The U.S. Supreme Court on Tuesday struggled with a landowner's claim that the denial of a permit to develop his land because he refused government suggestions to mitigate potential damage to wetlands amounted to an unconstitutional taking of his property.
"What has been taken?" Justice Antonin Scalia asked Paul Beard of the Pacific Legal Foundation several times during arguments in Koontz v. St. Johns River Management District.
The high court case is being closely watched by property rights advocates, environmentalists and government officials because of its potentially major impact on the ability of government agencies to attach conditions to land development permits.
Beard represented Coy Koontz who, in 1994, sought to develop 3.7 acres of a 14.9-acre vacant lot in Orange County, Fla. The state had designated all but 1.4 acres of Koontz's property as protected wetlands and uplands. Koontz had to obtain permits from the St. Johns water district to develop his land.
The district rejected Koontz's conservation proposal as inadequate and then suggested nearly a dozen ways in which Koontz could mitigate the loss of wetlands, including additional off-site enhancement of 50 acres of wetlands anywhere within the river basin. When Koontz rejected the suggestions and declined to negotiate further, the district denied his permit applications.
In response to Scalia's question about what was taken, Beard said, "What has been taken in effect is his funds that have to be put now to a public use, the enhancement of 50 acres of public wetlands." He argued that the justices should apply two takings precedents to Koontz' claim: Nollan v. California Coastal Commission (1987) and Dolan v. Tigard (1994). Those two decisions, he said, are "fundamentally about whether a property owner has been singled out to bear public burdens."
However, Scalia rejoined, "[The money] hasn't been taken. He turned [the suggestion] down."
Nollan and Dolan deal with situations in which a government entity issues a permit with a condition requiring the landowner to dedicate some property to public use. The government must show an essential nexus between the condition and the regulatory purposea logical connection. It also must show a rough proportionality: What is demanded of landowner through the condition should be roughly proportional to the projected impact of the development that the condition is supposed to address.
Justices Stephen Breyer, Sonia Sotomayor and Ruth Bader Ginsburg also were skeptical of Beard's argument. Breyer, in particular, said Beard's argument was a form of regulatory taking that would fall under the court's 1978 takings precedent, Penn Central Transportation Co. v. New York City. "So we simply look to see if [the regulation] went too far. The lower courts could do that."
Ginsburg challenged Beard on his claim that the "crux" of Koontz's taking claim was that the permit was denied because he refused to do off-site mitigation of 50 acres. "The record shows that it wasn't one option," she said. "They gave him a laundry list of things he could do, some of them having nothing whatever to do, anything off his own property."