Koontz v. St. Johns River Water Management Dist.
570 U.S. ___ (2013)

Annotate this Case



No. 11–1447



on writ of certiorari to the supreme court of florida

[June 25, 2013]

     Justice Kagan, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, dissenting.

     In the paradigmatic case triggering review under Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987) , and Dolan v. City of Tigard, 512 U. S. 374 (1994) , the government approves a building permit on the condition that the landowner relinquish an interest in real property, like an easement. The significant legal questions that the Court resolves today are whether Nollan and Dolan also apply when that case is varied in two ways. First, what if the government does not approve the permit, but instead demands that the condition be fulfilled before it will do so? Second, what if the condition entails not transferring real property, but simply paying money? This case also raises other, more fact-specific issues I will address: whether the government here imposed any condition at all, and whether petitioner Coy Koontz suffered any compensable injury.

     I think the Court gets the first question it addresses right. The Nollan-Dolan standard applies not only when the government approves a development permit conditioned on the owner’s conveyance of a property interest (i.e., imposes a condition subsequent), but also when the government denies a permit until the owner meets the condition (i.e., imposes a condition precedent). That means an owner may challenge the denial of a permit on the ground that the government’s condition lacks the “nexus” and “rough proportionality” to the development’s social costs that Nollan and Dolan require. Still, the condition-subsequent and condition-precedent situations differ in an important way. When the government grants a permit subject to the relinquishment of real property, and that condition does not satisfy Nollan and Dolan, then the government has taken the property and must pay just compensation under the Fifth Amendment. But when the government denies a permit because an owner has refused to accede to that same demand, nothing has actually been taken. The owner is entitled to have the improper condition removed; and he may be entitled to a monetary remedy created by state law for imposing such a condition; but he cannot be entitled to constitutional compensation for a taking of property. So far, we all agree.

     Our core disagreement concerns the second question the Court addresses. The majority extends Nollan and Dolan to cases in which the government conditions a permit not on the transfer of real property, but instead on the payment or expenditure of money. That runs roughshod over Eastern Enterprises v. Apfel, 524 U. S. 498 (1998) , which held that the government may impose ordinary financial obligations without triggering the Takings Clause’s protections. The boundaries of the majority’s new rule are uncertain. But it threatens to subject a vast array of land-use regulations, applied daily in States and localities throughout the country, to heightened constitutional scrutiny. I would not embark on so unwise an adventure, and would affirm the Florida Supreme Court’s decision.

     I also would affirm for two independent reasons establishing that Koontz cannot get the money damages he seeks. First, respondent St. Johns River Water Management District (District) never demanded anything (including money) in exchange for a permit; the Nollan-Dolan standard therefore does not come into play (even assuming that test applies to demands for money). Second, no taking occurred in this case because Koontz never acceded to a demand (even had there been one), and so no property changed hands; as just noted, Koontz therefore cannot claim just compensation under the Fifth Amendment. The majority does not take issue with my first conclusion, and affirmatively agrees with my second. But the majority thinks Koontz might still be entitled to money damages, and remands to the Florida Supreme Court on that question. I do not see how, and expect that court will so rule.


     Claims that government regulations violate the Takings Clause by unduly restricting the use of property are generally “governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978) .” Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 538 (2005) . Under Penn Central, courts examine a regulation’s “character” and “economic impact,” asking whether the action goes beyond “adjusting the benefits and burdens of economic life to promote the common good” and whether it “interfere[s] with distinct investment-backed expectations.” Penn Central, 438 U. S., at 124. That multi-factor test balances the government’s manifest need to pass laws and regulations “adversely affect[ing]. . . economic values,” ibid., with our longstanding recognition that some regulation “goes too far,” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922) .

