It’s been what — just over 90 years — since the U.S. Supreme Court recognized the modern regulatory takings doctrine in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)? And in that time, the Court still hasn’t quite hammered down the theory of what it means to “take” property when some other power besides eminent domain is being exercised. Oh, the Justices think they know what it takes for regulatory takings liabliity to attach, and most of the time they are right. But on the margins, it is apparent they still have not completely figured it out.
Nothing exemplifies this as well as the Court’s muddled questions during the oral arguments in Koontz v.
In neither Nollan nor Dolan did the property ownersaccept the permit. Both rejected the permit and the conditions. Yet the Courthad no problem finding that to impose the condition would be a taking. For somereason, the Koontz Court seems hung up on a question of fact, and a mistakenreading of those cases. The real issue here, in my opinion, is related: whetherthe Water Management District was specific enough, and really did make a”take it or leave it” demand, or whether it really was open toalternatives as it now claims, or whether Koontz was in the nether-hell asdescribed in Del Monte Dunes such that the Court said it was “enough.”Kind of a weird posture to be in at the Supreme Court, since usually by thatstage, the record is pretty clear (or is supposed to be). But that’s more of aripeness question and an exhaustion of administrative remedies question thanwhether a concrete demand for a non-related/disproportionate exaction is ataking. To say he could have reduced his development proposal to avoid theNollan/Dolan problem sort of allows the tail to wag the dog. It’s thegovernment’s burden to tailor the exaction to the proposal, and not thelandowner’s burden to scale down his proposal in order to save the exactionfrom Nollan/Dolan problems.
2. Nollan and Dolan were both decided when the”substantially advance” test of Agins was still considered viable.Lingle subsequently said it wasn’t a “takings” test, but rather oneof Due Process. There was some language in Lingle that (somewhat unconvincingly,in my opinion) pointed to the continued viability of N/D as a takings test,which is one of the reasons we’re here in Koontz. The Court still hasn’t quitefigured out philosophically why a demand for a non-related/disproportionateexaction violates the Fifth Amendment if it’s only about compensation. You seethe same debate in the Horne (raisin) case. It’s pretty easy to see the inversecondemnation in cases of land — people are walking on what used to be yourprivate land. That looks like a classic taking/eminent domain. But when it’smerely a demand, or when its money, it’s harder to compare it to acondemnation. But in our amicus brief in Koontz, we argued that there’s no realdifference when its money, that the takings logic of N/D apply equally even ifits just a demand and not a fully-realized public easement that is imposed. Thepoint is that the Fifth Amendment prohibits the government from attempting toimpress someone’s property into public service without first payingcompensation (the “Armstrong” rationale). The Takings Clause is anaffirmative restraint on government power, and not just a post-hoc commandthat, if caught, to pay compensation. Ithink the Court will issue Koontz and Horne opinions on or about the same day,so we’ll see if my theory that these are really the same case is played out.