Nollan/Dolan | Exactions

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This really was a “blockbuster” Term for the Supreme Court and takings law: no less than three cases (and four, maybe five, if you expand it slightly to include property-owner favorable cases such as Lozman and last term’s Sackett), and as Gideon Kanner noted recently, the CLE sessions are flying fast and furiously.

Here’s another one, with a great angle: our ABA colleague Ed Thomas, President of the Natural Hazard Mitigation Association and the guy who knows just about everything there is to know about disaster preparedness, disaster response, and property rights, is speaking tonight (Tuesday, July 16, 2013, 7:00 pm MT) along with BYU lawprof Lisa Grow Sun, about the Supreme Court’s takings cases:

This session will explore the legal landscape for community development and hazard mitigation/climate adaptation. Specifically, there has been tremendous press coverage of many U.S. Supreme Court decisions this term. One…

Continue Reading Today’s Free Webinar – Mitigation Options Affected by the Supreme Court in 2013: Koontz and Other Game Changers

Here’s one not to miss, not only because it’s free, but because it features our PLF colleague Paul Beard II, arguing and prevailing counsel in Koontz v. St. Johns River Water Mgm’t Dist., No. 11-1447 (June 25, 2013): on Wednesday, July 17, 2013, from 2:00 – 3:30 pm ET, Greenberg Traurig and PLF are sponsoring a live chat:

In Koontz, one of the most important Takings Clause cases in recent years, the U.S. Supreme Court held that the doctrine of  unconstitutional conditions established in the Nollan and Dolan cases applies to all land use permit applications – even if the excessive condition leads to a permit denial, and even if the condition involves the payment of money rather than dedication of real property. This extension of Nollan/Dolan principles has far reaching implications for real estate, environmental, and other federal and state permitting actions. The significance and implications…

Continue Reading Upcoming Live Chat: Koontz – How Far Has Nollan/Dolan Been Extended

On Wednesday, July 17, 2013, from 4:00 – 5:30 pm ET, I will be a panelist in the American Planning Association’s above-titled teleconference.  The session was put together by our ABA and OCA colleague Dwight Merriam, and in additon to Dwight and me, includes Professors David Callies (U. Hawaii) and Carol Brown (U. Richmond), John Baker, an attorney with Greene Espell in Minneapolis, and our ABA colleage and fellow U. Hawaii alum Julie Tappendorf.

Here’s the description of the program:

The U.S. Supreme Court ended its term with a decision that will change planning and regulation — but by how much, and will the change be for better or worse? Koontz v. St. Johns River Water Management District is the most important planning law case in nearly a decade, and already there is widespread disagreement about what it means.

A diverse panel of land use lawyers will examine…

Continue Reading Upcoming Teleconference: Lessons from Koontz – Game Changer or Just a Little Rule Refinement?

Generally, we don’t plug seminars that might compete with our own, but in this case, we made an exception because the faculty for this one consists of three people we could just not go without hearing from.

On Thursday, July 11, 2013, Law Seminars International is sponsoring “Koontz v. St. Johns River Water Management District – Implications for Property Owners and Local Government,” featuring our Owners’ Counsel of America colleagues Michael Berger and Amy Brigham Boulris, and our favorite foil, lawprof John Echeverria, as they “assess the implications of this important decision and provide practical guidance for both defending and pursuing regulatory takings claims.”

Here’s what we suggest: participate in their program on July 11, then tune into ours (which features both Koontz and Horne) the following day. Continue Reading Koontz Teleconference – July 11, 2013

Here’s some of the stories and commentary we’ve been reading about the Supreme Court’s decision in Koontz v. St. Johns River Water Management District, No. 11-1147 (June 25, 2013:

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Continue Reading Koontz Round-Up

Some things are constant: the speed of light, the sun rises in the east. And Professor John Echeverria, the well-known environmental lawprof, has never met a taking he’s liked.

