By: Emily G. Pierce
As discussed in my July 29 th blog , the Legislature adopted some significant changes to Florida’s Growth Management Laws during the regular 2015 session. The changes made to the Bert J. Harris Private Property Rights Act have garnered the most attention. However, a noteworthy addition to the Florida Statutes has gone widely unmentioned; the creation of a new Section of the Florida Statutes and with it, a new cause of action against governmental entities.
Section 70.45 of the Florida Statutes was adopted by the Legislature in response to the United States Supreme Court’s decisions in 2013 in the Koontz v. St. Johns River Water Management District case. [1] In Koontz the Supreme Court held that a government cannot refuse to issue a permit based upon a landowner’s refusal to agree to demands by the government that he either donate property to the government or make a monetary contribution unless there is a “nexus and rough proportionality” between the government’s demand and the likely effect of the proposed land use. The landowner in Koontz refused to comply with the Water Management District’s “extortionate demands” [2] for property or payment and instead sued the District for denial of the permit. While the Supreme Court ultimately found in favor of the landowner in Koontz , finding that the Water Management District’s “condition” constituted a violation of the landowner’s Fifth Amendment rights to be free from a taking without just compensation, the Court found that since no actual taking had occurred the landowner was not entitled to any compensation, at least under the Fifth Amendment. The Supreme Court found that the question of whether money damages are available is a question of state law not federal law.
The Legislature was concerned that Florida laws left unanswered the question of whether money damages would be available to a landowner under circumstances similar to the landowner in Koontz . Section 70.45, Florida Statutes, was created to specifically provide landowners with an avenue to pursue an action for monetary damages against a governmental entity for an allegedly unconstitutional/prohibited exaction. [3] A prevailing landowner in such an action could be awarded prejudgment interest, reasonable attorneys’ fees and costs, and compensatory damages. [4]
[1] 133 S. Ct. 2586 (2013).
[2] Id . at 2596
[3] Section 70.45(1)(c), Florida Statutes, defines a “prohibited exaction” 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.”
[4] Compensatory damages are damages awarded to compensate and make whole the prevailing party for any damages incurred as a result of the government’s conduct.