| Uncertainty Remains in Federal Regulation of Wetlands |
In Spring 2016,
we wrote that "the federal regulation of wetlands - and its effects on ongoing and future projects - are increasingly uncertain and evolving quickly." While the field continues to evolve and uncertainty remains, Florida developers and landowners with wetlands onsite are in a better position in Summer 2017 than they were a year ago.
For two years, our team has tracked efforts by the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers to clarify the jurisdictional definition of "waters of the United States" under the Clean Water Act ("CWA") by rule.
We explained that the rule, known as WOTUS, would require Florida landowners and developers to secure CWA permits where they were not previously necessary.
WOTUS quickly drew legal attacks from the regulated community and dozens of states, resulting in the U.S. Court of Appeals, Sixth Circuit's injunction against implementation of the rule. The U.S. Supreme Court is scheduled to hear oral argument on this case in the fall. Meanwhile, the Trump Administration is moving forward with plans to rescind WOTUS. On Thursday, July 27, 2017, the EPA published notice of a proposed rule that would rescind WOTUS and pave the way for returning the jurisdictional definition to its pre-2015 state. This development marks a sharp change in course
since we last reported on WOTUS and related property rights litigation.
President Trump foreshadowed this formal rulemaking activity with a February 28, 2017 Executive Order that proclaimed it to be in the national interest to ensure the proper balance between maintaining anti-pollution policies and minimizing regulatory uncertainty in relation to the nation's navigable waters. The Executive Order was accompanied by EPA's notice of intent to review, rescind, or revise WOTUS, which was announced on the same day.
Rescinding and re-codifying the rule may not be as simple as it appears. As with any rulemaking activity, the EPA and Army Corps are bound by the Administrative Procedure Act's "arbitrary and capricious" standard. Thus, the EPA must identify and articulate compelling reasons to justify its reversal of previous rulemaking activity and must afford meaningful public comment. Proposals are moving forward in Congress to exempt the rescission. Either way, legal challenges are likely.
There is still time to engage with the EPA on its proposal. The time for public comment was recently extended to September 27, 2017. The EPA is also holding 10 teleconferences between September and November to allow stakeholders to provide comments. Many of these teleconferences are aimed at specific industries including small businesses, construction, agricultural, stormwater management, and hunters and anglers.
The team at Stearns Weaver Miller will continue to follow the rulemaking process and any legal challenges and provide updates on how WOTUS will affect ongoing, proposed, and future projects in Florida. Please contact our team should you have any questions.
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| MEET THE AUTHORS
*Special thanks to Kaley Witeck, who assisted in the drafting of this update. Kaley is a third-year Juris Doctor Candidate at Stetson University College of Law.
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$30 Million Takings Verdict Reversed & Remanded for Further Consideration Using Penn Central Test
The Fifth District Court of Appeal reversed an award for $30 million in damages in favor of Ponce Inlet and against a developer in a takings case. The court considered whether multiple parcels of land should be considered as one when evaluating whether there has been a regulatory taking. The 5th DCA held that the parcels should be treated as one whole parcel and there was not a total taking, and remanded the case to the trial court to determine whether there was a partial taking.
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Bert Harris Act Does Not Apply to Adjacent Properties
The Florida Supreme Court upheld the ruling in Jacksonville v. Smith that a previous version of Section 70.001, Florida Statutes, did not apply to claims for restriction or limitation of property adjacent to a property that is regulated by government action. The court held that the statute applies only to property that was itself regulated by governmental action, and not to adjacent property.
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Federal Takings Claim Not Ripe When Adequate State Procedures Are Not Pursued First
The United States Court of Appeals for the 11th Circuit affirmed the district court's dismissal of a federal takings claim for lack of subject matter jurisdiction. The court held that a property owner alleging an inverse condemnation claim must seek just compensation through state law before suing in federal court if the state's process is reasonable and adequate.
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Federal Court Explains Facial Takings Claim and Remedies
The United States District Court for the Northern District of Florida addressed whether a county ordinance constituted a per se physical takings claim. The court ruled for the property owners, finding that they had adequately pled a takings claim and that their claim ripened the moment the ordinance passed.
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Reclaimed Water System Exaction Not Compensable Under Nollan-Dolan-Koontz Test
The Second District Court of Appeal ruled against a developer in an inverse condemnation proceeding that followed Polk County's reclaimed water system requirement. The court held that the County's land use code was valid and not a taking under the Nollan and Dolan standards.
