Koontz v. St. Johns River Water Management District

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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–1447

															_________________

															COY A. KOONTZ, Jr., PETITIONER v. ST. JOHNS
RIVER WATER MANAGEMENT DISTRICT

															on writ of certiorari to the supreme court of
florida

															[June 25, 2013]

															     Justice Alito
delivered the opinion of the Court.

															     Our decisions in Nollan
v. California Coastal Comm’n, 483 U. S. 825 (1987) , and
Dolan v. City of Tigard, 512 U. S. 374 (1994) , provide
important protection against the misuse of the power of land-use
regulation. In those cases, we held that a unit of government may
not condition the approval of a land-use permit on the
owner’s relinquishment of a portion of his property unless
there is a “nexus” and “rough
proportionality” between the government’s demand and
the effects of the proposed land use. In this case, the St. Johns
River Water Management District (District) believes that it
circumvented Nollan and Dolan because of the way in which it
structured its handling of a permit application submitted by Coy
Koontz, Sr., whose estate is represented in this Court by Coy
Koontz, Jr. [ 1 ] The District
did not approve his application on the condition that he surrender
an interest in his land. Instead, the District, after suggesting
that he could obtain approval by signing over such an interest,
denied his application because he refused to yield. The Florida
Supreme Court blessed this maneuver and thus effectively interred
those important decisions. Because we conclude that Nollan and
Dolan cannot be evaded in this way, the Florida Supreme
Court’s decision must be reversed.

															I

															A

															     In 1972, petitioner
purchased an undeveloped 14.9-acre tract of land on the south side
of Florida State Road 50, a divided four-lane highway east of
Orlando. The property is located less than 1,000 feet from that
road’s intersection with Florida State Road 408, a tolled
expressway that is one of Orlando’s major thoroughfares.

															     A drainage ditch runs
along the property’s western edge, and high-voltage power
lines bisect it into northern and southern sections. The combined
effect of the ditch, a 100foot wide area kept clear for the power
lines, the highways, and other construction on nearby parcels is to
isolate the northern section of petitioner’s property from
any other undeveloped land. Although largely classified as wetlands
by the State, the northern section drains well; the most
significant standing water forms in ruts in an unpaved road used to
access the power lines. The natural topography of the
property’s southern section is somewhat more diverse, with a
small creek, forested uplands, and wetlands that sometimes have
water as much as a foot deep. A wildlife survey found evidence of
animals that often frequent developed areas: raccoons, rabbits,
several species of bird, and a turtle. The record also indicates
that the land may be a suitable habitat for opossums.

															     The same year that
petitioner purchased his property, Florida enacted the Water
Resources Act, which divided the State into five water management
districts and authorized each district to regulate
“construction that connects to, draws water from, drains
water into, or is placed in or across the waters in the
state.” 1972 Fla. Laws ch. 72–299, pt. IV, §1(5),
pp. 1115, 1116 (codified as amended at Fla. Stat. §373.403(5)
(2010)). Under the Act, a landowner wishing to undertake such
construction must obtain from the relevant district a Management
and Storage of Surface Water (MSSW) permit, which may impose
“such reasonable conditions” on the permit as are
“necessary to assure” that construction will “not
be harmful to the water resources of the district.” 1972 Fla.
Laws §4(1), at 1118 (codified as amended at Fla. Stat.
§373.413(1)).

															     In 1984, in an effort
to protect the State’s rapidly diminishing wetlands, the
Florida Legislature passed the Warren S. Henderson Wetlands
Protection Act, which made it illegal for anyone to “dredge
or fill in, on, or over sur- face waters” without a Wetlands
Resource Management (WRM) permit. 1984 Fla. Laws ch. 84–79,
pt. VIII, §403.905(1), pp. 204–205. Under the Henderson
Act, permit applicants are required to provide “reasonable
assurance” that proposed construction on wetlands is
“not contrary to the public interest,” as defined by an
enumerated list of criteria. See Fla. Stat. §373.414(1).
Consistent with the Henderson Act, the St. Johns River Water
Management District, the district with jurisdiction over
petitioner’s land, requires that permit applicants wishing to
build on wetlands offset the resulting environmental damage by
creating, enhancing, or preserving wetlands elsewhere.

															     Petitioner decided to
develop the 3.7-acre northern section of his property, and in 1994
he applied to the District for MSSW and WRM permits. Under his
proposal, petitioner would have raised the elevation of the
northernmost section of his land to make it suitable for a
building, graded the land from the southern edge of the building
site down to the elevation of the high-voltage electrical lines,
and installed a dry-bed pond for retaining and gradually releasing
stormwater runoff from the building and its parking lot. To
mitigate the environmental effects of his proposal, petitioner
offered to foreclose any possible future development of the
approximately 11acre southern section of his land by deeding to the
District a conservation easement on that portion of his
property.

															     The District considered
the 11acre conservation easement to be inadequate, and it informed
petitioner that it would approve construction only if he agreed to
one of two concessions. First, the District proposed that
petitioner reduce the size of his development to 1 acre and deed to
the District a conservation easement on the remaining 13.9 acres.
To reduce the development area, the District suggested that
petitioner could eliminate the dry-bed pond from his proposal and
instead install a more costly subsurface stormwater management
system beneath the building site. The District also suggested that
petitioner install retaining walls rather than gradually sloping
the land from the building site down to the elevation of the rest
of his property to the south.

															     In the alternative, the
District told petitioner that he could proceed with the development
as proposed, build- ing on 3.7 acres and deeding a conservation
easement to the government on the remainder of the property, if he
also agreed to hire contractors to make improvements to
District-owned land several miles away. Specifically, peti- tioner
could pay to replace culverts on one parcel or fill in ditches on
another. Either of those projects would have enhanced approximately
50 acres of District-owned wetlands. When the District asks permit
applicants to fund offsite mitigation work, its policy is never to
require any particular offsite project, and it did not do so here.
Instead, the District said that it “would also favorably
consider” alternatives to its suggested offsite mitigation
projects if petitioner proposed something “equivalent.”
App. 75.

															     Believing the
District’s demands for mitigation to be excessive in light of
the environmental effects that his building proposal would have
caused, petitioner filed suit in state court. Among other claims,
he argued that he was entitled to relief under Fla. Stat.
§373.617(2), which allows owners to recover “monetary
damages” if a state agency’s action is “an
unreasonable exercise of the state’s police power
constituting a taking without just compensation.”

															B

															     The Florida Circuit
Court granted the District’s mo- tion to dismiss on the
ground that petitioner had not ade- quately exhausted his
state-administrative remedies, but the Florida District Court of
Appeal for the Fifth Circuit re- versed. On remand, the State
Circuit Court held a 2-day bench trial. After considering testimony
from several ex- perts who examined petitioner’s property,
the trial court found that the property’s northern section
had already been “seriously degraded” by extensive
construction on the surrounding parcels. App. to Pet. for Cert.
D–3. In light of this finding and petitioner’s offer to
dedicate nearly three-quarters of his land to the District, the
trial court concluded that any further mitigation in the form of
payment for offsite improvements to District property lacked both a
nexus and rough proportionality to the environmental impact of the
proposed construction. Id., at D–11. It accordingly held the
District’s actions unlawful under our decisions in Nollan and
Dolan.

															     The Florida District
Court affirmed, 5 So. 3d 8 (2009), but the State Supreme Court
reversed, 77 So. 3d 1220 (2011). A majority of that court
distinguished Nollan and Dolan on two grounds. First, the majority
thought it significant that in this case, unlike Nollan or Dolan,
the District did not approve petitioner’s application on the
condition that he accede to the District’s demands; in-
stead, the District denied his application because he refused to
make concessions. 77 So. 3d, at 1230. Second, the majority
drew a distinction between a demand for an interest in real
property (what happened in Nollan and Dolan) and a demand for
money. 77 So. 3d, at 1229– 1230. The majority
acknowledged a division of authority over whether a demand for
money can give rise to a claim under Nollan and Dolan, and sided
with those courts that have said it cannot. 77 So. 3d, at
1229–1230. Compare, e.g., McClung v. Sumner, 548 F. 3d
1219, 1228 (CA9 2008), with Ehrlich v. Culver City, 12 Cal. 4th
854, 876, 911 P. 2d 429, 444 (1996); Flower Mound v. Stafford
Estates Ltd. Partnership, 135 S. W. 3d 620, 640–641
(Tex. 2004). Two justices concurred in the result, arguing that
petitioner had failed to exhaust his administrative remedies as re-
quired by state law before bringing an inverse condem- nation suit
that challenges the propriety of an agency action. 77 So. 3d,
at 1231–1232; see Key Haven Associated Enterprises, Inc. v.
Board of Trustees of Internal Improvement Trust Fund, 427
So. 2d 153, 159 (Fla. 1982).

