The local Freedom Foundation in the State of Washington has a growing reputation of success stories where they have helped private citizens like you and I, to stop being extorted, or bullied by their local, state and federal government.
Recently the Koontz vs. St. Johns River Management District, case was decided in affirmation for Koontz. What is Koontz vs. St. Johns River Management you ask? It was a little publicized case that started in Orange County, Florida.
Coy A. Koontz wants to develop commercial land, most of which lies within a riparian habitat protection zone in Orange County, Florida. He applied for a dredge and fill permit with the St. Johns Water Management District. St. Johns agreed to grant the permit, but only on the condition that he place a conservation easement over his land, and perform mitigation off-site by replacing culverts and plugging certain drainage canals on other properties not owned by Koontz and miles away from the property. When Koontz refused to perform the off-site mitigation, St. Johns denied the permit.
This did not sit well with Mr. Koontz and he opted to push back and take his case to court. The case continued past Mr. Koontz life, but through the continued efforts of Mr. Koontz son, this case went all the way to the U.S. Supreme Court. The rest is history now and I believe that Mr. Koontz rests a little easier today, knowing that his efforts will benefit other private citizens from the bullying tactics of government.
Koontz filed an inverse condemnation suit in circuit court. Koontz argued that the off-site mitigation requirement violated Nollan v. California Coastal Commission and Dolan v. Tigard. The circuit court applied Nollan and Dolan, holding that the requirement bore no connection to the project’s alleged impacts on the riparian habitat protection zone. The court awarded Koontz compensation for a temporary taking.
The court of appeals affirmed, but the Florida Supreme Court reversed. The Supreme Court held that no taking under Nollan and Dolan had occurred, because (1) Nollan and Dolan apply only to forced dedications of interests in real property (not to mitigation work); and (2) Nollan and Dolanapply only when government approves and issues a permit with conditions (not when it denies a permit, and therefore nothing has been demanded of or taken from the landowner).
PLF filed a petition on behalf of Koontz in the United States Supreme Court, asking it to establish: (1) Nollan and Dolan apply to an exaction that takes the form of a government demand that the applicant improve property off-site; and (2) these doctrines extend to permit exactions, where the permit has been denied due to the applicant’s rejection of that exaction.
Glen Morgan will join me to discuss this case and how it can be applied to very recent government actions like the Department of Ecology’s recentLake Whatcom Watershed Stormwater Overlay. The Whatcom County Council has approved the Department of Ecology recommendation to require undeveloped, or property improvements within the Lake Whatcom Watershed to have stormwater dispersion planning engineered, permitted and in place prior to the approval of your permit. These stormwater dispersion’s have an undefined cost to the property owner, because each system will have to be designed separately to the topography and geology of each property. But, the cost estimates will average, approximately $25k – $50k, per property, and will likely cost much more in many cases. This requirement is not dependent upon the size of your lot. The lot size will not be taken into consideration under the current requirements. The requirement will be that your stormwater dispersion system is capable of preventing 87% of all stormwater from running off of your property and onto other property, or properties. What does water do? Water runs downhill and no matter how you force that water into the ground, it will surface elsewhere and continue downhill toward a ditch, creek, stream, river, lake or some other body of water. (Read more on this topic here.)
If you’d like to learn more about the Koontz vs. St Johns River District and how it will affect property development, permitting extortion and mitigation requirements in Whatcom County, tune-in to Saturday Morning Live, on 790 KGMI this Saturday morning at 8:00 am.
~ Kris Halterman
Scott Roberts and Glen Morgan from the Freedom Foundation joined Pacific Legal Foundation attorney Daniel Himebaugh and Brian Hodges to discuss the recent ruling on Koontz vs. St. Johns River Management District. This case is probably the most significant one for property rights since at least the Kelo vs. New London court decision, a loss for property rights on eminent domain.
In this case, the court determined that money is property. Most of us probably already knew this, and anyone who knows John Locke and many other writings on this subject would assume this is already a fact in law. However, sometimes it helps for the Supreme Court to repeat this obvious truth again.
The other issue determined in this case is that local governments may not require property owners to do things unrelated to their project as a condition of their permit application. This is the Nexus and Proportionality argument. Local governments in Washington State should be put on notice because many of them violate this all the time. From a practical standpoint, this case really provides local property rights activists with some long-needed legal ammunition to challenge issues such as impact fees, mitigation, conservation easements, and buffers.Transcript of Koontz vs. St Johns RiverAudio for Koontz vs. St Johns River CMAP article on Koontz Decision
Audio of oral arguments heard before the U.S. Supreme Court on “Koontz vs. St Johns River Management District