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Supreme Court takes certiorari in two takings cases

October 7th, 2012 by Joseph William Singer

Arkansas Game & Fish Comm’n v. United States, 637 F.3d 1366 (Fed. Cir. 2011), held that deviations by the Army Corps of Engineers from a flood management plan that resulted in temporary flooding of riverfront property did not constitute a taking of property without just compensation but might constitute a tort for which compensation could be sought. The flood management plan exists because the riverfront property is subject to flooding in the first place and it is intended to alleviate that. The doctrinal issue likely to be the focus of the Supreme Court’s ruling is whether temporary flooding constitutes a taking of property.

Koontz v. St. Johns River Water Management District, 77 So. 3d 1220 (Fla. 2011), held that the state of Florida did not take the landowner’s property when it proposed to allow the owner to dredge the property on condition that several exactions were met. The owner refused the exactions and the permit was ultimately denied. The core question is whether the Nollan/Dolan rule requiring exactions to be substantially related to the reasons for the permit denial apply to exactions that do not involve a dedication of the owner’s property to the public. Nollan and Dolan both involved governmental proposals to relax regulatory limits on land development in exchange for the owner granting a public easement of access to portions of the owner’s property. The Supreme Court in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 547-548 (2005), explained that this constituted a particular application of the unconstitutional conditions doctrine. The Supreme Court may finally resolve the question of whether Nollan/Dolan doctrine applies, for example, to municipal rules that relax zoning limits if developers contribute money to a fund to promote low-income housing. Or the court may find the case moot and the doctrine inapplicable given the ultimate denial of the permit in this case.

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