The U.S. Supreme Court hears oral arguments today in a Florida case that could severely limit the tools that states and government authorities use to protect sensitive lands. The case asks whether it is constitutional for an environmental permit to require that the owner restore wetlands on land miles away to mitigate the damage of his project. If the court rules for the landowner, Florida could be hamstrung in its wetland mitigation efforts and in its attempts to get developers to pay for the public impact of their development.
The case began in 1994 when Coy Koontz Sr., who died in 2000 (the case has been carried on by his son), sought a permit from the St. Johns River Water Management District to develop 3.7 acres of his land near Orlando. Koontz's project called for dredging 3.25 acres of wetlands. To secure a permit, Koontz agreed to give the district a conservation easement on 11.5 acres. But water management officials told Koontz he would have to pay to restore wetlands on other district property miles away as well, or he would have to reduce his development plans to 1 acre. Koontz rejected these conditions, and the permit was denied.
Koontz sued, claiming the permit rejection constituted a taking of his property by the government without just compensation in violation of the federal and state constitutions. He said he shouldn't be forced to pay for environmental repairs that have little relationship to his property or project. He won before a trial judge and was awarded $376,000 in compensation for lost expected rental income. But that victory was reversed by the Florida Supreme Court in a unanimous ruling, though three justices joined the judgment alone and not the court's reasoning. The court recognized how dangerous it would be if government were stripped of flexibility to negotiate a permit that includes fees to offset the harm of development.
Writing for the majority, Florida Supreme Court Justice R. Fred Lewis made the essential point that if landowners could file a lawsuit any time negotiations over a permit were unsuccessful, government agencies would simply opt to deny permits outright. That, said Lewis, would bring land development in some parts of the state "to a standstill."
The high stakes are evident. Conservative justices on the U.S. Supreme Court could use this case to curb the power of government, expand property rights and weaken environmental regulations. That's why more than a dozen amicus or "friend of the court" briefs have been filed. The Obama administration and 19 states (not including Florida) are supporting the water management district. The U.S. Chamber of Commerce and builders' groups are siding with Koontz.
Developers should be careful in what they hope for out of this case. Fewer permits issued could be one of the unintended consequences. Both developers and the environment could end up the losers.