no actual taking has occurred. </blockquote>
<blockquote class="tr_bq">
The Court explained: "Where the permit is denied and the condition is never imposed, nothing has been taken. While the unconstitutional conditions doctrine recognizes that this burdens a constitutional right, the Fifth Amendment mandates a particular remedy—just compensation—only for takings. In cases where there is an excessive demand but no<br />
taking, whether money damages are available is not a question of federal constitutional law but of the cause of action—whether state or federal—on which the landowner relies." </blockquote>
<blockquote class="tr_bq">
Consequently, the Court left unanswered the question of whether the landowner in <i>Koontz </i>could recover damages for unconstitutional conditions claims predicated on the Takings Clause because the landowner's claim was based on Florida law, s. 373.617, F.S. Specifically, because s. 373.617, F.S., allows for damages when a state agency's action is "an unreasonable exercise of the state's police power constituting a taking without just compensation," it is a question of state law as to whether that provision covers an unconstitutional conditions claim.</blockquote>
<div>
The bill gives landowners just that statutory cause of action, providing for injunctive relief and damages for a "prohibited exaction," defined as "any condition imposed by a governmental entity on a property owner's proposed use of real property that lacks an essential nexus to a legitimate public purpose and is not roughly proportionate to the impacts of the proposed use that the governmental entity seeks to avoid, minimize, or mitigate." Here's the key provision:<br />
<blockquote class="tr_bq">
In addition to other remedies available in law or equity, a property owner may bring an action in a court of competent jurisdiction under this section to recover damages caused by a prohibited exaction. Such action may not be brought until a prohibited exaction is actually imposed or required in writing as a final condition of approval for the requested use of real property. The right to bring an action under this section may not be waived. This section does not apply to impact fees adopted under s. 163.31801 or non-ad valorem assessments as defined in s. 197.3632. </blockquote>
That is, if the exaction doesn't measure up to the U.S. Supreme Court's exactions trio (<i>Nollan</i>, <i>Dolan</i>, and <i>Koontz)</i>, a landowner can make a claim for damages (which is defined to include injunctive relief, which might include invalidation of the offensive condition). Just as those cases command (but which many courts have misunderstood), the government has the "burden of proving the exaction has an essential nexus to a legitimate public purpose and is roughly proportionate to the impacts of the proposed use that the governmental entity is seeking to avoid, minimize, or mitigate." Sensibly, the landowner must give the government written notice of the claim to give the government a chance to rescind or reduce the exaction. If the landowner wins a lawsuit, the court must award attorney's fees.<br />
<br />
What does all this mean, in layman's terms? Simply put, if, in exchange for a development permit, the government demands more than it fairly should, or demands something that doesn't relate to the permit, than landowners have another tool at their disposal to challenge the government demand and get damages for their injuries. All in all, this was a great way to celebrate the <a href="http://archive.law.fsu.edu/journals/lawreview/issues/232/powell.html">Bert Harris Act's twentieth birthday</a>.<br />
<br />
And speaking of the Bert Harris Act, there were a few "glitch" fixes to it this year (as has been the case over the past few years):<br />
<br />
<br />
<ul>
<li>The bill clarifies that property must be "directly" affected by government action. Presumably, this means to distinguish properties that are merely tangentially or indirectly affected by a government action to another property.</li>
<li>It clarifies that the landowner and the government can use the flexibility of the Bert Harris Act settlement process both before and after a lawsuit is filed. This was an important amendment because the Bert Harris Act allows settlements to protect the landowner from application of contrary local laws and ordinances, and last year an appellate court refused to allow a settlement agreement because it was entered after a lawsuit was filed. Collier County v. Hussey, 147 So. 3d 35 (Fla. 2d DCA 2014).</li>
<li>Sensibly, the bill also prohibits actions against local governments that adopt federal flood maps as a requirement of the National Flood Insurance Program.</li>
