Should waterfront developers have to contribute to flood mitigation? With Koontz, it just got a lot harder to ask them.
Tuesday was a strange day for the planet.
President Obama rolled out new initiatives to address global warming, vowing to shut down the worst-offending power plants and promote clean energy technology. That same morning, the Supreme Court potentially made it harder to prepare for climate change.
To understand how all this shakes out, one must first recognize the fraternity of nerds – and I include myself proudly in this group – who closely follow property rights jurisprudence.
Historically, judges have said that reasonable regulation of land use is permissible, and does not constitute a taking under the 5th amendment of the U.S. Constitution ("… nor shall private property be taken for public use without just compensation.")
Every property rights case that makes it to the Supreme Court is closely watched for some glimpse of change, with planners and environmentalists on one side, and free market libertarians, groups like the Institute for Justice, and more recently don’t-tread-on-me Tea Party enthusiasts on the other. The last big uproar was over Suzette Kelo's fight to save her little pink house from being razed in a redevelopment scheme in New London, Connecticut.
Tuesday’s Supreme Court ruling in the case Koontz v. St. Johns River Water Management District, the legal equivalent of a wrestling undercard, was a little bit surprising. The 5-4 ruling essentially scolded government for being overzealous in imposing requirements as conditions for permits to build. The deal the developer involved in the case was offered came down in part to a demand that he pay for wetlands restoration off-site. He refused and sued, citing two cases, Nollan v. California Coastal Commission and Dolan v. City of Tigard, that established a "rough proportionality" balancing the scope of development and public benefits — an easement for public beach access, for example. The justices basically said that in the Koontz case, the proposed burdens on the builder went too far.
While some posited that the implications were limited, others saw peril, the beginning of the end for government’s ability to exact mitigation, the kind term for making amends or patching up various impacts associated with development. Private builders are routinely asked or required to contribute into funds for affordable housing. Under the concept of value capture, the notion of compensating for government "givings" – the public investment in infrastructure, for example, that raises property values – is explicit. Cash-strapped municipalities impose impact fees and other charges that reflect this basic idea: build, but make a contribution to the greater good. Other countries are much stricter about this than we are.
While there are no bright lines in the ruling, there is potentially a chilling effect. Public officials may retreat from making demands, knowing that feisty landowners can now wave the banner of Koontz. The local level is where this would happen. "Approval boards may be less likely to engage in negotiation," says Sean Nolon, professor at Vermont Law School, and co-author of Land in Conflict.
And here is where this all comes back to climate change. Coastal metropolitan regions have faced up to the fact that there will be increased flooding, volatile weather, and sea level rise. New York Mayor Michael Bloomberg has stepped up with a model $20 billion plan that is a mix of living with water and keeping it out. This is the great planning challenge of our time – and it’s expensive. So private developers should be expected to contribute to the cause. Build on a waterfront? Sure, but a condition of the permit is a contribution to a floodgate fund.
With Koontz, lawyers now have a perfect opportunity to say no way, that such a requirement is out of proportion with the modest scope of an individual development. The Koontz family bristled at the idea of restoring wetlands miles from their property. Why should one builder be held accountable for a problem the whole world is responsible for?
The answer may lie in some future case considered by the high court, a developer versus the agency responsible for resilience. Years from now the stakes will be not just the health of a Florida wetlands ecosystem, but the safety of vast urban populations. We property rights nerds will quiver with anticipation. But in the meantime, the grinding work of preparing for the impacts of global warming just got more complicated.