July 8, 2013

Why Koontz matters: a peek into the mind of a land use bureaucrat

By Jonathan Wood Attorney

Earlier this year—and before PLF’s major property rights victory in Koontz—the Tahoe Regional Planning Agency (TRPA) announced a new management plan that will give the agency more opportunities to make demands on property owners in the permitting process. If you want to know how bureaucrats view the permitting process, look no further than Jeff Cowen of the TRPA. A recent story on the new management plan has this explanation from Mr. Cowen:

“These are properties that have been locked in place for generations by rules on land coverage and we think we will get a significant amount of environmental improvement and water quality restoration by having more properties come in and do their best quality management practices,” says Cowen. … “What we’re looking to do is to ramp up the number of properties that come in for a permit by encouraging small additions and minor remodels,” explains Cowen.

According to Mr. Cowen, TRPA’s concern isn’t that people have had their property “locked in place for generations” but that the agency is missing an opportunity to extract public benefits from these now wearied souls. The new plan doesn’t reflect a change of course, but more of the same. Now armed with Koontz—which protects property owners from being extorted in the permitting process—these landowners will be better able to defend their constitutional rights.

A little background: since 1987, TRPA has strictly limited development—including modest additions or renovations to existing structures. The result, of course, is a huge transfer of value from those forbidden from developing their property to those fortunate enough to have friends at TRPA or to have developed before the restrictions were put in place.

Having forced property owners to suffer these restrictions for more than 25 years, TRPA is slightly relaxing the limits on minor additions and renovations—so that it can extract benefits from property owners in the permit process. Lest you think that TRPA is liberalizing its land use controls, its summary of the new plan tells us that the strict growth controls will remain in place and the rate of new residential construction will actually be further reduced by 55%.

If not for cases like Koontz, it would be open season on citizens for bureaucratic agencies like the TRPA.

learn more about

St. Johns River Water Management District v. Koontz

Coy A. Koontz sought 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, which  agreed to grant the permit 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 distant District-owned properties. When Koontz refused to perform the off-site mitigation, St. Johns denied the permit. PLF successfully represented Koontz before the U.S. Supreme Court, which held that a land-use agency cannot condition a permit on the payment of a mitigation fee to be used to pay for facilities that have no connection to the impacts of the permitted development.

Read more

What to read next