Takings Law and the Matter of Koontz v. St. John’s

Timothy M. Mulvaney

Associate Professor of Law

Texas Wesleyan University School of Law

April 5, 2013

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“[N]or shall private property be taken for public use, without just compensation.”

U.S. Constitution, amendment V

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Roadmap

I. Introduction

II. A Primer on Regulatory Takings Law

III. Wetlands

IV. Unpacking Koontz v. St. John’s

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“Categories” of Takings

1. Actual physical takings and regulations that result in permanent physical occupations or eliminate

all economic uses i. Ordinarily considered takings per se

2. Permit condition takings

i. “essential nexus” Nollan ii. “proportionality” Dolan iii. _____________? Koontz

3. “Partial” economic takings i. Case-by-case balancing Penn Central

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(burden of proof on landowner)

(burden of proof on gov’t)

Roadmap

I. Introduction

II. A Primer on Regulatory Takings Law

III. Wetlands

IV. Unpacking Koontz v. St. John’s

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Wetlands Protection

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http://www.clibbongallery.com/photographs/econ-entrance-big.jpg

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Roadmap

I. Introduction

II. A Primer on Regulatory Takings Law

III. Wetlands

IV. Unpacking Koontz v. St. John’s

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Koontz’ Proposed Development

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District’s Proposed Condition #1: Mitigation

Offsite Wetland Mitigation

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District’s Proposed Condition #2: Reducing the Scope of Development

No Offsite Wetland Mitigation

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Koontz’ Rejected the District’s Conditional Permit Proposals

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District Denied Permit Application

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Koontz v. St. John’s

• Two Issues:

– Whether Nollan and Dolan apply to permit conditions that the government proposes but never imposes?

– Whether Nollan and Dolan apply to permit conditions beyond those requiring permanent occupation of an individual’s property by the government or a third party ?

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Should the Nollan/Dolan tests apply to proposed conditions?

For…

• Why require a landowner to accept a condition before challenging it?

• Landowners who stand their ground are penalized in comparison to those who succumb.

• Otherwise, government could too easily threaten applicants with permit denials.

Against…

• No “property” is taken.

• Requires significant judicial speculation and substantive assessment of whether a landowner’s self-imposed condition is “enough.”

• Chilling effect on landowner-regulator coordination and cooperation.

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