															     Recognizing that the
majority opinion rested on a question of federal constitutional law
on which the lower courts are divided, we granted the petition for
a writ of certiorari, 568 U. S. ___ (2012), and now
reverse.

															II

															A

															     We have said in a
variety of contexts that “the government may not deny a
benefit to a person because he ex- ercises a constitutional
right.” Regan v. Taxation With Representation of Wash., 461
U. S. 540, 545 (1983) . See also, e.g., Rumsfeld v. Forum for
Academic and Institutional Rights, Inc., 547 U. S. 47 –60
(2006); Rutan v. Republican Party of Ill., 497 U. S. 62, 78
(1990) . In Perry v. Sindermann, 408 U. S. 593 (1972) , for
example, we held that a public college would violate a
professor’s freedom of speech if it declined to renew his
contract because he was an outspoken critic of the college’s
administration. And in Memorial Hospital v. Maricopa County, 415
U. S. 250 (1974) , we concluded that a county impermissibly
burdened the right to travel by extending healthcare benefits only
to those indigent sick who had been residents of the county for at
least one year. Those cases reflect an overarching principle, known
as the unconstitutional condi- tions doctrine, that vindicates the
Constitution’s enumerated rights by preventing the government
from coercing people into giving them up.

															     Nollan and Dolan
“involve a special application” of this doctrine that
protects the Fifth Amendment right to just compensation for
property the government takes when owners apply for land-use
permits. Lingle v. Chevron U. S. A. Inc., 544 U. S.
528, 547 (2005) ; Dolan, 512 U. S., at 385 (invoking
“the well-settled doctrine of ‘unconstitutional
conditions’ ”). Our decisions in those cases
reflect two realities of the permitting process. The first is that
land-use permit applicants are especially vulnerable to the type of
coercion that the unconstitutional conditions doctrine prohibits
because the government often has broad discretion to deny a permit
that is worth far more than property it would like to take. By
conditioning a building permit on the owner’s deeding over a
public right-of- way, for example, the government can pressure an
owner into voluntarily giving up property for which the Fifth
Amendment would otherwise require just compensation. See id., at
384; Nollan, 483 U. S., at 831. So long as the building permit
is more valuable than any just compensation the owner could hope to
receive for the right-of-way, the owner is likely to accede to the
government’s demand, no matter how unreasonable. Extortionate
demands of this sort frustrate the Fifth Amendment right to just
compensation, and the unconstitutional conditions doctrine
prohibits them.

															     A second reality of the
permitting process is that many proposed land uses threaten to
impose costs on the public that dedications of property can offset.
Where a building proposal would substantially increase traffic
congestion, for example, officials might condition permit approval
on the owner’s agreement to deed over the land needed to
widen a public road. Respondent argues that a similar rationale
justifies the exaction at issue here: petitioner’s proposed
construction project, it submits, would destroy wetlands on his
property, and in order to compensate for this loss, respondent
demands that he enhance wet- lands elsewhere. Insisting that
landowners internalize the negative externalities of their conduct
is a hallmark of responsible land-use policy, and we have long
sustained such regulations against constitutional attack. See
Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926)
.

															     Nollan and Dolan
accommodate both realities by allowing the government to condition
approval of a permit on the dedication of property to the public so
long as there is a “nexus” and “rough
proportionality” between the prop- erty that the government
demands and the social costs of the applicant’s proposal.
Dolan, supra, at 391; Nollan, 483 U. S., at 837. Our
precedents thus enable permitting authorities to insist that
applicants bear the full costs of their proposals while still
forbidding the government from engaging in “out-and-out
. . . extortion” that would thwart the Fifth
Amendment right to just compensation. Ibid. (internal quotation
marks omitted). Under Nollan and Dolan the government may choose
whether and how a per- mit applicant is required to mitigate the
impacts of a proposed development, but it may not leverage its
legitimate interest in mitigation to pursue governmental ends that
lack an essential nexus and rough proportionality to those
impacts.

															B

															     The principles that
undergird our decisions in Nollan and Dolan do not change depending
on whether the government approves a permit on the condition that
the applicant turn over property or denies a permit because the
applicant refuses to do so. We have often concluded that denials of
governmental benefits were impermissible under the unconstitutional
conditions doctrine. See, e.g., Perry, 408 U. S., at 597
(explaining that the government “may not deny a benefit to a
person on a basis that infringes his constitutionally protected
interests” (emphasis added)); Memorial Hospital, 415
U. S. 250 (finding unconstitutional condition where government
denied healthcare benefits). In so holding, we have recognized that
regardless of whether the government ultimately succeeds in
pressuring someone into forfeiting a constitutional right, the
unconstitutional conditions doctrine forbids burdening the
Constitution’s enumerated rights by coercively withholding
benefits from those who exercise them.

															     A contrary rule would
be especially untenable in this case because it would enable the
government to evade the limitations of Nollan and Dolan simply by
phrasing its demands for property as conditions precedent to permit
approval. Under the Florida Supreme Court’s approach, a
government order stating that a permit is “approved if”
the owner turns over property would be subject to Nollan and Dolan,
but an identical order that uses the words “denied
until” would not. Our unconstitutional condi- tions cases
have long refused to attach significance to the distinction between
conditions precedent and conditions subsequent. See Frost &
Frost Trucking Co. v. Railroad Comm’n of Cal., 271 U. S.
583 –593 (1926) (invalidating regulation that required the
petitioner to give up a constitutional right “as a condition
precedent to the enjoyment of a privilege”); Southern Pacific
Co. v. Denton, 146 U. S. 202, 207 (1892) (invalidating statute
“requiring the corporation, as a condition precedent to
obtaining a per- mit to do business within the State, to surrender
a right and privilege secured to it by the Constitution”).
See also Flower Mound, 135 S. W. 3d, at 639 (“The
government cannot sidestep constitutional protections merely by
rephrasing its decision from ‘only if’ to ‘not
unless’ ”). To do so here would effectively render
Nollan and Dolan a dead letter.

															     The Florida Supreme
Court puzzled over how the government’s demand for property
can violate the Takings Clause even though “ ‘no
property of any kind was ever taken,’ ” 77
So. 3d, at 1225 (quoting 5 So. 3d, at 20 (Griffin, J.,
dissenting)); see also 77 So. 3d, at 1229–1230, but the
unconstitutional conditions doctrine provides a ready answer.
Extortionate demands for property in the land-use permitting
context run afoul of the Takings Clause not because they take
property but because they impermis- sibly burden the right not to
have property taken without just compensation. As in other
unconstitutional condi- tions cases in which someone refuses to
cede a constitutional right in the face of coercive pressure, the
impermissible denial of a governmental benefit is a
constitutionally cog- nizable injury.

															     Nor does it make a
difference, as respondent suggests, that the government might have
been able to deny petitioner’s application outright without
giving him the option of securing a permit by agreeing to spend
money to improve public lands. See Penn Central Transp. Co. v. New
York City, 438 U. S. 104 (1978) . Virtually all of our
unconstitutional conditions cases involve a gratuitous governmental
benefit of some kind. See, e.g., Regan, 461 U. S. 540 (tax
benefits); Memorial Hospital, 415 U. S. 250 (healthcare);
Perry, 408 U. S. 593 (public employment); United States v.
Butler, 297 U. S. 1, 71 (1936) (crop payments); Frost, supra
(business license). Yet we have repeatedly rejected the argument
that if the government need not confer a benefit at all, it can
withhold the benefit because someone refuses to give up
constitutional rights. E.g., United States v. American Library
Assn., Inc., 539 U. S. 194, 210 (2003) (“[T]he
government may not deny a benefit to a person on a basis that
infringes his constitutionally protected . . . freedom of
speech even if he has no entitlement to that benefit”
(emphasis added and inter- nal quotation marks omitted)); Wieman v.
Updegraff, 344 U. S. 183, 191 (1952) (explaining in
unconstitutional conditions case that to focus on “the facile
generalization that there is no constitutionally protected right to
public employment is to obscure the issue”). Even if
respondent would have been entirely within its rights in denying
the permit for some other reason, that greater authority does not
imply a lesser power to condition permit approval on
petitioner’s forfeiture of his constitutional rights. See
Nollan, 483 U. S., at 836–837 (explaining that
“[t]he evident constitutional propriety” of prohibiting
a land use “disappears . . . if the condition
substituted for the prohibition utterly fails to further the end
advanced as the justification for the prohibition”).

