Brief Amicus Curiae of Reason Foundation, Atlantic Legal Foundation and Center for Constitutional Jurisprudence in support of petitioner:
The use and enjoyment of private property is a fundamental right, and important to a democratic society. The takings clause was designed to protect this core value.
This Court has long recognized that limitations on the exercise of rights in private property are as much "takings" as are physical invasion of property. Government regulation tends to become ubiquitous, and government constantly develops new and artful ways to appropriate rights to use and enjoy private property for the “public good.” Unless constrained by a requirement to compensate owners of private property, in a majoritarian system, government agencies will allocate disproportionate burdens of achieving public purposes to politically weak segments of the citizenry.
￼The Florida Supreme Court incorrectly court assumed that in Nollan and Dolan the land-use agencies had issued permits after actually taking the exacted property. In fact, in both Nollan and Dolan the agencies had imposed the exactions prior to issuance of the permits, similar to the case at bar.
The District’s demand that Koontz finance improvements to its property as a condition of permit approval in addition to giving up almost 75% of his land was an exaction implicating the Takings Clause, triggering review under Nollan and Dolan. When Koontz refused to waive his right to compensation for the cost incurred making the off-site improvements, the District denied his permits.
The Takings Clause does not allow the government limitless power to confiscate property of any kind simply because it holds the power to grant or deny issue land use permits. The Takings Clause generally prohibits uncompensated takings, but the Court in Nollan recognized a narrow exception to that general rule: In the land use context, the government may exact property without compensation as a condition of permit approval, but only when the exaction has an “essential nexus” to the adverse impact of the proposed land use. Any other imposed condition is an unlawful attempt to evade the Constitution’s prohibition on uncompensated takings. In Dolan the Court required that any permit exaction must also be “roughly proportional” to the adverse impact of the proposed land use.
The Florida Supreme Court ruled that there was no taking in this case because the District did not succeed in obtaining what it wanted to take and, in any event, it only sought to take money (in addition to most of the Koontz property). This ruling is premised on the proposition that money is not the type of property protected by the Fifth Amendment; that the Koontz property was not taken when the permit was denied; and that the private property owner must agree to the exaction and actually suffer deprivation of constitutional liberties before a claim can be brought. The state court was wrong on all three counts.
The Florida Supreme Court attempts to limit this Court’s teaching in Nollan and Dolan narrowly to instances in which a government agency has demanded transfer of real property or an interest in real property, has actually obtained such a transfer, and has issued a permit. That parsing of this Court’s takings cases misconstrues the facts of those cases and does not bear doctrinal scrutiny. Contrary to the decision of the Florida Supreme Court, nothing in the Takings Clause, Nollan, or Dolan recognizes a relevant distinction among the types of permit exactions subject to the “essential nexus” and “rough proportionality” limitations; whether the demand is for transfer of either real or personal property, it is subject to the same nexus and proportionality limitations. The District’s demands on Koontz had neither the requisite nexus nor the required proportionality, as the trial court found.
The constitutional limitations on government’s power to exact property in exchange for a government permit also does not depend upon when in the permit process the exaction is imposed. A decision to deny a permit application because the property owner refuses to accede to an unlawful exaction and a decision to approve a permit application subject to acceptance of an unlawful exaction are substantively indistinguishable. In both cases, no permit issues unless and until the property owner agrees to surrender his right to compensation for the confiscated property.
The Florida Supreme Court’s decision ignores reality and the logic of Nollan and Dolan. The distinctions the Florida Supreme Court drew are artificial and arbitrary. Bare uncompensated confiscation of land is rare because it would constitute an apparent violation of the Takings Clause. However, local and state governments increasingly resort to confiscating property other than interests in real property; most frequently land use regulators demand money, in the form of financing of public projects (as in this case) or payment of fees in lieu of land dedication. The property owner is required, as a permit condition, to waive his right to compensation for the confiscation. If the Florida Supreme Court’s decision stands, that constitutional violation will not have a remedy.