Another View: Ruling protects landowners but won't hurt 'collaboration'

Published: Wednesday, Jul. 10, 2013 - 12:00 am | Page 12A

The U.S. Supreme Court recently issued a decision requiring fair treatment for property owners seeking land use permits. That's good news if you value property rights. Also good news: It won't undermine "land use collaboration" or environmental mitigation, as The Bee mistakenly warned in a recent editorial ("Court ruling a blow to land use collaboration," June 28).

In fact, the 5-4 ruling in Koontz v. St. Johns River Water Management District should foster better relations between permitting authorities and permit applicants. Regulators will have to tailor conditions on permits to the actual impacts from the proposed land use. What regulators can't do is make landowners pay for unrelated projects or impacts.

The Koontz family was treated as a community cash cow. When they asked for permission to develop 3.7 acres in Central Florida – property that was in a state wetlands protection zone but that the Koontzes contended was not actually wetlands or environmentally sensitive – they offered to set aside their other 11 acres, also in the zone, as a conservation easement.

This meant that although they had the statutory right to at least ask for permission for development on those 11 acres, they would never do so. But the local agency wasn't satisfied, and set a financial price tag for a permit that couldn't be justified.

Although the Supreme Court's dissenting justices claim the Koontzes were offered a number of alternative wetlands mitigation scenarios, the record shows that on one demand the regulators wouldn't budge: They denied the permit to develop 3.7 acres because the family refused to fund mitigation upgrades on government property, miles away, at a cost of from $90,000 to $150,000. As the state's lower courts found, this demand was in excess of any environmental impact from the Koontzes' land use proposal. (In fact, the government eventually acknowledged that the 3.7 acres weren't wetlands after all!)

The Koontzes' lawsuit argued they were being shaken down in violation of the Fifth Amendment's ban on uncompensated "takings" of private property.

Their case has moved through the courts for two decades. But now the U.S. Supreme Court has held that the Constitution backs them up: Permit officials can't demand money for purposes that aren't tied to, and proportional to, the proposed project.

The Koontzes' story is reminiscent of another family the Pacific Legal Foundation represented a decade ago: Jonette Banzon and her husband, Muhammed Ahmad, of Elk Grove. We sued the city after it demanded $240,357 for road improvements if they wanted a permit to build an approximately $500,000 home.

The city backed down, dropping the fee to $9,750. If Elk Grove had remained defiant, who knows – the Supreme Court's landmark decision might have had Elk Grove as the losing party instead of a Florida agency.

To summarize the new property rights precedent: Collaboration between landowners and government: OK. Mitigation: OK. Confiscation: Not OK – and not constitutional.

Beard is a principal attorney with Sacramento-based Pacific Legal Foundation. He represented Coy Koontz Jr. in Koontz v. St. Johns River Water Management District.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Paul J. Beard II



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