January 19, 2021

Volume XI, Number 19

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January 18, 2021

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U.S. Supreme Court Backs Landowner in Major Takings Case

The Supreme Court yesterday expanded private property rights in a major takings case that arose from the Florida state courts. The Court held in Koontz v. St. Johns River Water Management District that not only does the Constitution’s Takings Clause apply to situations where a project is approved with “extortionate” conditions but it also applies where a project is denied because the owner refuses to accede to coercive property demands of the government.

And the Court further held that the Takings Clause protection applies to monetary exactions as well as real property exactions.

Koontz had sought permission to develop a small portion of a 15-acre tract in the Orlando area. Because of wetlands on the site, Koontz offered to convey 11 of his acres as a conservation easement over to the District. In the back-and-forth negotiation, the District made clear it would only approve the project if Koontz also paid to enhance a 50-acre wetland owned by the District several miles away.

Believing the government’s mitigation demands excessive given the environmental impact of his building proposal, Koontz filed suit in state court. He claimed a taking under the Supreme Court’s Nollan (1987) and Dolan (1994) decisions. In those cases, however, the Court was dealing with project approvals, not denials, in which conditions that went “too far” were attached to the approvals. And the conditions involved real property easements; they did not also involve monetary exactions. The Nollan/Dolan rule basically says that a condition attached to a project approval must have an essential “nexus” and “rough proportionality” between the government’s demand and the project’s impact on the public.

The Supreme Court has now extended the Nollan/Dolan per se takings rule to cover projects that are turned aside because an owner refuses to be forced to accept unconstitutional conditions in order to receive its applied for land use approval. And the Court has made clear that property is property, be it real estate or money. After all, in the real world, a land use exaction is a land use exaction regardless of the form it takes.

The author of this alert was deeply involved in the Nollan case on behalf of the owners at the Supreme Court level. It has taken 26 years for the Court to say what many thought back in 1987, and now the lower courts have clear direction as to the proper application of the Constitution’s Takings Clause in the land use exactions context.

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© 2020 Beveridge & Diamond PC National Law Review, Volume III, Number 177
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About this Author

Brian C. Levey Real Estate Attorney Beveridge & Diamond Boston, MA & Framingham, MA
Principal

Brian has more than 20 years of project development experience before permit-granting authorities and in court.

Permitting

Brian's real estate development and land use and zoning law experience focuses on the representation of builders, developers, and property owners seeking all types of permits and approvals — special permits, site plan approvals, variances, and comprehensive permits — before dozens of boards throughout ...

617-419-2333
Gus B. Bauman Land Use & Environmental Attorney Beveridge & Diamond Washington, DC
Of Counsel

Gus Bauman has served as land use or environmental counsel in both the public and private sectors, holding significant leadership positions and acting as co-counsel in Supreme Court cases.

He was inspired to become a lawyer during the 1960s, a time when he met JFK, loved “The Defenders” on television, read “To Kill a Mockingbird,” and attended a KKK rally in his hometown as an observer for the morning newspaper. He is an Eagle Scout who eschews ideological posturing, listens carefully to his clients, and offers experienced judgment. The United States Supreme Court has cited Gus’s...

202-789-6013
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