What's Developing | Summer 2020

During this time of unprecedented professional and personal uncertainty, we want to assure you that we will continue to provide the same uninterrupted, high-quality service that you are accustomed to. We remain operational and available to answer any questions. Our top priority is focusing on guiding our families, clients, businesses, and colleagues through these unchartered waters.

As a statewide group, collectively we are looking toward the future and considering the current and potential impacts of COVID-19 on the land development industry. We are working hard to help you navigate the many novel and complex business and legal issues that are arising. In addition to the new federal, state and local government actions which we are tracking here, below please find a "developed" law from the 2020 Legislative Session and recent court decisions that we are monitoring.

FLORIDA ENSURES FAIRNESS IN ASSESSMENT OF IMPACT FEES AND USE OF IMPACT FEE CREDITS

Governor Ron DeSantis recently signed into law Senate Bill 1066 ("S.B. 1066"), which became effective on July 1, 2020. Of all the bills relevant to landowners and land developers in the 2020 legislative session, this one may prove to be the most important. S.B. 1066 makes significant changes to state law on impact fees imposed by local governments on development projects to ensure that they are assessed appropriately and that the use of impact fee credits is fair.

Historically, Florida's local governments have had broad home rule power to impose impact fees to address the additional costs of public services - such as utilities, roads, parks, and schools - associated with the development and growth of communities. Impact fees have been used increasingly by local governments to address these costs, and local governments continue to expand the use of impact fees to address other costs related to new development. Over time, both Florida courts and the Florida Legislature have developed a framework for when and how local governments may use impact fees. Florida's Impact Fee Act ("the Act") provides local governments with minimum conditions they must meet when imposing impact fees.

S.B. 1066 adjusts these minimum conditions in three important ways. First, it locks in the assessment of impact fees at the time of application for a permit:

The local government must provide notice no less than 90 days before the effective date of an ordinance or resolution imposing a new or increased impact fee. A county or municipality is not required to wait 90 days to decrease, suspend, or eliminate an impact fee. Unless the result is to reduce the total mitigation costs or impact fees imposed on an applicant, new or increased impact fees may not apply to current or pending permit applications submitted before the effective date of an ordinance or resolution imposing a new or increased impact fee.

S.B. 1066 (amending § 163.31801(3)(d)).

Many local governments were already applying this in practice, but this is a welcome change with the permitting delays that we are experiencing around the state due to COVID-19.

The second change is a clarification to last year's legislation, which had in turn clarified existing Florida law to make it abundantly clear that any time a local government collected contributions for public education facilities, the local government must credit the full amount collected against school impact fees. S.B. 1066 now explicitly states that this crediting of the contribution is required despite any local law to the contrary.

The third change may be the most important in that the Florida Legislature has explicitly established the ground rules for impact fee credits. Local governments provide impact fee credits in order to ensure that impact fee assessments meet the requirements of Florida law. These credits are typically available to developers who have constructed improvements, dedicated land, or given money to the local government that was used to benefit the same system for which the impact fee is being charged. The developer can use these credits to offset future impact fees. For example, if a developer is required to install a traffic light at a nearby intersection, the cost of installing the traffic light may be creditable against transportation impact fees or mobility fees.

Many jurisdictions have limited the use of impact fee credits arbitrarily. Some have limited their use geographically, and in some cases, have refused to allow the impact fee credits to be used outside of the project which originally generated them. This has limited the usefulness of credits and in some cases made them nearly worthless. In response, S.B. 1066 adds to the Act:

Impact fee credits are assignable and transferable at any time after establishment from one development or parcel to any other that is within the same impact fee zone or impact fee district or that is within an adjoining impact fee zone or impact fee district within the same local government jurisdiction and receives benefits from the improvement or contribution that generated the credits.

S.B. 1066 (adding § 163.31801(8)).

This addition to the Act simplifies the law across Florida's many local governments with a clear statewide statutory requirement. Now, "at any time after establishment," impact fee credits are assignable and transferrable to any parcel within the impact fee zone where the credits were generated as well as to adjacent zones that receive a benefit from the improvement.

With this change, especially, landowners and land developers should evaluate requirements of their projects and any related agreements to ensure that local governments are creating impact fee credits correctly and appropriately allowing their use outside of the project that generated them.

Our growing Land Development, Zoning & Environmental team collaborated with our Director of Government Affairs, Marco Paredes, to bring challenges associated with transferability to legislative attention and assist in drafting language and amendments to address the issues throughout the legislative process. This collaboration helped secure a broad coalition of support with legislators and stakeholders during the 2020 Legislative Session resulting in passage of the bill. We are active in efforts to implement it in ongoing, proposed, and future projects around the state, as well as continued engagement on impact fee policy. Please contact us should you have any questions.