     Our decisions in Nollan and Dolan are different: They provide an independent layer of protection in “the special context of land-use exactions.” Lingle, 544 U. S., at 538. In that situation, the “government demands that a landowner dedicate an easement” or surrender a piece of real property “as a condition of obtaining a development permit.” Id., at 546. If the government appropriated such a property interest outside the permitting process, its action would constitute a taking, necessitating just compensation. Id., at 547. Nollan and Dolan prevent the government from exploiting the landowner’s permit application to evade the constitutional obligation to pay for the property. They do so, as the majority explains, by subjecting the government’s demand to heightened scrutiny: The government may condition a land-use permit on the relinquishment of real property only if it shows a “nexus” and “rough proportionality” between the demand made and “the impact of the proposed development.” Dolan, 512 U. S., at 386, 391; see ante, at 8. Nollan and Dolan thus serve not to address excessive regulatory burdens on land use (the function of Penn Central), but instead to stop the government from imposing an “unconstitutional condition”—a requirement that a person give up his constitutional right to receive just compensation “in exchange for a discretionary benefit” having “little or no relationship” to the property taken. Lingle, 544 U. S., at 547.

     Accordingly, the Nollan-Dolan test applies only when the property the government demands during the permitting process is the kind it otherwise would have to pay for—or, put differently, when the appropriation of that property, outside the permitting process, would constitute a taking. That is why Nollan began by stating that “[h]ad California simply required the Nollans to make an easement across their beachfront available to the public . . . , rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking” requiring just compensation. 483 U. S., at 831. And it is why Dolan started by maintaining that “had the city simply required petitioner to dedicate a strip of land . . . for public use, rather than conditioning the grant of her permit to [d]evelop her property on such a dedication, a taking would have occurred.” 512 U. S., at 384. Even the majority acknowledges this basic point about Nollan and Dolan: It too notes that those cases rest on the premise that “if the government had directly seized the easements it sought to obtain through the permitting process, it would have committed a per se taking.” Ante, at 14–15. Only if that is true could the government’s demand for the property force a landowner to relinquish his constitutional right to just compensation.

     Here, Koontz claims that the District demanded that he spend money to improve public wetlands, not that he hand over a real property interest. I assume for now that the District made that demand (although I think it did not, see infra, at 12–16.) The key question then is: Independent of the permitting process, does requiring a person to pay money to the government, or spend money on its behalf, constitute a taking requiring just compensation? Only if the answer is yes does the Nollan-Dolan test apply.

     But we have already answered that question no. Eastern Enterprises v. Apfel, 524 U. S. 498 , as the Court describes, involved a federal statute requiring a former mining company to pay a large sum of money for the health benefits of retired employees. Five Members of the Court determined that the law did not effect a taking, distinguishing between the appropriation of a specific property interest and the imposition of an order to pay money. Justice Kennedy acknowledged in his controlling opinion that the statute “impose[d] a staggering financial burden” (which influenced his conclusion that it violated due process). Id., at 540 (opinion concurring in judgment and dissenting in part). Still, Justice Kennedy explained, the law did not effect a taking because it did not “operate upon or alter” a “specific and identified propert[y] or property right[ ].” Id., at 540–541. Instead, “[t]he law simply imposes an obligation to perform an act, the payment of benefits. The statute is indifferent as to how the regulated entity elects to comply or the property it uses to do so.” Id., at 540. Justice Breyer, writing for four more Justices, agreed. He stated that the Takings Clause applies only when the government appropriates a “specific interest in physical or intellectual property” or “a specific, separately identifiable fund of money”; by contrast, the Clause has no bearing when the government imposes “an ordinary liability to pay money.” Id., at 554–555 (dissenting opinion).

     Thus, a requirement that a person pay money to repair public wetlands is not a taking. Such an order does not affect a “specific and identified propert[y] or property right[ ]”; it simply “imposes an obligation to perform an act” (the improvement of wetlands) that costs money. Id., at 540–541 (opinion of Kennedy, J.). To be sure, when a person spends money on the government’s behalf, or pays money directly to the government, it “will reduce [his] net worth”—but that “can be said of any law which has an adverse economic effect” on someone. Id., at 543. Because the government is merely imposing a “general liability” to pay money, id., at 555 (Breyer, J., dissenting)—and therefore is “indifferent as to how the regulated entity elects to comply or the property it uses to do so,” id., at 540 (opinion of Kennedy, J.)—the order to repair wetlands, viewed independent of the permitting process, does not constitute a taking. And that means the order does not trigger the Nollan-Dolan test, because it does not force Koontz to relinquish a constitutional right.

