Tuesday, June 18, 2013

Koontz v St. Johns River Water Management District

There is an extremely interesting land use case pending before the United States Supreme Court which will most likely be decided before the end of this month. In Koontz v St. Johns River Water Management District, the issue is whether remediation required by the district effects a taking of the owner’s property.

The Florida Supreme Court found that it did not.

Mr. Koontz owns about 15 acres in Orange County Florida. Much of the land was wetlands and he needed permits to develop the property. In 1994 he applied for permits for dredging to use approximately 3.4 acres of the wetlands. He proposed to offset the impact on the wetlands by imposing a conservation easement on the remainder of his property. However, Florida has a “no net impact” policy and his proposal would only limit the degree of net loss, not add any additional wetlands or enhance any existing wetlands.

The district rejected his proposal but suggested several alternatives including design modifications on his property, reducing the scale of the development to 0.7 acres, as well as two off-site mitigation options. It’s not clear what the cost of the off-site mitigation options might’ve been; the trial court estimated a cost from $90-$150,000.

Coons was not interested in any of the development option suggested by the district, and after informing the district of his position, the district denied the application. He filed suit in 1994. He alleged a taking under the Florida Constitution. The trial court found that there was a violation of Nolan and Dolan and that the off-site mitigation options resulted in a regulatory taking.

The case eventually wound up in front of the Florida Supreme Court, which reversed because Koontz was not required to dedicate real property in exchange for the approval of the permit; and because the application was denied (instead of approved as was the case in Nolan and Dolan), nothing was ever taken.

The US Supreme Court granted certiorari. We await the decision.

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