</ul>
</div>
Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-80787388864712662862015-04-21T05:30:00.000-04:002015-04-21T05:30:00.752-04:00Consider Supporting the Pacific Legal Foundation<br />As litigators fighting for property rights (or any other type of litigation), the long slog of the work in the trenches can sometimes bring us down or cause us to lose sight of the big picture. That's what it's great to have the support of great organizations like Pacific Legal Foundation. <br /><br />The Managing Attorney of PLF's Atlantic Center in Palm Beach Gardens, <a href="http://www.pacificlegal.org/staff/mark-miller">Mark Miller</a>, recently <a href="http://blog.pacificlegal.org/2015/hope-for-the-future/">discussed my practice</a> in a post on PLF's Liberty Blog. Perhaps most notably, Mark, a double Gator graduate of the University of Florida, was forced to say a few kind words my alma mater, The Florida State University. The cause of property rights really can bring good people together!<br /><br />PLF has been doing great work in the field since 1973: it has chalked up <a href="http://www.pacificlegal.org/SupremeCourt">seven victories</a> in the U.S. Supreme Court. PLF also supported my firm and client with an amicus brief when I was working in Tallahassee on the briefing of a case defending the riparian rights of beachfront property owners before the U.S. Supreme Court. <i>Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot.</i>, 130 S. Ct. 2592 (2010). PLF also supported <a href="http://blog.pacificlegal.org/2013/plf-op-ed-in-tampa-tribune-opposes-unconstitutional-taking-of-permit-applicants-land/">my client before the 11th Circuit</a> in a case I've written about here that we are trying to get the U.S. Supreme Court to review. <a href="http://www.jacobtcremer.com/2015/02/new-petition-for-certiorari-next-koontz.html"><i>Hillcrest Property, LLP v. Pasco County</i></a>, No. 14-864.<div>
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Please consider supporting PLF, and if you are an attorney with a property rights issue, call Mark to discuss getting amicus support from PLF.</div>
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Anonymoushttp://www.blogger.com/profile/14581320389396693812noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-60558251257600224532015-04-20T05:30:00.001-04:002015-05-01T18:09:20.260-04:00Hillcrest Property, LLP v. Pasco County - Property Owner's Reply BriefThose who follow this blog will be familiar with our <a href="http://www.jacobtcremer.com/2015/02/new-petition-for-certiorari-next-koontz.html">petition to the U.S. Supreme Court</a>, <i>Hillcrest Property, LLP v. Pasco County</i>, <a href="http://www.smolkerbartlett.com/news-resources/item/285-smolker-bartlett-attorneys-ask-us-supreme-court-to-review-violation-of-client%E2%80%99s-due-process-rights">No. 14-864</a>. You'll also be familiar with the <a href="http://www.jacobtcremer.com/2015/03/hillcrest-property-llp-v-pasco-county.html">County's brief in opposition</a> to the U.S. Supreme Court taking this case up on certiorari, and with the <a href="http://www.jacobtcremer.com/2015/03/new-scotus-amicus-brief-in-hillcrest.html">overwhelming amici support</a> we received from the National Association of Home Builders, the National Association of Realtors, the National Federation of Independent Small Businesses, the International Council of Shopping Centers, the National Multifamily Housing Council, and the Florida Home Builders. <br />
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And you'll probably recall that this case raises due process, exactions, and unconstitutional conditions issues that are similar to those the U.S. Supreme Court recently dealt with in <i>Koontz v. St. Johns River Water Management District</i>, 133 S. Ct. 2586, 2596 (2013). The Eleventh Circuit, though, ruled that any issues dealing with the facial constitutionality of the County's ordinances had to be raised within four years of their adoption. This case asked the U.S. Supreme Court to weigh in, and the <a href="https://www.scribd.com/doc/261374634/Reply-Brief-for-the-Petitioner-Hillcrest-Property-LLP-v-Pasco-Cnty-No-14-864-Apr-1-2015">reply brief was recently filed</a>. <br />
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As is my tradition when my firm or I am on a case or a brief, I leave commentary to others. For an interesting writeup, see Robert Thomas's <a href="http://www.inversecondemnation.com/inversecondemnation/2015/04/on-facial-challenges-exactions-standing-and-statutes-of-limitations-final-cert-briefs-in-scotus-subs.html">post on the issue</a>, where he concludes: "But regardless of the claim made or the remedy sought, if the challenge is in federal court, the plaintiff must show Article III standing, and must demonstrate some injury to itself as a result of the ordinance that is different from that of the general public. And we're not sure how that happened in <i>Hillcrest </i>until Hillcrest actually presented development proposal which triggered application of the Right of Way Preservation Ordinance."<br />
