HomeMy WebLinkAboutarticle on supreme court rulingA Legal Blow to Sustainable Development - NYTimes.com
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June 26, 2013
A Legal Slow to Sustainable
Development
By JOHN D. ECHEVERRIA
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STRAFFORD, Vt. — LOST amid the Supreme Court's high-profile decisions on affirmative
action, voting rights and same-sex marriage was another ruling that may turn out to have a
profound impact on American society. The court handed down a decision on Tuesday that,
in the words of Justice Elena Kagan, will "work a revolution in land -use law."
While that may sound obscure, the decision in Koontz v. St. Johns River Water Management
District will result in long-lasting harm to America's communities. That's because the ruling
creates a perverse incentive for municipal governments to reject applications from
developers rather than attempt to negotiate project designs that might advance both public
and private goals — and it makes it hard for communities to get property owners to pay to
mitigate any environmental damage they may cause.
The court's 540-4 decision, with Justice Samuel A. Alito Jr. writing for the majority, arose
from an order issued by a Florida water management district denying an application by Coy
A. Koontz Sr. to fill more than three acres of wetlands in order to build a small shopping
center. The district made clear that it was willing to grant the permit if Mr. Koontz agreed to
reduce the size of the development or spend money on any of a variety of wetlands -
restoration projects designed to offset the project's environmental effects. Because Mr.
Koontz declined to pursue any of these options, the district denied the permit.
Mr. Koontz, who is now deceased, went to court and claimed that the permit denial
constituted a "taking" under two Supreme Court precedents, Nollan v. California Coastal
Commission and Dolan v. City of Tigard. These cases established that when the government
approved a development subject to certain conditions, like a requirement that a developer
dedicate an easement to the public, the conditions would be deemed an appropriation of
private property unless the government could show a logical relationship and a "rough
proportionality" between the conditions imposed and the projected effects of the
development.
The Florida Supreme Court rejected Mr. Koontz's takings argument on two grounds. First, it
interpreted Nollan and Dolan as being limited to cases in which the government has issued a
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A Legal Blow to Sustainable Development - NYTimes.com
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permit subject to a condition — not in those in which a permit has been denied. Second, it
ruled that Nollan and Dolan applied only when the government's condition took an interest
in some tangible property (like demanding an easement, for example), not when a
government imposed a generalized requirement on someone to spend money.
In what can fairly be described as a blockbuster decision, the Supreme Court has reversed
the Florida court on both points.
Leaving the majority's legal reasoning aside, the Supreme Court's ruling is likely to do some
serious real-world damage. As Justice Kagan correctly explains in her dissent, the decision
will very likely encourage local government officials to avoid any discussion with developers
related to permit conditions that, in the end, might have let both sides find common ground
on building projects that are good for the community and environmentally sound. 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.
"Nothing in the Takings Clause requires that folly," Justice Kagan said. But arguably it does
now.
As for the second part of the majority's ruling, that Nollan and Dolan apply to permit
conditions requiring the general expenditure of money, that will also have unfortunate
consequences. Cities and towns across America routinely attach fees and other payment
obligations to permits, for example, to support wetlands mitigation banks, to finance roads,
to pay for new schools or to build affordable housing.
While, to be sure, such mandates must be reasonable under the Constitution, the
revolutionary and destructive step taken by the court in Koontz is to cast the burden on the
government to justify the mandates according to the heightened Nollan-Dolan standard.
This is contrary to the traditional court approach of according deference to elected officials
and technical experts on issues of regulatory policy. Moreover, this heightened standard will
result in a huge number of costly legal challenges to local regulations.
Consider the challenges of waste disposal. Many communities impose development -impact
fees on developers if a proposed project would require expanding waste -disposal sites or
building new ones. Before Koontz, a developer could raise a constitutional challenge if the
charges were unreasonable, but judges typically deferred to local governments in such cases.
After Koontz, developers have a potent new legal tool to challenge such charges because now
the legal burden of demonstrating their validity is on the communities themselves.
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In the wake of this under -the -radar ruling, the cost of protecting a community from a
harmful building project now lies not with the developer but with the local residents and
taxpayers. It's hard to fathom that the framers of the Constitution would call this either
fairness or justice.
John D. Echeverria is a professor at Vermont Law School.
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