In the estimation of the Florida legislature, a United States Supreme Court decision just isn’t enough to make a point on protecting certain property rights: to wit, the Florida legislature recently adopted House Bill 383 – Private Property Rights (“HB383”).
This bill codifies the U.S. Supreme Court’s holding Koontz regarding development exactions. Specifically, HB383 opens an avenue for property owners to recover damages from government for imposition of exactions that are found to not have an essential nexus (Nollan) to a legitimate public purpose or if the exaction is not roughly proportionate (Dolan) to the impacts of the proposed use. The bill creates a process for property owners to assert their claims and establishes the respective burdens of proof between the property owner and government.
- A property owner seeking damages for a prohibited development exaction must file advanced notice of its intent to do so with an estimate of those damages;
- The government must respond with why the exaction is proportionate or reduce or remove the exaction;
- If the matter goes to trial, the government has the burden of proving both the nexus and proportionality of the exaction and the property owner has the burden of proving its damages; and
- The court may award attorneys fees and costs to the government, but must award these fees and costs to the property owner if the exaction has no nexus to a legitimate public purpose.
The bill does clear up one important issue that arose from the Koontz decision: the nexus and rough proportionality provisions do not apply to statutorily authorized impact fees or statutorily authorized ad valorem property assessments.
HB383 gives Florida property owners a powerful, property rights friendly avenue to litigate imposed development exactions through the Florida courts system. It remains to be seen whether other states will follow Florida’s lead, but the trend in takings law engendered by Koontz suggest that the clarity on takings analysis from the U.S. Supreme Court’s 2005 Lingle decision is getting murkier and government’s ability to control the external effects of development more difficult to navigate.
Post Authored by David Silverman, Ancel Glink