LEGAL UPDATE

Supreme Court Holds That Local Landowners are Potentially Responsible Parties Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980

Atlantic Richfield Company ("the Company"), in conjunction with the Environmental Protection Agency ("EPA"), has worked to remedy lead and arsenic contamination on its property in Montana as required under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"). The Company has spent 35 years and over $450 million working to clean up the site according to the EPA's orders. In 2008, nearby landowners sued the Company, requesting restoration damages for the diminution of property values due to the contamination. Included in the lawsuit was a proposed restoration plan submitted by the landowners that went beyond what the EPA had already deemed appropriate. The U.S. Supreme Court ("USSC") first stated that CERCLA, which requires that federal courts review claims under CERCLA, does not block state courts from reviewing claims when they are "brought under other sources of law"-which include the state law claims of nuisance, trespass, and strict liability brought in this case. Thus, the state court correctly determined that it had jurisdiction to review these claims. Second, the USSC determined that the Montana Supreme Court erred when it found that the landowners were not a "potentially responsible party" ("PRP") as defined under CERCLA. Rather, the USSC determined that under CERCLA, landowners would be a PRP because even innocent parties who did not cause the contamination fall under the broad definition of a PRP. View More

Florida ALJ Decides that Miami-Dade County's Approval of Highway Expansion Not Allowed under the County's Comprehensive Plan

Miami-Dade County ("the County") approved plans to extend a highway 13 miles into an agriculture-zoned and environmentally-sensitive area. The Plaintiffs argued that the County did not rely on sufficient data in making its decision and that the highway extension was not in compliance with the County's Comprehensive Plan ("the Plan"). The administrative law judge's ("ALJ") recommended order ruled against the County. The ALJ reasoned that, while the County did not need to obtain additional data in making its decision, it did not react appropriately to the available data. Additionally, the ALJ reasoned that the highway extension was inconsistent with the Plan by extending into areas that were not zoned for development. View More

Southern District of Florida Rules That Sugarcane Preharvest Burning is an Acceptable Agriculture Practice under the Right to Farm Act, but Allows Claims of Negligence Resulting from the Burning

Plaintiffs, local Florida residents, sued Defendant, the owner of a sugarcane farm, for the diminution of property values due to hazardous pollutants created when the defendant conducts "preharvest burning" of sugarcane. The preharvest burning creates smoke and pollutants, called "black snows," that eventually migrate to the plaintiffs' properties. On motion to dismiss, the Court determined that (1) the Plaintiffs lacked Article III standing because they failed to show harm caused by the smoke and ash, (2) the Right to Farm Act ("RTFA") blocks the Plaintiff's nuisance and trespass claims because preharvest burning is an acceptable agricultural practice, but not other claims-such as the Plaintiff's negligence claims, (3) the Plaintiff's claim for injunctive relief is blocked by the primary jurisdiction doctrine and must be resolved first by the administrative process; (4) Plaintiffs properly alleged that the pollutants impacted their land as "black snow," (5) Plaintiff's failed to properly allege their strict liability claim for ultrahazardous activity, and (6) Plaintiffs failed to properly plead all elements under their medical monitoring claim. The Court granted leave to amend on several of the Counts. View More

Middle District of Florida Holds that Land Development Regulations Did Not Cause a Complete Taking Because the Regulations Did Not Deprive the Property of All Beneficial Uses

Property owner sought to add livestock to his commercial agricultural property where he currently grew hay crop. When the City of Haines City ("City") told the owner that he was required to obtain a permit from the City in order to do so, he filed a lawsuit claiming that the City's Land Development Regulations ("LDRs") wrongfully prohibited his agricultural businesses. The Court directed the property owner to apply for a conditional use permit with the city. Upon application, the City approved his permit request. However, the property owner sued again, claiming that the City's LDRs and the conditional use permit constituted a taking by the City because the regulations and permit "deprived him of all, or substantially all, economically beneficial uses of his property." The Middle District of Florida determined that the City's regulations did not constitute a complete taking because farming and agriculture were not completely prohibited. The Court noted that the property owner was granted "exactly what he requested" through both the original approval for agricultural activities and the conditional use permit. View More

Middle District of Florida Holds That Army Corps of Engineers Met Its Burden Under the National Environmental Policy Act to Identify Dredging Project's Environmental Impacts

A local non-profit organization, St. Johns Riverkeeper, Inc., ("the Organization") sued the United States Army Corps of Engineers ("the Corps") under the National Environmental Policy Act ("NEPA") for failing to fully consider the environmental impacts of additional dredging in the St. Johns River ("River"). Specifically, the Organization claimed that the Corps failed to (1) create an environmental impact statement for the 11-mile dredge project, and (2) supplement the statement with new information due to Hurricane Irma. Under NEPA, the Corps is required to identify environmental impacts prior to the proposed dredging; however, NEPA does not require a certain outcome based on the study. NEPA's only purpose is to require that the decision made by the Corps is informed before pursuing the proposed action-in this case, dredging. The Court granted summary judgment to the Corps, holding that the Organization failed to show that the environmental impact statement and its accompanying evidence were arbitrary and capricious and thus insufficient to satisfy NEPA. View More

