Predictably, government types and their groupies are in a tizzy. They have picked up on Justice Kagan’s dissenting lamentation in the Koontz case, that the cost of government will go up. But the problem with that lamentation is that it is an argument that proves too much. Liability under Koontz can only ensue where the government demands money or property from an individual, where the thing demanded has no rational connection with the public detriment brought about by the proposed private development. In other words, Koontz was asked to perform work on a public project located miles from the subject property and having nothing to do with it.
What evidently happened here was that the District folks decided to take advantage of some lower courts’ case law suggesting that monetary exactions were outside the scope of the Nollan/Dolan rule, and thereupon decided to drive the proverbial truck through it. It didn’t work, and it shouldn’t have worked. If that reasoning had merit, what would prevent the local government, were it so inclined, to condition the issuance of a building permit on the applicant foregoing his right to vote in the next election? Hyperbole, you think? Actually, that was attempted by a California municipality which tried to condition the issuance of a permit on the permit-seeking applicant giving up his right to vote in future bond validation elections. We understand the case was settled and never went to judgment, but this should give you an idea of how far these people are willing to go.
Anyway, Justice Kagan, who appears to be a smart lady, stepped into it big time when in her dissent, she chose to defend extortion as desirable in order to save government extortionists money. That’a a legal and moral no-no that is forbidden by the Fifth Amendment and the Eighth Commandment (look it up). More important, with the government at all levels in the midst of an orgy of wasteful spending that is on the verge of bankrupting the country, and has already bankrupted several cities, how can a rational person demand that instead of promoting government economies, the government be unleashed to engage in out-and-out extortion, as the court put it in Nollan?
Unfortunately, such judicial lamentations are not unprecedented, even if history has demonstrated their absurdity. Our all-time favorite is People v. Symons in which the California Supreme Court absurdly asserted that if condemnees were to receive compensation for all their conceded losses in land value caused by partial condemnation of their property, “an embargo” would have to be declared on the construction of public works. In fact, in 1976 the California legislature repealed the Symons rule, but no “embargo” ensued. We could go on like that, but this would be like sticking a harpoon into a whale which we have done elsewhere — see our article Making Laws and Sausages: A Quarter Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 William & Mary Bill of Rights Journal 679 (2005), a comprehensive commentary on the “taking issue,” including a discussion of the absurdity whereby courts hand out gazillions to litigants they deem deserving, and allow them to recover more than once (think collateral source rule in tort law), while lamenting that the end of the civilized world would descend upon us if condemnees were to be paid for all conceded losses that are inflicted on them by eminent domain takings of their property. Also see our more recent piece in 4 Albany Gov’t. Law Rev. 38 (2011) entitled “Fairness and Equity” or Judicial Bait and Switch.
Finally, we also urge you to read the latest and admirably concise analysis of the Koontz case by our colleague Robert Thomas in his blog www.inverseondemnation.com . Go for it.