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Keep an eye on this one. It was on the conference list for Friday, April 17, so we could have an answer as soon as today on whether the Supreme Court will take it up.<br />
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<iframe height="700" src="https://www.scribd.com/doc/261374634/Reply-Brief-for-the-Petitioner-Hillcrest-Property-LLP-v-Pasco-Cnty-No-14-864-Apr-1-2015" width="500"></iframe>Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-48747921710561003922015-03-15T12:33:00.000-04:002015-03-15T12:33:00.054-04:00Hillcrest Property, LLP v. Pasco County - SCOTUS Brief in OppositionPasco County has filed its <a href="https://drive.google.com/file/d/0B14y4VfIxe7rbHctN19kcE5zNk0/view?usp=sharing">brief in opposition</a> in <i>Hillcrest Property, LLP v. Pasco County</i>.<br />
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You might recall that <a href="http://www.jacobtcremer.com/2015/02/new-petition-for-certiorari-next-koontz.html">this case has some Due Process issues</a> that sound awfully familiar to the exactions reviewed by the U.S. Supreme Court in <i>Koontz v. St. Johns River Water Management District</i>, 133 S. Ct. 2586, 2596 (2013). After the district court struck down an exactions ordinance as unconstitutional for violating Substantive Due Process, the Eleventh Circuit reversed on statute of limitations grounds. Hillcrest Property, LLP filed a petition for certiorari to the U.S. Supreme Court asking whether local governments can have their unconstitutional ordinances immunized from challenge by mere passage of time. The petition has garnered a lot of attention, including an <a href="http://of%20the%20national%20association%20of%20home%20builders%20and%20others/">amici brief</a> by the National Association of Home Builders and others.<br />
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Here's the County's summary of its arguments:<br />
<blockquote class="tr_bq">
This Court should deny Hillcrest’s petition for certiorari because the Eleventh Circuit’s decision applying a statute of limitations to bar Hillcrest’s facial substantive due process claim against the Ordinance neither conflicts with this Court’s decisions nor with decisions from other circuit courts of appeals nor with a state court of last resort. Moreover, Hillcrest below never raised and the magistrate judge, the district court and the Eleventh Circuit never considered the key components of Hillcrest’s petition, to wit, 42 U.S.C. § 1988 and “the federal Continuing Violation Doctrine.” Finally, Hillcrest’s and the amici’s extended parade of horribles stemming from the Eleventh Circuit’s decision is grossly exaggerated, if not completely wrong. </blockquote>
<blockquote class="tr_bq">
Hillcrest’s petition is saturated with references to 42 U.S.C. § 1988 and “the federal Continuing Violation Doctrine.” Indeed, the second of the two questions Hillcrest presents for review involves only one issue: “whether the federal Continuing Violation Doctrine” applies. Hillcrest, however, never raised Section 1988 or any “Continuing Violation Doctrine” in the district court or in the Eleventh Circuit. Neither the magistrate judge nor the district court judge nor the Eleventh Circuit in their respective recommendation and decisions mentioned Section 1988 or any “Continuing Violation Doctrine.” This Court almost never considers issues, such as Section 1988 and any “Continuing Violation Doctrine” here, which were neither raised nor decided below. </blockquote>
<blockquote class="tr_bq">
The other question which Hillcrest presents, “[w]hether a state statute of limitations should apply to a claim . . . seeking to enjoin enforcement of a county ordinance” claimed to be facially unconstitutional, asks this Court to jettison well-established principles from this Court and from the circuit courts of appeals. Federal courts have consistently applied state statutes of limitations against facial claims against ordinances and statutes, at least where defendants, such as the County here, raised the statute of limitations, at least outside the First Amendment and race contexts, and at least where, as the Eleventh Circuit found here, the “injury should have been apparent to Hillcrest upon the Ordinance’s passage” (Appendix 9). Moreover, there is no need to discard well-established principles here: Hillcrest’s as-applied substantive due process claim remains pending and Hillcrest may pursue damages and injunctive relief in connection with its as-applied claim. </blockquote>
