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This case was before the court for review of the decision of the Fifth District Court of Appeal. In its decision, the Fifth District construed provisions of the state and federal constitutions and certified a question which the court rephrased: Did the Fifth Amendment to the United States Constitution and Article X, Section 6(a) of the Florida Constitution recognize an exactions taking under the holding of Nollan v. California Coastal Commission and Dollan v. City of Tigard, where there was no compelled dedication of any interest in real property to public use and the alleged exaction was a non land-use monetary condition for permit approval which never occurred and no permit was ever issued? The court answered in the negative, quashed the decision of the Fifth District and remanded for further proceedings. The court emphasized that its decision was limited solely to answering the certified question and the court declined to address the other issues raised by the parties.Receive FREE Daily Opinion Summaries by Email
Supreme Court of Florida
ST. JOHNS RIVER WATER MANAGEMENT DISTRICT,
COY A. KOONTZ, etc.,
[November 3, 2011]
This case is before the Court for review of the decision of the Fifth District
Court of Appeal in St. Johns River Water Management District v. Koontz, 5 So. 3d
8 (Fla. 5th DCA 2009) (Koontz IV). In its decision, the Fifth District construed
provisions of the state and federal constitutions. The district court also certified a
question to be of great public importance, which we have rephrased as follows:
DO THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE X, SECTION 6(a) OF THE
FLORIDA CONSTITUTION RECOGNIZE AN EXACTIONS
TAKING UNDER THE HOLDINGS OF NOLLAN V.
CALIFORNIA COASTAL COMMISSION, 483 U.S. 825 (1987),
AND DOLAN V. CITY OF TIGARD, 512 U.S. 374 (1994), WHERE
THERE IS NO COMPELLED DEDICATION OF ANY INTEREST
IN REAL PROPERTY TO PUBLIC USE AND THE ALLEGED
EXACTION IS A NON LAND-USE MONETARY CONDITION
FOR PERMIT APPROVAL WHICH NEVER OCCURS AND NO
PERMIT IS EVER ISSUED?
We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.
We rephrase the certified question to reflect that the issue presented by this
case is controlled by the existing interpretation of the United States Constitution by
the United States Supreme Court. This Court has previously interpreted the
takings clause of the Fifth Amendment and the takings clause of the Florida
Constitution coextensively. See, e.g., Tampa-Hillsborough County Expressway
Auth. v. A.G.W.S. Corp., 640 So. 2d 54, 58 (Fla. 1994) (“We acknowledge that in
striking down the offending portion of the statute in Joint Ventures, we referred to
1. The original certified question provided:
WHERE A LANDOWNER CONCEDES THAT PERMIT DENIAL
DID NOT DEPRIVE HIM OF ALL OR SUBSTANTIALLY ALL
ECONOMICALLY VIABLE USE OF THE PROPERTY, DOES
ARTICLE X, SECTION 6(a) OF THE FLORIDA CONSTITUTION
RECOGNIZE AN EXACTION TAKING UNDER THE HOLDINGS
OF NOLLAN [n.1] AND DOLAN [n.2] WHERE, INSTEAD OF A
COMPELLED DEDICATION OF REAL PROPERTY TO PUBLIC
USE, THE EXACTION IS A CONDITION FOR PERMIT
APPROVAL THAT THE CIRCUIT COURT FINDS
[N.1.] Nollan v. Cal. Coastal Comm‟n, 483 U.S. 825, 107 S. Ct.
3141, 97 L. Ed. 2d 677 (1987).
[N.2.] Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L.
Ed. 2d 304 (1994).
Koontz IV, 5 So. 3d at 22.
the takings clauses of our state and federal constitutions.”); Joint Ventures, Inc. v.
Dep‟t of Transp., 563 So. 2d 622, 623 (Fla. 1990) (“We answer the question in the
affirmative, finding those subsections invalid as a violation of the fifth amendment
to the United States Constitution and article X, section 6(a) of the Florida
Constitution.”). We also rephrase the question to address the two actual factors to
which the doctrine of exactions was expanded by the Fifth District—application of
the doctrine to an alleged exaction that does not involve the dedication of an
interest in or over real property; and application of the doctrine where an exaction
does not occur and no permit is issued by the regulatory entity.
