Tuesday, February 17, 2015

Kent on Exactions after Koontz

Kent_mikeMichael Kent (Campbell) has posted Land Use Exactions, Anti-Evasion, and Koontz v. St. Johns River Water Management District on SSRN.  Here's the abstract:

This article considers the U.S. Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District, which extended the application of the Court’s exactions test (known as Nollan/Dollan). The majority of the Court relied heavily on the unconstitutional conditions doctrine, explaining that this doctrine formed the basis not only for the Nollan/Dolan framework but also for the extension of that framework to Koontz’s new factual setting. Led by Justice Kagan, four members of the Court dissented. Although the dissenting Justices seemingly agreed with several of the majority’s propositions, they vigorously opposed the manner in which the majority applied those propositions.

Although Koontz might be viewed as just another in a long line of cases that make up the messy jurisprudence of regulatory takings and unconstitutional conditions, the primary thesis of my article is that Koontz in fact provides a key to unlocking the Court’s exactions framework. Relying on my prior work with Brannon Denning, this article posits that both regulatory takings and the doctrine of unconstitutional conditions constitute anti-evasion doctrines by which the Court seeks to fill enforcement gaps left open by its prior constitutional decision rules. Inasmuch as land use exactions lie at the intersection of these two doctrinal areas, one would expect to find that anti-evasion notions play a large role in the Court’s exactions decisions. And indeed, both the majority and the dissent in Koontz invoked the anti-evasion characteristics of the Nollan/Dolan test in support of their analytical positions in that case.

Viewing Koontz (and its jurisprudential antecedents) through the prism of anti-evasion helps both to explain the majority’s decision in that case and to bring the differences between the majority and dissent into sharper focus. Additionally, the anti-evasion concept suggests some guidelines for how future exactions issues might be resolved — both at the micro level (dealing with future decision rules that will have to be developed in light of Koontz) and at the macro level (addressing larger questions about the Court’s takings jurisprudence and the place of the exaction cases within it).

https://lawprofessors.typepad.com/property/2015/02/kent-on-exactions-after-koontz.html

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