On Tuesday, June 25, the Supreme Court issued a decision that helps protect people’s property rights from greedy municipalities. That decision ticked off Vermont Law School Professor John Echeverria, who considers it a blow to “sustainable development.” Like many recent property rights cases, the decision was made on a five-to-four vote.
In the case, a Florida property owner named Coy Koontz Sr. wanted to fill and develop 3.7 acres of wetlands. To mitigate the wetland fill, Koontz offered to put 11 acres of his property (about 75 percent of the total) under a conservation easement. But the St. Johns River Water Management District denied the permit, saying it wanted either 13.9 acres of Koontz’s land (leaving him less than an acre, or just 5 percent of the total) for development) or for Koontz to spend a bunch of his money helping the district restore wetlands elsewhere.
Koontz took this to court, citing the Supreme Court’s Nollan and Dolan decisions. In those cases, permits were granted on the condition that the property owners give some of their land to the public. The Supreme Court had held that this was an unconstitutional taking of private property.
The Florida Supreme Court rejected Koontz’s argument, saying that there was a big difference between his situation and the Nollan/Dolan cases. In the latter cases, the permits were granted conditional upon the property owners giving up land. In Koontz’s case, the permit was denied unless he gave up land or money.
These differences are so clear and obvious that Echeverria is amazed that five Supreme Court justices were bamboozled into overturning the Florida court’s decision. After all, granting a permit conditional on giving up your land is completely different form denying a permit unless you are willing to give up your land. Moreover, giving you a choice between giving up your money or property is completely different from simply demanding that you give up your property.
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Seriously, Echeverria fears that the decision will discourage municipalities from “negotiating” with (meaning extorting from) property owners at all. “Rather than risk a lawsuit through an attempt at compromise, many municipalities will simply reject development applications outright–or, worse, accept development plans they shouldn’t” (emphasis added). Wouldn’t that be awful?
Apparently, the idea of recognizing the private property is private, and if the public wants to benefit from using some of that property (or some of the owner’s money) then maybe the public should pay for it, is just too radical a concept for a Vermont law professor (not to mention the New York Times or four members of the Supreme Court). Echeverria’s view is that developments are by definition “harmful” and developers should pay whatever cities want to extort from them to mitigate this harm.
I wonder how much Echeverria paid to mitigate the damage done by whatever house he lives in, or if even a Vermont law professor would be able to afford to live in a house at all if every private landowner in the past had been required to give up 95 percent of his or her land just to develop the rest.
The danger behind Echeverria’s view is not just that it arbitrarily takes away people’s property rights and makes development more expensive, but that it gives cities and other municipalities incentives to claim a development is harmful simply to get as much as they can out of developers and property owners. After all, when the district wasn’t satisfied that Koontz was willing to give up 75 percent of his property, and demanded 95 percent instead, it seems likely that the district was simply being greedy.
The sad part of the story is that it took so long for this case to wind its way through the courts that Koontz passed away in the meantime. Sadder still is that only five Supreme Court justices actually supported Koontz’s view of property rights.
Well, I suppose that’s one interpretation. Another might be that Koontz was the greedy one. When given some not unreasonable conditions for developing his property, something entirely within the legal authority of the Water Management District, he declined. And then pursued the rather novel interpretation of the Fifth Amendment that this represented a “taking.” Although apparently not a bad strategy given the current Supreme Court’s comfort with novel interpretations of the Constitution. Still, it’s worth quoting Scalia on this one. His question during the oral arguments, “A taking of what?”
Here again we have a misapplication of the word greed, this time by gecko55. Is it greedy to want to keep and use one’s own private property as one wants? And to answer Scalia’s question, a taking of a person’s right to use their property.
HOWEVER…
In yesterday’s post the Antiplanner maintained that suburbs are great wildlife habitat; when it comes to wetland development/alteration/destruction/whateveryouwannacallit, that isn’t so. When in Florida, I didn’t see any many alligators or storks or panthers or manatees hanging out in strip mall parking lots.
