Supreme Court Takes Up Takings Law

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Remember Nollan and Dolan?  The U.S. Supreme Court will decide a case which the Florida Supreme Court calls the clearest inconsistency in the interpretation of the scope of Nollan and Dolan in Koontz v. St. Johns River Water Management District.  NLC signed onto an amicus curiae brief filed by State and Local Legal Center (SLLC) in this case.

Need a Nollan and Dolan refresher?  In these cases the U.S. Supreme Court held that when the government requests the dedication of land as a condition for issuing a permit there must be an “essential nexus” between the dedication of land and denying the permit and “rough proportionality” between the dedication of land and the impact of the development.

The Supreme Court will decide two issues in Koontz v. St. Johns River Water Management District.  First, whether the “essential nexus” and “rough proportionality” tests apply to conditioning receipt of a land-use permit on paying money.  Second, whether a “taking” can occur if the government does not issue a land-use permit.  The SLLC’s amicus brief argues the answer to both questions should be no.

Mr. Koontz sought a permit to develop part of his property that involved dredging wetlands.  St. Johns asked Koontz to pay for off-site mitigation including replacing culverts or plugging drainage canals on other property a few miles away.  Koontz refused, and St. Johns never issued him a permit.  Koontz sued St. Johns for a temporary taking and was awarded almost $400,000.

The Florida Supreme Court “decline[d] to expand” Nollan and Dolan to non-dedications of land, including the requested mitigation in this case.  The Florida Supreme Court also concluded that there was no “taking” because St. John never issued the permit, and Koontz was never required to perform any off-site mitigation.  The Florida League of Cities and the Florida Association of Counties jointly filed a joint amicus brief in this case before the Florida Supreme Court.           

The SLLC’s brief argues that Nollan and Dolan should not apply to permits conditioned on money because then arguably Nollan and Dolan could apply to public taxation programs.  The SLLC’s brief argues also that Nollan and Dolan should not be applied to permit denials because doing so will discourage local government from engaging in permit negotiations.

Oral argument will be heard in this case on January 15, 2013.  The Supreme Court will issue an opinion in this case by June 30, 2013.