Koontz in the Mansion and the Gatehouse

Abstract

This Article focuses on problems in implementing the U.S. Supreme Court’s expansion of its doctrine of unconstitutional conditions pertaining to land development approvals in Koontz v. St. Johns River Water Management District. As earlier developed in Nollan v. California Coastal Commission and Dolan v. City of Tigard, the doctrine applied only to unrelated or disproportional exactions of interests in real property. The doctrine was expanded in Koontz to include denials of development approval after landowner refusal to accede to unreasonable exaction demands, and also to exactions of money as well as real property interests.

Drawing an analogy to Yale Kamisar’s disparate treatment of criminal defendants in the “mansion” of the judicial system and the “gatehouse” of the police station, the Article discusses difficulties in implementing Koontz. It examines the difficulty of enforcing prohibitions on unreasonable coercion in informal bargaining between land development approval applicants and local regulators. The Article concludes by discussing specific procedural and substantive problems, and proposes some partial solutions.

Keywords: unconstitutional conditions, regulatory takings, development exactions, impact fees, land development applications, heightened scrutiny, deferential review, transparency, legislative determinations, adjudicative decisions, incentive zoning, Williamson County, Eastern Enterprises, Fifth Amendment

JEL Classification: K11, R52, H77