The American Civil Rights Union is asking the U.S. Supreme Court to put a halt to the “extortion” governments impose when they demand cash payments as part of the process for a landowner to obtain permission to use his land.
“Our brief makes it clear that this violates precedent established in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1993), in which the court established the limits of what the government can require of landowners,” according to a statement from Peter J. Ferrar, general counsel for the organization.
The organization argues in an amicus brief filed with the high court that Florida officials in the case at hand required conditions for issuing land use permits that constituted a “taking,” which is prohibited by the Constitution.
The issue is use permits for a Florida landowner to develop several acres a 14-acre parcel – and the conditions imposed by the local government on the owner.
“The governmental purpose of the development ban on Koontz’s property is to protect riparian habitat and wildlife on that property,” the brief states. “But the purpose of the condition that Koontz can go ahead with his development as long as he bears the expense of restoration and enhancement of unrelated property owned by the district miles away from Koontz’s proposed development on his own property is merely to get the money for that unrelated restoration and enhancement. That is an out-and-out plan of extortion.”
The case already is before the Supreme Court, and involves land owned by Coy A. Koontz Jr. in the St. Johns River Water Management District in Orange County, Fla. He bought the 14.9-acre parcel in 1972, and the government later applied a “Riparian Habitat Protection Zone” designation to the land.
When the owner wanted to develop 3.7 acres of the land for commercial use, as it lies at the intersection of two highways, the district said he could do that only if he agreed to make an estimated $150,000 in cash payments for “costly improvements” to district property miles away.
The record shows that the development permits were denied solely because the owner “refused to spend any additional funds to finance restoration and enhancement of district property miles away from, and unrelated to, his proposed development.” He already had agreed to donate the 11 acres he was not planning to develop.
The landowner won his court battle at the district court and appellate court level, but those rulings were reversed by the Florida Supreme Court, whose decision now is under review in Washington.
“The Takings Clause is embodied in the 5th Amendment to the U.S. Constitution, stating: ‘nor shall private property be taken for public use, without just compensation,” the brief says.
“That language is not limited to real property, but applies to all private property, which would include personal property, such as cash,” the ACLU argues. “If monetary conditions on permits are allowed without limitation, that would open an enormous loophole to evade the Takings Clause. The landowner can simply be required to make a payment to the governing authority equal to the value of the property taken to gain the permit. The government can then use that money to pay the compensation under the Takings Clause.”
The scheme used by Florida officials, the brief argues, “would leave no restraint on the unrelated payoffs the government could demand for any development or use permits for any property. That leaves the door wide open to the ‘out-and-out extortion’ the Supreme Court sought to prohibit in Nollan.”
The team representing the family is from Pacific Legal Foundation:
See its 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.