															     That is not to say,
however, that there is no relevant difference between a consummated
taking and the denial of a permit based on an unconstitutionally
extortionate demand. Where the permit is denied and the condition
is never imposed, nothing has been taken. While the un-
constitutional conditions doctrine recognizes that this burdens a
constitutional right, the Fifth Amendment man- dates a particular
remedy—just compensation—only for takings. In cases
where there is an excessive demand but no taking, whether money
damages are available is not a question of federal constitutional
law but of the cause of action—whether state or
federal—on which the landowner relies. Because 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.

															C

															     At oral argument,
respondent conceded that the denial of a permit could give rise to
a valid claim under Nollan and Dolan, Tr. of Oral Arg. 33–34,
but it urged that we should not review the particular denial at
issue here because petitioner sued in the wrong court, for the
wrong remedy, and at the wrong time. Most of respondent’s
objections to the posture of this case raise questions of Florida
procedure that are not ours to decide. See Mullaney v. Wilbur, 421
U. S. 684, 691 (1975) ; Murdock v. Memphis, 20 Wall. 590, 626
(1875). But to the extent that respondent suggests that the posture
of this case creates some federal obstacle to adjudicating
petitioner’s unconstitutional conditions claim, we remand for
the Florida courts to consider that argument in the first
instance.

															     Respondent argues that
we should affirm because, rather than suing for damages in the
Florida trial court as authorized by Fla. Stat. §373.617,
petitioner should have first sought judicial review of the denial
of his permit in the Florida appellate court under the
State’s Administrative Procedure Act, see
§§120.68(1), (2) (2010). The Flor-ida Supreme Court has
said that the appellate court is the “proper forum to
resolve” a “claim that an agency has applied a
. . . statute or rule in such a way that the aggrieved
party’s constitutional rights have been violated,” Key
Haven Associated Enterprises, 427 So. 2d, at 158, and
respondent has argued throughout this litigation that petitioner
brought his unconstitutional conditions claim in the wrong forum.
Two members of the Florida Supreme Court credited
respondent’s argument, 77 So. 3d, at 1231–1232,
but four others refused to address it. We decline
respondent’s invitation to second-guess a State Supreme
Court’s treatment of its own procedural law.

															     Respondent also
contends that we should affirm because petitioner sued for damages
but is at most entitled to an injunction ordering that his permit
issue without any conditions. But we need not decide whether
federal law authorizes plaintiffs to recover damages for
unconstitutional conditions claims predicated on the Takings Clause
because petitioner brought his claim under state law. Florida law
allows property owners to sue for “damages” whenever a
state agency’s action is “an unreasonable ex- ercise of
the state’s police power constituting a taking without just
compensation.” Fla. Stat. Ann. §373.617. Whether that
provision covers an unconstitutional conditions claim like the one
at issue here is a question of state law that the Florida Supreme
Court did not address and on which we will not opine.

															     For similar reasons, we
decline to reach respondent’s argument that its demands for
property were too indefinite to give rise to liability under Nollan
and Dolan. The Florida Supreme Court did not reach the question
whether respondent issued a demand of sufficient concreteness to
trigger the special protections of Nollan and Dolan. It relied
instead on the Florida District Court of Appeals’
characterization of respondent’s behavior as a demand for
Nollan/Dolan purposes. See 77 So. 3d, at 1224 (quoting 5 So. 3d, at
10). Whether that characterization is correct is beyond the scope
of the questions the Court agreed to take up for review. If
preserved, the issue remains open on remand for the Florida Supreme
Court to address. This Court therefore has no occasion to consider
how concrete and specific a demand must be to give rise to
liability un- der Nollan and Dolan.

															     Finally, respondent
argues that we need not decide whether its demand for offsite
improvements satisfied Nollan and Dolan because it gave petitioner
another avenue for obtaining permit approval. Specifically,
respondent said that it would have approved a revised permit
application that reduced the footprint of petitioner’s
proposed construction site from 3.7 acres to 1 acre and placed a
conservation easement on the remaining 13.9 acres of
petitioner’s land. Respondent argues that regardless of
whether its demands for offsite mitigation satisfied Nollan and
Dolan, we must separately consider each of petitioner’s
options, one of which did not require any of the offsite work the
trial court found objectionable.

															     Respondent’s
argument is flawed because the option to which it
points—developing only 1 acre of the site and granting a
conservation easement on the rest—involves the same issue as
the option to build on 3.7 acres and perform offsite mitigation. We
agree with respondent that, so long as a permitting authority
offers the landowner at least one alternative that would satisfy
Nollan and Dolan, the landowner has not been subjected to an
unconstitutional condition. But respondent’s suggestion that
we should treat its offer to let petitioner build on 1 acre as an
alternative to offsite mitigation misapprehends the gov- ernmental
benefit that petitioner was denied. Petitioner sought to develop
3.7 acres, but respondent in effect told petitioner that it would
not allow him to build on 2.7 of those acres unless he agreed to
spend money improving public lands. Petitioner claims that he was
wrongfully denied a permit to build on those 2.7 acres. For that
reason, respondent’s offer to approve a less ambitious
building project does not obviate the need to determine whether the
demand for offsite mitigation satisfied Nollan and Dolan.

															III

															     We turn to the
Florida Supreme Court’s alternative holding that
petitioner’s claim fails because respondent asked him to
spend money rather than give up an easement on his land. A
predicate for any unconstitutional conditions claim is that the
government could not have constitutionally ordered the person
asserting the claim to do what it attempted to pressure that person
into doing. See Rumsfeld, 547 U. S., at 59–60. For that
reason, we began our analysis in both Nollan and Dolan by observing
that if the government had directly seized the easements it sought
to obtain through the permitting process, it would have committed a
per se taking. See Dolan, 512 U. S., at 384; Nollan, 483
U. S., at 831. The Florida Su- preme Court held that
petitioner’s claim fails at this first step because the
subject of the exaction at issue here was money rather than a more
tangible interest in real prop- erty. 77 So. 3d, at 1230.
Respondent and the dissent take the same position, citing the
concurring and dissenting opinions in Eastern Enterprises v. Apfel,
524 U. S. 498 (1998) , for the proposition that an obligation
to spend money can never provide the basis for a takings claim. See
post, at 5–8 (opinion of Kagan, J.).

															     We note as an initial
matter that if we accepted this argument it would be very easy for
land-use permitting officials to evade the limitations of Nollan
and Dolan. Because the government need only provide a permit
applicant with one alternative that satisfies the nexus and rough
proportionality standards, a permitting authority wishing to exact
an easement could simply give the owner a choice of either
surrendering an easement or making a payment equal to the
easement’s value. Such so-called “in lieu of”
fees are utterly commonplace, Rosenberg, The Changing Culture of
American Land Use Regulation: Paying for Growth with Impact Fees,
59 S. M. U. L. Rev. 177, 202–203 (2006), and
they are functionally equivalent to other types of land use
exactions. For that reason and those that follow, we reject
respondent’s argument and hold that so-called “monetary
exactions” must satisfy the nexus and rough proportionality
requirements of Nollan and Dolan.

															A

															     In Eastern
Enterprises, supra, the United States retroactively imposed on a
former mining company an obligation to pay for the medical benefits
of retired miners and their families. A four-Justice plurality
concluded that the statute’s imposition of retroactive
financial liability was so arbitrary that it violated the Takings
Clause. Id., at 529–537. Although Justice Kennedy concurred
in the result on due process grounds, he joined four other Justices
in dissent in arguing that the Takings Clause does not apply to
government-imposed financial obligations that “d[o] not
operate upon or alter an identified property interest.” Id.,
at 540 (opinion concurring in judgment and dissenting in part); see
id., at 554–556 (Breyer, J., dissenting) (“The
‘private property’ upon which the [Takings] Clause
traditionally has focused is a specific interest in physical or
intellectual property”). Relying on the concurrence and
dissent in Eastern Enterprises, respondent argues that a
requirement that petitioner spend money improving public lands
could not give rise to a taking.

