Wednesday, April 6, 2016
Mark Fenster (Florida) has posted Substantive Due Process by Another Name: Koontz, Exactions, and the Regulatory Takings Doctrine (Touro Law Review) on SSRN. Here's the abstract:
Koontz v. St. Johns Water Management District (2013) completes the move that the Court’s 2005 decision in Lingle v. Chevron U.S.A. Inc.13 began, rendering the exactions decisions in Nollan, Dolan, and now Koontz, as conceptually and practically outside of the federal constitutional takings realm entirely, and existing in the astral realm, known as unconstitutional conditions. There, the exactions tests for nexus and proportionality can float free from the textual and remedial constraints that the Fifth Amendment, at least nominally, imposes on the regulatory takings doctrine. From that distant point, Nollan and Dolan should have little effect on the core regulatory takings tests—but they will, now, after Koontz, cause some considerable challenges for state and lower federal courts, especially when they must fashion a remedy besides the just compensation that the Fifth Amendment requires for a taking. We cannot know the effects that Koontz will have on land use regulation, although we can expect that they will vary across jurisdictions and, like Nollan and Dolan, will, in some instances lead to more regulation and in others, lead to less.