The November/December 2015 issue of the ABA magazine Probate & Property (at p. 37), provides us with a short review of Prof. John Echeverria’s article The Costs of Koontz, 39 Vt. L. Rev. 537 (2015). In it, it would appear, the professor waxes wroth and regales his readers with the message that the U.S. Supreme Court’s decision in the Koontz case, disapproving of land-use regulators’ misuse of exactions as tools of extortion, whether the exactions are monetary or not, has apparently laid waste to all sorts of good law and now “disrupts separation of powers by deviating from normal doctrines of deference and instead empowers courts to substitute their judgment on land use decisions of elected officials and administrators technical expertise; why it makes a sharp turn away from local control over local matters with the concomitant attributes of political accountability, diversity, and experimentation that come from local decision making over land use matters; how it degrades our protections for important values like environmental conditions, infrastructure quality and reliability, community character, and property values themselves, . . .” Etc., etc.
Oh dear.
We resist the temptation to deal with this hyperbolic rant point by point, for two reasons. First, if judges’ land-use decisions exemplified by Koontz are as bad as Prof. Echeverria would have it, how come the same judges engaging in review of similar land-use regulations in the context of environmental law are said to work wonders and indeed, do the Lord’s work when they approve (or reject, as the case may be) proposed projects. See e.g., the front page of today’s Los Angeles Times informing us that the California Supreme Court had no trouble rejecting as inadequate a multi-thousand-page environmental impact report on a proposed multi-thousand acre subdivision of the Newhall Land Company seeking to create a new town in northern Los Angeles County. You think maybe that Professor Echeverria will chew out their Lordships for “substituting their judgment on land use decisions of elected officials and administrators [with] technical expertise”? Don’t hold your breath, folks.
Second, our attempt at a detailed reply would be superfluous because a full, proper, and concise response was provided by Justice Ruth Bader Ginsburg, when she wrote in Arkansas Game & Fish Comm’n. v. United States, 133 S.Ct. 511, 521 (2012):
Time and again in Takings Clause cases, the [U.S. Supreme] Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest . . . [But t]he sky did not fall . . .”
Being a Californian, we might also note in passing that back in the 1950s the California Supreme Court, speaking in the notorious People v. Symons case, voiced the concern that if land owners were to be fairly compensated in eminent domain cases for all demonstrable — and indeed, incontestable — losses, an “embargo” would have to be declared on construction of California public projects. But guess what? In 1976 the California legislature repealed the Symons rule, but construction of California public projects has kept going on apace. But that fact did not deter the California Supreme Court which as recently as 1995, still sang its song that “Compensation allowed too liberally will seriously impede, if not stop beneficial public undertakings.” Customer Co. v. Sacramento, 10 Cal.4th 368, 408 (1995).
Bosh and piffle!