Koontz Update: Government Argues It Denied Permit after Merely Suggesting Mitigation

The governmental agency has filed its brief responding to the property owner in Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). This is the case before the U.S. Supreme Court where the property owner is arguing that the Florida Supreme Court disregarded significant constitutional protections, while asking the Court to establish that the Nollan-Dolan exactions test applies to exactions other than real property, such as where a permit applicant is required to pay for work; and the Nollan-Dolan exactions test applies where a permit is denied because an applicant rejects an exaction.

The government's brief asks: what's the big deal? This aligns with interviews of the government's attorney, who has said exactions like the one in this case are more or less "run of the mill." Here's the summary from the government's brief:

Petitioner applied for permits from the St. Johns River Water Management District (“the District”) to dredge and fill part of his property in the Econlockhatchee River Hydrologic Basin. Petitioner acknowledged that his proposal would destroy more than three acres of wetlands in an area designated for special protection, so he proposed to preserve about 11 acres elsewhere on his property as mitigation for the environmental harm. Applying generally applicable criteria—the validity of which petitioner does not contest—the District concluded that the mitigation petitioner proposed would not offset the harm caused by his project enough to meet the permitting standards. The District therefore told petitioner that the permits could not be issued unless he modified the project or pro-posed additional or alternative mitigation. The District suggested several ways petitioner could meet the permitting requirements, including by enhancing other wetlands near his property. Petitioner, however, disagreed with the District’s conclusions about the sufficiency of the mitigation he had proposed. He refused to modify his project or propose any other mitigation, and the District denied the permits. 

Instead of appealing the permit denial, petitioner filed this inverse-condemnation action. He sought monetary compensation on the ground that the District’s decision constituted a taking. But nothing was taken from petitioner when the permits were denied. Petitioner did not have to convey any property interest to the District or suffer any other invasion of his property. He spent no money, time, or labor performing any mitigation. Nor does petitioner argue here that he suffered any taking of the economically viable uses of his property under Lucas or Penn Central. Indeed, he stipulated that his suit did not “proceed[] upon a theory that the [permit denial] deprived [him] of all or substantially all economically beneficial or productive use of the subject property.” JA 76. In short, he suffered no loss for which he is entitled to compensation. 

Before this Court, petitioner now seeks compensation for a regulatory taking of his real property on the ground that the District’s request for additional mitigation was not sufficiently tailored to a legitimate regulatory purpose under the “nexus” and “proportionality”test of Nollan and Dolan. This Court rejected that means-ends approach to regulatory takings in Lingle, and it should not revive it here. 

Even if one could seek compensation under Nollan and Dolan for some proposed conditions that were never accepted or imposed, such a claim must fail in this case. Contrary to petitioner’s characterizations, the District never required him to perform any particular form of mitigation. Nor does the District’s suggestion for mitigation that petitioner singles out—which would have required him to spend money to enhance wetlands within the same hydrologic basin—constitute a taking under this Court’s decisions. In these circumstances, the Supreme Court of Florida correctly held that petitioner has no valid claim to just compensation under Nollan and Dolan.

It looks like the United States, through the Solicitor General, and one organization have filed amici briefs in support of the District. I have not seen these briefs yet, but I'll report on it once I do. The Solicitor General has also requested leave to take part in oral argument.

Recall that my colleague David Smolker and I submitted an amicus brief in support of the property owner, arguing that the Florida Supreme Court ignored the unconstitutional conditions doctrine, which protects all property owners:

Although a government may regulate the ownership of property under its police power, this Court has found it necessary to develop outer limits so that the power does not swallow property rights. This Court developed exactions law to protect property owners from a government’s extortionate leveraging of the police power to obtain benefits for which the government would otherwise have to pay for. The unconstitutional conditions doctrine provides this protection through both the Takings Clause and the Due Process Clause.

The government's brief failed to engage with this argument.