1. Stealing Your Property or Paying You for Obeying the Law
Stealing Your Property or Paying You for Obeying the Law? Takings Exactions after Koontz v. St. Johns River Water Management District
Gregory M. Stein
Associate Dean and Professor of Law, University of Tennessee
David L. Callies
Professor of Law, University of Hawaii
Brian Rider
Adjunct Professor of Law, University of Texas

2. Outline Background on Takings Law Exactions after Nollan and Dolan
Issues that Remained Open
Koontz: Facts and Outcome (FL and US)
Analysis of Opinion
Open Questions, Repercussions, Possible Responses

3. Background Law
5th Amendment Takings Clause: “… nor shall private property be taken for public use, without just compensation.”
Regulatory Takings – Four Types:
Permanent Physical Occupations (Loretto)
Deprivations of Substantially All Economically Viable Use (Lucas)
Most Other Regulatory Takings (Penn Central)
Exactions

4. Exactions, Nollan, and Dolan
Exaction: Government approval is conditioned on a landowner concession
Nollan (1987): “Essential Nexus” – exaction must meet this means-end connection
Dolan (1994): “Rough Proportionality” – exaction may not be excessive in magnitude

5. Unresolved Issues (pre-2013)
What if owner rejects government’s proposed exaction?
What if government seeks to exact money rather than a real property right?
Does it matter whether exaction is administrative or legislative in nature?
What if government simply rejects owner’s proposal?

6. Koontz v. St. Johns River Water Management District
Facts
The physical configuration of the Koontz property
The case in the Florida state courts

7. Koontz: Aerial View of Area

8. Koontz: Immediate Area

9. Koontz: Close-Up of Parcel

10. Koontz v. St. Johns River Water Management District
The US Supreme Court grants certiorari
Court agrees to decide two issues:
Do Nollan and Dolan apply if the owner rejects the government’s proposed exaction?
Do Nollan and Dolan apply if the government seeks to exact money rather than an interest in real property?

11. U.S. Supreme Court
Supreme Court rules in favor of landowner on both issues
Majority of 5: Alito, Roberts, Scalia, Kennedy, Thomas
Dissent of 4: Kagan, Ginsburg, Breyer, Sotomayor

12. Majority Opinion: First Issue
“Nollan and Dolan [principles] do not change depending on whether the government approves a permit on the condition that the applicant turn over property or denies a permit because the applicant refuses to do so.”
“A contrary rule would enable the government to evade Nollan and Dolan simply by phrasing its demands for property as conditions precedent to permit approval.”

13. Majority Opinion: Second Issue
Do not want land use officials to evade Nollan/Dolan by substituting a monetary fee for an exaction of real property
The property interest necessary in cases such as these is not a required dedication of land itself but rather the effect of any exaction on the owner’s subject parcel

14. Dissent: First Issue
Agrees that a conditional denial is no different from a conditional approval
But as the Court says, “Where the permit is denied and the condition is never imposed, nothing has been taken.”
Court instead calls this an unconstitutional condition
If this is not a taking, what is the remedy?
And here, government demanded nothing

15. Dissent: Second Issue
Government exactions of money cannot constitute compensable takings
The requirement to pay money in Koontz does not differ from other requirements that impose general liabilities, such as taxes
Nollan and Dolan simply are not relevant

16. Reasons for Owners to Celebrate
Governments now must assess “nexus” and “proportionality” earlier in the process
Mitigation fees, in-lieu fees, and impact fees may constitute exactions
Exactions are not the same as taxes

17. Reasons for Regulators to Worry
Koontz is not a takings case
The Court does not trust government officials
Exactions are difficult to distinguish from taxes

18. Possible Repercussions
More outright denials of permit requests
Greater focus on distinction between administrative and legislative exactions
Increased use of contract and conditional zoning, development agreements
Closer tailoring of government charges
Scrutiny of affordable housing exactions

19. Conclusion Nollan and Dolan are alive and very well
Court has not yet reached some of the other questions those cases left open
Governments will have to tailor exactions more closely, and may deny more requests
More cases likely to arise