On January 15, the Supreme Court heard oral arguments in Koontz v. St. Johns Water Management District. The Court granted certiorari to the appellant last October. The case involves Cory Koontz, a landowner who owned 15 acres of land, the majority of which fell within a riparian habitat-protection zone in the Econlockhatchee River hydrological basin and contained protected wetlands. The development of the land was under the jurisdiction of the St. Johns River Water Management District. The question presented in Koontz is whether a governmental entity’s denial of a permit can be the basis for a regulatory takings claim when it is denied solely because the landowner refused to agree to proposed conditions to the permit. The Court would also determine whether the decisions reached in Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L.Ed. 2d 677 (1987) (holding that there must be an essential “nexus” between the permitted activity and the condition imposed on the permit) and Dolan v. City of Tigard, 512 U.S. f374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) (requiring “rough proportionality” between the condition placed on the land and the extent of the impact of the proposed development”) are applicable to the present case, which involved no requirement to dedicate an interest in real property. In its 2011 decision, the Florida Supreme Court held that the Nollan/Dolan cases both involved the grant of permits rather than permit denials, and were only applicable where the condition imposed on the permit involves a dedication of the owner’s real property interest.
According to media reports, several justices appeared unpersuaded by Pacific Legal Foundation’s position that the conditions placed on the permit constituted a “taking.” Justice Scalia noted that he could not “see where there’s a taking here. Nothing was taken.” Justice Sotomayor remarked that the petitioner did not challenge the Water District’s authority to take steps to preserve the wetlands; the agency considered Koontz’s initial offer insufficient to protect the wetlands and lawfully rejected his offer. Similarly, Justice Ginsberg stated that the Water District had acted reasonably. However, Chief Justice Roberts remarked that there were limits on what a governmental agency could ask a landowner to do.
Using a problem-solving, team approach and working with the Firm’s Litigation Division and Appellate Practice Group, the seasoned attorneys at WSH have extensive experience representing both local governments and private citizens in land use matters. Our Environmental Law Group, chaired by Clifford A. Schulman, consists of former environmental regulators, counsel for environmental agencies, and LEED-certified lawyers; our attorneys have a deep knowledge and understanding of environmental policies and laws ranging from air quality to wetlands permitting. Our Public Land Use and Zoning Practice Group, led by Susan L. Trevarthen, includes attorneys who are certified planners and Board-Certified experts in the field of planning and zoning. The Group has extensive experience representing local governments in all aspects of land use, planning and zoning. In addition, the Group counsels local governments when they act as developers, either alone or in partnership with a private developer. The Firm also represents private property owners, developers, investors and lenders in land use and zoning matters throughout various South Florida jurisdictions. Our Eminent Domain Group, led by Mitchell J. Burnstein, represents private property and business owners, as well as dozens of governmental entities, in all aspects of eminent domain litigation and trial work, including inverse condemnation.
Author(s): Susan L. Trevarthen & Peter D. Waldman