For the reasons expressed below, we answer the rephrased question in the
negative and quash the decision under review.
This case has an extended procedural history. Prior to the issuance of the
decision that is currently before the Court, issues related to the regulation of this
property were before the Fifth District Court of Appeal on three occasions. During
the first appeal, the Fifth District reversed a determination by the trial court that the
claim of Coy A. Koontz, Sr. (Mr. Koontz) was not ripe for adjudication and
remanded the matter for a trial on whether the actions of the St. Johns River Water
Management District (St. Johns) effected a taking of Mr. Koontz‟s property. See
Koontz v. St. Johns River Water Mgmt. Dist., 720 So. 2d 560, 562 (Fla. 5th DCA
1998) (Koontz I), review denied, 729 So. 2d 394 (Fla. 1999). After the trial court
determined that a taking had occurred, St. Johns twice attempted to appeal that
determination, but the Fifth District dismissed both appeals, concluding that the
orders issued by the trial court did not constitute final orders or appealable nonfinal orders. See St. Johns River Water Mgmt. Dist. v. Koontz, 861 So. 2d 1267,
1268 (Fla. 5th DCA 2003) (Koontz II); St. Johns River Water Mgmt. Dist. v.
Koontz, 908 So. 2d 518, 518 (Fla. 5th DCA 2005) (Koontz III). After the trial
court entered a judgment assessing damages in favor of Coy A. Koontz, Jr., as
personal representative of the Estate of Mr. Koontz, St. Johns filed an appeal to
review that judgment. See Koontz IV, 5 So. 3d at 8.
The decision resulting from that appeal in Koontz IV provides the following
This case involves a landowner, Mr. Koontz, who, in 1994,
requested permits from [St. Johns] so that he could develop a greater
portion of his commercial property than was authorized by existing
regulation. . . . Based on the permit denial, Mr. Koontz brought an
inverse condemnation claim asserting an improper “exaction” by [St.
In the most general sense, an “exaction” is a condition sought
by a governmental entity in exchange for its authorization to allow
some use of land that the government has otherwise restricted. Even
though the government may have the authority to deny a proposed use
outright, under the exactions theory of takings jurisprudence, it may
not attach arbitrary conditions to issuance of a permit.
In relating the circumstances giving rise to this case, the trial
The subject property is located south of State Road
50, immediately east of the eastern extension of the EastWest Expressway in Orange County. The original
plaintiff, Coy Koontz, has owned the subject property
since 1972. In 1987, a portion of the original acreage
adjacent to Highway 50 was condemned, leaving Mr.
Koontz with 14.2 acres. There is a 100-foot wide
transmission line easement of Florida Power Corporation
running parallel to and about 300 feet south of Highway
50, that is kept cleared and mowed by Florida Power. . . .
All but approximately 1.4 acres of the tract lies
within a Riparian Habitat Protection Zone (RHPZ) of the
Econlockhatchee River Hydrological Basin and is subject
to jurisdiction of the St. Johns River Water Management
In 1994, Koontz sought approval from [St. Johns]
for a 3.7 acre development area adjacent to Highway 50,
of which 3.4 acres were wetlands and .3 acres were
In his concurring opinion in Koontz II, Judge Pleus explained
the positions [advanced] by the parties during the permit approval
Koontz proposed to develop 3.7 acres closest to Highway
50, back to and including the power line easement. In
order to develop his property, he sought a management
and storage of surface waters permit to dredge three and
one quarter acres of wetlands. A staffer from St. Johns
agreed to recommend approval if Koontz would deed the
remaining portion of his property into a conservation area
and perform offsite mitigation by either replacing
culverts four and one-half miles southeast of his property
or plug certain drainage canals on other property some
seven miles away. Alternatively, St. Johns demanded
1. Mr. Koontz owned a total of 14.9 acres in Orange County. See Koontz I,
720 So. 2d at 561.
that Koontz reduce his development to one acre and turn
the remaining 14 acres into a deed-restricted conservation
area. Koontz agreed to deed his excess property into
conservation status but refused St. Johns‟ demands for
offsite mitigation or reduction of his development from
three and seven-tenths acres to one acre. Consequently,
St. Johns denied his permit applications.