     The majority tries to distinguish Apfel by asserting that the District’s demand here was “closely analogous” (and “bears resemblance”) to the seizure of a lien on property or an income stream from a parcel of land. Ante, at 16, 19. The majority thus seeks support from decisions like Armstrong v. United States, 364 U. S. 40 (1960) , where this Court held that the government effected a taking when it extinguished a lien on several ships, and Palm Beach Cty. v. Cove Club Investors Ltd., 734 So. 2d 379 (1999), where the Florida Supreme Court held that the government committed a taking when it terminated a covenant entit-ling the beneficiary to an income stream from a piece of land.

     But the majority’s citations succeed only in showing what this case is not. When the government dissolves a lien, or appropriates a determinate income stream from a piece of property—or, for that matter, seizes a particular “bank account or [the] accrued interest” on it—the government indeed takes a “specific” and “identified prop- erty interest.” Apfel, 524 U. S., at 540–541 (opinion of Kennedy, J.). But nothing like that occurred here. The District did not demand any particular lien, or bank account, or income stream from property. It just ordered Koontz to spend or pay money (again, assuming it ordered anything at all). Koontz’s liability would have been the same whether his property produced income or not—e.g., even if all he wanted to build was a family home. And similarly, Koontz could meet that obligation from what-ever source he chose—a checking account, shares of stock, a wealthy uncle; the District was “indifferent as to how [he] elect[ed] to [pay] or the property [he] use[d] to do so.” Id., at 540. No more than in Apfel, then, was the (supposed) demand here for a “specific and identified” piece of property, which the government could not take without paying for it. Id., at 541.

     The majority thus falls back on the sole way the District’s alleged demand related to a property interest: The demand arose out of the permitting process for Koontz’s land. See ante, at 16–17. But under the analytic framework that Nollan and Dolan established, that connection alone is insufficient to trigger heightened scrutiny. As I have described, the heightened standard of Nollan and Dolan is not a freestanding protection for land-use permit applicants; rather, it is “a special application of the doctrine of unconstitutional conditions, which provides that the government may not require a person to give up a constitutional right—here the right to receive just compensation when property is taken”—in exchange for a land-use permit. Lingle, 544 U. S., at 547 (internal quotation marks omitted); see supra, at 3–5. As such, Nollan and Dolan apply only if the demand at issue would have violated the Constitution independent of that proposed exchange. Or put otherwise, those cases apply only if the demand would have constituted a taking when executed outside the permitting process. And here, under Apfel, it would not. [ 1 ]

     The majority’s approach, on top of its analytic flaws, threatens significant practical harm. By applying Nollan and Dolan to permit conditions requiring monetary payments—with no express limitation except as to taxes—the majority extends the Takings Clause, with its notoriously “difficult” and “perplexing” standards, into the very heart of local land-use regulation and service delivery. 524 U. S., at 541. Cities and towns across the nation impose many kinds of permitting fees every day. Some enable a government to mitigate a new development’s impact on the community, like increased traffic or pollution—or destruction of wetlands. See, e.g., Olympia v. Drebick, 156 Wash. 2d 289, 305, 126 P. 3d 802, 809 (2006). Others cover the direct costs of providing services like sewage or water to the development. See, e.g., Krupp v. Breckenridge Sanitation Dist., 19 P. 3d 687, 691 (Colo. 2001). Still others are meant to limit the number of landowners who engage in a certain activity, as fees for liquor licenses do. See, e.g., Phillips v. Mobile, 208 U. S. 472, 479 (1908) ; BHA Investments, Inc. v. Idaho, 138 Idaho 348, 63 P. 3d 474 (2003). All now must meet Nollan and Dolan’s nexus and proportionality tests. The Federal Constitution thus will decide whether one town is overcharging for sewage, or another is setting the price to sell liquor too high. And the flexibility of state and local governments to take the most routine actions to enhance their communities will diminish accordingly.

