Some things are constant: the speed of light, the sun rises in the east. And Professor John Echeverria, the well-known environmental lawprof, has never met a taking he's liked.
Even if that means disagreeing in one takings case with Justice Ginsburg writing for a unanimous Supreme Court, the unanimous Court in another takings case, or, as in his op-ed in today's New York Times, "A Legal Blow to Sustainable Development," it means arguing that the Court's ruling in Koontz v. St. Johns Water Management District, No. 11-1147 (June 25, 2013) says what it doesn't necessarily say.
The op-ed merits careful reading.
First, he argues that "[t]he district made clear that it was willing to grant the permit if Mr. Koontz agreed to reduce the size of the development or spend money on any of a variety of wetlands-restoration projects designed to offset the project's environmental effects." Wait, the District's property, miles away, was affected by Koontz's project? Not really, but as Justice Alito wrote for the Koontz majority, "the District told petitioner that he could proceed with the development as proposed, building on 3.7 acres and deeding a conservation easement to the government on the remainder of the property, if he also agreed to hire contractors to make improvements to District-owned land several miles away." Slip op. at 5. The essence of Koontz's Nollan/Dolan argument is that his project has nothing to do with the District's land, so let's not confuse the situation by suggesting that the District's demand was objectionable because it was related to Koontz's project.
Second, the op-ed argues that the Court's ruling that a property owner can challenge the government's demand (and does not have to first accept the condition), will cause "serious real-world damage." This overlooks the fact that all nine Justices agreed with Koontz that a permit applicant need not accept the permit with the offensive conditions in order to challenge it because it's asking a property owner to choose between her rights and a permit is the wrongful act. As Justice Kagan wrote in dissent:
I think the Court gets the first question it addresses right. The Nollan-Dolan standard applies not only when the government approves a development permit conditioned on the owner’s conveyance of a property interest (i.e., imposes a condition subsequent), but also when the government denies a permit until the owner meets the condition (i.e., imposes a condition precedent). That means an owner may challenge the denial of a permit on the ground that the government’s condition lacks the "nexus" and "rough proportionality" to the development’s social costs that Nollan and Dolan require. Still, the condition-subsequent and condition-precedent situations differ in an important way. When the government grants a permit subject to the relinquishment of real property, and that condition does not satisfy Nollan and Dolan, then the government has taken the property and must pay just compensation under the Fifth Amendment. But when the government denies a permit because an owner has refused to accede to that same demand, nothing has actually been taken. The owner is entitled to have the improper condition removed; and he may be entitled to a monetary remedy created by state law for imposing such a condition; but he cannot be entitled to constitutional compensation for a taking of property. So far, we all agree.
Dissent at 1-2. The dissenters' only beef was the majority's conclusion that a demand for money in return for development approvals is the same as a demand for land. So whatever "real-world damage" that Koontz might cause (and it likely won't, see below) it's something that the entire Court is responsible for, at least to the extent that it purportedly ties government's hands by making it too concerned about being subject to claims merely for negotiating.
Third, what about Justice Kagan's claim that the sky will fall because demands for money are subject to the nexus and proportionality requirements? The majority rejected the dissent's assertion, echoed by Professor Echeverria, that Koontz "will 'work a revolution in land-use law.'" Justice Alito noted that several of the most populous jurisdictions have held monetary exactions to Nollan and Dolan's standards for some time and planning has not ground to a halt, or permits simply denied. Moreover, as we pointed out in our amicus brief, not only has planning as we know it not ended in these jurisdictions, requiring government show a nexus and rough proportionality has actually resulted in a better planning environment by making the rules more concrete and the process more transparent. As our law partner commented, landowners don't want takings claims, they want to know the rules.
As a 2001 U.C. Davis Law Review study of California planners' reactions to Nollan and Dolan concluded, "the requirements of Nollan and Dolan seem to have nudged developing communities into more systematic, comprehensive planning through the preparation of reports and studies documenting the rationale for exacting money and land from developers. Perhaps surprisingly, a large majority of California planners view the Supreme Court decisions as establishing 'good planning practices.'" It also concluded that built-out communities may "lose the ability to exact land or higher fees from developers in order to pay for unfunded infrastructure needs." Those are the situations in which the Armstrong rationale (forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole) tells us that taxes and eminent domain is the proper means to fund and build, not individual exactions.
Fourth, what of Professor Echeverria's assertion that the Court shifted the burden in Koontz from the property owner to the government?
While, to be sure, such mandates must be reasonable under the Constitution, the revolutionary and destructive step taken by the court in Koontz is to cast the burden on the government to justify the mandates according to the heightened Nollan-Dolan standard. This is contrary to the traditional court approach of according deference to elected officials and technical experts on issues of regulatory policy.
Notice the sleight-of-hand. Only by conflating as-applied challenges (subject to Nollan/Dolan) with facial challenges (which some courts have held are subject only to rational basis review), and "technical experts" (your local municipal planners) with elected officials (legislators), can he argue that Koontz is "revolutionary." What he fails to mention is that the government has always borne the burden, at least since Dolan:
But, on the record before us, the city has not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by the petitioner's development reasonably relate to the city's requirement for a dedication of the pedestrian/bicycle pathway easement.
And even he acknowledges that the government bears the burden: "[Nollan and Dolan] established that when the government approved a development subject to certain conditions, like a requirement that a developer dedicate an easement to the public, the conditions would be deemed an appropriation of private property unless the government could show a logical relationship and a 'rough proportionality' between the conditions imposed and the projected effects of the development." Is Koontz "revolutionary?" Hardly.
This ties into our last point. The post-opinion commentary that Koontz will unduly bind the hands of land regulators (see the APA's statement, and this article, for example) isn't a serious concern. Chilling the fervor of the government is just what the provisions in the Bill of Rights are supposed to do, and fidelity to the Constitution's protections is more important than insulating government's freedom to bargain from reasonable restraints. As Justice William Brennan (that well-known conservative Justice) once wrote:
Even if I were to concede a role for policy considerations, I am not so sure that they would militate against requiring payment of just compensation. Indeed, land-use planning commentators have suggested that the threat of financial liability for unconstitutional police power regulations would help to produce a more rational basis of decisionmaking that weighs the costs of restrictions against their benefits. . . . Such liability might also encourage municipalities to err on the constitutional side of police power regulations, and to develop internal rules and operating procedures to minimize overzealous regulatory attempts. . . . After all, a policeman must know the Constitution, then why not a planner? In any event, one may wonder as an empirical matter whether the threat of just compensation will greatly impede the efforts of planners.
San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 661 n.26 (1981) (Brennan, J., dissenting). Moreover, remember that Nollan and Dolan do not prohibit exactions but merely condition their imposition on the government first articulating their justifications. And planners and municipal lawyers are nothing if they aren't creative when it comes to getting the goodies.
So in sum, we get it: the good professor disagrees with the ruling. But we didn't need the op-ed to have predicted that.