Id. at 1269 (Pleus, J., concurring specially). In its orders denying the
permits, [St. Johns] said that Mr. Koontz‟s proposed development
would adversely impact Riparian Habitat Protection Zone [“RHPZ”]
fish and wildlife, and that the purpose of the mitigation was to offset
After hearing conflicting evidence, the trial court concluded
that [St. Johns] had effected a taking of Mr. Koontz‟s property . . . .
In reaching this conclusion, the trial court applied the constitutional
standards enunciated by the Supreme Court in Nollan and Dolan. In
Nollan, with respect to discretionary decisions to issue permits, the
Supreme Court held that the government could impose a condition on
the issuance of the permit without effecting a taking requiring just
compensation if the condition “serves the same governmental purpose
as the developmental ban.” 483 U.S. at 837. This test is referred to as
the “essential nexus” test. In Dolan, the Court added the requirement
that, for such a condition to be constitutional, there must also be a
“rough proportionality” between the condition and the impact of the
proposed development. 512 U.S. at 390-91.
Koontz IV, 5 So. 3d at 9-10 (footnotes omitted) (citations omitted).
After the circuit court determined that St. Johns had effected a taking of Mr.
Koontz‟s property, statutory law required St. Johns to take one of three possible
actions: (a) agree to issue the permit; (b) agree to pay damages; or (c) agree to
modify its decision to avoid an unreasonable exercise of police power. See §
373.617(3), Fla. Stat. (2002). Here, St. Johns chose to issue the permits to Mr.
Koontz after it received additional evidence which demonstrated that the amount of
wetlands on Mr. Koontz‟s property was significantly less than originally believed.
The circuit court subsequently awarded Mr. Koontz $376,154 for a temporary
taking of his property by St. Johns.
On appeal, St. Johns first contended that the trial court lacked subject matter
jurisdiction to consider Mr. Koontz‟s exactions claim because the statute under
which the claim was asserted, section 373.617, Florida Statutes (1993), limited
circuit court review to cases in which a constitutional taking has actually occurred.
See Koontz IV, 5 So. 3d at 10. St. Johns asserted that although an exactions claim
is a form of taking and is cognizable under section 373.617, no exaction occurred
here because nothing had been taken from Mr. Koontz. See id. at 10-11. The
original limitations applicable to the property were never challenged. The Fifth
District Court of Appeal framed this challenge as “whether an exaction claim is
cognizable when, as here, the land owner refuses to agree to an improper request
from the government resulting in the denial of the permit.” Id. at 11. The district
court concluded that the United States Supreme Court had implicitly determined in
Dolan v. City of Tigard, 512 U.S. 374 (1994), that an exaction occurs under such
circumstances. See 5 So. 3d at 11.
St. Johns also contended that an action for inverse condemnation lacked
merit because the condition proposed by St. Johns did not involve a physical
dedication of land but instead would have caused Mr. Koontz to expend money for
improvement of land belonging to St. Johns if accepted. See id. at 12. The Fifth
District Court of Appeal also rejected this assertion and concluded that the United
States Supreme Court had implicitly decided this issue adverse to St. Johns in
Ehrlich v. City of Culver City, 512 U.S. 1231 (1994). See 5 So. 3d at 12. In
Ehrlich, the United States Supreme Court vacated a lower court decision that
approved the conditioning of a permit on the payment of money to build tennis
courts and purchase artwork and remanded the case for reconsideration in light of
Dolan. See id. (citing Ehrlich, 512 U.S. 1231). The Fifth District concluded that
in the absence of a more definite pronouncement from the United States Supreme
Court on this issue, the distinction advanced by St. Johns was not legally
significant. See Koontz IV, 5 So. 3d at 12. The Fifth District affirmed the trial
court judgment awarding compensation to Mr. Koontz. See id.
