May 22, 2013

Government permit conditions? “Pay no attention to that man behind the curtain!”

By Christina M. Martin Attorney

Yesterday, PLF’s Litigation Director Jim Burling debated Richard Grosso of Nova Southeastern University about property rights and case pending before the U.S. Supreme Court, Koontz v. St. Johns River Water Management District. In that case, Coy Koontz applied for a permit to develop 3.7 of the 15 acres he owned in Orange County. The local Water Management District, claiming that the property had valuable wetlands, asked him to give up development rights to the rest of the property by handing over a “conservation easement.” Koontz was willing to accept that condition, given how hard it is to fight a government permit condition. But then the District also demanded that he spend tens of thousands of dollars repairing ditches and culverts on government property miles away from his land.

Previous Supreme Court decisions have limited the government’s ability to use the permitting process to make demands on property owners. But the government and some courts (including Florida’s tried to evade those precedents, rendering them mostly impotent in many jurisdictions. As Burling put it when explaining what’s at stake in Koontz, this case will decide whether the government can use permit applicants as an ATM machine.

Grosso countered by projecting a doomsday scenario, suggesting that local governments would be less able to ensure that developers take responsibility for the full impact of whatever project they propose if PLF wins Koontz. Grosso argued that unless government has power to closely regulate developers, the result will be a worsened environment that will eventually cause the sea level to rise, submerging Florida under the sea.

But Grosso’s belief that government officials should be free to impose on developers whatever conditions they think are in the public interest is frighteningly naive. As the Supreme Court observed in Nollan, the judiciary must protect constitutional rights like property against the actions of government officials, in order to prevent them from abusing their power and engaging in “extortion.” To do otherwise—to simply trust the government to do the right thing—sounds like the Great and Powerful Oz telling Dorothy to “Pay no attention to that man behind the curtain!” As the recent IRS and DOJ scandals have shown, bureaucracies without oversight are dangerous things.

Additionally, supposing that Grosso is right limiting development to prevent the ocean from drowning Florida, that does not change the takings clause, which is a central component of our nation’s highest law. The takings clause protects property owners from having to bear a government-imposed burden that in all fairness should be borne by society as a whole. That is precisely why the Fifth Amendment allows the government to take private property, so long as it compensates the owner. In other words, you can take it—but only if you pay for what you take.

As we left the debate, I asked three high school students what they thought. They declared PLF the winner. Whether or not the Supreme Court agrees, knowing that these 14-year-olds intuitively understand the morality behind property rights and the absurdity of the Great and Powerful Wizard’s attempt to hide the real issue, gives me hope for our country’s future.

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