William & Mary Law Review


In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of land use permitting situations in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent to which those predictions have come to pass via a review of the approximately 130 lower court cases to have cited Koontz to date. Based on this review, the Article offers two claims. First, on doctrinal grounds, it contends that Koontz’s footprint thus far is rather light, in the sense that the decision has not prompted lower courts to extend the application of heightened scrutiny to a broad class of regulatory measures and, in those select instances where such scrutiny does apply, has not led lower courts to craft a far-reaching array of remedies. Second, on normative grounds, it asserts that the restraint evident in the lower court opinions that have wrestled with Koontz is appealing in the sense that this course acknowledges that property necessarily involves context-driven allocative choices by the state, and focuses— as best these courts can, given the constraints explicit in prior doctrine—on whether those allocative choices are fair and just absent compensation.