In dissent, Judge Griffin asked, “[i]n what parallel legal universe or deep
chamber of Wonderland‟s rabbit hole could there be a right to just compensation
for the taking of property under the Fifth Amendment when no property of any
kind was ever taken by the government and none ever given up by the owner?” Id.
at 20 (Griffin, J., dissenting). Judge Griffin asserted that whether a taking has
occurred depends on whether a landowner gives up any protected interest in his or
If [a protected interest is given up], whether temporarily or
permanently, the landowner is entitled to compensation as set forth in
the “taking” cases. If, however, the unconstitutional condition does
not involve the taking of an interest in land, the remedy of inverse
condemnation is not available. In this case, the objected-to condition
that was found to be an exaction was not an interest in land; it was the
requirement to perform certain off-site mitigation in the form of cleanup of culverts and ditches to enhance wetlands several miles away.
Id. at 18 (Griffin, J., dissenting). Judge Griffin also reasoned that whether a
condition that has been rejected can constitute a taking was not resolved in Dolan,
and that a taking does not occur under such circumstances:
In this case, if Mr. Koontz had given in to [St. Johns‟] condition,
gotten his development permit and done the off-site mitigation, he
would be entitled to recover the value of the off-site mitigation. If he
elected to refuse the offer, he had a judicial remedy to invalidate the
condition . . . . The parcel of land for which he sought the
development permit was not, however, in any wise “taken” by [St.
Johns]. The only way a “taking” can even be conceptualized in such a
circumstance is by adopting the view that by proposing an
“unconstitutional condition” that was rejected, [St. Johns] forfeited its
right (and duty) to protect the public interest to refuse the permit at all.
Id. at 20-21 (Griffin, J., dissenting).
St. Johns subsequently filed a motion for certification, which the Fifth
District Court of Appeal granted. See id. at 22. The district court then certified a
question to this Court as one of great public importance.
Standard of Review and Constitutional Provisions
As a preliminary matter, the interpretation of a constitutional provision is a
question of law that is reviewed de novo. See Fla. Dep‟t of Rev. v. City of
Gainesville, 918 So. 2d 250, 256 (Fla. 2005).
The Fifth Amendment to the United States Constitution provides that private
property shall not be taken for public use without just compensation. See amend.
V, U.S. Const. The Fifth Amendment is applicable to the states through the
Fourteenth Amendment. See Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001).
The purpose behind the takings doctrine is to prevent government from forcing an
individual to bear burdens that should be carried by the public as a whole. See
Armstrong v. United States, 364 U.S. 40, 49 (1960). The takings provision of the
Florida Constitution provides: “No private property shall be taken except for a
public purpose and with full compensation therefor paid to each owner or secured
by deposit in the registry of the court and available to the owner.” Art. X, § 6(a),
Fla. Const. As previously discussed, this Court has interpreted the takings clauses
of the United States and Florida Constitutions coextensively. See A.G.W.S. Corp.,
640 So. 2d at 58; Joint Ventures, 563 So. 2d at 623.
Takings Under Supreme Court Case Law
The United States Supreme Court has stated that the takings clause of the
Fifth Amendment does not prohibit the taking of private property by the
government, but instead places conditions on the exercise of that power. See First
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English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482
U.S. 304, 314 (1987). The clause is not intended to limit government interference
with property rights, but rather to secure compensation where otherwise proper
interference amounts to a taking. See id. at 315.
Outside the special context of land-use exactions (discussed below), the
United States Supreme Court has recognized two types of regulatory actions that
generally constitute per se takings under the Fifth Amendment. First, if
government action causes a permanent physical invasion of private property, the
government must provide just compensation to the owner of the property. See
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (taking
occurred where state law required landlords to allow cable companies to install
cable equipment in their apartment buildings). Second, a government regulation
that completely deprives an owner of all economically beneficial use of his or her
property effects a Fifth Amendment taking. See Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1019 (1992). In Lucas, the United States Supreme Court
held that the government must pay just compensation for such “total regulatory
takings,” id. at 1026, except to the extent that the owner‟s intended use of his or
her property is restricted by nuisance and property law. See id. at 1026-32.
