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).