When I read the NYT article yesterday, I was torn. I am still torn, but a little less so given the Antiplanner’s explanation about percentages of the property to be developed. Here’s what I’m torn about: according to data from 1999, 50% of the Everglades have been developed. According to 2000 data, “Florida’s wetlands have been reduced from 54% percent to 31% percent of the state’s total surface area.” However, Koontz’s property is east of Orlando, so the Everglades comparison isn’t relevant, but it is an issue to development in Florida’s wetlands. Also not explained in the AP’s post is that “all but 1.4 acres was part of a state riparian habitat protection zone.” Confounding the situation even more is the assertion by Koontz’s lawyers that “the land itself did not contain any existing wetlands due to a state-built ditch that had drained all the water.” Also interesting is that the property was at a busy intersection of a road built by government. It’s a messy situation.
One thing that’s not so messy is the government blackmail that occurred. “If you want to develop your property (which isn’t really yours because you rent it from the government and the government has placed it in a protection zone–even though the government may have done things to harm it), you must give us money so we can do something to property that’s distant from yours.” It’s not unlike how the US Congress is blackmailing Ecuador over trade benefits to prevent asylum for Snowden.
I don’t know the details of this case. But there is a thin line between negotiating a creative win-win application of good zoning rules for the benefit of the public and the extortion of money and in-kind payments to the city government.
Also, the wetland protection program is clearly a program run amok. Everybody imagines the program applies to pretty marshes full of birds and fish in the Boston-NYC-DC corridor, the only area of the country most lawmakers know. Where you have a lot of upland and a little wetland, then the wetland habitat is important. But where you have a lot of wetland, the upland habitat is more important.
I will give the wetland protection program for its attention to flood control and protection. People will naturally overlook flooding issues when the flood events are rare and outside of recent memories.
Randal, I know it is required to conflate all sorts of things to theft of property, but IMHO what was the issue here was the way the Nollan-Dolan nexus applies to exactions (not takings). So what SCOTUS said – and I sort of agree – was that if you are going to deny or exact, then greater scrutiny is required.
That is: the nexus here is that if places are going to exact, greater scrutiny will be requred. Plenty of states require stricter scrutiny, including California (IIRC as the result of courts making similar decisions to Koontz).
And I doubt the CWA navigable waters case out of MI (can’t remember case attm) will impinge on this decsion either. Plenty of states do this already. The opinion writer is entitled to his opinion, but just because SCOTUS made up stuff all week doesn’t mean they did so here.
DS
The Water Management District was the greedy party. They wanted Koontz to “fix” land several miles from his development. The Supremes ruled that unless there is a nexus between the development and the mitigation it becomes extortion.
“The ultimate ownership of all property is in the State; individual so-called “ownership” is only by virtue of Government, i.e. law, amounting to mere user; and use must be in accordance with law, and subordinate to the necessities of the State.”
http://www.famguardian.org/Subjects/MoneyBanking/History/SenateDoc43.pdf
This is from contracts payable in gold.
libertyrailroad, I see you like to “culture jam”…the latest gem you found ought to make some of our opponents collective heads explode!
Was the Senator who got the referenced documented printed as a Senate document a Repug or Demorat?
Are not municipalities some of the largest polluters with their landfills and
especially waste water treatment plants so many of which leak untreated
sewage. And for example in periods of heavy rain do not New York City
sewers actually vent raw sewage into the rivers ?
On the other hand what is the evidence that building homes for people
to live in causes any pollution at all ? At worst isn’t it a bit of muddy
water that goes into our rivers rather than raw sewage ?
“Was the Senator who got the referenced documented printed as a Senate document a Repug or Demorat?”
I guess you’re incapable of using Google.
Who cares what a statist Marine Corps officer said at the dawn of American fascism? This was printed the same year that FDR issued EO 6102, which confiscated Americans’ privately-held gold. BTW, can someone point me to the part of the Constitution that enumerates the power of executive order?