															     Respondent’s
argument rests on a mistaken premise. Unlike the financial
obligation in Eastern Enterprises, the demand for money at issue
here did “operate upon . . . an identified property
interest” by directing the owner of a particular piece of
property to make a monetary payment. Id., at 540 (opinion of
Kennedy, J.). In this case, unlike Eastern Enterprises, the
monetary obligation burdened petitioner’s ownership of a
specific parcel of land. In that sense, this case bears resemblance
to our cases holding that the government must pay just compensation
when it takes a lien—a right to receive money that is secured
by a particular piece of property. See Armstrong v. United States,
364 U. S. 40 –49 (1960); Louisville Joint Stock Land
Bank v. Radford, 295 U. S. 555 –602 (1935); United
States v. Security Industrial Bank, 459 U. S. 70 –78
(1982); see also Palm Beach Cty. v. Cove Club Investors Ltd., 734
So. 2d 379, 383–384 (1999) (the right to receive income
from land is an interest in real property under Florida law). The
fulcrum this case turns on is the direct link between the
government’s demand and a spe- cific parcel of real property.
[ 2 ] Because of that direct
link, this case implicates the central concern of Nollan and Dolan:
the risk that the government may use its substantial power and
discretion in land-use permitting to pursue governmental ends that
lack an essential nexus and rough proportionality to the effects of
the proposed new use of the specific property at issue, thereby
diminishing without justification the value of the property.

															     In this case, moreover,
petitioner does not ask us to hold that the government can commit a
regulatory taking by directing someone to spend money. As a result,
we need not apply Penn Central’s “essentially
ad hoc, factual inquir[y],” 438 U. S., at 124, at
all, much less extend that “already difficult and uncertain
rule” to the “vast category of cases” in which
someone believes that a regulation is too costly. Eastern
Enterprises, 524 U. S., at 542 (opinion of Kennedy, J.).
Instead, petitioner’s claim rests on the more limited
proposition that when the government commands the relinquishment of
funds linked to a specific, identifiable property interest such as
a bank account or parcel of real property, a “per se
[takings] approach” is the proper mode of analysis under the
Court’s precedent. Brown v. Legal Foundation of Wash., 538
U. S. 216, 235 (2003) .

															     Finally, it bears
emphasis that petitioner’s claim does not implicate
“normative considerations about the wisdom of government
decisions.” Eastern Enterprises, 524 U. S., at 545
(opinion of Kennedy, J.). We are not here concerned with whether it
would be “arbitrary or unfair” for respondent to order
a landowner to make improvements to public lands that are nearby.
Id., at 554 (Breyer, J., dissenting). Whatever the wisdom of such a
policy, it would transfer an interest in property from the
landowner to the government. For that reason, any such demand would
amount to a per se taking similar to the taking of an easement
or a lien. Cf. Dolan, 512 U. S., at 384; Nollan, 483
U. S., at 831.

															B

															     Respondent and the
dissent argue that if monetary exactions are made subject to
scrutiny under Nollan and Dolan, then there will be no principled
way of distinguishing impermissible land-use exactions from
property taxes. See post, at 9–10. We think they exaggerate
both the extent to which that problem is unique to the land-use
permitting context and the practical difficulty of distinguishing
between the power to tax and the power to take by eminent
domain.

															     It is beyond dispute
that “[t]axes and user fees . . . are not
‘takings.’ ” Brown, supra, at 243, n. 2
(Scalia, J., dissenting). We said as much in County of Mobile v.
Kimball, 102 U. S. 691, 703 (1881) , and our cases have been
clear on that point ever since. United States v. Sperry Corp., 493
U. S. 52 , n. 9 (1989); see A. Magnano Co. v. Hamilton,
292 U. S. 40, 44 (1934) ; Dane v. Jackson, 256 U. S. 589,
599 (1921) ; Henderson Bridge Co. v. Henderson City, 173 U. S.
592 –615 (1899). This case therefore does not affect the
ability of governments to impose property taxes, user fees, and
similar laws and regulations that may impose financial burdens on
property owners.

															     At the same time, we
have repeatedly found takings where the government, by confiscating
financial obligations, achieved a result that could have been
obtained by imposing a tax. Most recently, in Brown, supra, at 232,
we were unanimous in concluding that a State Supreme Court’s
seizure of the interest on client funds held in escrow was a taking
despite the unquestionable constitutional propriety of a tax that
would have raised exactly the same revenue. Our holding in Brown
followed from Phillips v. Washington Legal Foundation, 524
U. S. 156 (1998) , and Webb’s Fabulous Pharmacies, Inc.
v. Beckwith, 449 U. S. 155 (1980) , two earlier cases in which
we treated confiscations of money as takings despite their
functional similarity to a tax. Perhaps most closely analogous to
the present case, we have repeatedly held that the government takes
property when it seizes liens, and in so ruling we have never
considered whether the government could have achieved an
economically equivalent result through taxation. Armstrong, 364
U. S. 40 ; Louisville Joint Stock Land Bank, 295 U. S.
555 .

															     Two facts emerge from
those cases. The first is that the need to distinguish taxes from
takings is not a creature of our holding today that monetary
exactions are subject to scrutiny under Nollan and Dolan. Rather,
the problem is inherent in this Court’s long-settled view
that property the government could constitutionally demand through
its taxing power can also be taken by eminent domain.

															     Second, our cases show
that teasing out the difference between taxes and takings is more
difficult in theory than in practice. Brown is illustrative.
Similar to respondent in this case, the respondents in Brown argued
that extending the protections of the Takings Clause to a bank
account would open a Pandora’s Box of constitutional chal-
lenges to taxes. Brief for Respondents Washington Legal Foundation
et al. 32 and Brief for Respondent Justices of the Washington
Supreme Court 22, in Brown v. Legal Foundation of Wash., O. T.
2002, No. 01–1325. But also like respondent here, the Brown
respondents never claimed that they were exercising their power to
levy taxes when they took the petitioners’ property. Any such
argument would have been implausible under state law; in
Washington, taxes are levied by the legislature, not the courts.
See 538 U. S., at 242, n. 2 (Scalia, J., dissenting).

															     The same dynamic is at
work in this case because Flor- ida law greatly circumscribes
respondent’s power to tax. See Fla. Stat. Ann. §373.503
(authorizing respondent to impose ad valorem tax on properties
within its jurisdiction); §373.109 (authorizing respondent to
charge permit application fees but providing that such fees
“shall not exceed the cost . . . for processing,
monitoring, and inspecting for compliance with the permit”).
If respondent had argued that its demand for money was a tax, it
would have effectively conceded that its denial of
petitioner’s permit was improper under Florida law. Far from
making that concession, respondent has maintained throughout this
litigation that it considered petitioner’s money to be a
substitute for his deeding to the public a conservation easement on
a larger parcel of undeveloped land. [ 3 ]

															     This case does not
require us to say more. We need not decide at precisely what point
a land-use permitting charge denominated by the government as a
“tax” becomes “so arbitrary . . . that
it was not the exertion of taxation but a confiscation of
property.” Brushaber v. Union Pacific R. Co., 240
U. S. 1 –25 (1916). For present purposes, it suffices to
say that despite having long recognized that “the power of
taxation should not be confused with the power of eminent
domain,” Houck v. Little River Drainage Dist., 239 U. S.
254, 264 (1915) , we have had little trouble distinguishing between
the two.

															C

															     Finally, we disagree
with the dissent’s forecast that our decision will work a
revolution in land use law by depriving local governments of the
ability to charge reasonable permitting fees. Post, at 8. Numerous
courts—including courts in many of our Nation’s most
populous States—have confronted constitutional challenges to
monetary exactions over the last two decades and applied the
standard from Nollan and Dolan or something like it. See, e.g.,
Northern Ill. Home Builders Assn. v. County of Du Page, 165 Ill.
2d. 25, 31–32, 649 N. E. 2d 384, 388–389 (1995);
Home Builders Assn. v. Beavercreek, 89 Ohio St. 3d 121, 128, 729
N. E. 2d 349, 356 (2000); Flower Mound, 135 S. W. 3d, at
640–641. Yet the “significant practical harm” the
dissent predicts has not come to pass. Post, at 8. That is hardly
surprising, for the dissent is correct that state law normally
provides an independent check on excessive land use permitting
fees. Post, at 11.

