Can a Koontz claim for the denial of a permit be brought in Federal Court notwithstanding Williamson County?

June 28th, 2013

An interesting reading of Koontz from J. David Breemer:

With this background in mind, what struck me about Koontz is that the entire Court seemed to agree that a property owner who challenges a permit denial under Nollan/Dolan due to an offending condition can seek to invalidate the condition under the unconstitutional conditions doctrine, as well as potentially seek damages under a state or federal statute, but is not entitled to just compensation under the Fifth Amendment. See Slip. Op., at 11 and the dissenting opinion, at 2. If this is so, then such plaintiffs are free of Williamson County. After all, that decision hinges entirely on the Just Compensation Clause of the Fifth Amendment. If the Just Compensation Clause is inapplicable to permit denial/unconstitutional conditions plaintiffs, and invalidation is a proper remedy, as Koontz appears to say, then Williamson County does not apply by its own terms.  And that in turn means that Nollan/Dolan permit denial plaintiffs can sue immediately in federal court on the ground the government has denied a permit because the applicant refused to accede to a condition.

All of which leads to the conclusion that, after KoontzWilliamson County may be on very shaky ground in theNollan and Dolan context, and federal courts may therefore soon be deciding these claims, as many believe they should have been doing all along.

I don’t know if Koontz speaks to this specifically, but it flows naturally that if a person is suing for a exaction based on a permit denial, there is no taking to possibly compensate, and the ripeness concerns are no longer present. The only question to litigate is the unconstitutional conditions questions, which would result in damages under 1983, apart from the just compensation clause.

Rick Hills reads Koontz more narrowly:

Koontz did nothing to disturb this remedial equivocation, declaring that “[b]ecause petitioner brought his claim pursuant to a state law cause of action,the Court has no occasion to discuss what remedies might be available for a Nollan/Dolan unconstitutional conditions violation either here or in other cases” (Slip op. at 11).

This may be the most important sentence in the opinion — a hint at the SCOTUS’s “exit strategy” when developers start challenging plazas, parks, playgrounds, and the like. San Remo Hotel v. San Francisco severely limits developers’ power to bring a federal takings claim in federal court: If state courts can continue to define the NollanDolan remedy as invalidation of the illegal condition and denial of the zoning permission, then Koontz will be a practical dead letter.

Any thoughts?