Florida Fourth District Court of Appeal Holds That Florida Supreme Court Precedent Allows Individuals to Sue for Injunctive Relief When a Local Government Fails to Enforce its Own Zoning Code, Creating a Split Among Florida Courts of Appeal

In Haver, residents of West Palm Beach sued the City of West Palm Beach, Inc., ("the City") after the City failed to enforce its own zoning code. Neighbors of the Havers were operating an adult home-care facility in their home which was zoned for residential single-families only. After attempting to address the issue with both the City and the Florida Agency for Health Care Administration, the Havers brought suit against the City. The lower court issued a decision without any reasoning except for a single citation to Detournay v. City of Coral Gables - a Third District Court of Appeal decision. On appeal, the Fourth District Court of Appeal reversed the lower court's ruling, holding that Florida Supreme Court precedent allowed the Havers to sue for injunctive relief based on the City's failure to enforce its own zoning code. This decision creates a split between Florida's Courts of Appeal regarding how courts address a local government's failure to enforce zoning regulations. View More

First District Court of Appeal Certifies Question to the Florida Supreme Court Questioning the Deference Standards Under Second-Tier Certiorari Review by Appellate Courts

The City of Jacksonville issued a Certificate of Use to a local business to operate a rowing club in a residentially zoned area. Upon further review, the City determined that the property was not zoned for use as a rowing club and revoked the Certificate of Use. The City then filed suit for injunctive relief against the business. The trial court granted the City's request for injunctive relief and the business petitioned by writ of certiorari to the First Court of Appeal. The Court denied the business' request. Along with the denial, the three judges each submitted a concurring opinion addressing specific concerns about the court's current ability to review local government's zoning decisions. The Court then certified a question to the Florida Supreme Court requesting that the standards of the court be addressed and changed to allow for an appellate court to review zoning decisions by a local government, rather than defer the power of judicial review to local administrations. View More

Florida Supreme Court Holds Pandemic is a "Natural Emergency" That Can Be Addressed by Florida Governor Executive Orders

On May 5, 2020, a petition for writ of quo warranto ("the Petition") was submitted to the Florida Supreme Court ("the Court") challenging Governor Ron DeSantis' ("the Governor") ability to issue Executive Orders regarding the COVID-19 emergency ("the pandemic"). In response to the Petition, the Court issued a brief, one-page denial concluding that (1) a pandemic was a "natural emergency" as defined in the State Emergency Management Act ("the Act"), and (2) the Governor was granted the authority to issue Executive Orders regarding the pandemic pursuant to the Act. The Petition was denied in full, affirming the Governor's ability to issue emergency orders during the pandemic. The Court's order confirms the ability to activate permit and development order extensions pursuant to Florida Statutes Section 252.363. View More

TEAM MEMBER SPOTLIGHT

Ronald L. Weaver

Attorney, Tampa

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Ron's Practice: Over the past 40 years, Ron has helped transform the landscape of Tampa with his work on countless city landmarks, spurring growth and development, including malls, industrial parks, high-rises, mid-rises, condominiums, apartments, mixed-use buildings, hotels, and affordable housing projects. His extensive experience includes advising landowners, development companies and local governments in environmental, land use and property rights law and real estate acquisition and financing. He has conducted land use, environmental, zoning, Developments of Regional Impact (DRI), comprehensive plan, and concurrency due diligence for the acquisition and development of over $6 billion worth of property in 32 counties and 62 cities throughout Florida, including a $600 million due diligence of 12 properties for one acquisition/financing, and a dozen others over $100 million.

Accomplishments: Throughout his career, Ron has served as Chairman of six Tampa Bay Chamber of Commerce committees, focusing on economic development, broad-based education reform, cultural affairs, and transportation funding. In 2008, he founded Real Estate Lives to support those affected by the Great Recession. Now with over 100 volunteers, the non-profit has helped over 4,300 unemployed in real estate and related industries in Tampa Bay.

Earlier this year, Ron was honored as a Luminary, a prestigious recognition given by The Junior League of Tampa and WEDU PBS to individuals who exemplify leadership, commitment to the community through advocacy, and achievement of distinction in a particular sphere and have made a lasting impact in Hillsborough County. More information on both Ron and this honor can be found here.

stearnsweaver.com

IN THIS ISSUE

Florida Ensures Fairness In Assessment Of Impact Fees And Use Of Impact Fee Credits

Legal Update

Team Member Spotlight: Ronald L. Weaver

Meet The Team