![]() proposed development. rough proportionality" test to coercive demands for monetary exactions. Koontz, the landowner, wanted to develop commercially zoned property and needed a permit from the controlling water management district to fill some on-site protected wetlands. Koontz offered to convey to the District a sizable conservation easement over the property. The District rejected the proposal, instead demanding payment to improve offsite District-owned wetlands. The Florida Court denied Koontz's takings claim because it concluded that Nollan/ Dolan only applied when the government approved a permit, not when it denied a permit. property was ever taken. On appeal, the Supreme Court held that no matter whether the benefit was granted or denied, imposing an unconstitutional condition forced the owner into forfeiting a constitutional right in violation of the exactions doctrine. demand violated the takings clause when admittedly "`no property of any kind was ever taken." identifiable property interest in a specific parcel of property, directing the owner to make a payment to secure development approvals. Assoc. v. City of San Jose, 61 Cal. 4th pending Supreme Court review, have limited the exactions doctrine to conditions negotiated in administrative proceedings not conditions imposed by ordinance or legislation. of housing available to low- and moderate-income residents. To address this problem, California municipalities adopted "inclusionary zoning" or housing statutes requiring developers to set aside a certain percentage of housing units for low- and moderate-income residents. San Jose's inclusionary zoning ordinance required developers to set aside 15 percent of their newly-built homes for low- and moderate-income housing. Instead of setting aside residential units, developers could pay an in-lieu monetary fee. San Jose held that Nollan/Dolan only applied to administratively imposed conditions, not conditions imposed by ordinances or legislation. To an owner, this is a distinction without a difference. Whether the Supreme Court will also recognize this distinction is uncertain. The Fifth Amendment's Takings Clause prohibits a deprivation of "life, liberty, or property, without due process of law" and is concerned with the impact of governmental action on property rights, not with whether it is administratively or legislatively caused. Takings jurisprudence has focused on the functional effect of land use restrictions rather than how the land use restrictions were adopted. The Court has looked to "the magnitude...of the burden a particular regulation imposes upon private property rights." infrastructure improvements costs which Takings claims have long been remedies for private property owners who are forced "to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." remarkable string of victories in takings cases in recent years, but the Supreme Court may well strike down San Jose. This area of the law is still unsettled. Understanding federal and state regulatory takings case law is critical for local governmental entities, private real estate developers, and their counsel, to make sense of this constantly changing area of the law. 2 Id. at 837. 3 Id. at 838-39. 4 Id. at 836, n.4. 5 Dolan, 512 U.S. at 377. 6 Id. at 386. 7 Id. at 391. 8 Id. 9 Id. at 395. 10 St. Johns River Water Management District v. Koontz, Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 698 (1999). 5th DCA 2009) decision quashed, 77 So. 3d 1220 (Fla. 2011) rev'd, 133 S. Ct. 2586 (2013)(Griffin, J., dissenting)); see also Koontz, 77 So. 3d at 1229-1230. 14 Petition for Writ of Certiorari, California Bldg. Indus. (U.S. Sep. 14, 2015). 16 Armstrong v. United States, 364 U.S. 40, 49 (1960). |