Aside from regulations that allow physical invasions of private property or
deprive a property owner of all beneficial property use, regulatory takings
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challenges are governed by the standard articulated in Penn Central Transportation
Co. v. New York City, 438 U.S. 104 (1978). The United States Supreme Court in
Penn Central acknowledged that it had previously been unable to establish any “set
formula” for evaluating regulatory takings claims, but identified a number of
factors that have particular significance. Id. at 124. The United States Supreme
Court stated that the primary factor to consider is “[t]he economic impact of the
regulation on the claimant and, particularly, the extent to which the regulation has
interfered with distinct investment-backed expectations.” Id. The Supreme Court
also concluded that the character of the governmental action, such as whether the
action constitutes a physical invasion or merely impacts property interests, can be
relevant to a determination of whether a taking has occurred. See id. The Penn
Central standard has served as the principal guide for assessing allegations that a
regulatory taking has occurred where the government action does not fall within
the physical-invasion or Lucas takings categories.
With regard to the doctrine of exactions, in the late 1980s and early-to-mid
1990s, the United States Supreme Court issued two decisions, Nollan v. California
Coastal Commission, 483 U.S. 825 (1987), a California case that involved a beach
pass-through easement, and Dolan v. City of Tigard, 512 U.S. 374 (1994), an
Oregon case that involved storm-water and bike-path land dedications. These
cases arose from landowner requests for building permits to expand the structures
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located on their real property. In response, the pertinent governmental entities
approved the permits, but conditioned that approval on the receipt of exactions.
In Nollan, the California Coastal Commission approved the Nollans‟ request
for a building permit subject to the dedication of an easement that would allow the
public to pass across the beach that was owned by the Nollans behind their home.
See 483 U.S. at 828. The Nollans proceeded to build their expanded home but
legally contested the exaction imposed as an uncompensated taking. See id. at
828-30. On certiorari review, the United States Supreme Court articulated an
“essential nexus” test, which required a government entity to establish that the
condition imposed for approval of a building permit (i.e., the exaction) served the
same public purpose that would have supported a total ban of the proposed
development. See 483 U.S. at 836-37. Thus, if (as the Commission asserted) the
public‟s right to view the shore from the street was the supporting reason for
denying the Nollans‟ permit, the proposed condition/exaction must directly relate
to and further this supporting reason. See id. at 835-38. For example, a height
restriction on the proposed development to preserve the view corridor might satisfy
the requirement. See id. at 836. However, the easement at issue in Nollan, which
would allow members of the public to pass across beach owned by the Nollans,
failed this test because the right of the public to view the shore from a nearby street
was not served by the ability of individuals to traverse up and down the Nollans‟
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beach property. See id. at 838-39. Thus, the United States Supreme Court
concluded that if the State of California desired an easement across the Nollans‟
property, the State must pay compensation for that easement. See id. at 841-42.
On certiorari review in Dolan, the Court expanded upon Nollan to not only
require an “essential nexus” between the permit-approval condition upon the land
and the alleged public problem caused by the proposed development, but also to
require “rough proportionality” between the condition placed on the land and the
extent of the impact of the proposed development. See 512 U.S. at 391. For
example, where (as in Dolan) one asserted impact of the development was
increased traffic congestion, and the permit-approval condition on the property was
the dedication of land for a bike path, the government must demonstrate that the
additional number of vehicle and bicycle trips generated by the development are
reasonably related to the government‟s requirement for dedication of a bicycle path
easement over the property. See id. at 387-88, 395-96. Similar to Nollan, the
government entity in Dolan approved the requested permit subject to contested
conditions on the land (i.e., storm-water and bike-path land dedications), and the
landowner filed an action claiming that these conditions over the land constituted
uncompensated takings. See Dolan, 512 U.S. at 379-83.
In the sixteen years since the Supreme Court issued Dolan, the High Court
has only commented twice on the scope of the Nollan/Dolan test. In City of
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Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 698 (1999), the
developer submitted nineteen different site plans to the City of Monterey for
development of an oceanfront parcel of land. Each time, the city rejected the plan
and imposed even more rigorous conditions upon the developer. See id. at 697-98.
When the developer concluded that the city would not permit development under
any circumstances, it filed suit in federal court contending that the final denial of
development constituted a regulatory taking of the property. See id. at 698. The
United States Supreme Court concluded that the Nollan/Dolan exactions standard
was inapplicable to the actions of the city:
[W]e have not extended the rough-proportionality test of Dolan
beyond the special context of exactions—land-use decisions
conditioning approval of development on the dedication of property to
public use. See Dolan, [512 U.S.] at 385; Nollan v. California Coastal
Comm‟n, 483 U.S. 825, 841 (1987). The rule applied in Dolan
considers whether dedications demanded as conditions of
development are proportional to the development‟s anticipated
impacts. It was not designed to address, and is not readily applicable
to, the much different questions arising where, as here, the
landowner‟s challenge is based not on excessive exactions but on
denial of development. We believe, accordingly, that the roughproportionality test of Dolan is inapposite to a case such as this one.
