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The recent United States Supreme Court ruling in Koontz v. St Johns River Water Management District, 133 S. Ct. 2586 (2013) established that a government cannot deny a land use or environmental permit based on the landowner’s refusal to accede to the government’s demands to either turn over property or pay money to the government unless there is an essential nexus and rough proportionality between the government’s demand on the landowner and the effect of the proposed land use. In CS/CS/CS HB 383, the Florida Legislature created a cause of action for the imposition of a development or permit condition that rises to the level of a prohibited, and therefore unconstitutional, exaction.

Under the legislation, plaintiffs are required to provide pre-suit notice to the governmental entity to allow an opportunity to explain or correct the prohibited exaction. If suit is filed, the legislation requires the governmental entity to prove the exaction complies with the standards set by the Supreme Court, and the property owner must prove damages from the prohibited exaction. The bill sets forth the measure of damages recoverable as the difference between a legal exaction and a prohibited exaction and allows for injunctive relief and attorney fees to the prevailing party. Impact fees and non-ad valorem assessments are exempt from the provisions of the legislation.

The bill has not yet been presented to the Governor. He will have 15 days to take action once he receives the bill, and he is expected to sign it. Once in effect, it will apply to all prohibited exactions imposed or required in writing on or after October 1, 2015 as a final condition of approval for the requested use of real property. Even if a governmental entity requires a property owner to agree in writing to the imposition of the exaction, the right to bring an action under the act cannot be waived.

It is expected that the existence of the new cause of action will have a moderating effect on governmental entities that impose conditions on development approvals, as was the case with the passage of Florida’s Bert Harris Act in 1995. If not, Florida property owners will now have a clear remedy for the imposition of any unconstitutional exactions.