June 28, 2013 9:30AM

A Legal Blow to Cities That Want to Take Your Property

As Roger Pilon has previously noted, on Tuesday, June 25, the Supreme Court issued a decision that helps protect people's property rights from greedy municipalities. On Thursday, the New York Times published an op-ed critical of that decision by Vermont Law School Professor John Echeverria, who considers it a blow to "sustainable development," whatever that means. 

In the case, a Florida property owner named Coy Koontz Sr. wanted to fill and develop 3.7 acres of wetlands. To mitigate the wetland fill, Koontz offered to put 11 acres of his property (75 percent of the total) under a conservation easement. But the St. Johns River Water Management District denied the permit, saying it wanted either 13.9 acres of Koontz's land (leaving him less than an acre, or just 5 percent of the total, for development) or for Koontz to spend a bunch of his money helping the district restore wetlands elsewhere.

Koontz sued, citing the Supreme Court's Nollan and Dolan decisions. (Cato and the Institute for Justice filed an amicus brief supporting Koontz.) In the Nollan/Dolan cases, permits were granted on the condition that the property owners give some of their land to the public. The Supreme Court had held that such conditions were an unconstitutional taking of private property.

The Florida Supreme Court rejected Koontz's argument, saying that there was a big difference between his situation and the Nollan/Dolan cases. In the latter cases, the permits were granted conditional upon the property owners giving up land. In Koontz's case, the permit was denied unless he gave up land or money.

Echeverria considers these differences to be so clear and obvious that he is amazed that five Supreme Court justices were bamboozled into overturning the Florida court's decision. After all, granting a permit conditional on giving up your land is completely different form denying a permit unless you are willing to give up your land. Moreover, giving you a choice between giving up your money or property is completely different from simply demanding that you give up your land.

Echeverria fears that the decision will discourage municipalities from "negotiating" with (perhaps a more accurate term would be "extorting from") property owners at all. "Rather than risk a lawsuit through an attempt at compromise, many municipalities will simply reject development applications outright--or, worse, accept development plans they shouldn't" (emphasis added).

Wouldn't that be awful?

Sadly, the idea of recognizing that private property is private, and that if the public wants to benefit from using some of that property (or some of the owner's money) then maybe the public should pay for it, are just too radical for a Vermont law professor (not to mention the New York Times or four members of the Supreme Court). Echeverria's view seems to be that developments are by definition "harmful" and developers should pay whatever cities want to extort from them to mitigate this harm.

I wonder how much Echeverria paid to mitigate the damage done by whatever house he lives in, or if even a Vermont law professor would be able to afford to live in a house at all if every developer in the past had been required to give up 95 percent of his or her land just to develop the rest.

The danger behind Echeverria's view is not just that it arbitrarily takes away people's property rights, but that it gives cities and other municipalities incentives to claim a development is harmful simply to get as much as they can out of developers and property owners. After all, when the district wasn't satisfied that Koontz was willing to give up 75 percent of his property, and demanded 95 percent instead, it seems likely that the district was simply being greedy.

The sad part of the story is that it took so long for this case to wind its way through the courts that Koontz passed away in the meantime. Sadder still is that only five Supreme Court justices actually supported Koontz's view of property rights.