Negotiations in the Aftermath of Koontz

Daniel P. Selmi

A majority of the Supreme Court has been engaged in a long-running project intended to reform the use of exactions in land use permitting. The Court’s seminal decisions in Nollan v. California Coastal Commission and Dolan v. City of Tigard reshaped the law under which public agencies can require dedications of real property as conditions of approving land use proposals. Like them or not, the decisions provided a more definite doctrinal framework for exactions of land.

The Court’s 2013 decision in Koontz v. St. Johns River Water Management District, however, falls into a different category. The decision went beyond Nollan and Dolan, inserting Takings Clause issues directly in the pre-decision negotiation process. The Court held that demands seeking to impose excessive conditions on land use projects could violate the doctrine of unconstitutional conditions. The decision has led to an outpouring of largely critical academic commentary.

This Essay takes a different tack from many responses to Koontz, arguing that the actual impact of the decision is likely to be relatively small, for several reasons. First, it suggests that the complexity and diversity of the local land use process defeats the kind of uniformly broad prophylactic effect that the Court seeks. Second, the Essay contends that as agency discretion increases, it will be less likely that the agency’s negotiations with a developer will result in a Koontz problem. Third, it argues that, to the extent municipalities and project applicants enter into development agreements, Koontz becomes irrelevant. Finally, the Essay points to the use of state legislation as a more effective instrument for addressing excessive government exactions.