The U.S. Supreme Court will decide two issues in Koontz v. St. Johns River Water Management District: 

• First, whether a Fifth Amendment “taking” can occur if the government does not issue a land-use permit because negotiations over permit conditions have been unsuccessful. 
• Second, whether the “essential nexus” and “rough proportionality” tests apply to conditioning receipt of a land-use permit on paying money (versus dedication of land). 

The State and Local Legal Center’s (SLLC) amicus curiae brief argues the answer to both questions should be no. This case matters to cities and counties because it is common for local governments to condition permits on monetary payments and for permit negotiations to not result in a permit being issued.

In this case, Koontz sought a permit to develop part of his property, which involved dredging wetlands.  St. Johns asked Koontz to pay for off-site mitigation, including replacing culverts or plugging drainage canals on other property a few miles away.  Koontz refused, and St. Johns never issued him a permit.  Koontz sued St. Johns for a temporary taking and was awarded almost $400,000.

In two previous cases, Nollan and Dolan, the Supreme Court held that when the government requests the dedication of land as a condition for issuing a permit, there must be an “essential nexus” between the dedication of land and denying the permit and “rough proportionality” between the dedication of land and the impact of the development. 

The Florida Supreme Court “decline[d] to expand” Nollan and Dolan to non-dedications of land, including the requested mitigation in this case.  Interestingly, the Florida Supreme Court described the question of whether Nollan and Dolan apply to non-dedications of land as the clearest inconsistency in the interpretation of the scope of Nollan and Dolan.   

The Florida Supreme Court also concluded that there was no “taking” because St. John never issued the permit, and Koontz was never required to perform any off-site mitigation.    

The SLLC’s brief argues that Nollan and Dolan should not be applied to permit denials because doing so will discourage local government from engaging in permit negotiations. The SLLC’s brief also argues that Nollan and Dolan should not apply to permits conditioned on money because then arguably Nollan and Dolan could apply to public taxation programs.

Oral argument was heard in this case on January 15, 2013. The Supreme Court will issue an opinion in this case by June 30, 2013.