Florida Water Management District Denial of Development Permit an Unconstitutional Taking, Argues Florida Developer to United States Supreme Court
Coy Koontz is taking his case to the United States Supreme Court. For those in Florida real estate development, Koontz's fight with the St. Johns River Water Management District is well known. They've been fighting in the courts for years.
To read the prior case history, check the various appellate cases (there are Koontz II, Koontz IV, etc.) and this latest high court decision made in November 2011: the Florida Supreme Court's opinion in St. Johns River Water Management District v. Koontz.
What's the fight about?
From the Florida Supreme Court's recent decision, citing with approval the synopsis provided by the lower Florida district court:
This case involves a landowner, Mr. Koontz, who, in 1994, requested permits from [St. Johns] so that he could develop a greater portion of his commercial property than was authorized by existing regulation. . . . Based on the permit denial, Mr. Koontz brought an inverse condemnation claim asserting an improper "exaction" by [St. Johns].
In the most general sense, an "exaction" is a condition sought by a governmental entity in exchange for its authorization to allow some use of land that the government has otherwise restricted. Even though the government may have the authority to deny a proposed use outright, under the exactions theory of takings jurisprudence, it may not attach arbitrary conditions to issuance of a permit.
In relating the circumstances giving rise to this case, the trial court explained:
The subject property is located south of State Road. 50, immediately east of the eastern extension of the East-West Expressway in Orange County. The original. plaintiff, Coy Koontz, has owned the subject property since 1972. In 1987, a portion of the original acreage adjacent to Highway 50 was condemned, leaving Mr. Koontz with 14.2 acres. There is a 100-foot wide transmission line easement of Florida Power Corporation running parallel to and about 300 feet south of Highway 50, that is kept cleared and mowed by Florida Power. . . .
. . . .
All but approximately 1.4 acres of the tract lies within a Riparian Habitat Protection Zone (RHPZ) of the Econlockhatchee River Hydrological Basin and is subject to jurisdiction of the St. Johns River Water Management District.
In 1994, Koontz sought approval from [St. Johns]. for a 3.7 acre development area adjacent to Highway 50, of which 3.4 acres were wetlands and .3 acres were uplands.
In his concurring opinion in Koontz II, Judge Pleus explained the positions [advanced] by the parties during the permit approval process:
Koontz proposed to develop 3.7 acres closest to Highway 50, back to and including the power line easement. In order to develop his property, he sought a management and storage of surface waters permit to dredge three and one quarter acres of wetlands. A staffer from St. Johns agreed to recommend approval if Koontz would deed the remaining portion of his property into a conservation area and perform offsite mitigation by either replacing culverts four and one-half miles southeast of his property or plug certain drainage canals on other property some seven miles away. Alternatively, St. Johns demanded that Koontz reduce his development to one acre and turn the remaining 14 acres into a deed-restricted conservation area. Koontz agreed to deed his excess property into conservation status but refused St. Johns' demands for offsite mitigation or reduction of his development from three and seven-tenths acres to one acre. Consequently, St. Johns denied his permit applications.
Id. at 1269 (Pleus, J., concurring specially). In its orders denying the permits, [St. Johns] said that Mr. Koontz's proposed development would adversely impact Riparian Habitat Protection Zone ["RHPZ"] fish and wildlife, and that the purpose of the mitigation was to offset that impact.
After hearing conflicting evidence, the trial court concluded that [St. Johns] had effected a taking of Mr. Koontz's property . . . . In reaching this conclusion, the trial court applied the constitutional standards enunciated by the Supreme Court in Nollan and Dolan. In Nollan, with respect to discretionary decisions to issue permits, the Supreme Court held that the government could impose a condition on the issuance of the permit without effecting a taking requiring just compensation if the condition "serves the same governmental purpose as the developmental ban." 483 U.S. at 837. This test is referred to as the "essential nexus" test. In Dolan, the Court added the requirement that, for such a condition to be constitutional, there must also be a "rough proportionality" between the condition and the impact of the proposed development....
The Importance of Koontz v. St. Johns River Water Management District to Florida Land Development.
This controversy is hinged upon an application by a Florida land developer for a development permit. Mr. Koontz planned to develop around 4 acres of land along Orange County State Road 50; Florida law required that he apply with the local water management district for a permit to do so, since his plan would include filling wetlands for the development project (his acreage is wetlands as defined under Florida law).
This was back in 1994. The St. Johns River Water Management District denied his application.
Koontz fought the denial, arguing that the Water Management District had illegally taken the property. At first he won: the initial fight before a state circuit court judge had Koontz in the victory circle and the district being ordered to pay around $375,000 to the landowner for the temporary taking.
Needless to say, SJRWMD chose to appeal the decision rather than pay for the taking. And so it goes, with the fight moving to Washington D.C. here in 2012, some 18 years later. (The elder Koontz has passed away; Koontz Jr., his son, continues the fight.)
The Pacific Legal Foundation has gotten involved now, too. They've asked for the U.S. Supreme Court review, arguing that this case is worthy of the Court's time and consideration because it represents essentially an "unconstitutional shakedown" by government.
Right now, Florida's water management districts are having to make due on much less since Florida Governor Rick Scott instituted drastic budget reductions. Taxation was cut. The water management districts have been criticised for a lack of consistency in permitting across the state, too. Was the Koontz permit denial a "shakedown" - if so, imagine the developers around the state that believe they've faced similar "shakedowns" over the years.
Lots of eyes are on this case. To follow the case before the United States Supreme Court, go here, and to learn if the Supremes will agree with the Florida Circuit Court view or the Florida Supreme Court perspective, stay tuned.