     That problem becomes still worse because the majority’s distinction between monetary “exactions” and taxes is so hard to apply. Ante, at 18. The majority acknowledges, as it must, that taxes are not takings. See ibid. (This case “does not affect the ability of governments to impose property taxes, user fees, and similar laws and regulations that may impose financial burdens on property owners”). But once the majority decides that a simple demand to pay money—the sort of thing often viewed as a tax—can count as an impermissible “exaction,” how is anyone to tell the two apart? The question, as Justice Breyer’s opinion in Apfel noted, “bristles with conceptual difficulties.” 524 U. S., at 556. And practical ones, too: How to separate orders to pay money from . . . well, orders to pay money, so that a locality knows what it can (and cannot) do. State courts sometimes must confront the same question, as they enforce restrictions on localities’ taxing power. And their decisions—contrary to the majority’s blithe assertion, see ante, at 20–21—struggle to draw a coherent boundary. Because “[t]here is no set rule” by which to determine “in which category a particular” action belongs, Eastern Diversified Properties, Inc. v. Montgomery Cty., 319 Md. 45, 53, 570 A. 2d 850, 854 (1990), courts often reach opposite conclusions about classifying nearly identical fees. Compare, e.g., Coulter v. Rawlins, 662 P. 2d 888, 901–904 (Wyo. 1983) (holding that a fee to enhance parks, imposed as a permit condition, was a regulatory exaction), with Home Builders Assn. v. West Des Moines, 644 N. W. 2d 339, 350 (Iowa 2002) (rejecting Coulter and holding that a nearly identical fee was a tax). [ 2 ] Nor does the majority’s opinion provide any help with that issue: Perhaps its most striking feature is its refusal to say even a word about how to make the distinction that will now determine whether a given fee is subject to heightened scrutiny.

     Perhaps the Court means in the future to curb the intrusion into local affairs that its holding will accomplish; the Court claims, after all, that its opinion is intended to have only limited impact on localities’ land-use authority. See ante, at 8, 21. The majority might, for example, approve the rule, adopted in several States, that Nollan and Dolan apply only to permitting fees that are imposed ad hoc, and not to fees that are generally applicable. See, e.g., Ehrlich v. Culver City, 12 Cal. 4th 854, 911 P. 2d 429 (1996). Dolan itself suggested that limitation by underscoring that there “the city made an adjudicative decision to condition petitioner’s application for a building permit on an individual parcel,” instead of imposing an “essen-tially legislative determination[ ] classifying entire areas of the city.” 512 U. S., at 385. Maybe today’s majority accepts that distinction; or then again, maybe not. At the least, the majority’s refusal “to say more” about the scope of its new rule now casts a cloud on every decision by every local government to require a person seeking a permit to pay or spend money. Ante, at 20.

     At bottom, the majority’s analysis seems to grow out of a yen for a prophylactic rule: Unless Nollan and Dolan apply to monetary demands, the majority worries, “land-use permitting officials” could easily “evade the limitations” on exaction of real property interests that those decisions impose. Ante, at 15. But that is a prophylaxis in search of a problem. No one has presented evidence that in the many States declining to apply heightened scrutiny to permitting fees, local officials routinely short-circuit Nollan and Dolan to extort the surrender of real property interests having no relation to a development’s costs. See, e.g., Krupp v. Breckenridge Sanitation Dist., 19 P. 3d, at 697; Home Builders Assn. of Central Arizona v. Scottsdale, 187 Ariz. 479, 486, 930 P. 2d 993, 1000 (1997); McCarthy v. Leawood, 257 Kan. 566, 579, 894 P. 2d 836, 845 (1995). And if officials were to impose a fee as a contrivance to take an easement (or other real property right), then a court could indeed apply Nollan and Dolan. See, e.g., Norwood v. Baker, 172 U. S. 269 (1898) (preventing circumvention of the Takings Clause by prohibiting the government from imposing a special assessment for the full value of a property in advance of condemning it). That situation does not call for a rule extending, as the majority’s does, to all monetary exactions. Finally, a court can use the Penn Central framework, the Due Process Clause, and (in many places) state law to protect against monetary demands, whether or not imposed to evade Nollan and Dolan, that simply “go[ ] too far.” Mahon, 260 U. S., at 415; see supra, at 3. [ 3 ]