Id. at 702-03 (emphasis supplied). More recently, in Lingle v. Chevron U.S.A.,
Inc., 544 U.S. 528 (2005), the United States Supreme Court rejected a takings test
that it had previously adopted in Agins v. City of Tiburon, 447 U.S. 255 (1980).
See Lingle, 544 U.S. at 548 (“We hold that the „substantially advances‟ formula is
not a valid takings test . . . .”). The Agins standard had been mentioned in both
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Nollan and Dolan, which caused the Supreme Court to expressly note that its
rejection of that standard had no impact on the holdings of these two more recent
cases. See id. at 546-48. In the context of this discussion, the Supreme Court
reasoned that Nollan and Dolan involved Fifth Amendment takings challenges to
adjudicative land-use exactions—more specifically, government demands that
landowners dedicate easements over their land to allow the public access across
their property as a condition of obtaining development permits. See id. at 546.
The Court further stated that it refined the Nollan “essential nexus” test in Dolan
by holding that
an adjudicative exaction requiring dedication of private property must
also be “ „rough[ly] proportiona[l]‟ . . . both in nature and extent to the
impact of the proposed development.” 512 U.S., at 391; see also Del
Monte Dunes, supra, at 702 (emphasizing that we have not extended
this standard “beyond the special context of [such] exactions”).
Id. at 547 (alterations in original) (emphasis supplied).
The Scope of the Nollan/Dolan Test
State and federal courts have been inconsistent with regard to interpretations
of the scope of the Nollan/Dolan test, even after the decisions in Del Monte Dunes
and Lingle. The divide is most clearly evident on the issue of whether the test
applies to conditions that do not involve the dedication of land or conditions
imposed upon the land.
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One line of cases holds that the Nollan/Dolan standard applies solely to
exactions cases involving land-use dedications. See, e.g., McClung v. City of
Sumner, 548 F.3d 1219, 1228 (9th Cir. 2008) (distinguishing monetary conditions
from conditions on the land); Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1578
(10th Cir. 1995); Sea Cabins on the Ocean IV Homeowners Ass‟n v. City of N.
Myrtle Beach, 548 S.E.2d 595, 603 n.5 (S.C. 2001) (holding that Del Monte Dunes
clarified that Nollan and Dolan only apply to physical conditions imposed upon
The other line of cases holds that the Nollan/Dolan test extends beyond the
context of the imposition of real property conditions on real property. For
example, the California Supreme Court has held that non-real property conditions
can constitute a taking where the condition is imposed on a discretionary,
individualized basis. See Ehrlich v. City of Culver City, 911 P.2d 429, 444 (Cal.
1996). However, in Town of Flower Mound v. Stafford Estates Ltd Partnership,
135 S.W.3d 620, 640-41 (Tex. 2004), the Texas Supreme Court expanded
application of the test further, holding that Nollan and Dolan can apply to certain
non-real property conditions that arise from generally applicable regulations.
Despite the varied interpretations of the scope of Nollan/Dolan, we must
follow the decisions of the United States Supreme Court with regard to Fifth
Amendment takings jurisprudence. See Chesapeake & O. Ry. Co. v. Martin, 283
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U.S. 209, 220-21 (1931) (state courts are bound by United States Supreme Court‟s
interpretations of federal law); Carnival Corp. v. Carlisle, 953 So. 2d 461, 465 (Fla.
2007) (state courts are generally not bound by the decisions of the lower federal
courts on questions of federal law). Moreover, the Supreme Court itself has
specifically stated that when it denies certiorari review, that denial “imports no
expression of opinion upon the merits of the case.” Teague v. Lane, 489 U.S. 288,
296 (1989) (quoting United States v. Carver, 260 U.S. 482, 490 (1923)). Thus, we
decline to interpret a decision of the United States Supreme Court not to review a
case that addresses an exactions issue as an approval of the merits or holding of the
underlying decision in that case.
