The Other Supreme Court Decision

Gay marriage and voting rights are truly seminal issues that have rocked the United States Supreme Court and the entire nation. But there were lots of other cases before that ultimate judicial body, each with far-reaching consequences for all of us. One of the cases that really didn’t grab the headlines is Koontz vs. St. Johns River Water Management District, an ignoble name with a plaintiff who has passed away before the court made its decision.

The issue revolves around a long-standing practice in the land use permitting process. It has been pretty standard procedure among zoning boards and special administrative bodies who control approving developers’ ability to construct commercial or residential buildings and infrastructure. Such bodies often require that in order to secure the relevant approval, the builder need to contribute “something” for an overall benefit to the affected community. For example, a builder of a huge residential community might be required to build and maintain a public park to service those who will live in that community.

In Koontz, a “Florida water management district den[ied] an application by Coy A. Koontz Sr. to fill more than three acres of wetlands in order to build a small shopping center. The district made clear that it was willing to grant the permit if Mr. Koontz agreed to reduce the size of the development or spend money on any of a variety of wetlands-restoration projects designed to offset the project’s environmental effects. Because Mr. Koontz declined to pursue any of these options, the district denied the permit.” John D. Echeverria writing in the New York Times, June 26^th.  Coy wasn’t. He claimed that the district’s requirements actually constituted an unconstitutional confiscation of his private property without fair compensation or due process of law.

The Florida Supreme Court disagreed, stating that this was a condition and not a confiscation. Mr. Koontz wasn’t required to do anything. He wanted the permit, and the government just set pretty garden variety parameters around that application. The Florida court also stated that since all that was being required was Koontz’ spending money on relevant related projects, not an actual “taking” of tangible property, there was no confiscation involved. Surprise, surprise! The landowners’/business developers’ best friend, the ultra-conservative-private-property-interests-trump-overall-social-benefits faction of the U.S. Supreme Court reversed the Florida decision and agreed with Mr. Koontz.

“Leaving the majority’s legal reasoning aside, the Supreme Court’s ruling is likely to do some serious real-world damage. As Justice Kagan correctly explains in her dissent, the decision will very likely encourage local government officials to avoid any discussion with developers related to permit conditions that, in the end, might have let both sides find common ground on building projects that are good for the community and environmentally sound. 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… ‘Nothing in the Takings Clause requires that folly,’ Justice Kagan said. But arguably it does now.

“As for the second part of the majority’s ruling, that Nollan and Dolan [two Supreme Court cases involving the definition of ‘taking’ property unless there were a logical relationship and a ‘rough proportionality’ between the property and the required approval conditions] apply to permit conditions requiring the general expenditure of money, that will also have unfortunate consequences. Cities and towns across America routinely attach fees and other payment obligations to permits, for example, to support wetlands mitigation banks, to finance roads, to pay for new schools or to build affordable housing.

“While, to be sure, such mandates must be reasonable under the Constitution, the revolutionary and destructive step taken by the court in Koontz is to cast the burden on the government to justify the mandates according to the heightened Nollan-Dolan standard. This is contrary to the traditional court approach of according deference to elected officials and technical experts on issues of regulatory policy. Moreover, this heightened standard will result in a huge number of costly legal challenges to local regulations.” NY Times.

The mega-trend represents the dying gasps of an ultra-conservative incumbency, fighting demographic trends that will eventually marginalize their power, to preserve the rights and powers of the privileged few, the one percenters, under the guise of protecting personal rights. Property and wealth trumps even some of the strongest social benefits that can reasonably and unobtrusively be applied. How much of this social damage will linger long after the old guard fades into history? How long will it take our society to undo the damage… if it can?

I’m Peter Dekom, and the patterns of decision-making among the Court’s conservative majority are truly anti-democratic and disturbing.