June 25, 2013

Supreme Court Expands Takings Test

The American Planning Association is disappointed with the Court's decision.

CHICAGO — The American Planning Association (APA) is disappointed with the U.S. Supreme Court's decision in Koontz v. St. Johns River Water Management District. The 5-4 decision is an unnecessary blow to state and local governments attempting to reduce development impacts on the environment as well as engage in good-faith discussions with landowners to determine appropriate mitigation efforts.

The decision expands the "essential nexus" and "rough proportionality" takings tests of the Court's previous decisions in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994).

"The Court's decision today has jeopardized local governments' ability to ensure that the costs of new development are fairly born by its developers and users," said W. Paul Farmer, FAICP, CEO of the American Planning Association. "The decision will instill fear in local agencies to even begin mitigation discussions with landowners and discourages them from seeking ways to allow development to actually proceed. The four dissenting justices suggest one course of action: 'Deny the permits.' The majority decision leaves no one certain of which discussions — or required payments — may be subject to heightened scrutiny."

Coy A. Koontz wanted to develop 3.7 acres of his property, and 3.4 of the acres were protected wetlands. The district offered a list of mitigation measures as well as solicited mitigation suggestions from the landowner. Koontz rejected the proposed mitigation measures and did not suggest any alternative measures of his own, so the district denied his request. Koontz asked the Court to greatly expand application of its holdings in both Nollan and Dolan beyond exactions of real property as a condition of a permit granted.

This decision that now remands this case to the Florida Supreme Court creates a terrible precedent allowing landowners to determine what they feel are sufficient mitigation efforts. "The Court has created a conflict of interest," said Farmer. "Of course too many landowners will select the easiest and cheapest mitigation approach, without concern for results. If a local agency disagrees, the landowner is emboldened to sue."

Patricia E. Salkin, dean and professor of law at Touro College's Jacob D. Fuchsberg Law Center and chair of APA's Amicus Curiae Committee, adds: "Projects are often improved through conversations among the parties. These conversations will now occur less often given today's ruling, even though the decision seems to protect traditional right of way dedications and 'responsible land-use policy' requiring that 'landowners internalize the negative externalities of this conduct ...'"

APA along with the City of New York and the National Trust for Historic Preservation submitted an amicus brief highlighting the mismatch between the petitioner's assumptions and the facts of the case.

In its brief, APA wrote "Both Nollan and Dolan concerned finalized conditions — instances in which a permit was approved and specific conditions were attached. Under Mr. Koontz's theory, any failed negotiation could serve as the basis of a constitutional challenge based on little more than the informal offers of a government agency."

The brief further highlighted the difficulty of applying the Nollan and Dolan takings tests before any particular development condition has been imposed and argued the tests could not apply to the storm water management systems or wetlands enhancement work suggested by the district. The brief was written by the Constitutional Accountability Center to the Court.

Read APA's amicus brief at www.planning.org/amicus/pdf/koontz.pdf.


Roberta Rewers, APA Public Affairs; 312-786-6395; rrewers@planning.org