Supreme Court Decision Likely to Have Significant Local Land Use Impacts

As previously reported by Conduit Street, the United States Supreme Court recently held in the case of Koontz v. St. Johns River Water Management District that conditioning a development permit approval on the property owner’s willingness to grant a conservation easement or pay a fee must be proportional and related to the environment damage caused by the development.  Otherwise, it represents a taking of property without just compensation.  The case holding will likely have significant impacts on both state and local government preservation and environmental protection efforts, including the implementation of the Chesapeake Bay Total Maximum Daily Load.

A July 12 National Association of Counties (NACo) news post notes NACo’s involvement with the case. NACo signed onto an amicus curiae brief prepared by the State and Local Legal Center in support of the Water Management District.  The National Governors Association, National Conference of State Legislatures, Council of State Governments, National League of Cities, International City/County Management Association, and International Municipal Lawyers Association also signed onto the brief.

The brief writer also summarized state and local government concerns in a June 26 New York Times opinion piece:

The court handed down a decision on Tuesday that, in the words of Justice Elena Kagan, will “work a revolution in land-use law.” …

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.  …

As for the second part of the majority’s ruling, that [the prior] Nollan and Dolan [Supreme Court holdings] 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.

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