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Wednesday, May 29, 2013

New Article Discusses 6 Possible Outcomes in Supreme Court Wetland Case (Koontz)

In the May 13, 2013 issue of West's Zoning & Planning Law Report, John Baker and Katherine Swenson provide a compelling argument, or should I say six compelling arguments, for how the U.S. Supreme Court might decide the Koontz v. St. Johns River Water Management District case involving the denial of a wetlands permit.  For those of you who have been waiting 20 years for the Court to weigh in on another land use condition takings case (post Nollan-Dolan), or have been waiting since January when the Court heard oral argument in Koontz, this article is a must-read. 
The article first provides a great history of the Nollan-Dolan cases and the two-prong takings test involving nexus + rough proportionality.  The authors then provide a detailed background of the Koontz dispute.  In short, Koontz applied to the Water Management District for dredging permits that would result in the loss of 3.4 acres of wetlands.  The permit application was denied because the District rejected Koontz's proposed mitigation plan.  The District suggested alternative mitigation plans, but those were unacceptable to Koontz, so he filed suit in Florida state court, alleging that the denial of the permit was a taking of his property under the state constitution. The case made its way to the U.S. Supreme Court on Koontz's appeal of the lower courts' decisions. 
According to the authors, there are six plausible outcomes for the Koontz case, listed below. 
1.  A taking occurred; there is no dirt/cash distinction.
2.  A taking occurred; Nollan and Dolan requirements are good planning policy.
3.  No taking occurred because the permit applications were denied.
4.  No taking occurred because no conditions were finalized.
5.  No taking because direct imposition of conditions would not amount to a taking.
6.  No taking because there was no exaction of a real property interest.
You will have to read the article Koontz v. St. Johns River Water Management District: Trudging Through a Florida Wetland with Nine U.S. Supreme Court Justices to get the details on each of these potential outcomes.
Maybe we should have an "office/blog pool" to vote on our favorites? 


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