Foundation Urges Supreme Court to Overturn Decision in Regulatory Takings Case

Atlantic Legal has filed an amicus brief in Koontz v. St. Johns River Water Management District in the Supreme Court of the United States, a constitutional challenge to a requirement that a landowner make improvements to government-owned property located nowhere near his proposed development in order to receive a government permit for proceeding with his own project.

For over eleven years, a Florida land use agency refused to issue the permits necessary for Coy A. Koontz, Sr. to develop his commercial property, because Koontz would not accede to a permit condition requiring him to make improvements to 50 acres of government-owned property located miles away from his projecta condition that was determined to be wholly unrelated to any impacts caused by Koontzs proposed development.

A Florida trial court ruled that the agencys refusal to issue the permits was invalid and effected a temporary taking of Koontzs property, and awarded compensation. After the appellate court affirmed, the Florida Supreme Court reversed, holding that, as a matter of federal takings law, a landowner can never state a claim for a taking where (1) a permit is not issued based on a landowners objection to an excessive exaction, and (2) the exaction demands payment of money, rather than dedication of personal property to the public.

The questions presented are:

1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and

2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money or any other type of personal property, not real estate, to a public use.

Atlantic Legal partnered with the Center for Constitutional Jurisprudence, the public interest law arm of the Claremont Institute, and the Reason Foundation, a national, nonpartisan and nonprofit think tank.

Amici contend that (i) regulatory limits on economic use of property are as much takings as are physical appropriations, and that (ii) the Florida authorities imposed unconstitutional conditions on the use of the Koontz property.

To view our brief, please click here.