Monday, January 14, 2013

Koontz Heads to U.S. Supreme Court, Reply Brief Argues Government's Coercive Power Must be Limited

The Pacific Legal Foundation has filed the landowner's reply brief in Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). Here's the introduction:
The District skirts the first Question Presented, never explaining why a permit exaction resulting in permit denial should be exempt from review under Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). Instead, it writes and answers its own “question presented” based on a fundamental misunderstanding of Mr. Koontz’s claim, and an improper re-litigation of the record. Introducing a “straw man” argument, the District asks whether just compensation under Nollan and Dolan is available for the taking of land. But Mr. Koontz litigated his claim on the very different question of whether Nollan and Dolan apply to invalidate a permit exaction. That is the only issue the Florida Supreme Court resolved, the only issue before this Court, and the one  issue the District avoids for most of its brief. 
The District does address the second Question Presented of whether monetary exactions should be exempt from Nollan/Dolan review. After arguing—contrary to the lower courts’ findings—that it never imposed any permit condition, it urges this Court to simply exempt from Takings Clause review under Nollan and Dolan all monetary exactions. But the District’s proposed rule finds no support in this Court’s precedents, including the principal case on which the District relies, Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), which is a fractured decision easily distinguishable from the facts of this case. 
Nor is the exception supported by the District’s “the sky will fall” arguments. After Nollan and Dolan, land-use regulation did not come to a halt. And, in those states that apply them to monetary exactions agencies still impose all manner of exactions—only now, they must do so within the parameters of the Takings Clause, so that no unconstitutional conditions are imposed. 
In the District’s view, the Takings Clause should impose no limitation whatsoever on an agency’s flexibility to demand that an individual dedicate her money to a public use in exchange for a permit—presumably, because agencies can be “trusted” to not impose excessive exactions. Of course, the record in this case belies the District’s dubious assurances. It is undisputed that Mr. Koontz was unfairly singled out to bear a public burden (improving government-owned lands) that should have been borne by the public as a whole; the demand bore no connection or proportionality to the impact of Mr. Koontz’s modest project—a fact that the District itself recognized eleven years after imposing it, when it issued his permits without the condition. This kind of heavy handedness—exacting as much property out of a permit applicant as needed or wanted—will persist, so long as agencies know there is no Takings Clause limitation on their power. Trusting agencies to do the right thing is not the answer; making Nollan and Dolan review available to individuals faced with coercive property exactions—whatever their form and regardless of their timing—is.
I'll be at the oral arguments for this case, so I'll draft my reflections while I'm flying home for posting sometime late Tuesday night. Until then, check out my numerous posts on the development of this case in my archives. Here is a rundown of interesting articles and summaries on the web about the case:
  • The Pacific Legal Foundation has a number of good blog posts
  • Robert Thomas at has been following this case for quite some time
  • Lawrence Hurley at Greenwire writes about the "velvet-covered hammer" of governments suggesting exaction options
  • The Orlando Sentinel muses on the local implications of the Court's ruling
  • Professor Richard Epstein discusses the case. In his opinion, this case comes down to fundamental concepts of fairness:

    The narrow issue before the U.S. Supreme Court is whether this condemnation claim is valid when the District’s aborted land use exactions are off-site. Unfortunately, the Water District offers no explanation as to why its price schedule (over three acres put aside for each acre developed) for mitigation is correct. More critically, it never explains why there should be any environmental mitigation doctrine at all. When the case came before the Florida Supreme Court, the state began its discussion by insisting that the “purpose behind the takings doctrine is to prevent government from forcing an individual to carry burdens that should be carried by the public as a whole.” Yet that is precisely what the government does by asking Koontz to underwrite the repair of its culverts and ditches for the benefit of the public at large.

    The significance of this issue, moreover, not only concerns fairness to individuals in deciding who pays for any repairs. Also relevant is whether the repairs should be made at all. Looming behind these distributional questions lies key issues about economic waste from the misallocation of social resources. By linking the permit to the proposed repairs, the District frames the issue by making the wrong comparison.