Takings, Exactions and the Supreme Court

What better subject for the first blog of the year than  the wonderful world of takings?  The U.S. Supreme Court is hearing today an important case addressing the issue of unconstitutional exactions.  Koontz v. St. Johns River Water Management District, 11-1447 [Link to docket].

In 1972, the petitioner bought a 14.9 acre lot.  All but 1.4 acres of Koontz’s property then became a Riparian Habitat Zone under Florida regulations, which couldn't be developed without permission from the Respondent.  In 1994, Koontz applied for a permit to develop 3.7 acres of the lot. The Respondent agreed to approve the permit if Koontz would either 1) deed the remainder of his property into a conservation area and replace culverts located four and a half miles from his property or plug drainage canals on a property located seven miles away from the property; or 2) reduce development to one acre and turn the remaining 13.9 acres into a deed-restricted conservation area.

Koontz refused to accept either of the conditions and the permit was denied.  The Petitioner then sued for compensation, claiming an exaction of his property.  He won the first two tiers of Florida courts, but lost at the Florida Supreme Court level. 

So this case is going to address principles discussed in Nollan v. California Coastal Commission, 483 U.S. 825 and Dolan v. City of Tigard, 512 U.S. 374 (applied by the Maine SJC in Curtis v. Town of S. Thomaston, 1998 ME 63.)  Just because a governmental body can deny a permit altogether doesn't mean it can impose an unconstitutional condition on approval.  This principle of unconstitutional exactions historically was most often applied relating to the First Amendment – the goverment trying to keep someone quiet.  In Nollan, the Court applied the principle to a permanent visual easement that the government was attempting to condition a permit on, and in Dolan, the Court expounded on the principle, stating that a permit condition had to have "rough proportionality" to purported legitimate goal of the extraction, when the extraction was requiring an applicant to pony up some property.  

An interesting twist here is that the two conditions proposed include paying $ for mitigation off-site.  So we may get into the relationship of monetary extractions and whether they can ever form the basis of a taking claim, which means parsing that messy decision in Eastern Enterprises v. Apfel, with swing voter Justice Kennedy relying not on the taking clause in that case, but substantive due process.  

And what's the remedy?  He didn't accept the conditions and wants money.  Do you order the permit issued without conditions – any conditions?  Do you pay him compensation?  How do you measure it? 

This could be a biggie in the takings world, and could potentially have significant implications in the horseswapping world of permitting.

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