Frank The Troll(tm) Speweth Forth:
I guess you’re incapable of using Google.
I guess you’re incapable of being civil, ever.
They wanted Koontz to “fix” land several miles from his development. … unless there is a nexus between the development and the mitigation it becomes extortion.
No.
And no.
DS
“I guess you’re incapable of being civil, ever.”
Puhleeeeze. I’m only uncivil to douchebags like you and others who spew inane bullshit or appeals to ridicule or personal attacks “just to have something to say” to use a Danism.
My understanding was that in order for a “taking” to occur, a physical taking had to take place. Telling my son he can’t draw on the walls of his room may infringe on his liberty, but I’m not taking his room. I haven’t read or studied this case much, but regulations (just or unjust) do (or did) not constitute a taking.
What constitutes a “taking” continues to be a challenging problem. Although Koontz’s arguments relied heavily on the Nollan and Dolan decisions, as the AP notes, I’m not persuaded that the situations are analogous. And as Frank does helpfully note: “It’s a messy situation.”
My concern with this ruling is well summed up here: “Justice Sotomayor said ‘I see an enormous floodgate here,’ in which a regulatory agency that makes any demand on a property owner it is regulating would have to fend off a constitutional ‘takings’ claim.”
http://www.scotusblog.com/?p=157843
Gecko, I think what this means is that every time exactions are imposed on a large subdivision/development, it’s feared the developer is going to lawyer up in hopes that dwindling tax revenue and moribund economies mean that public legal defense will shy away.
I guess we”ll have to wait and see if there is any actual effect on the ground. I suspect that things like a slightly bigger detention pond, putting a gravel path for pervious area checklist, or an extra catch curb for the additional runoff aren’t worth lawyering up for, but Randal can tell us if there is another fake grass roots uprising bubbling up to move on this.
DS
Memorial to honor 50,000 bumble bees that died in Oregon parking lot
Published June 28, 2013
Fifty thousand bumblebees will be honored at a memorial Sunday in the same shopping center parking lot southwest of the Portland, Oregon, where most of the insects died earlier this month.
Rozzell Medina, of Portland, said on a Facebook page that the event will “memorialize these fallen lifeforms and talk about the plight of the bees and their importance to life on Earth,” The Oregonian reported.
“BTW, can someone point me to the part of the Constitution that enumerates the power of executive order?”
The constitution is not legally in effect.
“A majority of the people of the United States have lived all of their lives under emergency rule. For 40 years [now 66 years], freedoms and governmental procedures guaranteed by the Constitution have, in varying degrees, been abridged by laws brought into force by states of national emergency. ….. And, in the United States, actions taken by the Government in times of great crises have – from, at least, the Civil War – in important ways, shaped the present phenomenon of a permanent state of national emergency.” Senate Report 93-549
“The United States has been under dictatorialcontrol since March 9, 1933. ” Senate 93-549
Sometimes the progression (or regression) of an Antiplanner comment thread is astonishing and confusing. No constitution and bee memorials. Wow!
Had to check out Senate Report 93-549. My take, while some of the findings seem alarming this report is a desperate attempt by Senate Democrats to take down G. W. Bush’s “War on Terror.” The hyperbole in this report is overwhelming.
i hope this is tongue in cheek.
True, in English history, the King owned everything. That’s why there were revolutions.
That’s one of the great (unique) things about the founding of the United States and its Constitution. People have property rights–not the government.
The right to own property is being chipped away at constantly; this Supreme Court decision is merely a finger in the dyke, preventing the federal, state and local governments from eliminating property rights once and for all.
Private property is such a nuisance–let government control and decide everything.
I’m sure the “memorial” for the bees can be construed as an overreaction, but bees are in trouble and AIUI there is a 180 day moratorium on the use of Safari and several other insecticides in Oregon. There are issues with several urban tree species that intersect with bee colony health that may impact the treatment of these trees, and folks are starting to cut back on the use of these pesticides to ensure bee health.
DS