Supreme Court hears oral arguments in Florida property rights case

The US Supreme Court grappled on Tuesday with a case testing whether officials in Florida went too far when they demanded that a landowner seeking a development permit set aside 11 of his 14.9 acres for wetlands conservation and fund improvements on a separate state-owned tract several miles away.

Public officials made clear that both concessions were necessary to receive a development permit.

Landowner Coy Koontz agreed to set aside 11 acres of his land for conservation, but he refused the additional requirement that he pay for road construction and other improvements on state-owned land several miles from his project site.

The proposed permit for Mr. Koontz’s tract east of Orlando was denied.

At issue in the case, Koontz v. St. Johns River Water Management District (11-1447), is whether Koontz is entitled to compensation as a result of what his lawyer says was an unconstitutional government “shakedown.”

Paul Beard of the Pacific Legal Foundation urged the high court to expand its property rights jurisprudence to make clear that landowners like Koontz who face coercive permitting requirements are entitled to receive fair compensation from the government.

Deputy Solicitor General Edwin Kneedler told the justices that if they agreed with Koontz and his lawyer it would constitute a “radical change” in how government regulatory programs operate.

“It is standard procedure when someone applies for a permit from the government, it is the permit applicant’s burden to establish that he complies with the regulatory program,” Mr. Kneedler said.

The approach advocated by Koontz and his lawyer would shift that burden to the government, he said.

The Fifth Amendment requires that the government provide “just compensation” for any taking of private property for public use.

That’s what Mr. Beard said happened to his client.

Several justices weren’t so sure.

Justice Ruth Bader Ginsburg said state officials offered Koontz a range of potential mitigation measures – not just one or two. She said one proposed option was to reduce the size of the development site.

“So it was not take it or leave it,” she said of the state’s posture.

Justice Antonin Scalia wanted to know precisely what was taken from Koontz. “Here there is nothing that happened. The permit was denied. I can’t see where there is a taking [of property for public use],” he said. “Nothing was taken.”

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