Koontz oral argument: the Takings Clause protects “private property,” not just real property


Is money a kind of private property?  In PLF’s Koontz case, which attorney Paul Beard II will argue at the U.S. Supreme Court on the 15th, one significant issue is whether the Supreme Court’s previous decisions  in Nollan and Dolan apply to monetary exactions.  Those two cases protect property owners from unlawful permit conditions that are unrelated and disproportional to proposed projects.  Though the District argues the cases are limited to real property, like a plot of land, the Takings Clause of the Constitution does not expressly differentiate between kinds of property that the government can exact in the permit process.  And, for that matter, neither do Nollan and Dolan.  As PLF argues in its merits brief, the question in Nollan was “whether the Commission could do indirectly, through the permit process, what it could not do directly outside the permit process.”  In other words, can government demand that a property owner waive her right to compensation outside of the permit process?   PLF argues that under unconstitutional conditions doctrine, the answer is clearly no.  If Nollan and Dolan do not apply to monetary exactions, governments can unjustly require private property owners to bear public burdens without compensating them.  Such a system creates ample opportunity for abuse. Consider this example from PLF’s brief:

[A]ssume a government agency wants a conservation easement over a permit applicant’s land, and that a permit exaction of such an easement would have no relationship whatsoever to the impact of the applicant’s project. If the agency is in a jurisdiction (like Florida) that narrowly applies the limitations in Nollan and Dolan only to real property exactions, then the agency will avoid the constitutional consequences of confiscating the easement by permit exaction. Instead, it will confiscate from the applicant a sum of money equal to the cost of condemning the easement by eminent domain, knowing that such a monetary exaction will escape the heightened scrutiny of Nollan and Dolan. Though the form of the exaction may differ, the applicant suffers the same constitutional injury: forced waiver of compensation for confiscated property.

The Takings Clause prevents government from making permitting demands that have nothing to do with your proposed project.  That should not change when the government asks for your life savings instead of your front lawn.