Takings Decision Confounds Experts, Spurs Charges of Judicial Activism

"[Tuesday's] Supreme Court decision significantly expanding the rights of property owners to challenge the terms of land-use permits has puzzled environmental law experts and has liberal groups accusing the conservative justices of judicial activism."

"The 5-4 decision along ideological lines in Koontz v. St. Johns River Water Management District held that government conditions on a land-use permit are subject to a strict test to protect the landowner from a 'taking,' a violation of the Fifth Amendment's clause that states no private property may be taken for public use "without just compensation" -- even if the permit is never issued.

Further, Justice Samuel Alito wrote for the majority that any monetary requirement -- such as hiring contractors to mitigate wetlands -- must also clear the 'Nollan-Dolan test,' a product of two Supreme Court cases that said the government may not require a landowner to relinquish some of his property for a permit unless there is a 'nexus' and 'rough proportionality' between the demand and the effects of the proposed project."

Jeremy P. Jacobs reports for Greenwire June 26, 2013.

Source: Greenwire, 06/27/2013