Koontz Decision: No Big Deal or Blow to Sustainable Development?
For two contrasting takes on the U.S. Supreme Court's recent decision in Koontz v. St. Johns River Water Management District, see Vermont Law School professor John D. Echeverria's blistering op-ed in The New York Times and NYU law professor Rick Hills' more measured interpretation in PrawfsBlawg.
Echeverria argues that the ruling "makes it hard for communities to get property owners to pay to mitigate any environmental damage they may cause."
"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," he explains. "While, to be sure, such mandates must be reasonable under the Constitution, the revolutionary and destructive step taken by the court in Koontz is to cast the burden on the government to justify the mandates according to the heightened Nollan-Dolan standard. This is contrary to the traditional court approach of according deference to elected officials and technical experts on issues of regulatory policy. Moreover, this heightened standard will result in a huge number of costly legal challenges to local regulations."
Hills, on the other hand, says the ruling shows a court unwilling, or unable, to "duplicate the work of state courts in policing conditions on literally hundreds of thousands of land-use permits..."
"Thankfully," he continues, "Koontz carefully preserves a convenient albeit disingenuous 'remedial' exit strategy that should insure that the decision is a dead letter."