President's weekly report — June 20, 2014

June 20, 2014 | By ROB RIVETT

Property Rights — Koontz in Florida

After our tremendous victory in Koontz v. St. John’s Water Management District, the United States Supreme Court sent the case back to the Florida courts.  The District is now attempting to reopen settled matters that were not appealed.  The Florida Court of Appeals rebuffed this attempt to reopen these matters.  Now the District has asked the Florida Supreme Court to take up the case again.  Apparently, 20 years of litigation is not enough the District to get the message that its time to do the right thing and make things right with Mr. Koontz.

Property Rights — Facial Challenges and Statute of Limitations

We received this adverse decision in Hillcrest Properties v. Pasco County from the 11th Circuit Court of Appeals.  The County adopted an ordinance that forces landowners to give up substantial road easements in exchange for development permits — with no showing of any relationship between the permit and any need for a new road.  After the trial court found this to be unconstitutional, the county appealed.  The 11th Circuit held that the lawsuit could only have been brought shortly after the ordinance was adopted, not when a landowner actually learned about or was affected by the ordinance.  We had filed this amicus brief in support of the landowner.  For more on the law of statutes of limitations and facial attacks on ordinances, we suggest you read Timothy Sandefur’s article, The Timing of Facial Challenges, published in the Akron Law Review.  In a nutshell, we think the 11th Circuit got this one wrong and hope the decision does not last.

Property Rights — Buffer Zones

The trial court handed down an adverse decision this week in Common Sense Alliance v. Western Washington Growth Management Hearings Board.  Here, the county adopted a critical areas ordinance that imposes large mandatory “water quality” buffers on all shoreline properties. The county’s idea was to assure that pollution in storm water crossing over the property is sufficiently filtered before reaching a marine shoreline or other body of water. The problem, however, is that the county did not bother to do any studies to determine whether there was any pollution actually entering and/or crossing over the lot and reaching the shoreline before imposing its mandatory buffers.  An appeal will follow.

Individual Rights — Fair Housing Act and Disparate Impact Claims (Again!)

We filed this amicus briefin Texas Department of Housing v. Inclusive Communities asking the Supreme Court to take up this case. Here, the State extended tax credits to developers of low-income housing projects.  A group called “Inclusive Communities,” with backing from the Feds, is alleging that more of these tax-credits were being used for developments in lower-income neighborhoods than in more affluent neighborhoods.  This is alleged to have a “disparate impact” on minority populations.  But Texas was using strictly race-neutral criteria in approving projects — factors like proximity to mass transit and the like.  And it hardly takes a rocket scientist to figure out that the siting of low-income housing projects might well favor less-affluent neighborhoods without there being any intent to discriminate.  Nonetheless, this “disparate impact” is alleged to violate the Federal Fair Housing Act.  Twice before the United States Supreme Court took up cases to settle the question whether “disparate impact” alone is enough to prove a violation of the Act, even without a showing of intentional discrimination. But in both of those cases, Magner and Mt. Holly, the Obama administration made settlement offers that could not be refused.  Here with the State of Texas involved, we’re hoping that the Supreme Court takes up the case and that the State of Texas proves less willing to settle in order prevent the Court from resolving this question, once and for all.