Browse Tag: koontz

SCOTUS Turns Again To Takings And Land Use

U.S. Supreme Court building.

The Supreme Court gets to pick what cases it hears — and land is on the court’s mind lately.

Thousands of requests for cases are received every year by the Supreme Court. Each sitting justice has a crew of law clerks reading each request (called a petition or writ of certiorari) and these clerks compile memos about each case.  The justices read these memos, meet and vote, and if four of the nine agree to hear a case, then it is placed on the docket.   If enough justices don’t feel particularly compelled to hear a case, then the lower court’s judgement stands.

For whatever reasons, the pattern for the Roberts-led Supreme Court has been heavy on the land use and eminent domain related cases under the Fifth Amendment’s clause ” nor shall private property be taken for public use, without just compensation”.

Recent SCOTUS decisions in this area have gone against government and for land owners, including:

  • Koontz vs. St. Johns River Water Management District (as I wrote about at The Source here and here):  A Florida land owner was ordered as a condition of development of land he owned to improve drainage on an unconnected land parcel owned by the state and managed by the Management District.  SCOTUS eventually ruled in favor of the land owner.  The decision’s effect in other states is likely to handcuff local governments / permit-issuing authorities in what conditions they can attach to land development permits.
  • Arkansas Game And Fish Commission vs. United States:  SCOTUS ruled that seasonally recurring, temporary flooding of land can constitute a taking entitled to just compensation.
  • Horne vs. Dept of Agriculture:  Where the court affirmed the right of California raisin growers to claim a taking as a defense to enforcement action made by the government due to alleged non-compliance with regulatory efforts.  This case reversed a long-standing  lower court case from the 1980s that has stood in the way of takings claims. The reversal has also shown that “just compensation” is no longer the only remedy a party claiming a taking can request.

Before the court now is Marvin M. Brandt Irrevocable Trust vs. United States, a land use case that will be of interest to any broker, owner or developer of land with railroad right-of-ways.  While complex, the case will decide issues concerning whether interest in land with such right of ways is held as fee simple or as an easement, and what happens when railroad use is discontinued.

The ramifications of Brandt will likely touch all 137,000(!) miles of railroad crisscrossing the US, meaning it’s a good idea to stop, look and listen for the decision in the spring.

Koontz: SCOTUS Rules In Favor Of Property Rights

U.S. Supreme Court building.

In a week filled with rulings that received more attention, the Supreme Court also handed down a decision in Koontz vs.St Johns River Water Management District,  a multi-decade legal saga over property rights and construction permitting that has implications for environmentalists and sustainable development programs across the country.

Bottom line: property owners won this one.

As reported here at The Source last December, Koontz pitted a Florida owner of wetlands against the local environmental protection district.  The blow-by-blow took over twenty years to resolve: developer applies for construction permit, includes offer to place 11 acres of land in a conservation easement, permit withheld unless developer agrees to improve wetlands (culverts, ditches, etc) located some miles away, developer cries foul, claims process constitutes takings under the fifth amendment, heads to local court, state court, Florida Supreme Court, and finally, SCOTUS.

The decision favoring the land owner, as spelled out at JDSupra:

What was the Supreme Court’s decision?

The Court ruled that the Fifth Amendment’s Takings Clause can be violated even when there is not an actual taking of property. The Court stated that “extortionate” demands for property (including demands for monetary exactions) in the land-use permitting context run afoul of the Takings Clause because “they impermissibly burden the right not to have property taken without just compensation.”

The decision seeks to remedy scenarios in which the government may use its substantial discretion in land-use permitting to pursue governmental ends that lack an “essential nexus” and “rough proportionality” to the effects of a land-development project, noting that such uncontrolled discretion can result in diminishing the value of the property without justification. The decision makes it clear that conditions sought to be imposed in land-development permits can violate the Takings Clause if they lack an essential nexus and rough proportionality to the effects of the proposed use of the property. This is true even when the government denies a permit application on grounds that an application does not acquiesce to the conditions, and even when the condition only requires the payment of money.

What is the impact of the decision?

The decision protects land owners from permit conditions sought to be imposed by government agencies that do not have an essential nexus to a proposed land development project. To be clear, the decision does not prevent the government from mitigating the impacts of a proposed development. It simply states that if the government requires mitigation or monetary exaction, such mitigation or exaction must have an essential nexus and rough proportionality to the impact of the proposed development. This opens the door for challenges on a federal level where state statutes or case law would not have required the application of an essential nexus and rough proportionality test. The decision can be expected to spur challenges to conditions imposed in land-development projects on grounds that the conditions lack an essential nexus to the development project.

Location, Location, Location

While Koontz has in no way called off the endless tug of war between advocates of property ownership and advocates of environmental stewardship, it has upheld a reasonable conception of fair requirements of developers.  The real estate industry’s fixation upon, well, fixation — upon location — is what made the core of this case and the argument on the side of property rights easy to understand.  If a developer wants to use their property and knows they must conform to use rules and regulations upon that property, then it’s fair to expect that those rules should apply to that property — not to somewhere else.

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SCOTUS Set To Hear Koontz

English: The Supreme Court of the United State...


Next month, the US Supreme Court will hear oral arguments in commercial property case Koontz vs. St. Johns River Water Management District. Koontz is an interesting and lengthy case, begun 18 years ago in 1994 when Florida landowner Coy Koontz applied for a permit to develop land he had bought years earlier in 1972.


At the time of the 17.9 acre vacant lot’s purchase, according to court filings, Koontz’s property, located at the intersection of two state highways, was unencumbered by state and local regulations, and land-use law permitted him full use of his property.  By 1994, that had changed significantly.


In 1985, Florida enacted an environmental statute implementing regulations to control the use of private property containing wetlands and uplands suitable for fish and wildlife habitat. By 1994, all but 1.4 acres of Koontz’s property was included in a Habitat Protection Zone overseen by the St. Johns River Water Management District.


Mr Koontz submitted applications for development in 1994, including mitigations for the disturbance to the habitat, as per district regulations.  He offered to place eleven acres of his property into a conservation easement.


According to court filings, the district’s response was that they would recommend to deny the permit unless Mr. Koontz, in addition to the surrender of 11 acres of his property, financed the restoration and enhancement of at least 50 acres of welands on District-owned property miles away, by replacing culverts, digging ditches and building a road.


In 1994, Mr Koontz filed an action against the District which was only heard eventually in 2002 on the question “wether the off-site mitigation required by the District was an unreasonable exercise of police power”.  The court found for the landowner, causing the District to approve the permit without the work it had required to be done on land located miles away.  Damages were also awarded to Mr. Koontz.

However, the District appealed the case, and this is where the road to the Supreme Court really begins.

In the appeal, the District did not challenge any factual findings in the lower court case, but instead attacked the applicability of cases Mr. Koontz’s attorneys had argued were applicable to the exaction the District sought from Mr. Koontz, cases named Nollan vs. California Costal Commission and Dolan vs. City of Tigard.  The technical legal argument about the specifics of takings by the state — which Koontz’s legal team hard argued applied — was now back on the table.

The Florida Appellate court found for Mr. Koontz, then the Florida Supreme court found against him.

The Supreme Court is up to hear the case and settle it once and for all on January 15th.


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