Koontz v. St. John's River Water Management District

Brief Amicus Curiae of Owners' Counsel of America in Support of the Petitioner

by Robert Thomas

Today, on behalf Owners' Counsel of America, we filed this amicus brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That's the case asking whether the "essential nexus" and "rough proportionality" standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests.

Our brief argues:


It is no great stretch to apply the nexus and proportionality standards to all exactions, and not just those demanding land. Like land, money is property, and should be subject to the same rules. Requiring compliance with Nollan and Dolan when government seeks money or other property in exchange for discretionary permits will not impose a significant burden on land planners, other than the requirement that they, like other officials, follow the Constitution. If the constable must understand the limitations the Constitution places on her powers, so must the planner. See San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 661 n.26 (1981) (Brennan, J., dissenting). The standards for land exactions articulated in Nollan and Dolan have been part of the regulatory landscape for nearly two decades, yet planning has not ground to a halt as a result. Indeed, in those jurisdictions in which state and local officials must adhere to the nexus and proportionality standards for all exactions, regulation is robust and the sky has not fallen. Neither will it fall if the nexus and proportionality standards are applicable everywhere else.

This brief makes two points. First, a requirement that owners provide money or make other tribute as a condition of exercising the constitutional right to own and use property is just as much a taking as a requirement that owners donate land, because money, like land, is property protected from uncompensated expropriation. Second, applying heightened scrutiny to monetary and other exactions will not unduly interfere with land-use planning. Indeed, requiring that state and local governments demonstrate a nexus and rough proportionality for land exactions has improved planning by making the rules more concrete and the process more transparent. There is no reason to believe the same will not hold true when applied to all exactions.


The Florida Supreme Court opinion holding that the nexus and proportionality tests of Nollan/Dolan do not apply to government demands for cash and other forms of property is here. That court asserted that in Del Monte Dunes and Lingle, the U.S. Supreme Court had "specifically limited" the reach of Nollan and Dolan to land exactions. Our response:


This Court has not "specifically limited" Nollan and Dolan as the Florida court concluded, and should now confirm that the nexus and proportionality standards govern all exactions, because the dynamics in the case at bar are precisely the same as those compelling the Nollan and Dolan requirements. Those requirements are designed to restrain government’s temptation to take advantage of an owner seeking development permissions to force the owner to shoulder a greater burden than her proposed use is shown to cause. Forcing the owner to bear an excess burden violates the Takings Clause. See Armstrong, 364 U.S. at 49 (Takings Clause is designed "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."). A government demand for money should not be subject to lesser standards than demands for other forms of property because Armstrong’s rationale applies whether the excess burden is measured in square feet or in dollars.


The case is scheduled to be argued on January 15, 2013 in the U.S. Supreme Court.

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Reference Info: Appellate Brief | Federal, U.S. Supreme Court | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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