Local Government Mugged by the Constitution
Is the government like a mugger: “Your money or your life”? The Florida Supreme Court said yes. So did the U.S. Supreme Court’s four liberals. But Justice Samuel Alito, joined by his conservative brethren, begged to differ today as the High Court reversed the court below in Koontz v. St. Johns River Water Management District, a ringing victory for property rights.
In 1994 (note when this case began), Coy Koontz Sr. sought a permit from the District to develop his 15‐acre tract. He offered to mitigate several environmental effects and to foreclose any future development on 11 acres. But that wasn’t enough for the District. Among other things, they demanded that he (1) reduce the size of his development to one acre and deed to the District a conservation easement on the remainder of his property, or (2) hire contractors to make improvements on District‐owned wetlands several miles away.
No dice, he said. So he did what every red‐blooded American would do – he sued. And today the Supreme Court said he was right to do so – as Cato and the Institute for Justice did in our amicus brief supporting Mr. Koontz. Under the Court’s Nollan and Dolan, precedents, governments cannot condition the approval of a land‐use permit on an owner’s relinquishing a portion of his property unless there’s a nexus and rough proportionality between the government’s demand and the effects of the proposed land use. And there was no such nexus here.
As important a win as this is for the Fifth Amendment’s Takings Clause, it is equally important for adding heft to the Court’s often uncertain “unconstitutional conditions” doctrine, which at its core stands for a simple proposition: the government cannot put you to a choice between two of your entitlements. As Justice Scalia put it in the Nollan case, this was “not a valid regulation of land use, but ‘an out‐and‐out plan of extortion.’” The government cannot act like a mugger.
