The Problem with the Supreme Court’s Regulatory Takings Jurisprudence? It Doesn’t Require a Taking

by Foley Hoag LLP - Environmental Law
Contact

The Supreme Court ruled yesterday, in Koontz v. St. Johns River Water Management District, that a property owner who is denied a land use permit on the ground that he refused to pay money to compensate for the harm to be caused by his proposed property use states a claim for a regulatory taking, unless the regulator can establish a “nexus” and “rough proportionality” between the exaction and the alleged harm requiring mitigation.

The facts in Koontz are muddled and, as the dissent points out, it is not obvious that Koontz should prevail on remand, even under the majority’s holding.  On balance, though, the case seems like an obvious extension of the Court’s prior decisions in Nollan v. California Coastal Commission and Dolan v. City of Tigard, which established the nexus and rough proportionality test.  So long as the regulatory takings doctrine exists, and the Court conditions land use regulation on establishment of a nexus between the proposed use and the remedy, and a rough proportionality between the harm caused by the use and the cost of the regulatory exaction, I agree with the Court that it is a distinction without a difference whether that exaction entails giving up a formal property right or just paying money as compensation for the harm caused.

Interestingly, Justice Alito, writing for the majority, accused Justice Kagan, dissenting, of wanting to overrule Nollan and Dolan (60s rock band, perhaps?).  While Justice Kagan denied it, I think that Justice Alito was onto something; he just did not go far enough.  The better argument for the dissent really is for the overruling of the Court’s entire regulatory takings jurisprudence, beginning with Pennsylvania Coal v. Mahon, in 1922.  After all, while that decision cited some prior cases, it pretty much made up the concept of a regulatory taking out of whole cloth.

The irony is that it is the conservative wing of the Court, which likes to focus on the plain language of the Constitution, which most supports property rights and has provided bedrock support for regulatory takings claims.  On the other hand, the liberal wing, which sees the Constitution as a living document, would focus on how the regulatory needs of government have evolved more than how the definition of a taking needs to evolve to protect property rights.

Put another way, does anyone really doubt that when the founders thought about takings, they were focused solely on formal legal takings of formal property rights, such as fees or easements?  Where is the phrase “regulatory taking” found in the Constitution?

There is not really room here for full consideration of the practical consequences of this decision, but while the majority pooh-poohed the dissent’s concerns, this case could have real impact.  Are linkage payments in my City of Boston and other metropolitan areas constitutional?  How about requirements that developers contribute to significant sewer system upgrades, going far beyond what would be required to mitigate the impact of the specific development for which a permit is sought?

My crystal ball tells me that much Koontz-related litigation is in our future.

 

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.

© Foley Hoag LLP - Environmental Law | Attorney Advertising

Written by:

Foley Hoag LLP - Environmental Law
Contact
more
less

Foley Hoag LLP - Environmental Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.