Would a ban on assault weapons violate the Fifth Amendment's takings clause? Some members of Congress would like to know, according to one legal scholar who has been asked.
The gun-related question is not before the U.S. Supreme Court, at least not yet. But the scope of the takings clause is this term in three cases, the most potentially significant of which comes up for argument on Jan. 15.
In Koontz v. St. Johns River Water Management District, property rights advocates ask the justices to expand two landmark takings decisions from the Rehnquist Court era to the denial of land use permits when the landowner refuses to accept conditions for approval of the permit.
"Unlike the other two cases, this one has application to every property owner in the country," said Paul Beard of the Pacific Legal Foundation, counsel to Coy Koontz Jr. "Anyone who wants to pull a permit to do anything on their property can potentially be affected."
The Koontz case is "going away the most important takings case the Roberts Court will decide," agreed Douglas Kendall, head of the Constitutional Accountability Center, which has drafted an amicus brief supporting the water district on behalf of the city of New York, the American Planning Association and the National Trust for Historic Preservation.
The two sides' agreement, not surprisingly, ends there. They disagree on the facts that led to the Supreme Court challenge as well as how the justices should resolve the case. And their disagreement has triggered traditional battle lines in property rights cases. Koontz has drawn support from a number of libertarian and conservative public interest legal organizations, and small business and home builder associations. The United States, the National Governors Association and local government organizations back the water district.
The justices already have decided one of the three takings cases on the docket. In Arkansas Game and Fish Commission v. U.S., a unanimous court held there was no automatic exemption from the takings clause when the government temporarily floods land as part of a federal flood control project. Although a victory for the state landowner, the case was not an unqualified win. The justices sent the case back to the lower courts to apply a series of factors drawn from a key 1978 takings precedent, Penn Central Transportation Co. v. New York City, to determine whether a taking had occurred.
And the justices have not yet scheduled arguments in Horne v. U.S. Dept. of Agriculture, asking in which court a takings challenge to a federal raisin marketing program should be filed and whether the program itself is a violation of the takings clause.
But all eyes are on Koontz for now.
"It raises the largest general question about the scope of the takings clause and has the most significant practical implications for state and local governments," said takings scholar John Echeverria of Vermont Law School.
Seeking permits
Coy Koontz Sr. bought a vacant, 14.9-acre lot in 1972, and all but 1.4 acres eventually became part of a riparian habitat protection zone overseen by the water district. In 1994, he sought permits to develop 3.7 acres within the zone. (He died in 2000, and his son succeeded him as the plaintiff in the case.) Given its location at the intersection of two highways, the project site had little, if any, habitat that needed protection, according to Koontz's brief. Any wetlands on the property had been drained by a ditch that the state ran across Koontz's land. However, the district's regulations required Koontz to include mitigation proposals in his permit applications.
Koontz offered to place 11 acres of his property into a conservation easement as his mitigation effort. But the water district, according to Beard, his counsel, said his permit applications would be denied unless, in addition to the 11-acre dedication, he agreed to finance the restoration and enhancement of at least 50 acres of wetlands on district-owned property located miles away, by replacing culverts or plugging ditches, and building a new road.
The district denied his permits after he refused the conditions. He sued in state court, arguing that the off-site mitigation violated the Supreme Court's decisions in Nollan v. California Coastal Commission (1987) and Dolan v.Tigard (1994) because the conditions bore no connection to his project's alleged impacts on the habitat zone. The circuit court agreed and awarded $327,500 plus interest as just compensation for the taking, but the Florida Supreme Court reversed.
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