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Koontz case

Posted on 1-18-2013

Introduction

Petitioner applied for permits from the St. Johns River Water Management District (“the District”) to dredge and fill part of his property in the Econlockhatchee River Hydrologic Basin. Petitioner acknowledged that his proposal would destroy more than three acres of wetlands in an area designated for special protection, so he proposed to preserve about 11 acres elsewhere on his property as mitigation for the environmental harm. Applying generally applicable criteria — the validity of which petitioner does not contest — the District concluded that the mitigation petitioner proposed would not offset the harm caused by his project enough to meet the permitting standards. The District therefore told petitioner that the permits could not be issued unless he modified the project or proposed additional or alternative mitigation. The District suggested several ways petitioner could meet the permitting requirements, including by enhancing other wetlands near his property. Petitioner, however, disagreed with the District’s conclusions about the sufficiency of the mitigation he had proposed. He refused to modify his project or propose any other mitigation, and the District denied the permits.

Instead of appealing the permit denial, petitioner filed this inverse-condemnation action. He sought monetary compensation on the ground that the District’s decision constituted a taking. But nothing was taken from petitioner when the permits were denied. Petitioner did not have to convey any property interest to the District or suffer any other invasion of his property. He spent no money, time, or labor performing any mitigation. Nor does petitioner argue here that he suffered any taking of the economically viable uses of his property under Lucas or Penn Central. Indeed, he stipulated that his suit did not “proceed upon a theory that the [permit denial] deprived [him] of all or substantially all economically beneficial or productive use of the subject property.” JA 76. In short, he suffered no loss for which he is entitled to compensation.

Before this Court, petitioner now seeks compensation for a regulatory taking of his real property on the ground that the District’s request for additional mitigation was not sufficiently tailored to a legitimate regulatory purpose under the “nexus” and “proportionality” test of Nollan and Dolan. This Court rejected that means-ends approach to regulatory takings in Lingle, and it should not revive it here.

Even if one could seek compensation under Nollan and Dolan for some proposed conditions that were never accepted or imposed, such a claim must fail in this case. Contrary to petitioner’s characterizations, the District never required him to perform any particular form of mitigation. Nor does the District’s suggestion for mitigation that petitioner singles out — which would have required him to spend money to enhance wetlands within the same hydrologic basin — constitute a taking under this Court’s decisions. In these circumstances, the Supreme Court of Florida correctly held that petitioner has no valid claim to just compensation under Nollan and Dolan.