In arguably the most significant land use decision by the U.S. Supreme Court since Kelo v. City of New London,1 nearly a decade ago, a sharply divided court ruled in late June that a local government's demand for property from an applicant in exchange for granting the applicant a land use permit must satisfy the "takings" test set forth in the court's landmark decisions of Nollan v. California Coastal Comm'n2 and Dolan v. City of Tigard3—where the court held that a unit of government may not condition the approval of a land use permit on the owner's relinquishment of a portion of the owner's property unless there was a "nexus" and "rough proportionality" between the government's demand and the effects of the proposed land use—even when the government actually denies the requested permit and even when the government's demand is for money.
The majority decision in Koontz v. St. Johns River Water Management District,4 by Justice Samuel Alito, Jr., in which Chief Justice John Roberts and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas joined, dismissed the concerns expressed in the dissent, by Justice Elena Kagan, with the three remaining justices joining, that the practical result of Koontz would be a "revolution" in land use law. Although the majority may (or may not) be correct on that point, one thing is certain: because property owners, developers, and local government officials involved in the land use process all now will have to consider the implications of Koontz, it is, at the very least, going to significantly alter the decision-making dynamics in the permitting process.