<blockquote class="tr_bq">
Hillcrest and the amici have peppered their petition and brief, respectively, with fears that the Eleventh Circuit’s decision applying a statute of limitations to bar Hillcrest’s facial claim would effectively “immunize” an ordinance or statute from constitutional challenge. What Hillcrest and the amici forget is that, while Hillcrest’s facial substantive due process claim against the Ordinance has wound its way through the Eleventh Circuit up to this Court, Hillcrest’s as-applied substantive due process claim against the Ordinance remains to be tried in district court. Moreover, circuit courts of appeals have consistently held that the bar of a statute of limitations against a facial claim against an ordinance or statute does not bar an as-applied claim against the ordinance or statute, on which the statute of limitations only begins to run once the ordinance or statute is “applied.” </blockquote>
<blockquote class="tr_bq">
Hillcrest also has suggested that it would be unfair to bar its facial substantive due process claim because the statute of limitations could run prior to a landowner being aware that it had, or should have, a claim against the Ordinance. What Hillcrest overlooks is that the Eleventh Circuit held that the four year statute of limitations expired on Hillcrest’s facial substantive due process claim on November 22, 2009, four years from the enactment of the Ordinance on November 22, 2005. Hillcrest had applied for preliminary site plan approval on December 18, 2006, almost three years prior to November 22, 2009, and the County definitively “applied” the Ordinance against Hillcrest at least by August 23, 2007, two years, three months prior to November 22, 2009. Thus, even if Hillcrest were unaware of the Ordinance (or its impacts) prior to August 23, 2007, Hillcrest had two years three months to bring its facial substantive due process claim against the Ordinance within the four-year period the Eleventh Circuit applied. Hillcrest, however, did not sue prior to April 7, 2010, more than two years seven months after the Ordinance was definitively “applied” to Hillcrest and almost six months after the four-year statute of limitations on facial claims had expired.</blockquote>
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Look for the reply soon. In the meantime, check out Robert Thomas's <a href="http://www.inversecondemnation.com/inversecondemnation/">post</a> on the amici brief.<br /></div>
Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-67524141293002619082015-03-08T23:47:00.000-04:002015-03-08T23:47:00.104-04:00New SCOTUS Amicus Brief in Hillcrest: Landowner and Development Groups Support LandownerI've written about our<a href="http://www.jacobtcremer.com/2015/02/new-petition-for-certiorari-next-koontz.html"> petition to the U.S. Supreme Court before</a>, <i>Hillcrest Property, LLP v. Pasco County</i>, <a href="http://www.smolkerbartlett.com/news-resources/item/285-smolker-bartlett-attorneys-ask-us-supreme-court-to-review-violation-of-client%E2%80%99s-due-process-rights">No. 14-864</a>. At its core, the petition asks whether local governments can immunize their unconstitutional ordinances from facial challenges by waiting to apply them to landowners, so that the statute of limitations runs out. That is, does a local government have a right to keep enforcing an unconstitutional law that is on its books, just by the passage of time?<br /><br />We recently learned that a number of organizations focused on advancing the interests of landowners and developers <a href="https://drive.google.com/file/d/0B14y4VfIxe7rV1JMSkp4VTdZQmc/view?usp=sharing">filed an amicus brief</a> in support of the landowner in this case, Hillcrest Property, LLP. The National Association of Home Builders, the National Association of Realtors, the National Federation of Independent Small Businesses, the International Council of Shopping Centers, the National Multifamily Housing Council, and the Florida Home Builders all signed onto the brief, explaining:<br />
<blockquote class="tr_bq">
