Will the U.S. Supreme Court Grant Review of Florida's Koontz Case to Clarify Exactions Law?

I've written before about a Florida property owner's request that the U.S. Supreme Court review an exactions decision by the Florida Supreme Court. Readers will recall that in St. Johns River Water Management District v. Koontz, 77 So. 3d 1220 (Fla. 2011), the Florida Supreme Court severely limited exactions law in this state. For the uninitiated, exactions are government requirements to donate something (usually real property) in exchange for a development right or permit. The U.S. Supreme Court requires exactions to meet a pair of conditions, sometimes called the Nollan-Dolan test: First, there must be an “essential nexus” between the exaction and the interest that the exaction is advancing. Nollan v. Cal. Coastal Com., 483 U.S. 825, 837 (1987). Second, there must be a “rough proportionality” in both nature and extent between the exaction and the impact of the proposed development. Dolan v. Tigard, 512 U.S. 374, 391 (2005).

The U.S. Supreme Court has not yet given much more guidance on exactions, and confusion has been the result. The Florida Supreme Court forged its own path, holding that the Nollan-Dolan test only applies to (1) exactions of real property (2) where a permit was actually issued and imposed an exaction. Consequently, in Florida, there are now relatively few restrictions on what a local government can ask for in exchange for a development permit. Other states, like Texas, have seen little distinction between a government asking for real property and asking for personal property (like money). This latter view seems to make the most sense to me: real and personal property are fungible, and both can be used to mitigate development impacts, so why should the government be able to avoid the Takings Clause by asking for personal property?

The District has responded to the Pacific Legal Foundation's petition for certiorari. The brief doesn't seem to be available elsewhere online, so I've posted the District's opposition brief here and below. The District makes a couple of arguments. First, the Supreme Court does not have jurisdiction because of Koontz's reservation of his rights to take claims to federal court later. Second, the District did not exact anything because it never issued a permit or collected an exaction.

These problems do not seem to be insurmountable to the Court in taking the case on. First, Florida's Takings Clause is interpreted coextensively with the federal Takings Clause, so the Court could accept jurisdiction just as it did when a very similar argument was made in the briefing of Stop the Beach Renourishment v. Florida Department of Environmental Protection,130 S. Ct. 2592 (2010). Second, if the District's exaction were unconstitutional and so onerous that the landowner could not continue with its plan (or do anything else), why should it be shielded from liability? In effect, as the trial court seemed to recognize, that may just mean a temporary taking occurred. 

I'll have an article in the American Planning Association's Planning & Law Newsletter soon taking a deeper look at these issues.