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Family's lawyers call Florida land case government "shake down"

By Bill Mears, CNN Supreme Court Producer
updated 6:25 PM EST, Tue January 15, 2013
STORY HIGHLIGHTS
  • Supreme Court property rights case examines development dispute in Florida
  • Property owner seeks permits for own land; local officials ask he pay for unrelated wetland improvement
  • Lawyer says family involved unwilling to bargain away constitutional rights
  • Supreme Court land cases have attracted intense public scrutiny

Washington (CNN) -- Property rights cases at the Supreme Court attract unusually intense public scrutiny, often billed as the little guy versus the big state.

A case argued Tuesday had many of those same elements, but with a twist: Is it an unconstitutional "taking" for the government to propose the landowner pay to improve nearby state wetlands, in order to get a permit to develop his own property?

Lawyers for a Florida family call it "extortion" for the regulatory agency to "shake down" property owners, as the price for securing a green light for development.

But the state. backed by the Obama administration, says "ordinary negotiations" like this dispute are a legal, necessary part of the land mitigation process, and that the property owner here was given many options to satisfy the environmental requirements.

A slim majority of the court seemed to offer limited support.

"I can't see where there's a taking here," said Justice Antonin Scalia. "Nothing's been taken," since the permit was ultimately denied.

"Why are we even in this case?" said Justice Sonia Sotomayor.

Longtime local developer Coy Koontz, Sr. owned a 15-acre lot in Orange County near Orlando. All but about 1.4 acres were later designated wetlands within a Riparian Habitat Protection Zone, putting it under jurisdiction of the local water quality district.

To fund his retirement, Koontz sought to develop almost four acres of the land along Highway 50, and applied for two state permits. In return, he agreed to place the remaining 11 acres in a permanent conservation easement, off limits to commercial use.

The St. Johns River Water Management District rejected that, suggesting Koontz pay around $10,000 for improvements on about 50 acres of state-owned wetlands located up to seven miles away.

Koontz ultimately said no, while still offering to place the 11 acres of his land in trust as originally proposed. When the permits were denied, he sued, getting the legal backing of the conservative legal watchdog Pacific Legal Foundation.

He died in 2000 and now his son, Coy Koontz, Jr., is taking up the cause.

"What happened to my father and my family shouldn't happen to any property owner, anywhere," he told CNN.

The Constitution's Fifth Amendment forbids "private property be taken for public use with just compensation."

During the spirited hour of oral arguments, much of the debate centered on whether denial of a permit amounted to a "taking."

Paul Beard, arguing for Koontz, said the family was unwilling to bargain away their constitutional rights.

Justice Ruth Bader Ginsburg was not convinced.

"The record is very clear-- the [regulatory] district didn't come back and say, 'Take it or leave it, you-- improve our wetlands or you get no permit,'" she said. "The district said: here are several ways that you could sufficiently offset the adverse impact. And some of them had nothing to do with improving the government's own land."

But Chief Justice John Roberts said homeowners are often backed into a corner, a legal Catch-22 if they want to challenge the government's actions.

"Are you saying that if you are confronted with an unconstitutional condition, you have to accept it, and then you can challenge it?" he asked of the state lawyer.

Supreme Court rulings in 1987 and 1994 require the government to fairly and reasonably weigh the reasons for granting or denying land-use permits, including the scope of demands placed on the owner.

The high court, in 2005, came under fire for a 5-4 ruling allowing the state to seize homes and businesses under eminent domain, for private economic development.

The court said the state could justify such a "public purpose" because it would bring jobs and tax revenue, providing a benefit to the community at large.

But in other recent cases, the conservative majority has ruled for the property owner making the "taking" claim.

The current Florida case is Koontz v. St. Johns River Water Management District (11-1447). A ruling is die by June.

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