What unites amici in this single brief is the fundamental belief in protecting the rights of private property owners, particularly against extortive and unconstitutional government regulation. Amici have a particular interest in this case, because the Eleventh Circuit Court of Appeals’ decision insulates the Respondent’s unconstitutional law from a facial substantive due process challenge. This decision now provides local government with an incentive to freely pursue constitutional mischief by enacting an unconstitutional law, and then waiting until the statute of limitations passes before enforcing it. Amici’s members, many of whom are small business owners, will now have to expend limited financial resources to bring a premature facial substantive due process claim, only to find out that their claim has no opportunity to be heard. Amici seek clarification that this Court’s precedents prevents such an outcome.</blockquote>
Here's the summary of their argument:<br /><blockquote class="tr_bq">
The Eleventh Circuit erred by creating a blanket rule of law that the mere enactment of an ordinance always commences a statute of limitations for a facial substantive due process claim. Such a rule creates an untenable scenario since property owners will often lack Article III standing to bring a claim within the time allowed under a statute of limitations, thereby effectively shutting the courthouse door. In cases where courts have found that the enactment of a law starts the statute of limitations clock, there have been concrete and particularized injuries to the plaintiffs. </blockquote>
<blockquote class="tr_bq">
To uphold the Eleventh Circuit’s decision will waste precious judicial resources by requiring property owners to prematurely initiate lawsuits. At the same time, many of the amici members are small businesses, and are unable to mount a long and costly legal challenge before suffering a concrete injury. </blockquote>
<blockquote class="tr_bq">
Further, this is not a Fifth Amendment Takings Clause case. Yet, the Eleventh Circuit incorrectly utilized statute of limitations rules from Takings jurisprudence by holding that Petitioner’s facial substantive due process claim was time-barred, because the statute of limitations commenced from themere enactment of Respondent’s unconstitutional Right-of-Way Preservation Ordinance (“Ordinance”). The court below held that the event of the Ordinance enactment, by itself, devalued Petitioner’s property. Hillcrest Prop., LLC v. Pasco County, 754 F.3d 1279, 1283 (“We are persuaded by the reasoning expressed by our sister circuit’s . . . . Hillcrest’s land became encumbered immediately upon the Ordinance’s enactment in 2005. Its property would have decreased in value at that time because any current or future development plans would have been subject to the Ordinance’s requirement that, in exchange for granting a commercial development permit, Hillcrest would have to deed part of the land to the county without payment for the acquisition.”). The Eleventh Circuit’s reliance on a purported “decrease[] in value” is in error. As this Court has explained, devaluation of property is part of the analysis of whether just compensation is due under the Takings Clause, but devaluation does not play a role in substantive due process analysis. Lingle v. Chevron, 544 U.S. 528 (2005). </blockquote>
<blockquote class="tr_bq">
Finally, in cases where lower courts have found that the statute of limitations commences from the enactment of a law, the injury sustained by the plaintiff was fully effectuated by the enactment of the statute. Such an injury did not occur here.</blockquote>
As usual where yours truly is on the brief, I leave the commentary to others. There's an article over at <a href="http://www.law360.com/articles/626259/builders-back-high-court-row-over-fla-ordinance-dispute">Law 360</a> and an announcement by the <a href="http://www.fhba.com/index.cfm?referer=content.contentItem&ID=2500#2">Florida Home Builders Association</a>.Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-90991243444878962852015-02-15T22:27:00.000-05:002015-03-07T11:50:36.170-05:00New Petition for Certiorari - Hillcrest Property, LLP v. Pasco County - The Next Koontz?In a new petition for certiorari, <i>Hillcrest Property, LLP v. Pasco County</i>, No. 14-864, to the U.S. Supreme Court asks whether local governments can immunize their unconstitutional ordinances from facial challenges by waiting to apply them to landowners. The introduction follows. Because <a href="http://www.smolkerbartlett.com/news-resources/item/285-smolker-bartlett-attorneys-ask-us-supreme-court-to-review-violation-of-client%E2%80%99s-due-process-rights">yours truly was on the brief</a>, look to <a href="http://www.law360.com/articles/614770/developer-urges-high-court-to-review-fla-land-ordinance">Law 360 </a>or <a href="http://www.inversecondemnation.com/inversecondemnation/2015/01/new-cert-petition-must-a-plaintiff-challenging-an-ordinance-for-facial-invalidity-file-suit-before-h.html">Robert Thomas</a> for the commentary.<br />
