New Takings Case Argued Before the Supreme Court

"If the oral argument is any indication, the U.S. Supreme Court is likely to rule against a landowner in Florida who filed a takings lawsuit against an Orlando-area water district – turning what appeared to be an easy victory for property rights advocates into a loss," says Fulton.

The case before the court - Koontz v. St. Johns River Water Management District - revolves around "the question of whether a property owner’s refusal to provide offsite mitigation in exchange for a permit is a taking." For those of you that remember your planning law training, you may recall the precedent cited in earlier rulings on the case: "so-called Nollan/Dolan test, which states that exactions are permissible if there is a 'rational nexus' (Nollan) and 'rough proportionality' between impact and exaction (Dollan)."

According to Fulton, based on his line of questioning during the proceedings, "it appears that Justice Antonin Scalia – author of the important Nollan v. California Coastal Commission ruling a quarter-century ago – will swing the court against the property owners and toward a more cautious takings approach."

"Indeed, the veteran conservative justice – who has sounded more political than scholarly in many recent writings – fell back to the settled positions of the 1980s and ‘90s, when the Supreme Court concluded that a taking occurs only when all other options have been exhausted. Clearly, in this case, he believed they had not been."