August 11, 2020

Volume X, Number 224

August 11, 2020

Subscribe to Latest Legal News and Analysis

August 10, 2020

Subscribe to Latest Legal News and Analysis

New Florida Statute Codifies U.S. Supreme Court Ruling in Koontz

Provides Additional Relief Against “Extortionate” Exactions by State and Local Governments 

The U.S. Supreme Court ruling in the “takings” case of Koontz v. St. Johns River Water Management District in 2013 was an appeal by a property owner from an adverse ruling of the Florida Supreme Court with respect to permit conditions requiring off-site mitigation work. The U.S. Supreme Court’s opinion in Koontz expanded and clarified the unconstitutional conditions doctrine. House Bill 383, which was signed into law by Governor Scott on June 11, 2015,   creates a statutory cause of action for injunctive relief and damages  for extortionate exactions by local and state governmental bodies, codifying the decision in Koontz and eliminating any uncertainty under Florida law on the availability of monetary damages. The new statute defines a “prohibited exaction” to include “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.” The governmental entity must prove that the exaction is not prohibited and the property owner must prove its damages resulted from the exaction. Pre-suit written notice to the governmental body is required, providing the government with the opportunity to cure or explain the alleged exaction before litigation commences. The prevailing party is entitled to recovery of reasonable attorneys’ fees and costs.

In addition to the new cause of action, HB 383 amends  the existing Bert J. Harris, Jr., Private Property Rights Protection Act to clarify that only property owners whose real property is directly impacted by the governmental action complained of may bring suit under the Act for relief and reaffirms the applicability of the Act’s “safe harbor” provisions for settlement agreements, irrespective of the date that the agreement was entered between the property owner and governmental body.  Notably, actions by counties to adopt FEMA flood maps for the purpose of participation in the national insurance program are specifically excluded from the Act, with certain exceptions.  See additional details on HB 383, which takes effect on October  1, 2015.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume V, Number 168

TRENDING LEGAL ANALYSIS


About this Author

Kerri Barsh, Greenberg Traurig Law Firm, Miami, Environmental Law Litigation Attorney
Shareholder; Co-Chair, National Environmental Practice

Kerri L. Barsh is Co-Chair of the firm’s Environmental Practice and represents public and private clients on an array of environmental regulatory, permitting and litigation matters, including transactional support and due diligence, environmental assessment and liability matters, energy and infrastructure projects, wetlands and coastal permitting, complex land use projects, air quality matters, hazardous materials contamination, and other compliance and enforcement cases.

Concentrations

  • Environmental compliance...

305-579-0772