The brief of the American Planning Association and others is the only brief that seriously discusses the unconstitutional conditions doctrine, but it refuses to consider the doctrine outside of the pure physical takings context:
As important, the doctrinal foundation of Nollan and Dolan – this Court’s doctrine of unconstitutional conditions – simply does not permit the application of their tests to the suggested conditions at issue in this case. As the first step in any unconstitutional conditions inquiry, a claimant must demonstrate that he or she is being asked to give up a clear constitutional right in exchange for a discretionary benefit. See, e.g., Speiser v. Randall, 357 U.S. 513, 518-19 (1958). In the takings context, that requires the claimant to show that the permit condition would be a per se taking if required by the government unilaterally. See Dolan, 512 U.S. at 384; Nollan, 483 U.S. at 831. However, none of the conditions proposed by the District constitutes a per se taking, and thus Mr. Koontz’s claim fails even this threshold requirement under both Nollan and Dolan. Furthermore, applying Nollan and Dolan outside the context of per se takings would once again blur the clear line that this Court drew between the Takings Clause and the Due Process Clause in Lingle v. Chevron, 544 U.S. 528 (2005), when it overturned Agins v. City of Tiburon, 447 U.S. 255 (1980), and reaffirmed the limited reach of Nollan and Dolan.The brief various states and Puerto Rico says the Due Process Clause is the solution, but fails to connect that analysis with the unconstitutional conditions doctrine:
In contrast, the Due Process Clause provides a doctrinally sound and measured means for addressing governmental overreaching. It can be used to review abusive conditions without the contortions needed to fit monetary payments into Takings Clause jurisprudence. Moreover, due process’ more deferential review acknowledges the many private property protections that states already provide. It also promotes the policy of resolving land use disputes at the state and local levels. As Justice Alito explained, when reviewing an impact fee case while sitting on the Third Circuit, “[l]and use decisions are matters of local concern” and a federal court should not be a “zoning board of appeals." United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 402 (3d Cir. 2003).The brief of several governmental associations argues that the law is just right as it is:
Petitioner’s proposal to extend the Nollan/Dolan standards where government has denied a permit application and imposed no exaction is illogical, unworkable, and unnecessary." While it touches on the unconstitutional conditions doctrine as the basis for exactions law, it dismisses that basis as worthy of consideration: "It is undeniable the Nollan/Dolan standards involve a “special application” of this doctrine, Lingle, 544 U.S. at 547, but this case is more appropriately resolved by directly addressing the proper scope of the Nollan/Dolan standards, and the underlying rationales for these standards, rather than by resorting to abstract discussion of the unconstitutional conditions doctrine.The brief of Former Members of the National Research Council Committee on Mitigating Wetland Losses seems to miss the point that the trial court found there was no connection between the work the property owner here was asked to complete and his permit request:
In short, the sound scientific and legal framework that bounds mitigation conditions requires a reasonable relationship between wetland functions lost due to permitted activity and wetland functions to be gained through wetland mitigation permit conditions. This required nexus between wetland functions lost and gained is essential to achieving “no net loss” of wetland functions and services.Finally, the brief for United States cleverly attempts to sidestep many of the background arguments in the case by arguing that
The government’s denial of a development permit can be the basis for a Fifth Amendment claim for compensation under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), but not under an exaction-takings theory. Similarly, the exaction-takings framework does not provide the appropriate analysis for a taking premised on the government’s conditioning of a permit on the expenditure of money.
The oral argument on January 15 is approaching quickly. Your humble correspondent will be in attendance. Before then, however, we'll see the property owner's reply brief next week. In the meantime, catch up on the previous briefs in this case in my archives.