Instead, we are guided only by decisions in which the Supreme Court has
expressly applied, or commented upon the scope of, exactions takings. Nollan and
Dolan both involved exactions that required the property owner to dedicate real
property in exchange for approval of a permit. See Dolan, 512 U.S. at 380; Nollan,
483 U.S. at 827. Additionally, in both cases the regulatory entities issued the
permits sought with the objected-to exactions imposed. See Dolan, 512 U.S. at
379; Nollan, 483 U.S. at 828. Moreover, in Del Monte Dunes and Lingle, the
United States Supreme Court specifically limited the scope of Nollan and Dolan to
those exactions that involved the dedication of real property for a public use. See
Lingle, 544 U.S. at 546-47; Del Monte Dunes, 526 U.S. at 702-03. Absent a more
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limiting or expanding statement from the United States Supreme Court with regard
to the scope of Nollan and Dolan, we decline to expand this doctrine beyond the
express parameters for which it has been applied by the High Court.3 Accordingly,
we hold that under the takings clauses of the United States and Florida
Constitutions, the Nollan/Dolan rule with regard to “essential nexus” and “rough
proportionality” is applicable only where the condition/exaction sought by the
government involves a dedication of or over the owner‟s interest in real property in
exchange for permit approval; and only when the regulatory agency actually issues
the permit sought, thereby rendering the owner‟s interest in the real property
subject to the dedication imposed.
It is both necessary and logical to limit land-use exactions doctrine to these
narrow circumstances. Governmental entities must have the authority and
flexibility to independently evaluate permit applications and negotiate a permit
award that will benefit a landowner without causing undue harm to the community
3. Our holding today is consistent with the 2011 decisions of two federal
appellate courts, both of which held that Nollan and Dolan are inapplicable to
cases that do not involve the dedication of real property for a public use. See Iowa
Assurance Corp. v. City of Indianola, 650 F.3d 1094, 1096-97 (8th Cir. 2011)
(ordinance which required an enclosed fence to surround areas where two or more
race cars are present not subject to a Nollan/Dolan exactions analysis); West Linn
Corporate Park, LLC v. City of West Linn, 428 F. App‟x 700, 702 (9th Cir. 2011)
(refusing to extend Nollan/Dolan where city required developer to construct
several off-site public improvements but did not require dedication of developer‟s
interest in real property), petition for cert. filed, 80 U.S.L.W. 3135 (U.S. Sept. 6,
2011) (No. 11-299).
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or the environment. If a property owner is authorized to file an inverse
condemnation claim on the basis of the exactions theory any time regulatory
negotiations are not successful and a permit is denied, two undesirable outcomes
inevitably ensue. First, the regulation of land use, deemed by the United States
Supreme Court to be “peculiarly within the province of state and local legislative
authorities,” would become prohibitively expensive. Warth v. Seldin, 422 U.S.
490, 508 n.18 (1975); see also Tahoe-Sierra Preserv. Council, Inc. v. Tahoe Reg‟l
Planning Agency, 535 U.S. 302, 324 (2002) (“Land-use regulations are ubiquitous
and most of them impact property values in some tangential way—often in
completely unanticipated ways. Treating them all as per se takings would
transform government regulation into a luxury few governments could afford.”).
Second, and as a result of the first consequence, agencies will opt to simply
deny permits outright without discussion or negotiation rather than risk the
crushing costs of litigation. Property owners will have no opportunity to amend
their applications or discuss mitigation options because the regulatory entity will
be unwilling to subject itself to potential liability. Land development in certain
areas of Florida would come to a standstill. We decline to approve a rule of law
that would place Florida land-use regulation in such an unduly restrictive position.
