As you may have heard, today SCOTUS heard oral arguments in the Koontz case. That’s the exaction case in which a Florida Water District demanded that instead of the usual “dedication” of land to mitigate the environmental harm of his development, Koontz make off-site improvements that had nothing to do with the subject property. In other words the harm to Koontz would be monetary; he would not have to dedicate land but he would have to pay for those improvements. So the issue he raised was whether the Nollan-Dolan constitutional limitations on government dedication demands apply to monetary demands, the same as to demands for land dedication.
The argument was a mish-mash of ideas, in which one could not tell what coherent theory the justices thought should apply. Check out the relevant post on our fellow blogmeister’s blog, www.inversecondemnation.com, an analysis that is well worth a perusal. You can get the argument transcript by clicking on http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-1447.pdf
We won’t go through it here because you can read it for yourself, and Robert Thomas who runs the blog www.inversecondmnation.com does an excellent job of reporting, and commentary. Go for it.
Our overall view of this event suggests to us that the Justices are again out of it — e.g. Justice Scalia thought that in Nollan a permit was issued before Nollan sued (it wasn’t — Pat Nollan took his chances and built without city approval and won). Justice Kennedy was still beating his drum in favor of substantive due process with no clue as to whether he also means to relax the forbidding difficulties in winning a regulatory due process case. Etc., etc.
But the championship prize goes to counsel for the District who, in a semantic/doctrinal flip-flop of major proportions, suggested that there is no such thing as a Takings Clause — only a Just Compensation Clause. We find this amusing because in the olden days, when your faithful servant was a mere stripling (though licensed to practice law), the Fifth Amendment’s business end was indeed referred to as the Just Compensation Clause because it was universally assumed that a taking required just compensation. What else? Then came the assault by what Professor Dan Mandelker dubbed the “police power hawks” who wanted to implement a high degree of regulation, but just didn’t want to pay for regulatory takings, so they started calling for specific relief only in regulatory takings, and started using the term “Takings Clause” in an effort not even to mention the, you know, that Just Compensation business. Eventually they lost that battle in the First English case which held that just compensation, not specific relief, is the proper remedy in regulatory as well as physical taking cases. Now they are evidently trying to promote Justice Stevens’ Kelo idea that the government can do anything it wants, substantive constitutional limitations be damned, as long as it pays the charge — which, of course, it doesn’t, and screams bloody murder whenever some courageous and intellectually honest judge says it has to — as in the Half Moon Bay case. Or when a judge actually applies the “public use” clause and rules that, no, the government may not take property for a private use, as it tried to do in the 99 Cents Only Stores case.
So do we have any predictions? Don’t be silly. Your faithful servant is a lawyer, not a haruspex. At least a haruspex had something to work with, to wit, sheeps’ entrails which he could examine to predict the future. All we have is Justice Thomas’ joke — yes indeed, he spoke during oral argument — something about a Yale J.D., which frankly, we don’s get, and something by Justice Breyer about sliced bread, which we also don’t dig, although we appreciate a wit’s reference to this oral argument being a case of “sliced bread and circuses.”
There was also talk about using the Penn Central approach — an idea that sends shivers down our spine — but alas, Penn Central has become a sort of a catch-all, default refuge for people who don’t really know what they are talking about, and seek refuge within its foggy language. If you want a thorough discussion of why Penn Central may well be the doctrinally worst case decided in modern times, see Gideon Kanner, Making Laws and Sausages: A Quarter Century Retrospective on Penn Central Transportation Co. v. City of New York , 13 William. & Mary Bill Rts. J. 679 (2005) — reading it can’t possibly hurt you, and you may learn some interesting things from it — like the fact that after all the legal sturm und drang, Penn Central won economically because in the end the Grand Central Terminal was restored to its glory by the City of New York, not by the Penn Central Company. You didn’t know that, did you?
But if we may take a peek at what is going on here, we discern a return of the idelogical underpinning of those “police power hawks” who historically wanted to emulate the British Town & Counry Planning Act of 1947, under which nothing new could be built without what the blokes call “planning permission,” which is another way of saying that there are no private property rights, except to the extent the goverment chooses to create them ad hoc by the issuance of some sort of more-or-less discretionary permit or license. It was a crackpot Georgist, pseudo-socialist scheme that failed in the U.K (see Arthur Shenfield, The Mirage of Social Land Value: Lessons From the British Experience, Appraisal Journal, October 1976, at p. 523) and it makes for a poor example to emulate.
So, as we so often conclude our posts: Stay tuned folks. A decision in Koontz will come no later than the end of June. And who knows? It may even be sound. After all, the Good Book says “Thou shalt not steal,” and there is a respectable body of precedent supporting the belief that sometimes the Lord works wonders, even if He also works in mysterious ways.