<blockquote class="tr_bq">
In <i>Koontz v. St. Johns River Water Management District</i>, 133 S. Ct. 2586, 2596 (2013), this Court held that governments cannot make extortionate demands for land because they “impermissibly burden the right not to have property taken without just compensation.” This Court explained the “reality” that “landuse permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the government often has broad discretion to deny a permit that is worth far more than property it would like to take.” <i>Id. </i>at 2595.<br />
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Pasco County enacted and enforced an Ordinance that, in every application, violates Koontz, while depriving affected property owners of the substantive and procedural protections of eminent domain. Hillcrest attacked the Ordinance as violating Due Process both on its face and as-applied under 42 U.S.C. § 1983. On summary judgment, the district court held the Ordinance facially unconstitutional, finding that it leveraged the police power to exact land that the County would otherwise have to pay for in violation of the Due Process Clause. Characterizing the Ordinance is as “an unmistakable, abusive and coercive misapplication of government power, perpetrated to cynically evade the Constitution,” App. 69, the district court then enjoined the County from prospectively enforcing the Ordinance.<br />
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On appeal, the Court of Appeals for the Eleventh Circuit held that Hillcrest’s facial claim was barred by Florida’s four-year personal injury statute of limitations. Without analyzing the propriety under 42 U.S.C. § 1988 of applying a statute of limitations to a law that is facially void ab initio, and therefore not law at all, the Eleventh Circuit assumed that Florida’s four-year statute of limitations applied. By so doing, the Eleventh Circuit decided an important federal question that has not been settled by this Court: namely, whether a state statute of limitations can bar a federal court from prospectively enjoining enforcement of an unconstitutional law.<br />
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Even assuming that a statute of limitations can be applied to a claim that a law is facially unconstitutional (and therefore void ab initio), the Eleventh Circuit ignored the federal rules of accrual and the Continuing Violation Doctrine. First, the Eleventh Circuit conflated the remedial distinction between facial and as-applied challenges with the unrelated jurisdictional question of statutes of limitations, creating different and unworkable accrual rules for facial and as-applied Due Process claims. Second, the Eleventh Circuit barred Hillcrest’s facial Due Process claim, despite the fact that the injury upon which Hillcrest’s facial claim was based was not fully effectuated and complete until, as the district court found, the County first applied the Ordinance to Hillcrest, well within the statutory period after the Ordinance was enacted. Third, even if Hillcrest’s facial Due Process claim accrued upon enactment of the Ordinance, the Eleventh Circuit ignored the Continuing Violation Doctrine, which prevented the enforcement of the County’s facially unconstitutional ordinance from being insulated by a statute of limitations. The Ordinance subjected Hillcrest to the continuing and ongoing threat of extortionate leveraging of the police power. While this Court has clearly held that the doctrine is applicable to suits under § 1983, the courts of appeals are now intolerably split on whether the doctrine must be applied to facial Due Process challenges under § 1983.<br />
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In sum, the Eleventh Circuit has forever immunized from facial challenge a regulatory scheme that cannot ever be applied constitutionally. This enables the County to continue to extortionately leverage its police power every time it applies the Ordinance, enabling it to continue to coerce landowners into dedicating land for free the County would otherwise have to pay for. This should not be the law. The Due Process Clause prohibits government from extortionately leveraging its police power to evade the substantive and procedural protections of eminent domain. A law purposefully designed to evade this prohibition cannot stand.</blockquote>
Which brings us to the Questions Presented:<br />
<blockquote class="tr_bq">
