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Commentary: The takings clause meets the Roberts Court

Monday, January 14, 2013
At the heart of almost every takings clause case is the question of whether landowners have an absolute right to use their property as they see fit, or whether the government can impose limits designed to mitigate the cost of the development on the community at large. That is the question at the center of Koontz v. St. Johns River Water Management District, which will be heard next Tuesday by the Supreme Court. The resolution of this case will reveal a great deal about how the Court under the leadership of Chief Justice John Roberts Jr. will strike this balance. 
 
In one of her last—and finest—opinions for the Supreme Court, Justice Sandra Day O'Connor, writing for a unanimous Court in Lingle v. Chevron (2005), effectively solved the puzzle of when a government regulation of property use constitutes a "taking" of property in violation of the Constitution's takings clause. Eighty-three years after Justice Oliver Wendell Holmes introduced the notion of a "regulatory taking" with his rhetorically effective, but notoriously vague, assertion that regulations constitute takings when they "go too far," O'Connor clarified that regulations "go too far" only when their impact on the property owner is "functionally equivalent" to the "classic taking in which government directly appropriates private property." 
 
Lingle imposed doctrinal coherence upon this previously very messy corner of constitutional law. It did so both by embracing functional equivalency as the "common touchstone" for all takings tests, and by jettisoning prior statements by the Supreme Court suggesting that a takings could be found whenever a government regulation did not "substantially advance a legitimate state interest." Lingle held that because this "substantially advance" formulation focused on the sensibility of the government action, rather than on the regulation's impact on a property owner, it did "not help to identify those regulations whose effects are functionally comparable to government appropriation or invasion of private property," and was "tethered neither to the text of the Takings Clause nor to the basic justification for allowing regulatory actions to be challenged under the Clause." 
 
Lingle made sense out of takings law, but it did not make the development community happy. In particular, Lingle was a blow to the Pacific Legal Foundation (PLF), a conservative legal shop that has worked for decades to turn the takings clause into a constitutional barrier to environmental protection. Since the moment it was decided, PLF has been casting about for ways to chip away at Lingle, and Coy Koontz Jr.'s case, brought by PLF, is the first big takings case to land before the Roberts Court. The question presented by Koontz is whether the doctrinal coherence introduced by Lingle survives the changes in the composition of the court that began with the announcement of O'Connor's retirement shortly after Lingle was released. 
 
Coy Koontz, Sr., was a developer who sought a permit to dredge and fill more than three acres of wetlands located within a special protected zone around the Econlockhatchee River in Florida. Recognizing the critical role wetlands play in preventing floods and filtering pollution from surface and groundwater, Florida has adopted a permitting process designed to minimize the loss of valuable wetlands and, where destruction is permitted, impose mitigating conditions that create or restore other wetlands in the region. This permitting process is hardly onerous—the scientist assigned by the St. Johns River Water Management District to Koontz's case had handled more than one thousand permit applications and, prior to Koontz's case, had never recommended a permit denial. But Koontz had no interest in negotiating with the district, and after he rejected a series of mitigation measures suggested by the district—including one offer that his own engineer described as "excellent"—the district denied Koontz's permit application. Koontz then sued, alleging a regulatory taking. Because Koontz died during the course of this litigation, his claim is being pursued by his son, Coy Koontz, Jr. 
 
The problem for Koontz is that the district took absolutely nothing from him. He was left after the permit denial with the same wetlands property he had before starting the permit application. Moreover, the permit process revealed that the district was more than willing to let Koontz make some use of his land, making it impossible for him to show that the district's permit denial constituted the "functional equivalent" of an actual expropriation of property. Under Lingle, Koontz's takings claim was a non-starter. 
 
To avoid Lingle's limits, PLF has reframed Koontz's claim as a challenge to the mitigation measures suggested by the district in order to allow the development on his property to go forward. This ploy by PLF is designed to allow it to take advantage of the specialized tests developed by the Supreme Court in two cases—Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994)—involving dedications of land demanded by the government as a condition of granting a development permit. Decided at the zenith of a significant expansion of regulatory takings law by the Rehnquist Court, Nollan and Dolan require the government to demonstrate that the dedication demanded bears a "substantial nexus" and "rough proportionality" to the costs imposed upon the community by the proposed development. While Nollan and Dolan both involved dedications of land, PLF argues for an expansion of the application of these tests to cover all sorts of conditions, not just land dedications, and they assert that these tests can even apply to conditions suggested by the government in a permit negotiation process but never actually imposed. 
 
Again, however, Lingle stands squarely in PLF's path. As the Lingle court recognized, Nollan and Dolan were both rooted, at least in part, on the very same "substantially advance" test that the Lingle court jettisoned. As a result, the Lingle court specifically addressed the continued validity of Nollan and Dolan and explicitly limited their application to permit conditions that are per se takings (meaning the condition would unquestionably be a taking of property if unilaterally imposed). While dedications of land are paradigmatic examples of per se takings, none of the proposed conditions in Koontz, which focused mainly on work that could have been performed on-site to improve Koontz's remaining wetlands or off-site to improve the functioning of other wetlands in the Econlockhatchee River basin, comes close to being a per se takings. 
 
Koontz thus provides a clean test of whether the Roberts Court will follow the Constitution's text and the court's recent precedent, or bend the law to rule for a leading conservative interest group. Environmental safeguards, and the court's own reputation, hang in the balance. 
 
Doug Kendall is the founder and president of the Constitutional Accountability Center (CAC). CAC filed an amicus brief in Koontz on behalf of the American Planning Association, the city of New York and the National Trust for Historic Preservation.