You’re the owner of a piece of commercial property, and local regulators are asking you to make sure the impact of work you’d like to do is mitigated: wetlands accommodated, the property fixed up and cleaned up.
So no problem.
Then regulators tell you they also are going to require that you – at an expense estimated up to $150,000 – fix up and clean up a piece of unrelated government property miles away from your project.
What do you do?
That’s the question that will be reviewed by the U.S. Supreme Court in a dispute out of Florida that is being handled by the Pacific Legal Foundation.
In the case, the owner of a piece of commercial property in Orange County, Fla., the Koontz family, was told that to get the permits necessary to use their land, they would have to spend thousands of his dollars making improvements to government-owned land miles away – just because that’s what officials decided they wanted.
“Property owners large and small, from coast to coast, should be thankful that the U.S. Supreme Court has accepted this important property rights case,” said Paul Beard, principal attorney for the foundation.
“If the Koontz family can be hit with the government rip-off that happened in this case, then everybody’s property rights are put at risk. The Koontz family merely wanted to exercise their rights as property owners, to develop the family’s land in legal and responsible ways.
“But regulators saw a chance to pounce and make all kinds of costly, unrelated, outrageous demands,” he said. “Without any justification, the government demanded money, labor and resources as the price for allowing the Koontzes to use their own land.
“This was a flat-out shakedown, a form of extortion,” he said.
Family members had tried for years to develop the land, but the local St. Johns River Water Management District would not issue the necessary permits, “because Koontz would not agree to costly and unjustified conditions that the district imposed.”
“Specifically, the district demanded that Koontz dedicate his money and labor to make improvements to 50 acres of district-owned property located miles away from the proposed project,” the legal team explained.
“In other words, what we have here is a classic case of an unconstitutional shakedown. The U.S. Supreme Supreme Court has ruled that the government violates property rights – it commits a ‘taking ‘ in violation of the Fifth Amendment – if it tries to use the permitting process to extract conditions that aren’t related to the impact of the proposed development.”
Some details had been worked out. The Koontzes wanted to develop 3.7 acres of their land, which was in a habitat-protection zone. They agreed to dedicate another 11 acres of their land for conservation.
But the district also demanded the family replace culverts and plug ditches on district land seven miles away, at costs estimated to run as high as $150,000, the legal team said.
The family won the argument at the trial and appellate courts, but the Florida Supreme Court refused “to recognize that the district had imposed an unconstitutional take.”
The Pacific Legal Foundation noted that it won a case in 1987 in the Supreme Court that said governments can’t impose unrelated demands as the price of permits or other regulatory permissions.
See an explanation of the arguments:
The foundation also won a property-rights battle earlier this year over the government’s arbitrary imposition of requirements on a landowner.
In that case, Mike and Chantell Sackett of Priest Lake, Idaho, bought a piece of land in a residential subdivision that was about two-thirds of an acre, purchased the appropriate building permits and started work on their dream home.
Then the federal Environmental Protection Agency arrived, ordered them to restore the land to its pristine condition, protect it for years and then go through a ruinously expensive application process to request permission to use their own land. Further, the EPA, in collusion with the 9th U.S. Circuit Court of Appeals, told the couple they could not even challenge the decision unless they went through the expensive process.
The Supreme Court overturned the appeals court, saying the EPA must provide a process through which a challenge to its decision can be addressed in a meaningful way.
Pacific Legal called the decision a “precedent-setting victory for the rights of all property owners.”
The EPA previously had threatened the couple with fines of up to $75,000 per day for failing to follow the agency’s intrusive “compliance” plan through which federal officials not only effectively seized control of the land but also the couple by demanding their paperwork and other detailed information.