Based on the above analysis, we conclude that the Fifth District in Koontz
IV erroneously applied the Nollan/Dolan exactions test to the offsite mitigation
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proposed by St. Johns. Since St. Johns did not condition approval of the permits
on Mr. Koontz dedicating any portion of his interest in real property in any way to
public use, this analysis does not apply. Further, even if we were to conclude that
the Nollan/Dolan test applied to non-real property exactions—which we do not—
Mr. Koontz would nonetheless fail in his exactions challenge because St. Johns did
not issue permits, Mr. Koontz never expended any funds towards the performance
of offsite mitigation, and nothing was ever taken from Mr. Koontz. As noted by
the United States Supreme Court, Nollan and Dolan were not designed to address
the situation where a landowner‟s challenge is based not on excessive exactions
but on a denial of development. See Del Monte Dunes, 526 U.S. at 703. Here, all
that occurred was that St. Johns did not issue permits for Mr. Koontz to develop his
property based on existing regulations and, therefore, an exactions analysis does
not apply. See id. (“[T]he rough-proportionality test of Dolan is inapposite to a
case such as this one.”).
Based on our analysis in this case, we answer the rephrased certified
question in the negative, quash the decision of the Fifth District in Koontz IV, and
remand for proceedings consistent with this opinion. We emphasize that our
decision today is limited solely to answering the rephrased certified question. We
decline to address the other issues raised by the parties.
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It is so ordered.
PARIENTE, LABARGA, and PERRY, JJ., concur.
QUINCE, J., concurs in result only.
POLSTON, J., concurs in result only with an opinion, in which CANADY, C.J.,
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
POLSTON, J., concurring in result only.
I agree with St. Johns River Water Management District‟s argument that
underlying the landowner‟s claim for regulatory taking is an attack on the propriety
of agency action. Therefore, under these circumstances, the landowner is required
to exhaust administrative remedies under chapter 120, Florida Statutes, before
bringing this regulatory taking action pursuant to section 373.617, Florida Statutes.
See § 373.617(2), Fla. Stat. (2002) (“Review of final agency action for the purpose
of determining whether the action is in accordance with existing statutes or rules
and based on competent substantial evidence shall proceed in accordance with
chapter 120.”); Key Haven Associated Enters., Inc. v. Bd. of Trs. of the Internal
Improvement Trust Fund, 427 So. 2d 153, 159 (Fla. 1982).
Accordingly, I would quash the Fifth District‟s opinion but not reach the
certified questions as phrased by the Fifth District or the majority.
CANADY, C.J., concurs.
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Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
Fifth District - Case No. 5D06-1116
William H. Congdon and Kathryn L. Mennella, Palatka, Florida,
Christopher V. Carlyle and Shannon McLin Carlyle and The Carlyle Appellate
Law Firm, The Villages, Florida, and Michael D. Jones of Michael D. Jones and
Associates, P.A., Winter Springs, Florida,
Harry Morrison, Jr. and Kraig A. Conn, Tallahassee, Florida, Virginia Saunders
Delegal, on behalf of Florida Association of Counties, Inc. and Florida League of
Cities, Inc.; Pamela Jo Bondi, Attorney General, Scott D. Makar, Solicitor General,
and Courtney Brewer, Deputy Solicitor General, Tallahassee, Florida, on behalf of
the Attorney General, Thomas M. Beason, General Counsel and Meredith C.
Fields, Assistant General Counsel, Tallahassee, Florida, on behalf of Florida
Department of Environmental Protection, Kevin X. Crowley of Pennington Moore,
Wilkinson, Bell and Dunbar, P.A., Tallahassee, Florida, on behalf of the Northwest
Florida Water Management District, William S. Bilenky General Counsel, and
Joseph J. Ward, Assistant General Counsel, Brooksville, Florida, on behalf of the
South Florida Water Management District, and the Southwest Florida Water
Management District; E. Thom Rumberger and Noah D. Valenstein of Rumberger,
Kirk and Caldwell, Tallahassee, Florida, on behalf of National Audubon Society;
David L. Powell, Gary K. Hunter, Jr., and Mohammad O. Jazil of Hopping Green
and Sams, Tallahassee, Florida, on behalf of Association of Florida Community
Developers, Inc.; Amy Brigham Boulris and John W. Little, III of Brigham Moore,
LLP, Coral Gables, on behalf of Florida Home Builders and National Association
of Homebuilders, Keith C. Hetrick, General Counsel, Tallahassee, Florida, on
behalf of Florida Homebuilders Association; and Steven Geoffrey Gieseler and
Nicholas M. Gieseler, Stuart, Florida, on behalf of Pacific Legal Foundation,
As Amici Curiae
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