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Property Owners Not Located in City Required to Pay City's Water Utility Fee, Where They Benefited from Utility
Key West Golf Club Homeowners brought suit against the City of Key West challenging the application and legality of the City's stormwater utility fee. The Third District Court of Appeal held that the City should charge the Golf Club its stormwater utility fee and that the Golf Club should not pay a lower utility fee rate than the ratepayers within the City. View More
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Request to Determine That Zoning Change is Futile Was Not A Proper Subject for the Declaratory Judgment Process
GolfRock LLC filed suit against Lee County seeking a declaration that continuing with its zoning request would be futile and that its constitutional property rights claims were ripe. The trial court concluded that GolfRock's complaint did not adequately allege futility or ripeness. The District Court of Appeal affirmed on the basis that the complaint did not state a cause of action for declaratory relief since futility and ripeness are elements of an inverse condemnation cause of action. View More
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Comprehensive Plan Consistency Challenge Limited to Development Orders that Materially Alter Use, Density, or Intensity
The Second District Court of Appeal affirmed the trial court's holding that the Heines' challenges to a Lee County rezoning resolution were not within the scope of the Consistency Statute because the challenges did not concern use, density, or intensity of use. View More
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Federal Court Denies City's Motion to Dismiss a Clean Water Act Claim for St. Petersburg's Sewage Spill
Multiple environmental non-profits filed suit against the City of Gulfport for an alleged violation of the Clean Water Act. The court denied the City's motion to dismiss the case for lack of standing, finding that all of the plaintiffs had standing to bring their claims. View More
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Municipality-Owned Marinas Remain Tax Exempt Under Florida Constitution
The Florida Supreme Court held that city-owned public marinas are entitled to the ad valorem tax exemption under Article VII, Section 3(a) of the Florida Constitution. View More
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Companies Awarded Compensation But Not Severance Damages for Physical Takings Due to Roadway Reconstruction
The Second District Court of Appeal upheld an award of physical-takings damages in favor of Butler Carpet Co. against the FDOT, but reversed the damages awarded for loss of access, substantially diminished access, and loss of visibility. View More
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Florida Supreme Court Refused to Overturn Governor's Veto of Citrus Canker Takings Appropriation
After Florida Governor Rick Scott vetoed the appropriation of takings damages to landowners, the landowners asked the Florida Supreme Court to overturn the veto. The court held because the veto is a part of a procedure that involves "an appropriation made by law," the landowners must return to circuit court for relief in pending actions that concern "an appropriation made by law." View More
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Florida Attorney General Opinion: Referendum Regarding Development Orders and Comprehensive Plan Amendments
The Florida Attorney General released an opinion that a municipality may not amend its charter by an initiative or referendum to include language that would result in the denial of certain development orders and would require an initiative or referendum to implement local comprehensive plan amendments. View More
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Passenger Rail Service Granted ERP Despite Water Control District Challenge
An Administrative Law Judge ruled that an Environmental Resource Permit (ERP) Applicant's data and analyses were sufficient to provide reasonable assurance that the construction, operation, and maintenance of new railway bridges would meet the threshold required for the issuance of an ERP. The St. John's River Water Management District concurred. View More
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Kenneth B. Metcalf, AICP*
Director of Planning
*non-lawyer
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Ken's Practice:
Ken Metcalf is a certified land planner with over 30 years of professional planning experience in the public and private sectors. His diverse practice ranges from planning and entitling some of Florida's largest New Town developments, to working at the neighborhood level on infill and redevelopment sites. He works with clients and attorneys on all phases of project planning and development, from site selection and due diligence through project entitlement and compliance monitoring. Ken's prior experience as a local government planner and high level administrator with the Department of Community Affairs enables Ken effectively to represent clients before local governments and state and federal agencies on comprehensive planning, zoning, transportation and environmental issues. He also provides various technical services, such as transportation and concurrency evaluation, and has served as an expert witness in more than 40 judicial and administrative hearings.
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Recent Successes: Ken represented the Developer of the popular Sandestin Resort near Destin Florida in obtaining local government approval of Development of Regional Impact (DRI) amendments to authorize ten mid- to high-rise, mixed use and residential development sites. He also assisted in obtaining a Substantial Deviation approval for the Ridgewood Lakes DRI in Polk County and in obtaining PUD approval for DRI-size projects in Leesburg and Sumter County. He has also assisting in obtaining approvals for several health-related projects over the past year, including Tallahassee Memorial Hospital expansion and the On Top of the World Aging in Place campus.
Community Involvement: Ken serves on the legislative committees for the Florida Chapter of the American Planning Association (APA) and Association of Florida Community Developers. He is also a volunteer mentor for APA's planning student program and for the Urban Land Institute's Urban Plan program that provides hands-on redevelopment exercises for high school students. Ken periodically serves as an adjunct professor at Florida State University where he teaches graduate courses in urban and regional planning.
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EXECUTIVE ORDER PERMIT EXTENSION TRACKER
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