Last week, my colleague David Smolker and I filed an amicus brief before the U.S. Supreme Court in
Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012).
As we point out, the outcome of this case will be important to any landowner in the country, including average homeowners and even agricultural and recreational landowners. That may not be immediately obvious, however, because at first glance, the case might only seem to be relevant to the development community. We argued that the unconstitutional conditions doctrine protects all property owners:
Although a government may regulate the ownership of property under its police power, this Court has found it necessary to develop outer limits so that the power does not swallow property rights. This Court developed exactions law to protect property owners from a government’s extortionate leveraging of the police power to obtain benefits for which the government would otherwise have to pay for. The unconstitutional conditions doctrine provides this protection through both the Takings Clause and the Due Process Clause.
The Florida Supreme Court ignored this doctrine, which underlies this Court’s exactions jurisprudence—even though the lower appellate court extensively discussed it. See St. Johns River Water Mgmt. Dist. v. Koontz, 77 So. 3d 1220 (Fla. 2011) [Koontz V]; St. Johns River Water Mgmt. Dist. v. Koontz, 5 So. 3d 8 (Fla. 5th DCA 2009) [Koontz IV]). Instead, with little critical analysis, the Florida Supreme Court took a simplistic and flawed view of exactions that led the court to conclude that the need for government regulatory “authority and flexibility” trumps the protections of the Fifth Amendment. It held that Mr. Koontz could only challenge an unconstitutional condition related to a land use permit if he first gave in to it, and even then that only an illegitimate demand for real property could be challenged.
In response, this Court should hold that: (1) a government is liable when it refuses to issue a land use permit because the landowner refuses to accede to a permit condition that would have violated the test set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. Tigard, 512 U.S. 374 (1994); and (2) the protections of Nollan and Dolan apply to all types of governmental demands that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use. Because local government exaction practices have become so widespread, Hillcrest respectfully suggests that this Court should take this opportunity to clearly and comprehensively address the constitutional limitations governing exactions and the remedies available to landowners faced with extortionate leveraging of the police power. Experience since Nollan and Dolan strongly suggests that such guidance is necessary to ensure that government compliance with the Fifth Amendment is “more than an exercise in cleverness and imagination.” Nollan, 483 U.S. at 841.
Two other amicus briefs that have just arrived support this interpretation. The
brief of the Atlantic Legal Center, the Center for Constitutional Jurisprudence, and the Reason Foundation also discusses the unconstitutional condition doctrine in detail:
The district does not escape liability for imposing the unconstitutional condition in an attempt to cash in on its permitting power. Nollan, 483 U.S. at 837. It is the imposition of the condition, not the success or failure of compelling the applicant to sign a check or deed, that is the violation. Sherbert v. Verner, 374 U.S. 398, 403-04 (1963). Thus, in unconstitutional condition cases, the Court has recognized the availability of damage awards, voided the condition, or established a procedure to protect against the condition. When the condition has denied a constitutional right, such as an uncompensated taking, government must either lift the condition or pay compensation. Nollan, 483 U.S. at 837. The Court has not required the denial of constitutional rights before actions may be taken, however. From the earliest cases on unconstitutional conditions, the Court has allowed the voiding of the condition as a means of protecting the constitutional rights at stake. Home Ins. Co., 87 U.S. at 451. Modern cases have imposed prophylactic procedures to protect against the unconstitutional condition coming to fruition.... The district's failure to obtain the deed and cash payment from property owner here does nothing to obviate the constitutional violation.
As the
American Civil Rights Union points out, such bald denials of due process lead to violations of the Takings Clause. You can
read my quick review of the other amicus briefs here.
