By Lisa Soronen
Let’s say a landowner wants a permit to develop his or her property. State government could approve the permit on the condition that the landowner give state government some of his or her land. But per two previous cases, Nollan and Dolan, there must be an “essential nexus” between a landowner dedicating the land and being denied the permit and “rough proportionality” between the dedication of land and the impact of the development.
Now let’s say state government wants cash instead of land or for the landowner to pay for mitigation related to his or her development. Do Nollan and Dolan apply, and has a “taking” in violation of the Fifth Amendment occurred? And what if the landowner says "no" to the requested cash payment or mitigation and state government issues no permit. Has a “taking” occurred?
The State and Local Legal Center’s (SLLC) amicus brief in Koontz v. St. Johns River Water Management District, which NCSL signed onto, argues the answer to both questions should be "no."
The SLLC’s brief argues that Nollan and Dolan should not apply to permits conditioned on money because, arguably, Nollan and Dolan could apply to public taxation programs. The SLLC’s brief argues also that Nollan and Dolan should not be applied to permit denials because doing so will discourage state and local government from engaging in permit negotiations.
The Supreme Court will hear oral arguments in the case on Jan. 15 and will issue an opinion by June 30.