     In sum, Nollan and Dolan restrain governments from using the permitting process to do what the Takings Clause would otherwise prevent—i.e., take a specific property interest without just compensation. Those cases have no application when governments impose a general financial obligation as part of the permitting process, because under Apfel such an action does not otherwise trigger the Takings Clause’s protections. By extending Nollan and Dolan’s heightened scrutiny to a simple payment demand, the majority threatens the heartland of local land-use regulation and service delivery, at a bare minimum depriving state and local governments of “necessary predictability.” Apfel, 524 U. S., at 542 (opinion of Kennedy, J.). That decision is unwarranted—and deeply unwise. I would keep Nollan and Dolan in their intended sphere and affirm the Florida Supreme Court.


     I also would affirm the judgment below for two independent reasons, even assuming that a demand for money can trigger Nollan and Dolan. First, the District never demanded that Koontz give up anything (including money) as a condition for granting him a permit. [ 4 ] And second, because (as everyone agrees) no actual taking occurred, Koontz cannot claim just compensation even had the District made a demand. The majority nonetheless remands this case on the theory that Koontz might still be entitled to money damages. I cannot see how, and so would spare the Florida courts.


     Nollan and Dolan apply only when the government makes a “demand[ ]” that a landowner turn over property in exchange for a permit. Lingle, 544 U. S., at 546. I understand the majority to agree with that proposition: After all, the entire unconstitutional conditions doctrine, as the majority notes, rests on the fear that the government may use its control over benefits (like permits) to “coerc[e]” a person into giving up a constitutional right. Ante, at 7; see ante, at 13. A Nollan-Dolan claim therefore depends on a showing of government coercion, not relevant in an ordinary challenge to a permit denial. See Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U. S. 687, 703 (1999) (Nollan and Dolan were “not designed to address, and [are] not readily applicable to,” a claim based on the mere “denial of [a] development” permit). Before applying Nollan and Dolan, a court must find that the permit denial occurred because the government made a demand of the landowner, which he rebuffed.

     And unless Nollan and Dolan are to wreck land-use permitting throughout the country—to the detriment of both communities and property owners—that demand must be unequivocal. If a local government risked a lawsuit every time it made a suggestion to an applicant about how to meet permitting criteria, it would cease to do so; indeed, the government might desist altogether from communicating with applicants. That hazard is to some extent baked into Nollan and Dolan; observers have wondered whether those decisions have inclined some local governments to deny permit applications outright, rather than negotiate agreements that could work to both sides’ advantage. See W. Fischel, Regulatory Takings 346 (1995). But that danger would rise exponentially if something less than a clear condition—if each idea or proposal offered in the back-and-forth of reconciling diverse interests—triggered Nollan-Dolan scrutiny. At that point, no local government official with a decent lawyer would have a conversation with a developer. Hence the need to reserve Nollan and Dolan, as we always have, for reviewing only what an official demands, not all he says in negotiations.

     With that as backdrop, consider how this case arose. To arrest the loss of the State’s rapidly diminishing wetlands, Florida law prevents landowners from filling or draining any such property without two permits. See ante, at 2–3. Koontz’s property qualifies as a wetland, and he therefore needed the permits to embark on development. His applications, however, failed the District’s preliminary review: The District found that they did not preserve wetlands or protect fish and wildlife to the extent Florida law required. See App. Exh. 19–20, 47. At that point, the District could simply have denied the applications; had it done so, the Penn Central test—not Nollan and Dolan—would have governed any takings claim Koontz might have brought. See Del Monte Dunes, 526 U. S., at 702–703.

