Monumental Month for Land Use at SCOTUS

While last week's Supreme Court decisions on affirmative action in higher education, the Voting Rights Act, and same-sex marriage garnered extensive media coverage, the Court's recently-concluded term also produced a historic (though less glamorous) ruling on property rights and land use in America. In Koontz v. St. Johns River Water Management District, the Court considered the question of what concessions a local government can elicit from a property owner who seeks to develop his or her land in a way that may cause wider environmental or public harm. See Sup. Ct. Docket No. 11-1447, 570 U.S. __ (2013). Though the Koontz case involved the respondent, a land-use agency, proposing that petitioner, a Florida landowner, develop only one acre of his nearly fifteen acre wetlands parcel and and (a) conserve the rest or (b) pay for contractors to make improvements to nearby government-owned wetlands in exchange for a special permit for construction on wetlands, the case focused on whether the department's conditions for permit approval violated the Takings Clause of the Fifth Amendment. The Court, in a majority opinion written by Justice Alito, appears to expand the definition of what constitutes a governmental taking of land beyond the physical takings of property that were addressed in the previous Nollan v. California Coastal Commission and Dolan v. City of Tigard decisions to include "extortionate demands that…[do not] take property but impermissibly burden the right not to have property taken without just compensation." See 483 U.S. 825 (1987); 512 U.S. 687 (1994).

Photo Credit: Andrew Weinstein 

The expansion of what amounts to a taking and therefore must be subject to constitutional scrutiny (the standard requires a nexus or relationship between the concession sought by the government and the harm to be avoided and proportionality between the concession and harm) represents a victory for landowners and developers. However, many conservation and smart growth advocates have expressed concern that the decision prevents local governments and planning agencies from, in the words of Justice Kagan's dissent, "impos[ing] ordinary financial obligations without triggering the protections of the Takings Clause." These advocates (as well as various legal scholars) worry that policies such as mitigation banks and requirements for developers to contribute to sewage systems would be placed in the same categories as takings and property easements demanded by local governments. As with many of the landmark cases decided by the Court this term, only time will reveal the ripple effects of the ruling. In the meantime, planners, land-use authorities, and developers will likely continue to debate where "financial obligations" that are the government's prerogative to impose end and takings requiring constitutional scrutiny begin.