Here's the respondent's brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That's the case in which the Supreme Court is considering 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 for all exactions.
The respondent's brief argues that the Water District did not demand an exaction, but merely "suggested a range of ways [the] applicant may [have] become eligible for a development permit." Br. at 40. The brief argues that because the District could have denied the permit outright, it was fine for it to "suggest" ways that the property owner could convince it to issue the permit, without needing to show that there was some relationship between the suggested mitigation measures and the justification supporting the denial. Thus this was not merely the Department being helpful, but was a "suggestion" that had the law behind it.
The District also argues that even if it was an exaction, it was "a mere obligation to spend money" on off-site mitigation, and under Eastern Enterprises v. Apfel, 534 U.S. 398 I1998), that is not a takings issue because requiring a property owner to spend money does not take any "property" --
Expanding the application of Nollan and Dolan to reach conditions on the issuance of permits that merely require the expenditure of fungible money would expose a broad range of monetary obligations—application fees, usage fees, and so forth—to heightened scrutiny under Nollan and Dolan. Petitioner suggests no limiting principle that would prevent many other fees, assessments, and taxes imposed on a daily basis, for everything from obtaining a driver’s license to traveling on a toll road or parking at a metered space, from being subjected to takings litigation. But that cannot be the law.
Br. at 48-49.
We filed an amicus brief in the case that made two points. First, that money is "property," and there's no reason why the Nollan and Dolan
tests should protect property owners only when land is demanded.
Second, that requiring the authorities to articulate the nexus and rough
proportionality of the exaction will likely improve planning
practices.
Brief for Respondent, Koontz v. St. Johns River Water Management District, No. 11-1447 (Dec. 21, 2012)
