William and Mary Law School

U.S. Supreme Court Cites Rosenberg's Scholarship in Koontz

Professor RosenbergChancellor Professor of Law and Associate Dean Ronald Rosenberg's 2006 article "The Changing Culture of American Land Use Regulation: Paying for Growth with Impact Fees" (SSRN) was recently cited by the U.S. Supreme Court in Justice Alito's majority opinion in Koontz v. St. Johns River Water Management District. Applying a Fifth Amendment takings analysis, the Court in Koontz held that the government needs to provide a permit applicant with only one alternative that fulfills the "nexus" and "rough proportionality" standards of its prior Nollan and Dolan decisions. Therefore, an owner may have a choice between relinquishing an easement or making a cash payment to the government but this regulatory condition must meet constitutional standards. Professor Rosenberg's article -- the exclusive scholarly authority cited in the opinion -- was cited for the proposition that "in lieu of" fees are frequently used by modern land use regulators to offset or mitigate public impacts of new development and are usually subject to constitutional analysis. Professor Rosenberg recently presented an expansion of the research contained in his article at Seoul National University in Seoul, South Korea, and Renmin University in Beijing, China. 
 
In Koontz, a property owner wanted to develop a portion of his Florida wetlands property. However, the Water Management District refused to approve the project unless the property owner compromised. For instance, the Water Management District wanted the property owner to spend money to improve public lands elsewhere. Thus, the property owner sued claiming that the conditions were excessive. The Supreme Court held that the Nollan-Dolan standard applied in the case of a denial of a permit and a demand for payment of money. Both Nollan v. California Coastal Commission and Dolan v. City of Tigard limited the government's ability to diminish property interests with land use regulations. Under these two Supreme Court cases, there must be a "nexus" and "rough proportionality" between the effects of the proposed land project and the government's subsequent demand.
 
Professor Rosenberg is a frequent speaker on environmental and property issues, as well as the author of many books, including Controversies in Constitutional Law --  Evolution of the Law of Takings and is co-author of Environmental Policy Law. In addition, he has published numerous articles in the nation's leading law journals such as the Duke Law Journal, the Virginia Environmental Law Journal, the North Carolina Law Review, and New York University's Annual Survey of American Law, on topics covering a wide range of environmental law and related constitutional and property issues.

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