Real Estate Law

Fenster on Exactions Takings - Looking Ahead to Supreme Court Review of Koontz v. St. Johns River Water Management District

By Mark Fenster

In Koontz v. St. Johns River Water Management District, the U.S. Supreme Court will have the opportunity to clarify two regulatory takings issues: whether Nollan and Dolan apply to money exactions, and whether they apply to exactions that fail at the negotiation stage. In this Analysis, Mark Fenster, Cone, Wagner, Nugent, Hazouri & Roth Tort Professor at the Levin College of Law, University of Florida, examines these issues and discusses why the court's decision may reinvigorate the regulatory takings doctrine after more than a decade of relative quiet.


He writes: 

"By granting certiorari in Koontz v. St. Johns River Water Management District, the U.S. Supreme Court has the opportunity to clarify two issues in a murky little corner of the regulatory takings doctrine. In Nollan v. California Coastal Commission (1987) [enhanced version available to lexis.com subscribers] and Dolan v. City of Tigard (1994) [enhanced version], the Court established a qualitative and quantitative framework for judicial review under the Fifth Amendment's Takings Clause that applies to exactions, the regulatory conditions that government agencies attach to approvals of a property owner's application to intensify land use. Courts have long split on the precise scope of that framework's application, however, leaving a number of issues subject to uneven treatment in state courts and federal circuits.

"In its 2011 decision in St. Johns River Water Management District v. Koontz [enhanced version], in which a property owner challenged a regulatory agency's denial of his permit application following negotiations over exactions that failed, the Florida Supreme Court resolved two of those issues, both in favor of the respondent Water Management District. The U.S. Supreme Court accepted both issues for review. A large number of courts has ruled on one of these issues - whether Nollan and Dolan apply to money exactions (as opposed to land exactions, which both earlier decisions concerned) is fairly straightforward, thus providing both sides with ample support and arguments. But the other issue, whether Nollan and Dolan apply to exactions that fail at the negotiation stage, raises far more complex questions and has been much less developed in case law and scholarship. Because of the doctrinal and conceptual complexity of the latter issue in particular, the Court's decision in Koontz may not only resolve technical questions about Nollan and Dolan's scope of application, but it may also reveal whether and how the Court's conservative majority might reinvigorate the regulatory takings doctrine after more than a decade of relative quiet."

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