~~June 25, 2013~~

~~by Steve Klein~~
About Steve Klein
serves as Staff Attorney and Research Counsel for the Wyoming Liberty Group and frequent guest on The Morning Zone Program on KGAB.

Today, in a 5-4 decision the U.S. Supreme Court ruled against government shakedowns and simultaneously reinforced land rights in Koontz v. St. Johns River Water Management District.

Koontz purchased a tract of land of about 15 acres near Orlando, Florida in 1972. Over time, as Orlando grew, the location became more attractive and thus more valuable. At the same time, Florida enacted several laws to protect wetlands, which made up a large portion of Koontz’s parcel, and the St. Johns River Management District used these laws to require builders on wetlands to “offset the resulting environmental damage by creating, enhancing, or preserving wetlands elsewhere.”

In 1994, Koontz applied for permits to develop 3.7 acres of his land, proposing to leave the remainder undeveloped and preserved under a conservation easement in order to offset the environmental effects. In response, the Management District gave Koontz two alternatives: shrink the size of his development and use more costly features, or proceed with his development as planned and “hire contractors to make improvements to District-owned land several miles away.”

Basically, the District told Koontz his plan was unacceptable on his land unless he improved land owned by the District located somewhere else.

Koontz filed suit, winning a trial in Florida Circuit Court, which was affirmed by the Florida District Court and then reversed by the Florida Supreme Court. At issue were two past U.S. Supreme Court decisions on Fifth Amendment takings: Nollan v. California Coastal Commission and Dolan v. City of Tigard. Together, these cases limit the government’s ability to put restrictions on land development that are completely unrelated to the development itself. In Dolan, for example, the Court ruled that government couldn’t force a property owner to dedicate land for a greenway as a condition of expanding the parking lot of her store. In Nollan, the Court ruled against requiring a beachfront public access easement in order to rebuild a house. These constitute not regulation but takings for which the government must compensate the landowner.

Today, the Court ruled against an attempt to alleviate this kind of extortion under the premise of giving the landowner a choice. Writing for the majority, Justice Samuel Alito summarizes: “A contrary rule would be especially untenable in this case because it would enable the government to evade the limitations of Nollan and Dolan simply by phrasing its demands for property as conditions precedent to permit approval.”

Like last year’s Sackett decision, this is certainly not the end-all, be-all decision for land rights. As Justice Alito points out, the government still enjoys great power in regulating development, and takings law doesn’t stop government from appropriating land but only requires it to pay for what it takes. Since this kind of regulation usually stems from state down to local government, it is local engagement that makes or breaks land rights across the country. The Constitution is the minimum standard for our rights; through vigilance and engagement, we can go much further to protect liberty.

It’s been a late season for the Supreme Court, with the most controversial decisions left to the end. Yesterday, the Court punted a much-anticipated Affirmative Action case back to the Fifth Circuit Court of Appeals. Today, the Court struck down Section 4 of the Voting Rights Act. Soon it will rule on gay marriage under the U.S. Constitution. But with Koontz, this much is clear: the Fifth Amendment’s still there for us.