Supreme Court to hear challenge to states' land-use fees

Title holders to argue that states' right to charge 'impact fees' amounts to a form of dispossession

PUBLISHED : Wednesday, 16 January, 2013, 12:00am
UPDATED : Wednesday, 16 January, 2013, 5:19am


Coy Koontz Snr had a plan when he bought six hectares east of Orlando, in the state of Florida. It did not include having his son end up at the US Supreme Court.

But now 18 years of legal wrangling have brought the Koontz family and government agencies to the brink of a climactic court argument. The outcome will influence the power of government to impose certain monetary conditions before granting land-use permits.

"I'm glad this is almost over," said Coy Koontz Jnr, whose father died in 2000. "This affects many, many people."

Certainly, the case being argued overnight under the name Koontz vs St Johns River Water Management District has attracted a national cast of characters.

The National Association of Home Builders and conservative allies have lined up with the Koontz family. They want the court to rule that a government agency that refuses a land-use permit because the property owner declines to pay certain fees has essentially taken ownership of the property.

From the opposite side, California and 18 other states are urging the court not to impede the widespread use of fees by characterising them as a taking.

"Impact fees on developments are used by a large percentage of localities across the nation," notes the states' legal brief, chiefly authored by California Supervising Deputy Attorney General Daniel Siegel. "To offset harm caused by proposed projects, state and local governments widely condition approvals on mitigation, often in the form of mitigation fees."

The Koontz case is one of several private-property disputes before the Supreme Court this term. The central question invariably revolves around the Fifth Amendment rule declaring that "private property [shall not] be taken for public use, without just compensation". Lots of judicial firepower has been devoted to teasing apart what this means.

Koontz senior bought the land in 1972 with hopes of building a small commercial project near two highways. The St Johns River Water Management District later designated much of the property as a "riparian habitat protection zone". In exchange for securing a permit, Koontz reluctantly agreed to give the district a conservation easement on about 11.5 acres (4.65 hectares).

"He worked all his life," said his son, 68, "and he didn't understand why he had to give up 75 per cent of the land."

Citing the loss of valuable wetlands, water district officials told Koontz senior in 1994 that he would also have to offer additional mitigation; for instance, by paying to restore about 20 hectares of district land elsewhere. He refused, so the district rejected his permit application. He sued.

One Florida court ordered the water district to pay Koontz senior more than US$325,000 as compensation, but the Florida Supreme Court reversed this.