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Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Wednesday, June 26, 2013

The Supreme Court Revists Takings Law

At Prawfsblawg, Rick Hills has a tour-de-force on the Supreme Court's decision in Koontz, handed down yesterday (here's a link to the opinion).  The whole thing is worth reading, but the first paragraph alone is worth the price of admission:

Federal takings doctrine is the jurisprudential equivalent of a land war in Asia -- a quagmire from which any aggressive initial expedition will eventually have to extricate itself with patently phoney declaration that the mission was accomplished after being bogged down in the swamps and rice paddies of mushy doctrinal distinctions and sniped at by local government guerrillas too elusive to pin down in open battle. Every once in awhile, the SCOTUS attempts one of these invasions of subnational governments' land-use prerogatives, invariably to retreat in disarray when it discovers that (a) it does not understand the legal terrain and (b) its district court foot soldiers balk at getting involved in what Justice Sutherland once called the "tedious and minute detail" of land-use law's implementation. (Examples of such embarrassed retreats include Louisville & Nashville Ry. v. Barber Asphalt Paving (1906) and San Remo Hotel v. San Francisco (2005))

Tim Mulvaney summarizes the holding at Environemntal Law Prof Blog:

In an opinion authored by Justice Alito, a five-Justice majority declared that (1) the Nollan/Dolan test (which places the burden of proof on government defendants to prove land use permit conditions bear a nexus to and rough proportionality with development impacts) is applicable at the point in time when a condition is merely proposed, even if the permit ultimately is denied; and (2) the Nollan/Dolan test applies to conditions beyond those that require public occupation of private lands to include conditions that would require the applicant to fund offsite mitigation.  Dissenting, Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, disputed the majority‚Äôs latter conclusion as setting up a situation where lower courts will struggle to distinguish between takings and taxes.

Other reactions:

Scotusblog

Volokh

Steve Clowney

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