															     The dissent criticizes
the notion that the Federal Constitution places any meaningful
limits on “whether one town is overcharging for sewage, or
another is setting the price to sell liquor too high.” Post,
at 9. But only two pages later, it identifies three constraints on
land use permitting fees that it says the Federal Constitution
imposes and suggests that the additional protections of Nollan and
Dolan are not needed. Post, at 11. In any event, the
dissent’s argument that land use permit applicants need no
further protection when the government demands money is really an
argument for overruling Nollan and Dolan. After all, the Due
Process Clause protected the Nollans from an unfair allocation of
public burdens, and they too could have argued that the
government’s demand for property amounted to a taking under
the Penn Central framework. See Nollan, 483 U. S., at 838. We
have repeatedly rejected the dissent’s contention that other
constitutional doctrines leave no room for the nexus and rough
proportionality requirements of Nollan and Dolan. Mindful of the
special vulnerability of land use permit applicants to extortionate
demands for money, we do so again today.

															*  *  *

															     We hold that the
government’s demand for property from a land-use permit
applicant must satisfy the requirements of Nollan and Dolan even
when the government denies the permit and even when its demand is
for money. The Court expresses no view on the merits of
petitioner’s claim that respondent’s actions here
failed to comply with the principles set forth in this opinion and
those two cases. The Florida Supreme Court’s judgment is
reversed, and this case is remanded for further proceedings not
inconsistent with this opinion.

															It is so ordered. Notes 1 For ease of reference,
this opinion refers to both men as
“petitioner.” 2 Thus, because the
proposed offsite mitigation obligation in this case was tied to a
particular parcel of land, this case does not implicate the
question whether monetary exactions must be tied to a particular
parcel of land in order to constitute a taking. That is so even
whenthe demand is considered “outside the permitting
process.” Post, at 8 (Kagan, J., dissenting). The
unconstitutional conditions analysis requires us to set aside
petitioner’s permit application, not his ownership of a
particular parcel of real property. 3 Citing cases in which
state courts have treated similar governmental demands for money
differently, the dissent predicts that courts will “struggle
to draw a coherent boundary” between taxes and excessive
demands for money that violate Nollan and Dolan. Post, at
9–10. But the cases the dissent cites illustrate how the
frequent need to decide whether a particular demand for money
qualifies as a tax under state law, and the resulting state
statutes and judicial precedents on point, greatly reduce the
practical difficulty of resolving the same issue in federal
constitutional cases like this one. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–1447

															_________________

															COY A. KOONTZ, Jr., PETITIONER v. ST. JOHNS
RIVER WATER MANAGEMENT DISTRICT

															on writ of certiorari to the supreme court of
florida

															[June 25, 2013]

															     Justice Kagan, with
whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join,
dissenting.

															     In the paradigmatic
case triggering review under Nollan v. California Coastal
Comm’n, 483 U. S. 825 (1987) , and Dolan v. City of
Tigard, 512 U. S. 374 (1994) , the government approves a
building permit on the condition that the landowner relinquish an
interest in real property, like an easement. The significant legal
questions that the Court resolves today are whether Nollan and
Dolan also apply when that case is varied in two ways. First, what
if the government does not approve the permit, but instead demands
that the condition be fulfilled before it will do so? Second, what
if the condition entails not transferring real property, but simply
paying money? This case also raises other, more fact-specific
issues I will address: whether the government here imposed any
condition at all, and whether petitioner Coy Koontz suffered any
compensable injury.

															     I think the Court gets
the first question it addresses right. The Nollan-Dolan standard
applies not only when the government approves a development permit
conditioned on the owner’s conveyance of a property interest
(i.e., imposes a condition subsequent), but also when the
government denies a permit until the owner meets the condition
(i.e., imposes a condition precedent). That means an owner may
challenge the denial of a permit on the ground that the
government’s condition lacks the “nexus” and
“rough proportionality” to the development’s
social costs that Nollan and Dolan require. Still, the
condition-subsequent and condition-precedent situations differ in
an important way. When the government grants a permit subject to
the relinquishment of real property, and that condition does not
satisfy Nollan and Dolan, then the government has taken the
property and must pay just compensation under the Fifth Amendment.
But when the government denies a permit because an owner has
refused to accede to that same demand, nothing has actually been
taken. The owner is entitled to have the improper condition
removed; and he may be entitled to a monetary remedy created by
state law for imposing such a condition; but he cannot be entitled
to constitutional compensation for a taking of property. So far, we
all agree.

															     Our core disagreement
concerns the second question the Court addresses. The majority
extends Nollan and Dolan to cases in which the government
conditions a permit not on the transfer of real property, but
instead on the payment or expenditure of money. That runs roughshod
over Eastern Enterprises v. Apfel, 524 U. S. 498 (1998) ,
which held that the government may impose ordinary financial
obligations without triggering the Takings Clause’s
protections. The boundaries of the majority’s new rule are
uncertain. But it threatens to subject a vast array of land-use
regulations, applied daily in States and localities throughout the
country, to heightened constitutional scrutiny. I would not embark
on so unwise an adventure, and would affirm the Florida Supreme
Court’s decision.

															     I also would affirm for
two independent reasons establishing that Koontz cannot get the
money damages he seeks. First, respondent St. Johns River Water
Management District (District) never demanded anything (including
money) in exchange for a permit; the Nollan-Dolan standard
therefore does not come into play (even assuming that test applies
to demands for money). Second, no taking occurred in this case
because Koontz never acceded to a demand (even had there been one),
and so no property changed hands; as just noted, Koontz therefore
cannot claim just compensation under the Fifth Amendment. The
majority does not take issue with my first conclusion, and
affirmatively agrees with my second. But the majority thinks Koontz
might still be entitled to money damages, and remands to the
Florida Supreme Court on that question. I do not see how, and
expect that court will so rule.

															I

															     Claims that
government regulations violate the Takings Clause by unduly
restricting the use of property are generally “governed by
the standards set forth in Penn Central Transp. Co. v. New York
City, 438 U. S. 104 (1978) .” Lingle v. Chevron
U. S. A. Inc., 544 U. S. 528, 538 (2005) . Under
Penn Central, courts examine a regulation’s
“character” and “economic impact,” asking
whether the action goes beyond “adjusting the benefits and
burdens of economic life to promote the common good” and
whether it “interfere[s] with distinct investment-backed
expectations.” Penn Central, 438 U. S., at 124. That
multi-factor test balances the government’s manifest need to
pass laws and regulations “adversely
affect[ing]. . . economic values,” ibid., with our
longstanding recognition that some regulation “goes too
far,” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415
(1922) .

															     Our decisions in Nollan
and Dolan are different: They provide an independent layer of
protection in “the special context of land-use
exactions.” Lingle, 544 U. S., at 538. In that
situation, the “government demands that a landowner dedicate
an easement” or surrender a piece of real property “as
a condition of obtaining a development permit.” Id., at 546.
If the government appropriated such a property interest outside the
permitting process, its action would constitute a taking,
necessitating just compensation. Id., at 547. Nollan and Dolan
prevent the government from exploiting the landowner’s permit
application to evade the constitutional obligation to pay for the
property. They do so, as the majority explains, by subjecting the
government’s demand to heightened scrutiny: The government
may condition a land-use permit on the relinquishment of real
property only if it shows a “nexus” and “rough
proportionality” between the demand made and “the
impact of the proposed development.” Dolan, 512 U. S.,
at 386, 391; see ante, at 8. Nollan and Dolan thus serve not to
address excessive regulatory burdens on land use (the function of
Penn Central), but instead to stop the government from imposing an
“unconstitutional condition”—a requirement that a
person give up his constitutional right to receive just
compensation “in exchange for a discretionary benefit”
having “little or no relationship” to the property
taken. Lingle, 544 U. S., at 547.