1. Whether a state statute of limitations should apply to a claim brought pursuant to 42 U.S.C. § 1983 seeking to enjoin enforcement of a county ordinance that, on its face, and in violation of the Fifth Amendment’s Due Process Clause, extortionately leverages the police power every time it is applied to coerce landowners into dedicating road right-of-way the county would otherwise have to pay for. </blockquote>
<blockquote class="tr_bq">
2. If there is a statute of limitations, whether the federal Continuing Violation Doctrine applies, such that a landowner whose property is subject to the ordinance may elect to bring a facial Due Process claim either upon enactment of the ordinance or later, within the limitations period following application of the ordinance to that landowner.</blockquote>
<iframe height="700" src="http://www.smolkerbartlett.com/images/pdf/Hillcrest%20v%20Pasco%20County%20-%20Final%20Brief%20sent%20to%20SCOTUS%201.15.15.pdf" width="500"></iframe>Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-24073519633397828162015-01-19T06:30:00.000-05:002015-01-19T06:30:02.907-05:00Should Florida Scrap the Development of Regional Impact Process?One of my goals in the new year is to get back on the horse here at my blog. Last year was a great year for personal and professional development, but the blog suffered. I've been encouraged to receive so many emails from readers asking me to continue working on it in 2015.<br />
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First up is something to watch for in this year's legislative session. Over at <a href="http://contextflorida.com/">Context Florida</a>, Bruce Ritchie has a good piece on <a href="http://contextflorida.com/bruce-ritchie-former-state-planning-chief-wants-new-state-process-reviewing-major-developments/">whether Florida's Development of Regional Impact (DRI) should be scrapped</a>. The genesis of the article was Bob Rhodes's <a href="http://www.floridaplanning.org/wp-content/uploads/2015/01/Bob-Rhodes-article.pdf">article </a>in <i>Florida Planning </i>asking the same question. Bob's opinion goes a long way, since he was the first administrator of the DRI program and he chaired the State of Florida Environmental and Land Management Study committee (ELMs II).<br />
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Think of the DRI process as a <a href="http://www.floridajobs.org/community-planning-and-development/programs/developments-of-regional-impact-and-florida-quality-developments">significant layer of state and regional regulation</a> placed on top of Florida already robust growth management regime for big projects. Over time, the significance of the DRI program has eroded, but it causes a great deal of headache when it does come up. Management of legacy DRIs takes an enormous amount of time that might be better spent elsewhere.<br />
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The legislature reduced its importance to some degree with the <a href="http://www.jacobtcremer.com/2011/06/see-how-floridas-new-comprehensive-plan.html">Community Planning Act</a> in 2011, and it considered reducing its importance even more <a href="http://www.jacobtcremer.com/2013/12/developments-of-regional-impact-to.html">just last session</a>. Looks like it may well surface again this session.<br />
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<br />Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-26971418457533138842014-06-05T22:58:00.000-04:002014-06-05T22:58:00.206-04:00First Quarter 2014: Recent Florida Environmental and Land Use Case Law<div>
The Florida Bar's <a href="http://eluls.org/">Environmental and Land Use Law Section</a> has posted <a href="http://eluls.org/wp-content/uploads/2012/01/ELULS-Reporter-March-2014.pdf">its column on the environmental and land use cases in Florida</a> that you need to know about for the first quarter of 2014. Here's what we've got:<br />
<ul>
<li><b><a href="http://scholar.google.com/scholar_case?case=9059815968303520923&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><i>Beyer v. City of Marathon</i></a>, 38 Fla. L. Weekly D2286 (Fla. 3d DCA 2013)</b>, rejecting the local government's claims of statutes of limitation and laches where it delayed the processing of an application.</li>
<li><b><a href="http://scholar.google.com/scholar_case?case=14985606481357291659&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><i>Archstone Palmetto Park, LLC v. Kennedy</i></a>, 2014 WL 305086 (Fla. 4th DCA 2014)</b>, clarifying the limitations for local government public referenda for development orders.</li>
<li><b><a href="http://www.4dca.org/opinions/Oct%202013/10-16-13/4D11-3271.op.pdf"><i>Fla. Dep’t of Agriculture & Consumer Servs. v. Mendez</i></a>, 126 So. 3d 367 (Fla. 4th DCA 2013)</b>, regarding standards to apply to takings under the Citrus Canker Eradication Program.</li>
