Worth reading: "Legislative Exactions after Koontz v. St. Johns River Management District," an article by colleagues Luke Wake and Jarod Bona, recently posted to SSRN. Here's the abstract:
Decided in June, 2013, Koontz v. St. Johns River Management District settled a long-running debate among scholars as to whether the nexus test — first pronounced in Nollan v. California Coastal Commission — applies in review of monetary exactions. In the preceding years, the lower courts had largely resolved this question in the government’s favor — limiting Nollan to its facts, and holding the nexus test inapplicable if a challenged permit requires the applicant to pay or expend money as a condition of permit approval. Further, the trend among the lower courts held the nexus test inapplicable in review of legislatively imposed exactions, regardless of whether the contested condition requires a dedication of real property or money.
Without question, Koontz has set the monetary exactions issue to rest. The Supreme Court squarely repudiated those cases holding the nexus test inapplicable. But the question remains as to whether the nexus test applies in review of legislatively imposed exactions. Accordingly, this article examines the theoretical foundations underpinning Koontz; we conclude that those doctrinal principles ultimately dictate that the nexus test applies in review of legislatively imposed exactions.
Further, we address other recurring questions in land-use permitting cases, including the legality of aviation and open-space dedication requirements, and the constitutionality of affordable housing linkage fees. We conclude that, in the wake of Koontz, the nexus test should apply whenever the government demands such exactions as a condition of permit approval. The Takings Clause prevents permitting authorities from requiring permit applicants to give up any interest in property — including the dedication of negative easements, or the dedication of money into any sort of public fund — unless the permitting authority can demonstrate that those conditions are necessary to proportionally mitigate negative externalities from the proposed project.
Jarod also summarized the article on his blog here ("Takings and the Supreme Court’s Decision in Koontz v. St. Johns River Management District").
There have been more than a few articles published recently about Koontz and the future of the exactions doctrine, and we will post links to those soon. But we think that Luke and Jarod's article is particularly worthy. Check it out.