															     Accordingly, the
Nollan-Dolan test applies only when the property the government
demands during the permitting process is the kind it otherwise
would have to pay for—or, put differently, when the
appropriation of that property, outside the permitting process,
would constitute a taking. That is why Nollan began by stating that
“[h]ad California simply required the Nollans to make an
easement across their beachfront available to the public
. . . , rather than conditioning their permit to rebuild
their house on their agreeing to do so, we have no doubt there
would have been a taking” requiring just compensation. 483
U. S., at 831. And it is why Dolan started by maintaining that
“had the city simply required petitioner to dedicate a strip
of land . . . for public use, rather than conditioning
the grant of her permit to [d]evelop her property on such a
dedication, a taking would have occurred.” 512 U. S., at
384. Even the majority acknowledges this basic point about Nollan
and Dolan: It too notes that those cases rest on the premise that
“if the government had directly seized the easements it
sought to obtain through the permitting process, it would have
committed a per se taking.” Ante, at 14–15. Only if
that is true could the government’s demand for the property
force a landowner to relinquish his constitutional right to just
compensation.

															     Here, Koontz claims
that the District demanded that he spend money to improve public
wetlands, not that he hand over a real property interest. I assume
for now that the District made that demand (although I think it did
not, see infra, at 12–16.) The key question then is:
Independent of the permitting process, does requiring a person to
pay money to the government, or spend money on its behalf,
constitute a taking requiring just compensation? Only if the answer
is yes does the Nollan-Dolan test apply.

															     But we have already
answered that question no. Eastern Enterprises v. Apfel, 524
U. S. 498 , as the Court describes, involved a federal statute
requiring a former mining company to pay a large sum of money for
the health benefits of retired employees. Five Members of the Court
determined that the law did not effect a taking, distinguishing
between the appropriation of a specific property interest and the
imposition of an order to pay money. Justice Kennedy acknowledged
in his controlling opinion that the statute “impose[d] a
staggering financial burden” (which influenced his conclusion
that it violated due process). Id., at 540 (opinion concurring in
judgment and dissenting in part). Still, Justice Kennedy explained,
the law did not effect a taking because it did not “operate
upon or alter” a “specific and identified propert[y] or
property right[ ].” Id., at 540–541. Instead,
“[t]he law simply imposes an obligation to perform an act,
the payment of benefits. The statute is indifferent as to how the
regulated entity elects to comply or the property it uses to do
so.” Id., at 540. Justice Breyer, writing for four more
Justices, agreed. He stated that the Takings Clause applies only
when the government appropriates a “specific interest in
physical or intellectual property” or “a specific,
separately identifiable fund of money”; by contrast, the
Clause has no bearing when the government imposes “an
ordinary liability to pay money.” Id., at 554–555
(dissenting opinion).

															     Thus, a requirement
that a person pay money to repair public wetlands is not a taking.
Such an order does not affect a “specific and identified
propert[y] or property right[ ]”; it simply
“imposes an obligation to perform an act” (the
improvement of wetlands) that costs money. Id., at 540–541
(opinion of Kennedy, J.). To be sure, when a person spends money on
the government’s behalf, or pays money directly to the
government, it “will reduce [his] net worth”—but
that “can be said of any law which has an adverse economic
effect” on someone. Id., at 543. Because the government is
merely imposing a “general liability” to pay money,
id., at 555 (Breyer, J., dissenting)—and therefore is
“indifferent as to how the regulated entity elects to comply
or the property it uses to do so,” id., at 540 (opinion of
Kennedy, J.)—the order to repair wetlands, viewed independent
of the permitting process, does not constitute a taking. And that
means the order does not trigger the Nollan-Dolan test, because it
does not force Koontz to relinquish a constitutional right.

															     The majority tries to
distinguish Apfel by asserting that the District’s demand
here was “closely analogous” (and “bears
resemblance”) to the seizure of a lien on property or an
income stream from a parcel of land. Ante, at 16, 19. The majority
thus seeks support from decisions like Armstrong v. United States,
364 U. S. 40 (1960) , where this Court held that the
government effected a taking when it extinguished a lien on several
ships, and Palm Beach Cty. v. Cove Club Investors Ltd., 734
So. 2d 379 (1999), where the Florida Supreme Court held that
the government committed a taking when it terminated a covenant
entit-ling the beneficiary to an income stream from a piece of
land.

															     But the
majority’s citations succeed only in showing what this case
is not. When the government dissolves a lien, or appropriates a
determinate income stream from a piece of property—or, for
that matter, seizes a particular “bank account or [the]
accrued interest” on it—the government indeed takes a
“specific” and “identified prop- erty
interest.” Apfel, 524 U. S., at 540–541 (opinion
of Kennedy, J.). But nothing like that occurred here. The District
did not demand any particular lien, or bank account, or income
stream from property. It just ordered Koontz to spend or pay money
(again, assuming it ordered anything at all). Koontz’s
liability would have been the same whether his property produced
income or not—e.g., even if all he wanted to build was a
family home. And similarly, Koontz could meet that obligation from
what-ever source he chose—a checking account, shares of
stock, a wealthy uncle; the District was “indifferent as to
how [he] elect[ed] to [pay] or the property [he] use[d] to do
so.” Id., at 540. No more than in Apfel, then, was the
(supposed) demand here for a “specific and identified”
piece of property, which the government could not take without
paying for it. Id., at 541.

															     The majority thus falls
back on the sole way the District’s alleged demand related to
a property interest: The demand arose out of the permitting process
for Koontz’s land. See ante, at 16–17. But under the
analytic framework that Nollan and Dolan established, that
connection alone is insufficient to trigger heightened scrutiny. As
I have described, the heightened standard of Nollan and Dolan is
not a freestanding protection for land-use permit applicants;
rather, it is “a special application of the doctrine of
unconstitutional conditions, which provides that the government may
not require a person to give up a constitutional right—here
the right to receive just compensation when property is
taken”—in exchange for a land-use permit. Lingle, 544
U. S., at 547 (internal quotation marks omitted); see supra,
at 3–5. As such, Nollan and Dolan apply only if the demand at
issue would have violated the Constitution independent of that
proposed exchange. Or put otherwise, those cases apply only if the
demand would have constituted a taking when executed outside the
permitting process. And here, under Apfel, it would not. [ 1 ]

															     The majority’s
approach, on top of its analytic flaws, threatens significant
practical harm. By applying Nollan and Dolan to permit conditions
requiring monetary payments—with no express limitation except
as to taxes—the majority extends the Takings Clause, with its
notoriously “difficult” and “perplexing”
standards, into the very heart of local land-use regulation and
service delivery. 524 U. S., at 541. Cities and towns across
the nation impose many kinds of permitting fees every day. Some
enable a government to mitigate a new development’s impact on
the community, like increased traffic or pollution—or
destruction of wetlands. See, e.g., Olympia v. Drebick, 156 Wash.
2d 289, 305, 126 P. 3d 802, 809 (2006). Others cover the
direct costs of providing services like sewage or water to the
development. See, e.g., Krupp v. Breckenridge Sanitation Dist., 19
P. 3d 687, 691 (Colo. 2001). Still others are meant to limit
the number of landowners who engage in a certain activity, as fees
for liquor licenses do. See, e.g., Phillips v. Mobile, 208
U. S. 472, 479 (1908) ; BHA Investments, Inc. v. Idaho, 138
Idaho 348, 63 P. 3d 474 (2003). All now must meet Nollan and
Dolan’s nexus and proportionality tests. The Federal
Constitution thus will decide whether one town is overcharging for
sewage, or another is setting the price to sell liquor too high.
And the flexibility of state and local governments to take the most
routine actions to enhance their communities will diminish
accordingly.

