Well, the hammer finally dropped and the Supreme Court today issued its opinion in Koontz v. St Johns River Water Management District, No. 11-1447 (June 25, 2013). The opinion comes out on the next-to-last day of the Term presumably because -- unlike the earlier two takings cases -- Koontz was not unanimous, but was what one colleague referred to as a "classic" split in the Justices: the Chief, Kennedy, Scalia, and Thomas joining the opinion authored by Justice Alito, with the Court’s liberal wing siding at least partially with the government.
So before tomorrow's rulings on the same-sex marriage issue suck all the air out of the room, here are our thoughts on Koontz:
- All nine Justices agree that a property owner need not accept a permit which is subject to conditions she believes are unconstitutional in order to challenge it. This is a remarkable shift in tone from the oral arguments, where the prevailing wisdom was that the Court might conclude that there was no Fifth Amendment problem because the District did not grant the permit, and thus nothing was "taken." Instead, the entire Court agreed that it made no difference, and would be pointless to require a property owner to obtain a permit in order to ripen a challenge to its conditions. Note to practitioners: it seems the Court is growing weary of silly procedural arguments such as these. Cf. Horne.
- Money is property. Yes, we know we've said it before, and it does seem kind of obvious, but until now, the Court has not expressly said so. This was the major point that the dissenters, led by Justice Kagan, focused on, employing both the "slippery slope" and "the sky will fall" arguments. The slippery slope in that if owners could challenge monetary exactions, then what's next, a takings challenge to taxes? (Paging Professor Epstein.) The majority rightly rejected this rhetorical hyperbole, and we can't seriously believe that the dissenters don't understand the fundamental differences between taxes and fees, and exactions. The majority also rejected the chicken little argument (echoed by the APA and lawprof John Echevarria), noting that in places such as California and Texas, where land regulators have been subject to Nollan and Dolan's requirements for monetary exactions for some time, not only has planning not ground to a halt, having government show a nexus and rough proportionality has actually resulted in a better planning environment. And we didn't just make this up - these are planners saying this, not property rights advocates.
- They're all exactions. See slip op. at 18 where Justice Alito correctly notes that whether you call them in lieu fees, exactions, impact fees, fair share requirements, or mitigation fees, they're pretty much the same as far as Nollan/Dolan are concerned.
For more, be sure to tune into our upcoming ABA webinar on Koontz and Horne, which features leading scholars and practitioners discussing these cases.
- It's the Takings Clause, not just the Just Compensation Clause. We've said it before, and now so has the Court. Twice. Compensation isn't the only remedy. And between the holdings in Koontz and Horne, we think a revisit to Williamson County is primed. So please, government guys and friendly reporters, give that one a rest. All Fifth Amendment claims need not seek compensation, and here, it's burdening the constitutional right to compensation that is the violation, by being forced to shoulder more than your share of burdens which should be borne by all.