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Justice Elena Kagan, in a dissenting opinion for the court’s four liberal justices, agreed regulators should properly justify demands but that shouldn’t rule out requiring landowners to pay for mitigation work as part of getting a permit.
The majority ruling, Kagan wrote, could reduce government flexibility, expose local governments to a new slew of takings cases and force courts to sign off on everyday zoning and land-use decisions.
“The boundaries of the majority’s new rules are uncertain,’’ she wrote. “But it threatens to subject a vast array of land-use regulations, applied daily in states and localities throughout the country, to heightened constitutional scrutiny.’’
The array of briefs filed in the case reflected the high stakes. They came from the Obama administration, environmental groups like Audubon and builders groups like the National Association of Home Builders.
Julie Hill-Gabriel, Audubon’s director of Everglades policy, said it will take some time to determine how agencies respond to the ruling but suspects that, at the very least, it would reduce their flexibility.
Miami attorney Kerri Barsh, a land-use lawyer for Greenberg Traurig who represents rock-mining interests, said she did not believe the ruling would have any sort of chilling effect on regulators but it could level the playing field by opening the door for landowners to file “takings” challenges even before permits are formally issued.
She said it also raises questions about the future of mitigation banking, a common practice in South Florida where developers pay to restore wild tracts that are often miles or even counties away from their projects.
Patrick Gillespie, a spokesman for the Florida Department of Environmental Protection said the decision “clarified the constitutional protections that must be afforded to landowners” and said the agency would work with water districts to ensure legal issues would be addressed.
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