     Rather than reject the applications, however, the District suggested to Koontz ways he could modify them to meet legal requirements. The District proposed reducing the development’s size or modifying its design to lessen the impact on wetlands. See App. Exh. 87–88, 91–92. Alternatively, the District raised several options for “off-site mitigation” that Koontz could undertake in a nearby nature preserve, thus compensating for the loss of wetlands his project would cause. Id., at 90–91. The District never made any particular demand respecting an off-site project (or anything else); as Koontz testified at trial, that possibility was presented only in broad strokes, “[n]ot in any great detail.” App. 103. And the District made clear that it welcomed additional proposals from Koontz to mitigate his project’s damage to wetlands. See id., at 75. Even at the final hearing on his applications, the District asked Koontz if he would “be willing to go back with the staff over the next month and renegotiate this thing and try to come up with” a solution. Id., at 37. But Koontz refused, saying (through his lawyer) that the proposal he submitted was “as good as it can get.” Id., at 41. The District therefore denied the applications, consistent with its original view that they failed to satisfy Florida law.

     In short, the District never made a demand or set a condition—not to cede an identifiable property interest, not to undertake a particular mitigation project, not even to write a check to the government. Instead, the District suggested to Koontz several non-exclusive ways to make his applications conform to state law. The District’s only hard-and-fast requirement was that Koontz do something—anything—to satisfy the relevant permitting criteria. Koontz’s failure to obtain the permits therefore did not result from his refusal to accede to an allegedly extortionate demand or condition; rather, it arose from the legal deficien-cies of his applications, combined with his unwillingness to correct them by any means. Nollan and Dolan were never meant to address such a run-of-the-mill denial of a land-use permit. As applications of the unconstitutional conditions doctrine, those decisions require a condition; and here, there was none.

     Indeed, this case well illustrates the danger of extending Nollan and Dolan beyond their proper compass. Consider the matter from the standpoint of the District’s lawyer. The District, she learns, has found that Koontz’s permit applications do not satisfy legal requirements. It can deny the permits on that basis; or it can suggest ways for Koontz to bring his applications into compliance. If every suggestion could become the subject of a lawsuit under Nollan and Dolan, the lawyer can give but one recommendation: Deny the permits, without giving Koontz any advice—even if he asks for guidance. As the Florida Supreme Court observed of this case: Were Nollan and Dolan to apply, the District would “opt to simply deny permits outright without discussion or negotiation rather than risk the crushing costs of litigation”; and property owners like Koontz then would “have no opportunity to amend their applications or discuss mitigation options.” 77 So. 3d 1220, 1231 (2011). Nothing in the Takings Clause requires that folly. I would therefore hold that the District did not impose an unconstitutional condition—because it did not impose a condition at all.


     And finally, a third difficulty: Even if (1) money counted as “specific and identified propert[y]” under Apfel (though it doesn’t), and (2) the District made a demand for it (though it didn’t), (3) Koontz never paid a cent, so the District took nothing from him. As I have explained, that third point does not prevent Koontz from suing to invalidate the purported demand as an unconstitutional condition. See supra, at 1–2. But it does mean, as the majority agrees, that Koontz is not entitled to just compensation under the Takings Clause. See ante, at 11. He may obtain monetary relief under the Florida statute he invoked only if it authorizes damages beyond just compensation for a taking.

     The majority remands that question to the Florida Supreme Court, and given how it disposes of the other issues here, I can understand why. As the majority indicates, a State could decide to create a damages remedy not only for a taking, but also for an unconstitutional conditions claim predicated on the Takings Clause. And that question is one of state law, which we usually do well to leave to state courts.

     But as I look to the Florida statute here, I cannot help but see yet another reason why the Florida Supreme Court got this case right. That statute authorizes damages only for “an unreasonable exercise of the state’s police power constituting a taking without just compensation.” Fla. Stat. §373.617 (2010); see ante, at 12. In what legal universe could a law authorizing damages only for a “taking” also provide damages when (as all agree) no taking has occurred? I doubt that inside-out, upside-down universe is the State of Florida. Certainly, none of the Florida courts in this case suggested that the majority’s hypothesized remedy actually exists; rather, the trial and appellate courts imposed a damages remedy on the mistaken theory that there had been a taking (although of exactly what neither was clear). See App. to Pet. for Cert. C–2; 5 So. 3d 8, 8 (2009). So I would, once more, affirm the Florida Supreme Court, not make it say again what it has already said—that Koontz is not entitled to money damages.


