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PLF Wins Case Against Offsite Mitigation Extortion!

Posted 7/6/2013

Whatcom Excavator

Whatcom County, WA – In January WE shared news that the Supreme Court accepted a case fought by Pacific Legal Foundation related to wetlands mitigation for land disturbance, “Koontz v. St. Johns River Management District.”

We are happy to report that they won, and that nexus and proportionality really do matter.  

 

Additional information at the PLF site.

The opinion states:  “Our decisions in Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987) , and Dolan v. City of Tigard, 512 U. S. 374 (1994) , provide important protection against the misuse of the power of land-use regulation. In those cases, we held that a unit of government may not condition the approval of a land-use permit on the owner’s relinquishment of a portion of his property unless there is a “nexus” and “rough proportionality” between the government’s demand and the effects of the proposed land use. In this case, the St. Johns River Water Management District (District) believes that it circumvented Nollan and Dolan because of the way in which it structured its handling of a permit application submitted by Coy Koontz, Sr., whose estate is represented in this Court by Coy Koontz, Jr. The District did not approve his application on the condition that he surrender an interest in his land. Instead, the District, after suggesting that he could obtain approval by signing over such an interest, denied his application because he refused to yield. The Florida Supreme Court blessed this maneuver and thus effectively interred those important decisions. Because we conclude that Nollan and Dolan cannot be evaded in this way, the Florida Supreme Court’s decision must be reversed.”   [Complete case information is available at the bottom of this post]


Here’s more from Justia.com:

In 1972 Koontz bought 14.9 undeveloped acres. Florida subsequently enacted the 1972 Water Resources Act, requiring a permit with conditions to ensure that construction will not be harm water resources and the 1984 Henderson Wetlands Protection Act, making it illegal to “dredge or fill in, on, or over surface waters” without a wetlands permit. The District with jurisdiction over the Koontz land requires that applicants wishing to build on wetlands offset environmental damage by creating, enhancing, or preserving wetlands elsewhere. Koontz decided to develop 3.7-acres. In 1994 he proposed to raise a section of his land to make it suitable for building and installing a stormwater pond. To mitigate environmental effects, Koontz offered to foreclose development of 11 acres by deeding to the District a conservation easement. The District rejected Koontz’s proposal and indicated that it would approve construction only if he reduced the size of his development and deeded a conservation easement on the larger remaining property or hired contractors to improve District wetlands miles away. Koontz sued under a state law that provides damages for agency action that constitutes a taking without just compensation. The trial court found the District’s actions unlawful under the requirements of Nollan v. California Coastal Commission and Dolan v. City of Tigard, that the government may not condition permit approval on the owner’s relinquishment of a portion of his property unless there is a nexus and rough proportionality between the demand and the effects of the proposed use. The court of appeal affirmed, but the Florida Supreme Court reversed.  (more)

Complete Supreme Court docket, Case 11-1447  here

Cornell University Law School (page)

In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref. http://www.law.cornell.edu/uscode/17/107.shtml]

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