Florida land use and environmental law attorney Jake Cremer has posted the Brief in Opposition in Koontz v. St. Johs River Water Management Dist., No. 11-1447 (cert. petition filed May 30, 2012), the case asking whether the Nollan/Dolan nexus and proportionality tests apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property. We posted the cert petition here.
Jake writes:
The U.S. Supreme Court has not yet given much more guidance on exactions, and confusion has been the result. The Florida Supreme Court forged its own path, holding that the Nollan-Dolan test only applies to (1) exactions of real property (2) where a permit was actually issued and imposed an exaction. Consequently, in Florida, there are now relatively few restrictions on what a local government can ask for in exchange for a development permit. Other states, like Texas, have seen little distinction between a government asking for real property and asking for personal property (like money). This latter view seems to make the most sense to me: real and personal property are fungible, and both can be used to mitigate development impacts, so why should the government be able to avoid the Takings Clause by asking for personal property?
These problems do not seem to be insurmountable to the Court in taking the case on. First, Florida’s Takings Clause is interpreted coextensively with the federal Takings Clause, so the Court could accept jurisdiction just as it did when a very similar argument was made in the briefing of Stop the Beach Renourishment v. Florida Department of Environmental Protection,130 S. Ct. 2592 (2010). Second, if the District’s exaction were unconstitutional and so onerous that the landowner could not continue with its plan (or do anything else), why should it be shielded from liability? In effect, as the trial court seemed to recognize, that may just mean a temporary taking occurred.
I’ll have an article in the American Planning Association’s Planning & Law Newsletter soon taking a deeper look at these issues.
The petition is scheduled for the Court’s September 24, 2012 conference. Here’s the Court’s docket entry for the case.
Barista’s note: you really should follow Jake’s blog, The Florida Land Environment, even if you are not in Florida. The topics he covers are interesting to a broad range of practitioners.