															     That problem becomes
still worse because the majority’s distinction between
monetary “exactions” and taxes is so hard to apply.
Ante, at 18. The majority acknowledges, as it must, that taxes are
not takings. See ibid. (This case “does not affect the
ability of governments to impose property taxes, user fees, and
similar laws and regulations that may impose financial burdens on
property owners”). But once the majority decides that a
simple demand to pay money—the sort of thing often viewed as
a tax—can count as an impermissible “exaction,”
how is anyone to tell the two apart? The question, as Justice
Breyer’s opinion in Apfel noted, “bristles with
conceptual difficulties.” 524 U. S., at 556. And
practical ones, too: How to separate orders to pay money from
. . . well, orders to pay money, so that a locality knows
what it can (and cannot) do. State courts sometimes must confront
the same question, as they enforce restrictions on
localities’ taxing power. And their decisions—contrary
to the majority’s blithe assertion, see ante, at
20–21—struggle to draw a coherent boundary. Because
“[t]here is no set rule” by which to determine
“in which category a particular” action belongs,
Eastern Diversified Properties, Inc. v. Montgomery Cty., 319 Md.
45, 53, 570 A. 2d 850, 854 (1990), courts often reach opposite
conclusions about classifying nearly identical fees. Compare, e.g.,
Coulter v. Rawlins, 662 P. 2d 888, 901–904 (Wyo. 1983)
(holding that a fee to enhance parks, imposed as a permit
condition, was a regulatory exaction), with Home Builders Assn. v.
West Des Moines, 644 N. W. 2d 339, 350 (Iowa 2002) (rejecting
Coulter and holding that a nearly identical fee was a tax). [ 2 ] Nor does the
majority’s opinion provide any help with that issue: Perhaps
its most striking feature is its refusal to say even a word about
how to make the distinction that will now determine whether a given
fee is subject to heightened scrutiny.

															     Perhaps the Court means
in the future to curb the intrusion into local affairs that its
holding will accomplish; the Court claims, after all, that its
opinion is intended to have only limited impact on
localities’ land-use authority. See ante, at 8, 21. The
majority might, for example, approve the rule, adopted in several
States, that Nollan and Dolan apply only to permitting fees that
are imposed ad hoc, and not to fees that are generally
applicable. See, e.g., Ehrlich v. Culver City, 12 Cal. 4th 854, 911
P. 2d 429 (1996). Dolan itself suggested that limitation by
underscoring that there “the city made an adjudicative
decision to condition petitioner’s application for a building
permit on an individual parcel,” instead of imposing an
“essen-tially legislative determination[ ] classifying
entire areas of the city.” 512 U. S., at 385. Maybe
today’s majority accepts that distinction; or then again,
maybe not. At the least, the majority’s refusal “to say
more” about the scope of its new rule now casts a cloud on
every decision by every local government to require a person
seeking a permit to pay or spend money. Ante, at 20.

															     At bottom, the
majority’s analysis seems to grow out of a yen for a
prophylactic rule: Unless Nollan and Dolan apply to monetary
demands, the majority worries, “land-use permitting
officials” could easily “evade the limitations”
on exaction of real property interests that those decisions impose.
Ante, at 15. But that is a prophylaxis in search of a problem. No
one has presented evidence that in the many States declining to
apply heightened scrutiny to permitting fees, local officials
routinely short-circuit Nollan and Dolan to extort the surrender of
real property interests having no relation to a development’s
costs. See, e.g., Krupp v. Breckenridge Sanitation Dist., 19
P. 3d, at 697; Home Builders Assn. of Central Arizona v.
Scottsdale, 187 Ariz. 479, 486, 930 P. 2d 993, 1000 (1997);
McCarthy v. Leawood, 257 Kan. 566, 579, 894 P. 2d 836, 845
(1995). And if officials were to impose a fee as a contrivance to
take an easement (or other real property right), then a court could
indeed apply Nollan and Dolan. See, e.g., Norwood v. Baker, 172
U. S. 269 (1898) (preventing circumvention of the Takings
Clause by prohibiting the government from imposing a special
assessment for the full value of a property in advance of
condemning it). That situation does not call for a rule extending,
as the majority’s does, to all monetary exactions. Finally, a
court can use the Penn Central framework, the Due Process Clause,
and (in many places) state law to protect against monetary demands,
whether or not imposed to evade Nollan and Dolan, that simply
“go[ ] too far.” Mahon, 260 U. S., at 415;
see supra, at 3. [ 3 ]

															     In sum, Nollan and
Dolan restrain governments from using the permitting process to do
what the Takings Clause would otherwise prevent—i.e., take a
specific property interest without just compensation. Those cases
have no application when governments impose a general financial
obligation as part of the permitting process, because under Apfel
such an action does not otherwise trigger the Takings
Clause’s protections. By extending Nollan and Dolan’s
heightened scrutiny to a simple payment demand, the majority
threatens the heartland of local land-use regulation and service
delivery, at a bare minimum depriving state and local governments
of “necessary predictability.” Apfel, 524 U. S.,
at 542 (opinion of Kennedy, J.). That decision is
unwarranted—and deeply unwise. I would keep Nollan and Dolan
in their intended sphere and affirm the Florida Supreme Court.

															II

															     I also would affirm
the judgment below for two independent reasons, even assuming that
a demand for money can trigger Nollan and Dolan. First, the
District never demanded that Koontz give up anything (including
money) as a condition for granting him a permit. [ 4 ] And second, because (as everyone agrees)
no actual taking occurred, Koontz cannot claim just compensation
even had the District made a demand. The majority nonetheless
remands this case on the theory that Koontz might still be entitled
to money damages. I cannot see how, and so would spare the Florida
courts.

															A

															     Nollan and Dolan
apply only when the government makes a “demand[ ]”
that a landowner turn over property in exchange for a permit.
Lingle, 544 U. S., at 546. I understand the majority to agree
with that proposition: After all, the entire unconstitutional
conditions doctrine, as the majority notes, rests on the fear that
the government may use its control over benefits (like permits) to
“coerc[e]” a person into giving up a constitutional
right. Ante, at 7; see ante, at 13. A Nollan-Dolan claim therefore
depends on a showing of government coercion, not relevant in an
ordinary challenge to a permit denial. See Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U. S. 687, 703 (1999) (Nollan and
Dolan were “not designed to address, and [are] not readily
applicable to,” a claim based on the mere “denial of
[a] development” permit). Before applying Nollan and Dolan, a
court must find that the permit denial occurred because the
government made a demand of the landowner, which he rebuffed.

															     And unless Nollan and
Dolan are to wreck land-use permitting throughout the
country—to the detriment of both communities and property
owners—that demand must be unequivocal. If a local government
risked a lawsuit every time it made a suggestion to an applicant
about how to meet permitting criteria, it would cease to do so;
indeed, the government might desist altogether from communicating
with applicants. That hazard is to some extent baked into Nollan
and Dolan; observers have wondered whether those decisions have
inclined some local governments to deny permit applications
outright, rather than negotiate agreements that could work to both
sides’ advantage. See W. Fischel, Regulatory Takings 346
(1995). But that danger would rise exponentially if something less
than a clear condition—if each idea or proposal offered in
the back-and-forth of reconciling diverse interests—triggered
Nollan-Dolan scrutiny. At that point, no local government official
with a decent lawyer would have a conversation with a developer.
Hence the need to reserve Nollan and Dolan, as we always have, for
reviewing only what an official demands, not all he says in
negotiations.

															     With that as backdrop,
consider how this case arose. To arrest the loss of the
State’s rapidly diminishing wetlands, Florida law prevents
landowners from filling or draining any such property without two
permits. See ante, at 2–3. Koontz’s property qualifies
as a wetland, and he therefore needed the permits to embark on
development. His applications, however, failed the District’s
preliminary review: The District found that they did not preserve
wetlands or protect fish and wildlife to the extent Florida law
required. See App. Exh. 19–20, 47. At that point, the
District could simply have denied the applications; had it done so,
the Penn Central test—not Nollan and Dolan—would have
governed any takings claim Koontz might have brought. See Del Monte
Dunes, 526 U. S., at 702–703.

															     Rather than reject the
applications, however, the District suggested to Koontz ways he
could modify them to meet legal requirements. The District proposed
reducing the development’s size or modifying its design to
lessen the impact on wetlands. See App. Exh. 87–88,
91–92. Alternatively, the District raised several options for
“off-site mitigation” that Koontz could undertake in a
nearby nature preserve, thus compensating for the loss of wetlands
his project would cause. Id., at 90–91. The District never
made any particular demand respecting an off-site project (or
anything else); as Koontz testified at trial, that possibility was
presented only in broad strokes, “[n]ot in any great
detail.” App. 103. And the District made clear that it
welcomed additional proposals from Koontz to mitigate his
project’s damage to wetlands. See id., at 75. Even at the
final hearing on his applications, the District asked Koontz if he
would “be willing to go back with the staff over the next
month and renegotiate this thing and try to come up with” a
solution. Id., at 37. But Koontz refused, saying (through his
lawyer) that the proposal he submitted was “as good as it can
get.” Id., at 41. The District therefore denied the
applications, consistent with its original view that they failed to
satisfy Florida law.

