Here's the preview of next week's U.S. Supreme Court arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That's the case in which the Court will be addressing whether the "essential nexus" and "rough proportionality" standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.
In Wetlands regulation at heart of Fla. property rights dispute, Greenwire's Lawrence Hurley writes:
In late 1993 and early 1994, Coy Koontz Sr. applied for two permits from a Florida agency as he sought to build on wetlands he owned just east of Orlando.Today, Koontz has been dead for 13 years, his family no longer owns the property and the permits have long been approved. And yet a legal dispute about the permitting process is about to be argued at the Supreme Court.
As the story notes, we filed an amicus brief in the case in support of the property owner/petitioner.
In addition to the property owner's counsel Paul Beard ("the district was attempting to 'bargain its way around the takings clause'"), the Water District's lawyer Paul Wolfson ("a property owner cannot seek compensation 'for property that was never taken'"), lawprof John Echeverria ("It's a major case"), and Mike Berger (the "sky will not fall" if the Court subjects all exactions to Nollan/Dolan), the story quotes our response to the arguments made in the amici briefs supporting the Water District, that the property owner was not forced to give up anything, but merely was given "suggestions" about what he could do to get the agency to grant him permission to develop his land:
Robert Thomas, a Hawaii-based lawyer who filed a brief on behalf of the Owners' Counsel of America and represents property owners seeking permits, said his clients often accept stringent conditions on a regular basis simply so they can pursue their projects in a timely manner."They are willing to live with what might be unconstitutional requirements," Thomas said.
Government agency proposals are not mere "suggestions," as pro-government lawyers have argued, Thomas added. "It's a velvet-covered hammer," he said.
The property owner's brief on the merits is available here. The other amicus briefs supporting the property owner are available here, here, and here. The Water Management District's merits brief is posted here. The amicus briefs suporting the Water District are posted here. The property owner's reply brief is here.
