“It is standard procedure when someone applies for a permit from the government, it is the permit applicant’s burden to establish that he complies with the regulatory program,” Mr. Kneedler said.
The approach advocated by Koontz and his lawyer would shift that burden to the government, he said.
The Fifth Amendment requires that the government provide “just compensation” for any taking of private property for public use.
That’s what Mr. Beard said happened to his client.
Several justices weren’t so sure.
Justice Ruth Bader Ginsburg said state officials offered Koontz a range of potential mitigation measures – not just one or two. She said one proposed option was to reduce the size of the development site.
“So it was not take it or leave it,” she said of the state’s posture.
Justice Antonin Scalia wanted to know precisely what was taken from Koontz. “Here there is nothing that happened. The permit was denied. I can’t see where there is a taking [of property for public use],” he said. “Nothing was taken.”
Beard said the taking was the government requirement that Koontz spend money to improve state-owned land as a condition to obtain a development permit for his own land.
Estimates of the potential cost of the required improvements on the state land range from $10,000 to $150,000.
Chief Justice John Roberts asked whether property owners would have a claim under the Takings Clause if the government required them to pay for a new football stadium as a condition for further development of their own land.
“One of the things the federal provision, the Takings Clause, is designed to prevent property owners from having to bear the costs that should be borne by the people as a whole,” Chief Justice Roberts said.
“There is no reason that a particular landowner should have to pay for [a] football stadium simply because he owns property. The Takings Clause was designed to make sure that those exactions are not imposed on property owners but spread more evenly across the citizens who benefit from it,” he said.