Supreme Court Rules On Permits

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The recent Supreme Court case Koontz vs. St. Johns River has generated a lot of commentary and debate in the legal community and speculation concerning the ramifications of the case on various land use permitting scenarios. Oversimplifying the facts and legal theories, the Supreme Court extended previous rulings to a situation whereby the governmental entity denied a request/permit for the failure of the applicant to agree to “suggested” alternative concessions proposed by the local government. The alternative concessions included mitigation measures, conservation easements and infrastructure improvements.  Prior to Koontz, the Supreme Court had only placed a higher burden on a government entity in certain types of permit decisions to substantially justify requiring special concessions.  Such decisions were primarily those where the government entity would approve a permit subject to a demand to dedicate an interest in property to the public.  In non-legal terms the exaction had to be closely related to the harm the local government was trying to protect against and that the exaction imposed had to reasonably deal with, and was “proportionate” to the adverse impact of the activity conducted pursuant to the permit on the applicable community.  Under the Supreme Court’s directive in Koontz, the government entity now basically has the burden in permit denials and monetary exactions to show that their actions were acceptable (i.e. subject to a higher scrutiny review by the courts) as opposed to a government action being deferred to by the courts and the burden placed on the applicant to demonstrate that the exaction was an unconstitutional “taking”.  With Koontz, this higher scrutiny standard now applies to land use permit denials and/or monetary exactions.  For Mr. Koontz, he must still litigate further to determine whether the suggested alternative concessions are closely related to the harm the local government was trying to protect against and the concessions were proportionate.  The practical implication of the Koontz case is that local governments will need to be more conservative when negotiating mitigation measures for permit approvals.