Fees, expenditures, and the Takings Clause

Much of land use, environmental, and natural resources law involves government-administered permitting regimes. For example, someone building a new residential subdivision needs permits from a local government agency approving the subdivision of property and demonstrating compliance with building and zoning codes. Someone building a new factory will need similar local permits, in addition to state and federal permits for the air and water pollution the factory will release. Each of these permits may contain conditions requiring the permit applicant to take steps to ameliorate harm the proposed activity may cause to the public. These conditions are referred to as "exactions." Until the Supreme Court's June 2013 decision in Koontz v. St. Johns River Water Management District, most types of permit conditions received little scrutiny under the Fifth Amendment's Takings Clause. Courts and scholars often distinguished between conditions that require dedication of an interest in land to the government and those that involve only money. Courts subjected the former category to heightened scrutiny under a pair of Supreme Court cases commonly referred to as Nollan/Dolan, but often applied a more government-friendly test to monetary exactions. The Supreme Court rejected this distinction in Koontz.