Florida land-use case at Supreme Court may have national impact

McClatchy NewspapersJanuary 11, 2013 

— Coy Koontz Sr. had a plan when he bought 14.9 acres east of Orlando, Fla. It did not include having his son end up at the U.S. Supreme Court, however.

But now 18 years of legal wrangling have brought the Koontz family and government agencies to the brink of a climactic court argument. The outcome will influence the power of government to impose certain monetary conditions before granting land-use permits.

“I’m glad this is almost over,” Coy Koontz Jr. said in a telephone interview, adding that “this affects many, many people.”

Certainly, the case that will be heard Tuesday under the name Koontz v. St. Johns River Water Management District has attracted a national cast of characters. The younger Koontz, whose father died in 2000, is taking the train up from Raleigh, N.C., for the arguments; he and his wife live in North Wilkesboro, N.C. Koontz’s attorney with the Pacific Legal Foundation, Paul J. Beard II, is flying out from Sacramento, Calif. Nationwide, kibitzers are furiously taking sides.

“It’s important enough that we have nine amicus briefs on one side and five amicus briefs on the other,” Beard said Friday.

The National Association of Home Builders and conservative allies have lined up with the Koontz family. They want the court to rule that a government agency that refuses a land-use permit because the property owner declines to pay certain fees has essentially taken the property. This would compel agencies to more strictly justify their permit requirements.

From the opposite side, California and 18 other states are urging the court not to impede the widespread use of fees by characterizing them as a taking.

“Impact fees on developments are used by a large percentage of localities across the nation,” notes the states’ legal brief, chiefly authored by California Supervising Deputy Attorney General Daniel L. Siegel, adding that “to offset harm caused by proposed projects, state and local governments widely condition approvals on mitigation, often in the form of mitigation fees.”

The Koontz case is one of several private-property disputes that are before the Supreme Court this term. The central question invariably revolves around the Fifth Amendment rule declaring that “nor shall private property be taken for public use, without just compensation.” Lots of judicial firepower has been devoted to teasing apart what this means.

Last month, for instance, the Supreme Court unanimously agreed that property owners might deserve payment when public agencies temporarily flood their land. That case started when the Army Corps of Engineers released water from the Clearwater Dam in Missouri, temporarily but repeatedly flooding a wildlife management area in Arkansas.

The Florida case probably won’t invite similar unanimity, though it has an obvious appeal for the court’s conservative wing.

The senior Koontz bought the land in 1972 with hopes of building a small commercial project near two highways. The St. Johns River Water Management District subsequently designated much of the property as a “riparian habitat protection zone.” In exchange for securing a permit, Koontz reluctantly agreed to give the district a conservation easement on about 11.5 acres.

“He worked all his life,” said his son, a 68-year-old retired general contractor, “and he didn’t understand why he had to give up 75 percent of the land.”

Citing the loss of valuable wetlands, water district officials told Koontz Sr. in 1994 that he also would have to offer additional mitigation; for instance, by paying to restore about 50 acres of district land elsewhere. He refused, so the district rejected his permit application. He sued.

One Florida court ordered the water district to pay Koontz more than $325,000 as compensation, but the Florida Supreme Court reversed this.

“Nothing was taken from (Koontz) when the permit was denied,” the water district’s appellate attorney, Paul R.Q. Wolfson, wrote in a legal brief, adding that Koontz “did not have to convey any property interest to the district or suffer any other invasion of his property.”

The outcome will turn, in part, on a key prior case that involved the California Coastal Commission. In 1987, the Supreme Court ruled 5-4 that the California agency effectively took a Ventura County landowner’s property by requiring a public easement for beach access in exchange for granting a building renovation permit.

Warning against an "out-and-out plan of extortion" by state officials, Justice Antonin Scalia reasoned in the California case that to avoid being on the hook for a "taking" of private property, government officials must demonstrate a tight fit between the permit requirement and the project.

The Florida property, meanwhile, has changed little despite the legal fights.

“It’s still vacant,” Koontz Jr. said. “It’s still raw.”

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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