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On June 25, 2013, the Supreme Court announced its decision in Koontz v. St. John’s River Water Management District. This case raised two questions regarding the power of land-use agencies with respect to development permits: 1) whether denial of a permit for failure to comply with government conditions constitutes a “taking” of property under the Fifth Amendment; and 2) whether certain nexus and proportionality tests set forth by the Supreme Court apply in such circumstances.
In an opinion delivered by Justice Alito, the Court held by a vote of 5-4 that the government’s demand for property from a land use permit applicant must satisfy the nexus and proportionality requirements set forth in the Court’s earlier land use decisions in its Nolan and Dolan cases even when the situation involves denial of a permit because the applicant refuses to turn over property, rather than grant of a permit on condition that the property be turned over. Chief Justice Roberts, as well as Justices Scalia, Kennedy and Thomas joined the majority opinion. Justice Kagan filed a dissenting opinion, which was joined by Justices Ginsburg, Breyer and Sotomayor.
To discuss the case, we have Richard Epstein, professor at New York University School of Law and professor emeritus at the University of Chicago Law School.