Rip Van Winkle Scalia Wakes Up in Koontz

 

If the oral argument is any indication, the U.S. Supreme Court is likely to rule against a landowner in Florida who filed a takings lawsuit against an Orlando-area water district – turning what appeared to be an easy victory for property rights advocates into a loss. 

At least, Koontz v. St. Johns River Water Management District, No. 11-1447 looked like an easy victory before the oral argument. Now it appears that Justice Antonin Scalia – author of the important Nollan v. California Coastal Commission ruling a quarter-century ago – will swing the court against the property owners and toward a more cautious takings approach.

The St. John’s case basically rests on the question of whether a property owner’s refusal to provide offsite mitigation in exchange for a permit is a taking. The pundits all though this was a slam-dunk for the property owner. But they forgot about Scalia – and what he said in the Nollan case.

The facts of the case will be pretty familiar to anybody who follows California land-use regulation and wetlands regulation in particular. Property owner Cory Koontz bought a piece of land along the East-West Expressway east of Orlando in 1972, then lost part of it via eminent domain for an extension of the highway in 1987. Koontz was left with 14.2 acres of land, of which 12.8 acres is located in the Riparian Habitat Protection Zone (RHPZ) of the Econlockhatchee River Hydrological Basin and therefore subject to regulation by the water district.

In 1994, Coontz sought approval to develop 3.7 acres of the property, of which 3.4 acres were wetlands and 0.3 acres were uplands. This was the portion of the property closest to highway. The water district agreed to permit this development so long as Koontz dedicated the remaining 10.5 acres to a conservation area and engaged in a variety of offsite mitigation efforts, including replacing culverts and plugging drainage canals several miles away. As an alternative. the water district said he could reduce his project to one acre and dedicate the rest to the conservation district. Koontz rejected the offsite mitigation and the alternative and the water district denied his permits. 

The trial court and intermediate appellate court ruled for Koontz, applying to so-called Nollan/Dolan test, which states that exactions are permissible if there is a “rational nexus” (Nollan) and “rough proportionality” between impact and exaction (Dollan). These cases are too old to be in the CP&DR online database, but you can read a good description of the doctrine in the analysis I wrote on the Del Monte Dunes decision in 1999

The Florida Supreme Court ruled that the lower courts shouldn’t have applied the Nollan/Dolan doctrine and reversed. The water district then appealed. Koontz died in the meantime but his son has kept the lawsuit going, along with property rights groups such as the Pacific Legal Foundation

As I say, going into the oral argument, all the pundits seemed to think that Koontz was going to win. No less an authority on California land-use law than Richard Frank the retired deputy attorney general and former top aide to Bill Lockyear, took it for granted that Scalia would side with the the landowner and predicted that Anthony Kennedy would be the swing vote. Just before the oral argument he wrote: “The hard facts of this case favor developer Koontz more than they do the Florida state regulators whose permit denial he has challenged.  I think it’s more likely than not that Koontz and his Pacific Legal Foundation lawyers will prevail in this case.”

But that’s not how Scalia sounded at the oral argument on January 15. Indeed, the veteran conservative justice – who has sounded more political than scholarly in many recent writings – fell back to the settled positions of the 1980s and ‘90s, when the Supreme Court concluded that a taking occurs only when all other options have been exhausted. Clearly, in this case, he believed they had not been. Here’s an account of the oral argument from Scotusblog’s Lyle Denniston.

But, as Justice Scalia repeatedly pointed out, [Nollan and Dolan] apply only when the government’s conditions have actually taken something away from the landowner, forcing some kind of forfeiture in return for a development permit.  When the Water District in Florida denied a permit to Koontz to redevelop some three-plus acres, because he would not agree to a demand that he finance some wetlands protection elsewhere in Florida, “no property was taken,” Scalia said.  Koontz had claimed that there was a “taking” but Scalia bluntly asked: “Taking what?”  It was a phrase Scalia would use over and over again, with slight variations.

So, there you go: A taking can occur. But only if something is actually taken, not if the landowner doesn’t want to give what the government asks for. This may be a surprise looking at the Scalia of 2012, but it’s no surprise if you remember the Scalia of 1987. In Nollan, the Coastal Commission argued that the public was entitled access to the beach and the two-story Nollan home blocked that access, thus requiring mitigation. The Coastal Commission argued that requiring an easement across dry land was appropriate. 

The Scalia of 1987 was perfectly willing to acknowledge that the Coastal Commission could have exacted property from the Nollan family when they added a second story to their beach house outside Ventura. He just concluded that requiring an easement across the dry sand in front of the house was not the right exaction. Indeed, he wrote in the majority opinion: “T”he condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere.”

That Scalia – the Scalia of 1987 – did not contest the government’s right to impose an exaction if the situation called for it. That Scalia has apparently awakened in the Koontz case like Rip Van Winkle, and the property rights movement will have to live with the consequences.