On Tuesday, January 15, 2013, the United States Supreme Court heard arguments in the Koontz v. St. Johns River Management District case. There are two questions presented in Koontz. First, whether the government commits a taking if it refuses to issue a land use permit if an applicant fails to comply with a permit condition that would violate the nexus and rough proportionality standards set forth in Nollan1 and Dolan2. Second, whether the Nollan and Dolan nexus and rough proportionality tests apply to land use conditions that take the form of a demand for money, services, labor, or other type of personal property to a public use.
Koontz stems from a Florida land use case. Mr. Koontz sought to develop 3.7 acres of a 14.2-acre parcel of land he owned in Orange County, Florida. Most of the property sat within a habitat area that lay within the jurisdiction of the St. Johns River Water Management District. Approximately 3.4 of the 3.7 acres were determined to be wetlands, but Mr. Koontz wanted to fill about 3.25 acres to complete his development. Mr. Koontz wanted to dedicate the remaining 11 acres as mitigation, but the District conditioned the approval on Mr. Koontz enhancing 50 acres of wetlands owned by the District miles away. The estimates for the mitigation ranged from $10,000 to $150,000 depending on the testimony of the District or Mr. Koontz’s expert.
Mr. Koontz refused to comply with the condition, and the District denied his land use permit. Mr. Koontz then sued for an inverse condemnation taking and won at the trial and appellate levels. However, the Florida Supreme Court reversed, refusing to apply Nollan and Dolan to the analysis.
During oral arguments, Justice Scalia (usually a friend of property rights) had some tough questions for Mr. Koontz, assailing his argument that a taking had actually taken place. He pointed out that in Nollan and Dolan the government had taken something away from the landowner whereas in this case it was just a condition to do something offsite. Several of the justices, including Justice Kagan and Justice Ginsburg, appear to pile on Scalia’s analysis suggesting that Mr. Koontz might have used some other legal theory, possibly due process.
This will be an interesting case and could open up a slew of challenges to conditions for land use approvals if Koontz is successful. Based on the oral argument, that looks unlikely.
2 Dolan v. City of Tigard, 512 U.S. 374 (1994).