When it comes to takings law, there is usually no one like Professor Richard Epstein who tends to provide his readers with insights that others usually lack. And that’s what just happened in the Koontz case. Richard has published a piece in the January 2nd, 2012 issue of Defining Ideas, a journal of the Hoover Institution, entitled “When Government Takes You Hostage.” Click on http://www.hoover.org/publications/defining-ideas/article/137266. We suggest you read it, but for now let us quote what we consider his core point that deals with what happens when you decouple the exaction demand from the specific private project for which the owner seeks a permit:
“[T]he entire mitigation doctrine amounts to nothing more than a form of grand theft larceny by which the state first claims for nothing a state-wide environmental easement, which it will then sell back to the landowner for the (mitigation) price that it regards as acceptable by its own standards. It is, quite literally, no better than allowing the state to confiscate land for nothing, which it then duly sells back to its original owner for a price. Ransom money involves the same dubious strategy.”
We like that formulation because we made a similar point a while back in Gideon Kanner, Tennis Anyone? How California Judges Made Land Ransom and Art Censorship Legal, 25 Real Est. L. Jour., 214 (1997) in which we saw exactions unrelated to the burdens imposed by the developer on society, as the holding of private land for ransom, consisting of [monetary] exactions demanded before the owner may build perfectly innocuous and indeed publicly beneficial improvements.