															     In short, the District
never made a demand or set a condition—not to cede an
identifiable property interest, not to undertake a particular
mitigation project, not even to write a check to the government.
Instead, the District suggested to Koontz several non-exclusive
ways to make his applications conform to state law. The
District’s only hard-and-fast requirement was that Koontz do
something—anything—to satisfy the relevant permitting
criteria. Koontz’s failure to obtain the permits therefore
did not result from his refusal to accede to an allegedly
extortionate demand or condition; rather, it arose from the legal
deficien-cies of his applications, combined with his unwillingness
to correct them by any means. Nollan and Dolan were never meant to
address such a run-of-the-mill denial of a land-use permit. As
applications of the unconstitutional conditions doctrine, those
decisions require a condition; and here, there was none.

															     Indeed, this case well
illustrates the danger of extending Nollan and Dolan beyond their
proper compass. Consider the matter from the standpoint of the
District’s lawyer. The District, she learns, has found that
Koontz’s permit applications do not satisfy legal
requirements. It can deny the permits on that basis; or it can
suggest ways for Koontz to bring his applications into compliance.
If every suggestion could become the subject of a lawsuit under
Nollan and Dolan, the lawyer can give but one recommendation: Deny
the permits, without giving Koontz any advice—even if he asks
for guidance. As the Florida Supreme Court observed of this case:
Were Nollan and Dolan to apply, the District would “opt to
simply deny permits outright without discussion or negotiation
rather than risk the crushing costs of litigation”; and
property owners like Koontz then would “have no opportunity
to amend their applications or discuss mitigation options.”
77 So. 3d 1220, 1231 (2011). Nothing in the Takings Clause requires
that folly. I would therefore hold that the District did not impose
an unconstitutional condition—because it did not impose a
condition at all.

															B

															     And finally, a third
difficulty: Even if (1) money counted as “specific and
identified propert[y]” under Apfel (though it doesn’t),
and (2) the District made a demand for it (though it didn’t),
(3) Koontz never paid a cent, so the District took nothing from
him. As I have explained, that third point does not prevent Koontz
from suing to invalidate the purported demand as an
unconstitutional condition. See supra, at 1–2. But it does
mean, as the majority agrees, that Koontz is not entitled to just
compensation under the Takings Clause. See ante, at 11. He may
obtain monetary relief under the Florida statute he invoked only if
it authorizes damages beyond just compensation for a taking.

															     The majority remands
that question to the Florida Supreme Court, and given how it
disposes of the other issues here, I can understand why. As the
majority indicates, a State could decide to create a damages remedy
not only for a taking, but also for an unconstitutional conditions
claim predicated on the Takings Clause. And that question is one of
state law, which we usually do well to leave to state courts.

															     But as I look to the
Florida statute here, I cannot help but see yet another reason why
the Florida Supreme Court got this case right. That statute
authorizes damages only for “an unreasonable exercise of the
state’s police power constituting a taking without just
compensation.” Fla. Stat. §373.617 (2010); see ante, at
12. In what legal universe could a law authorizing damages only for
a “taking” also provide damages when (as all agree) no
taking has occurred? I doubt that inside-out, upside-down universe
is the State of Florida. Certainly, none of the Florida courts in
this case suggested that the majority’s hypothesized remedy
actually exists; rather, the trial and appellate courts imposed a
damages remedy on the mistaken theory that there had been a taking
(although of exactly what neither was clear). See App. to Pet. for
Cert. C–2; 5 So. 3d 8, 8 (2009). So I would, once more,
affirm the Florida Supreme Court, not make it say again what it has
already said—that Koontz is not entitled to money
damages.

															III

															     Nollan and Dolan are
important decisions, designed to curb governments from using their
power over land-use permitting to extract for free what the Takings
Clause would otherwise require them to pay for. But for no fewer
than three independent reasons, this case does not present that
problem. First and foremost, the government commits a taking only
when it appropriates a specific property interest, not when it
requires a person to pay or spend money. Here, the District never
took or threatened such an interest; it tried to extract from
Koontz solely a commitment to spend money to repair public
wetlands. Second, Nollan and Dolan can operate only when the
government makes a demand of the permit applicant; the
decisions’ prerequisite, in other words, is a condition.
Here, the District never made such a demand: It informed Koontz
that his applications did not meet legal requirements; it offered
suggestions for bringing those applications into compliance; and it
solicited further proposals from Koontz to achieve the same end.
That is not the stuff of which an unconstitutional condition is
made. And third, the Florida statute at issue here does not, in any
event, offer a damages remedy for imposing such a condition. It
provides relief only for a consummated taking, which did not occur
here.

															     The majority’s
errors here are consequential. The majority turns a broad array of
local land-use regulations into federal constitutional questions.
It deprives state and local governments of the flexibility they
need to enhance their communities—to ensure environmentally
sound and economically productive development. It places courts
smack in the middle of the most everyday local government activity.
As those consequences play out across the country, I believe the
Court will rue today’s decision. I respectfully dissent. Notes 1 The majority’s sole
response is that “the unconstitutional conditions analysis
requires us to set aside petitioner’s permit application, not
his ownership of a particular parcel of real property.” Ante,
at 17, n. 1. That mysterious sentence fails to make the
majority’s opinion cohere with the unconstitutional
conditions doctrine, as anyone has ever known it. That doctrine
applies only if imposing a condition directly—i.e.,
independent of an exchange for a government benefit—would
violate the Constitution. Here, Apfel makes clear that the
District’s condition would not do so: The government may
(separate and apart from permitting) require a person—whether
Koontz or anyone else—to pay or spend money without effecting
a taking. The majority offers no theory to the contrary: It does
not explain, as it must, why the District’s condition was
“unconstitutional.” 2 The majority argues that
existing state-court precedent will “greatly reduce the
practical difficulty” of developing a uniform standard for
distinguishing taxes from monetary exactions in federal
constitutional cases. Ante, at 20, n.2. But how are those decisions
to perform that feat if they themselves are all over the
map? 3 Our Penn Central test
protects against regulations that unduly burden an owner’s
use of his property: Unlike the Nollan-Dolan standard, that
framework fits to a T a complaint (like Koontz’s) that a
permitting condition makes it inordinately expensive to develop
land. And the Due Process Clause provides an additional backstop
against excessive permitting fees by preventing a government from
conditioning a land-use permit on a monetary requirement that is
“basically arbitrary.” Eastern Enterprises v. Apfel,
–558 (1998) (Breyer, J., dissenting). My point is not, as the
majority suggests, that these constraints do the same thing as
Nollan and Dolan, and so make those decisions unnecessary. See
ante, at 21. To the contrary, Nollan and Dolan provide developers
with enhanced protection (and localities with correspondingly
reduced flexibility). See supra, at 8. The question here has to do
not with “overruling” those cases, but with extending
them. Ante, at 21. My argument is that our prior caselaw struck the
right balance: heightened scrutiny when the government uses the
permitting process to demand property that the Takings Clause
protects, and lesser scrutiny, but a continuing safeguard against
abuse, when the government’s demand is for something falling
outside that Clause’s scope. 4 The Court declines to
consider whether the District demanded anything from Koontz because
the Florida Supreme Court did not reach the issue. See ante, at 13.
But because the District raised this issue in its brief opposing
certiorari, Brief in Opposition 14–18, both parties briefed
and argued it on the merits, see Brief for Respondent 37–43;
Reply Brief 7–8, Tr. of Oral Arg. 7–12, 27–28,
52–53, and it provides yet another ground to affirm the
judgment below, I address the question.

Summary: The Supreme Court ruled that the government cannot deny a land-use permit because the owner refused to relinquish a portion of their property, as it violates the "nexus" and "rough proportionality" principles established in Nollan v. California Coastal Comm'n and Dolan v. City of Tigard. The St. Johns River Water Management District's attempt to circumvent these decisions by structuring the permit application process in a certain way was deemed unconstitutional.