<li><b><a href="http://scholar.google.com/scholar_case?case=6165140763687684546&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><i>Detournay v. City of Coral Gables</i></a>, 38 Fla. L Weekly D2552 (Fla. 3d DCA 2013)</b>, holding that local government code violation actions are executive acts that cannot be supervised by the courts in actions by third parties attempting to force the government to pursue the violations.</li>
<li><b><a href="http://scholar.google.com/scholar_case?case=18166101963675694797&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><i>Ripps v. City of Coconut Creek</i></a>, 124 So. 3d 1007 (Fla. 4th DCA 2013)</b>, holding that a DRI substantial deviation threshold regarding hotel rooms was moot under newly amended laws.</li>
<li><b><i><a href="http://scholar.google.com/scholar_case?case=13897240126886151527&hl=en&as_sdt=6&as_vis=1&oi=scholarr">Grove at Harbor Hills Homeowners v. Harbor Hills Dev., L.P</a>.</i>, 38 Fla. L. Weekly D2627 (Fla. 5th DCA 2013)</b>, emphasizing that "maintenance" and "control" have different meanings in real estate use agreements.</li>
<li><b><i><a href="http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/November/November%2008,%202013/2D12-5515.pdf">Clearwater Housing Authority v. Future Capital Holding Corp</a>.</i>, No. 2D12-5515 (Fla. 2d DCA 2013)</b>, holding that the statute of repose applicable to an action founded on the design, planning, or construction of an improvement to real property can be triggered on an event other than an improvement to real property.</li>
</ul>
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Past summaries are available in <a href="http://www.jacobtcremer.com/search?q=quarter">my archives</a>.</div>
<br />Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0tag:blogger.com,1999:blog-8308203392469020151.post-53638247893673813792014-06-03T22:04:00.002-04:002014-06-03T22:06:08.124-04:00Do Macroeconomic and Microeconomic Factors Matter in the Takings Analysis of Economically Beneficial Use?Nope, according to Florida's Fifth District Court of Appeals. <i><a href="http://www.5dca.org/Opinions/Opin2014/052614/5D12-4274.op.pdf">Ocean Palm Golf P'ship v. Flagler Beach</a></i>, Case No. 5D12-4274 (May 30, 2014). Here's an excerpt:<br />
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<blockquote class="tr_bq">
We agree with Ocean Palm Golf that the government's refusal to act can constitute a total taking under some circumstances. <i>See, e.g., Tollius v. City of Miami</i>, 96 So.2d 122 (Fla.1957) (holding that the denial of property owner's request to rezone lots from residential to commercial was an abuse of discretion because the character of the area had changed greatly, rendering single-family residential use unsuitable); <i>Kugel v. City of Miami</i>, 206 So.2d 282 (Fla. 3d DCA 1968) (concluding that denial of rezoning request from residential to less restrictive zone constituted a taking of the property where what had been quiet residential area was now surrounded by tall buildings and parking lots). However, as the City correctly points out, the cases holding that a taking has occurred when the government refuses a request to change zoning, even though the character of the land surrounding the affected land has changed dramatically, are distinguishable from this case because, here, the character of the property surrounding the golf course parcel has remained largely the same for decades—it has long been used for single- and multifamily residences. Ocean Palm Golf replies that the changed circumstance on which it is relying is not a change to the surrounding properties, but rather is the change in market and demographic factors: the fact that golf courses across the country are no longer profitable due to the over-construction of golf courses, the aging golf population, and the increased expense involved in operating the golf course. We deem this to be a faulty argument, as it is based on Ocean Palm Golf's failed economic expectations. In effect, Ocean Palm Golf's position is that if a landowner buys a piece of property and the economy later takes a downturn, resulting in the frustration of the landowner's expectations, then the government must act as a guarantor for the landowner's investment after it becomes unprofitable due to, not the zoning regulations, but outside market forces. This is not the purpose of eminent domain law.</blockquote>
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<i>Id.</i> at 16-17. I'll leave analysis for others, since the law firm of yours truly was on the case.Jacob T. "Jake" Cremerhttp://www.blogger.com/profile/15785220786785003939noreply@blogger.com0