     Nollan and Dolan are important decisions, designed to curb governments from using their power over land-use permitting to extract for free what the Takings Clause would otherwise require them to pay for. But for no fewer than three independent reasons, this case does not present that problem. First and foremost, the government commits a taking only when it appropriates a specific property interest, not when it requires a person to pay or spend money. Here, the District never took or threatened such an interest; it tried to extract from Koontz solely a commitment to spend money to repair public wetlands. Second, Nollan and Dolan can operate only when the government makes a demand of the permit applicant; the decisions’ prerequisite, in other words, is a condition. Here, the District never made such a demand: It informed Koontz that his applications did not meet legal requirements; it offered suggestions for bringing those applications into compliance; and it solicited further proposals from Koontz to achieve the same end. That is not the stuff of which an unconstitutional condition is made. And third, the Florida statute at issue here does not, in any event, offer a damages remedy for imposing such a condition. It provides relief only for a consummated taking, which did not occur here.

     The majority’s errors here are consequential. The majority turns a broad array of local land-use regulations into federal constitutional questions. It deprives state and local governments of the flexibility they need to enhance their communities—to ensure environmentally sound and economically productive development. It places courts smack in the middle of the most everyday local government activity. As those consequences play out across the country, I believe the Court will rue today’s decision. I respectfully dissent.


1  The majority’s sole response is that “the unconstitutional conditions analysis requires us to set aside petitioner’s permit application, not his ownership of a particular parcel of real property.” Ante, at 17, n. 1. That mysterious sentence fails to make the majority’s opinion cohere with the unconstitutional conditions doctrine, as anyone has ever known it. That doctrine applies only if imposing a condition directly—i.e., independent of an exchange for a government benefit—would violate the Constitution. Here, Apfel makes clear that the District’s condition would not do so: The government may (separate and apart from permitting) require a person—whether Koontz or anyone else—to pay or spend money without effecting a taking. The majority offers no theory to the contrary: It does not explain, as it must, why the District’s condition was “unconstitutional.”
2  The majority argues that existing state-court precedent will “greatly reduce the practical difficulty” of developing a uniform standard for distinguishing taxes from monetary exactions in federal constitutional cases. Ante, at 20, n.2. But how are those decisions to perform that feat if they themselves are all over the map?
3  Our Penn Central test protects against regulations that unduly burden an owner’s use of his property: Unlike the Nollan-Dolan standard, that framework fits to a T a complaint (like Koontz’s) that a permitting condition makes it inordinately expensive to develop land. And the Due Process Clause provides an additional backstop against excessive permitting fees by preventing a government from conditioning a land-use permit on a monetary requirement that is “basically arbitrary.” Eastern Enterprises v. Apfel, –558 (1998) (Breyer, J., dissenting). My point is not, as the majority suggests, that these constraints do the same thing as Nollan and Dolan, and so make those decisions unnecessary. See ante, at 21. To the contrary, Nollan and Dolan provide developers with enhanced protection (and localities with correspondingly reduced flexibility). See supra, at 8. The question here has to do not with “overruling” those cases, but with extending them. Ante, at 21. My argument is that our prior caselaw struck the right balance: heightened scrutiny when the government uses the permitting process to demand property that the Takings Clause protects, and lesser scrutiny, but a continuing safeguard against abuse, when the government’s demand is for something falling outside that Clause’s scope.
4  The Court declines to consider whether the District demanded anything from Koontz because the Florida Supreme Court did not reach the issue. See ante, at 13. But because the District raised this issue in its brief opposing certiorari, Brief in Opposition 14–18, both parties briefed and argued it on the merits, see Brief for Respondent 37–43; Reply Brief 7–8, Tr. of Oral Arg. 7–12, 27–28, 52–53, and it provides yet another ground to affirm the judgment below, I address the question.

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