Property rights don't always get the respect they deserve at
the Supreme Court, but this year has been different. On Tuesday the Justices
delivered their third rebuke of the term against government abuse of the
Constitution's Takings Clause in Koontz v. St. Johns River Water
Management.
The case centered on whether a Florida wetlands district
could set excessive conditions on the approval of a land-use permit. In 1994,
landowner Coy Koontz applied for a permit to develop a 3.7-acre section of his
wetlands property. As required by state law, Mr. Koontz offered to compensate
for any wetland damage by deeding an 11-acre easement to the district for
conservation.
That wasn't enough for local regulators, who gave Mr. Koontz
an ultimatum: He could scale back his development to one acre and surrender the
rest of his property to the district. Or he could proceed with his project with
the 11-acre easement and pay thousands to improve district land miles
away that was unaffected by his development.
Mr. Koontz declined the offer and sued under a Florida law
that allows monetary damages when an "unreasonable exercise of the state's
police power" constitutes "a taking without just compensation."
Florida's Supreme Court ruled that Mr. Koontz didn't have a claim since his
permit had been denied. Ergo, his property was not actually taken. By this
logic, a landowner must first succumb to government property extortion in order
to have a case.
Writing for the 5-4 majority, Justice Samuel Alito reversed
the state court on grounds that "extortionate demands for property in the
land-use permitting context run afoul of the Takings Clause not because they
take property but because they impermissibly burden the right not to have
property taken without just compensation."
The ruling extends the Court's Nollan (1987) \ and Dolan (1994)
Takings Clause precedents to government denial of permits and government
demands for offsite mitigation rather than a direct invasion of private
property. This is a big deal because governments find multiple ways to extort
property.
Property cases don't get the media attention that free
speech issues do, but the Constitution's bar against unjust takings remains a
bedrock protection against government abuse. Now if only Justice Anthony
Kennedy would revisit his vote tolerating the abuse of eminent domain
in Kelo v. City of New London. It's not too late, sir.
Source: A version of this article appeared June 28, 2013, on
page A12 in the U.S. edition of The Wall Street Journal, with the headline: A
Property Rights Victory. * June 27, 2013, 7:24 p.m. ET
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