US Supreme Court delivers new challenge to environmental protection

July 2, 2013 

The U.S. Supreme Court's rulings leading up to the end of the past year's term focused on monumental issues that captured public attention: on same-sex marriage, voting rights and affirmative action. Another landmark decision arrived with less fanfare but holds far-reaching consequences in land-use planning and environmental protection.

As growth and development continues to rebound in Manatee County, this key ruling will come into play.

In Koontz vs. St. Johns River Water Management District, justices ruled 5-4 that a denial of a development permit amounted to a unlawful taking of property under certain but vague circumstances. This sets a precedent that will influence how public entities negotiate with private interests over the mitigation of environmental damage that projects may cause.

In this particular case, the late Coy Koontz Sr. sought a wetlands development permit from the Orange County agency in 1994, requesting approval to build a commercial project on 3.7 acres of mostly wetlands while agreeing to set aside 11.5 acres on the site into a conservation easement.

But the water management district demanded a different deal: either reduce the project to one acre and place the remainder of the property into an easement, or accept the original 3.7-acre plan and pay for wetlands improvements on district lands miles away.

Koontz refused and sued. After losing in the Florida Supreme Court, plaintiffs won last week. The U.S. Supreme Court decision stated the permit denial constituted an unreasonable fee -- an unconstitutional taking of private property without compensation. In his majority opinion, Justice Samuel Alito wrote: "Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation."

This particular case illustrates government's overzealous reach that can be found in the development application process. Government agencies cannot place unreasonable demands on developers, but the boundaries of those requirements for permit approvals have not been well defined by the high court's decision.

The decision gives property owners greater leverage in securing government approval for projects -- or, at the very least, puts public agencies on guard about environmental impact negotiations.

The justification of environmental protection becomes more difficult as public entities now need to worry about litigation. This ruling sets a new standard on previous cases that specified "rough proportionality" be the determining factor in government demands in exchange for land-use approvals.

In dissent, Justice Elena Kagan pointed out the problematic repercussions of the decision: "The boundaries of the majority's view are uncertain, but it threatens to subject a vast array of land-use regulations, applied daily in state and localities throughout the country, to heightened constitutional scrutiny."

That includes development impact fees, one of the key components of growth management employed by Manatee County and the school board. Taxpayers are thus exposed to the cost of litigation over the imposition of fees and the cost of new infrastructure that development requires. But this is uncertain at this time.

Whether this weakens wetland protection laws and other environmental protections remains to be seen, but this certainly puts public agencies on notice not to make unreasonable demands on developers. Land-use rules must be consistently applied under comprehensive plans. And "proportionality" must be the guiding principle behind negotiations on project approvals.

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