Our View: Ruling makes mitigation very unlikely

July 5, 2013 

A developer wants to fill wetlands on his property to build a shopping center. He needs a permit. The local government agency tours the site and tries to negotiate a deal that would permit him to build, while offsetting the harm to the protected wetlands.

These kinds of land use negotiations go on every day in California and across the country. State and local governments widely condition permit approvals on some kind of "mitigation" — changing the design, enhancing some other piece of land or paying a mitigation fee.

But in a narrow 5-4 decision, the U.S. Supreme Court has now made such negotiations much less likely, making it easier for landowners to challenge these kinds of conditions and fees and leading to more litigation. Organizations such as the Sacramento-based Pacific Legal Foundation, which represented a Florida landowner in this latest case, will be able to drum up a lot more business.

It also means, as California Attorney General Kamala Harris argued in an amicus brief for 19 states, that local governments to avoid lawsuits "would be encouraged to choose one of two extremes: denying development, or approving it without addressing its impacts."

Less likely now is the middle ground of negotiation — a back-and- forth where the landowner and the local government suggest ways of mitigating impacts.

Further, instead of appealing permit conditions to local boards, landowners can now go directly to court, which California argued is essentially "converting the federal courts into land use boards of appeal."

In the case in question, Florida law prevents landowners from filling or draining wetlands without permits. The local water district provided the landowner with a long (and open-ended) list of on-site and off-site options that would satisfy state guidelines, while allowing his project to go forward. He could reduce the scale of the development, modify the design to lessen the impact on wetlands, do off-site mitigation to restore other wetlands in the basin, or suggest some other mitigation to compensate for the loss of wetlands his project would cause.

He refused, so the permit was denied and he filed a lawsuit.

The Supreme Court now makes that the wave of the future, instead of local resolution of land use disputes.

Paul Beard of the Pacific Legal Foundation said in a statement that the high court's decision "protects landowners from government extortion." No, quite the opposite. The decision allows landowners to issue lawsuit threats in order to extort permit concessions.

Doubtless the court's ruling will have a chilling effect on local government negotiations with developers over permit conditions that promote responsible development. If they don't like proposed permit conditions, all developers have to do is drop out of negotiations and sue.

The five justices have made it more difficult for local governments to protect the community at large in the face of developer pressures.

The four dissenting justices have it right. They said the ruling by the five-justice majority "deprives state and local governments of the flexibility they need to enhance their communities — to ensure environmentally sound and economically productive development. It places courts smack in the middle of the most everyday local government activity."

The dilemma now for risk-averse local governments that don't want developer lawsuits is to deny permit applications outright or to approve permits without negotiating options to offset harms that a development might cause.

That's a loss for collaborative decision- making on the local level.

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