Remember back from Admin Law the notion of a "quasi-judicial" proceeding? That term always has bugged us, because, you know, it was used when an agency was sorta acting like a court (but also was sorta acting like a legislative body). Half full, half empty, take your pick.
The fact pattern presented in the Florida District Court of Appeals' opinion in Highland-in-the-Woods, LLC v. Polk County, No. 2D15-2801 (Apr. 28, 2017), involved the other side of that coin, an exaction the County argued was legislative even though imposed by an agency, and therefore off-limits to the exactions test of Nollan-Dolan-Koontz. (We think distinctions like this don't matter -- that whether or not its a legislature or an agency that is making a demand that in order to make use of your property, that you have to give up a constitutional right -- but we recognize that the issue hasn't been settled yet by the Supreme Court. There's a case up before the Court asking for resolution, but no decision yet.)
In Highland, the exaction was applicable to everyone, so we're going to use the term "sorta-legislative," because "quasi" is already being used for court-like actions. The trial court agreed with the County that Nollan-Dolan-Koontz didn't govern, "because this case does not involve an adjudicative decision." Slip op. at 6. The Court of Appeals, however, didn't agree:
We are not convinced that the County's decision regarding Highlands was only legislative in nature and not adjudicative. While the County ordinance requiring the connection to a reuse system may also apply to other subdivisions in the county, Highlands' permit was conditioned on the construction of the reuse improvements as well as its dedication of the improvements and land to the County.
Slip op. at 6-7 (footnote omitted). This was merely a sorta-legislative exaction, and therefore subject to the Nollan-Dolan-Koontz tests. Things seemed to be looking up for the property owner.
Unfortunately it didn't quite work out. The court held that the exaction met the tests. The County has a legitimate interest in new developments using reclaimed water. The court also held "[t]here is also a clear nexus between the legitimate state interest in conserving water and the permit conditions imposed by the County requiring the use of reclaimed water in the subdivision. The conditions require the installation and dedication of reuse improvements so that the future residents of the subdivision have access to reclaimed water and are not required to use potable water for residential irrigation." Slip op. at 8-9. The exaction was also roughly proportional:
Highlands applied for a permit to develop a subdivision consisting of sixty residential lots as well as areas. The County required the installation and dedication of reuse improvements the subdivision that will be used by the future residents for landscape irrigation. The conditions imposed by the County are directly related to the impact of the subdivision on the state's water resources and do not impermissibly reach beyond that impact. The fact that reclaimed water was not available for two years, requiring Highlands to use potable water to irrigate the landscaping in its common areas during that time, does not alter the conclusion that the reuse improvements have a rough proportionality to the impact of the development. The unavailability of reclaimed water for the common areas for a period of two years is insignificant in comparison to the availability of reclaimed water for the indefinite future of the entire sixty-lot subdivision.
Slip op. at 9. Having survived the Nollan-Dolan-Koontz test, the court upheld the exaction, and affirmed the dismissal of the plaintiff's inverse condemnation claim.