In 1972, when Coy Koontz acquired a 14.9 acre vacant parcel of land east of Orlando, the Florida Legislature was busy enacting a series of conservation and environmental protection laws: the Land Conservation Act of 1972 (Fla. Stat. § 259), which created a program to acquire and conserve environmentally endangered lands, the Florida Water Resources Act (Fla. Stat. § 373), which granted the Florida Department of Environmental Protection and the state's five water management districts authority to protect Florida's water resources, and the Florida Environmental Land and Water Management Act of 1972 (Fla. Stat. §§ 380.012 - 380.12), which established procedures for increased protection of wildlife and wilderness. Florida adopted the Warren S. Henderson Wetlands Protection Act 12 years later, which provided the water management districts wetland resource permitting authority. Consequently, all but 1.4 acres of Koontz's property became a part of a Riparian Habitat Zone, which could not be developed without authorization from the St. Johns River Water Management District (the District)1.
In 1994, Koontz applied for a permit to fill 3.7 acres of wetlands on his parcel. The District's examiner agreed to recommend approval of Koontz's permit subject to Koontz's consent to either: (1) decrease development to one acre and dedicate the remaining 13.9 acres into a deed-restricted conservation area; or (2) deed the rest of his property into a conservation area and perform offsite mitigation by either replacing culverts located four and a half miles from his parcel or plug drainage canals on a property located seven miles away. Koontz agreed to deed the rest of his land into a conservation area but rejected the reduction in development and the proposed off-site mitigation.
Subsequently, Koontz's permit was denied premised upon the assertion that his development would adversely impact the Riparian Habitat Zone without adequate mitigation, and Koontz brought suit against the District for inverse condemnation. The trial court cited the constitutional principles pronounced by the U.S. Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825 (1997), and Dolan v. City of Tigard, 512 U.S. 374 (1994) and concluded that the District had effected an improper exaction of Koontz's property. The two-prong Nollan/Dolan analysis recognizes that exactions are permitted if there is a "rational nexus" (under Nollan) and "rough proportionality" of impact (under Dolan) between the development and the taking. The trial court opined that the District's actions constituted a temporary regulatory taking and awarded Koontz $376,154 in damages.
The District appealed the damages award to the Fifth District Court of Appeal, claiming that Nollan/Dolan relates solely to conditions requiring a property owner to dedicate real property, and was thus inapplicable to a condition requiring the owner to spend money to improve land within the District's purview. The District also averred that Nollan/Dolan applies only to permit approvals containing unconstitutional stipulations, arguing that inasmuch as Koontz's permit had not been granted, he hadn't actually fulfilled any unconstitutional conditions. The appellate court overruled the District's arguments and upheld the trial court's damages award.
The District's petitioned the Florida Supreme Court for review and on November 3, 2011, the court quashed the lower court's conclusion that the District's actions represented an improper exaction of Koontz's property. The court pronounced that the Nollan/Dolan rule "is applicable only where the condition/exaction sought by the government involves a dedication of or over the owner's interest in real property in exchange for permit approval; and only when the regulatory agency actually issues the permit sought, thereby rendering the owner's interest in the real property subject to the dedication imposed. " The court ruled that the test for regulatory takings set forth in Penn Central v. New York City (1978) was more appropriate to the dispute between Koontz and the District.
Koontz died during the pendency of the litigation. The petition to the U.S. Supreme Court was brought by Koontz's son, who is represented by the Pacific Legal Foundation, a libertarian not-for-profit law firm which frequently advocates for private property rights. Prior to commencement of oral arguments on January 15, many pundits felt that the current make-up of the Supreme Court would result in a five to four ruling in favor of Koontz. But the questions and comments posed by Antonin Scalia, who authored the Nollan decision and was part of the five justice majority in Dolan, left many observers with the conclusion that Justice Scalia would side with his liberal colleagues in favor of the District. The United States Supreme Court is expected to make a decision on the Koontz case this June.
Footnotes
1. St. Johns River Water Management District v. Koontz, 77 So.3d 1220 (Fla. 2011) citing Iowa Assurance Corp. v. City of Indianola, 650 F.3d 1094, 1096-97 (8th Cir. 2011); West Linn Corporate Park, LLC v. City of West Linn, 428 F. App'x 700, 702 (9th Cir. 2011).
Previously published In the Zone
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