U.S. Supreme Court Considers Constitutionality of Land Use Permit Conditions

Land use applicants are frequently required to satisfy various conditions before a permit is granted. Permitting authorities may require that trees are planted, that sufficient parking or access is provided, or that a portion of the subject property is set aside for public use. However, there are limits on the authority to impose such conditions, particularly with respect to the dedication of interests in real property. Under current law, the nature and extent of the condition must have a “reasonable relationship to the needs created by the development.”On January 15, 2013, the U.S. Supreme Court heard oral arguments in Koontz v. St. John’s River Water Management District, a case challenging the extent of the conditions that can be imposed on permit approvals, without violating the Takings Clause of the Fifth Amendment. In Koontz, the petitioner had sought permit approval to develop a portion of his property that was subject to wetlands restrictions under the jurisdiction of the St. John’s River Water Management District. The District agreed to approve the permit if the petitioner would agree to one of several proposed conditions, including performing offsite wetlands mitigation by replacing culverts and plugging drainage canals located several miles away from the petitioner’s property. After rejecting each of the District’s proposed conditions the petitioner was denied his permit and brought suit in state court, claiming the denial was a violation of the Takings Clause.The Supreme Court of Florida ruled against petitioner, finding the Takings Clause inapplicable where the condition sought by the government does not involve “a dedication of or over the owner’s interest in real property in exchange for permit approval.” Furthermore, the court held that, in this context, a taking cannot occur unless the permitting authority “actually issues the permit sought, thereby rendering the owner’s interest in the real property subject to the dedication imposed.” On appeal to the U.S. Supreme Court, the petitioner has argued that the government is liable for a taking when it refuses to approve a permit unless the landowner agrees to dedicate personal resources, in the form of money, services or labor, to offsite mitigation efforts. The decision is the most anticipated property rights case of the U.S. Supreme Court’s current term and will be closely watched by land use planners and developers.

For further information, including questions about land use permitting and conditions, please contact the Firm and ask to speak with Amanda Lafferty or Joe McLean.

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