The U.S. Supreme Court handed private property owners a victory yesterday with a decision allowing a couple to appeal an EPA ruling that their property contains a wetlands.
The court's decision is supported by the National Association of REALTORSÂ®, which along with other organizations submitted a friend-of-the-court brief in the case.
The ruling is on a narrow procedural issue: whether the owners have the right to appeal the EPA's wetlands determination or wait until they first restore the property to its original state and then institute expensive and time-consuming monitoring activities, as EPA directed them to. Noncompliance with the directive can subject violators to fines of up to $75,000 a day.
Lower courts have sided with the EPA, saying the agency's compliance orders aren't subject to judicial review. Only when the agency goes before a judge to assess a fine for noncompliance is the order reviewable by a court. But the Supreme Court in its unanimous decision said it's appropriate to allow parties to contest agency decisions before having to first comply with the order.
NAR argued in its brief that the property owners in this case were being denied due process because the compliance procedures take years to work through and the costs are significant â€” all before the main question of whether the property contains a wetlands is even considered.
In this case, Mike and Chantell Sackett bought a piece of property in an already developed subdivision near Priest Lake in Idaho with sewer infrastructure already in place. After they started to prepare the property for construction of their house, they were directed by the EPA to stop and mitigate the changes they had made to the land out of a concern that the property contained a wetland â€” even though the property was adjacent to other developed properties and there was no water on the site at the time.
The Sacketts sought a hearing for their case to determine whether the property contained a wetlands, but EPA said that question couldn't be decided until after they undertook the restoration and monitoring activities, or refused to do that and were levied a fine.
With the Supreme Court decision, the Sacketts can now get their day in court.
By Robert Freedman, REALTORÂ® Magazine