Even if that means disagreeing in one takings case with Justice Ginsburg writing for a unanimous Supreme Court, the unanimous Court in another takings case, or, as in his op-ed in today’s New York Times, “A Legal Blow to Sustainable Development,” it means arguing that the Court’s ruling in Koontz v. St. Johns Water Management District, No. 11-1147 (June 25, 2013) says what it doesn’t necessarily say.

The op-ed merits careful reading.

First, he argues that “[t]he district made clear that it was willing to grant the permit if Mr. Koontz agreed to reduce the size of the development or spend money on any of a variety of wetlands-restoration projects designed to offset the project’s…

Continue Reading Surprise! Environmental Lawprof Dislikes Koontz

Well, the hammer finally dropped and the Supreme Court today issued its opinion in Koontz v. St Johns River Water Management District, No. 11-1447 (June 25, 2013). The opinion comes out on the next-to-last day of the Term presumably because — unlike the earlier two takings cases — Koontz was not unanimous, but was what one colleague referred to as a “classic” split in the Justices: the Chief, Kennedy, Scalia, and Thomas joining the opinion authored by Justice Alito, with the Court’s liberal wing siding at least partially with the government.

So before tomorrow’s rulings on the same-sex marriage issue suck all the air out of the room, here are our thoughts on Koontz:

  • All nine Justices agree that a property owner need not accept a permit which is subject to conditions she believes are unconstitutional in order to challenge it. This is a remarkable shift in tone

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Continue Reading Exactions: Supreme Court Right On The Money

Today, the Supreme Court issued its opinion in Koontz v. St Johns River Water Mgmt District, No. 11-1447 (cert. granted Oct. 5, 2012), holding that the nexus and proportionality standards apply to government demands for money as well as land, and that a property owner need not accept the permit in order to challenge it.

Opinion here. This is the third and final takings case the Court considered this term, which asked whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Disclosure: we filed an amicus brief in the case, in support of Mr. Koontz.

Here’s our thoughts on the oral arguments. More, once we have a chance to digest the opinions in detail.

Koontz v. St. Johns River Water Management District, No. 1101447 (June 25, 2013)

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Continue Reading SCOTUS On Exactions: Nollan/Dolan Apply

Mostly mising from all the anticipation over the Supreme Court’s “blockbuster” cases on same sex marriage, voting rights, and affirmative action, is the Court’s third takings decision of the term, Koontz v. St. Johns River Water Management District. Professor Ilya Somin primes the pump in this post, “Still Waiting for the Koontz Decision,” which includes links to other prognostications, including an interesting (possible) insight from lawprof Josh Blackman.

We’re also in the final planning stages for the July 12, 2013 ABA webinar on Koontz and Horne, “Supreme Court Takings: A First Look at Koontz and Horne.” Make plans and join us for a discussion of these cases by our panel of expert scholars (Professors David Callies [Hawaii] and Michael McConnell [Stanford, also arguing counsel in Horne]), and practitioners (my State and Local Government Law Section colleagues Andy Gowder and Michael Kamprath). Continue Reading Waiting For Koontz

Mark your calendars: On August 14-16, 2013, ALI-CLE is putting on the annual Land Use Institute. It’s in San Francisco, which is very convenient for those who may be attending the ABA Annual Meeting the week earlier. A good excuse to stay longer.

The Land Use Institute, now in its 29th year, is designed for attorneys, professional planners, public officials, developers, and academics who are involved in land use planning, zoning, permitting, property development, environmental protection, and related litigation. This cutting-edge program, comprising 16 hours of instruction, including one hour of ethics, and taught by preeminent practitioners, academics, and government officials, has well-earned its role as the most comprehensive land use continuing education program available.

Not only does the program provide critical reviews and analyses of the most important new cases, nationwide trends, state-specific concerns, and both routine and complex procedural issues, but it also offers outstanding networking opportunities…

Continue Reading Upcoming ALI-CLE Conference: Land Use Institute – Planning, Regulation, Litigation, Eminent Domain, and Compensation