By Scott Anders
Dolan Media Newswires
Among the many important decisions from the most recent U.S. Supreme Court session was the latest statement on governmental takings in land and development.
With this recent ruling in Koontz v. St. Johns River Water Management District, landowners now hold additional leverage in fighting unreasonable development requirements – especially off-site development or payment in lieu of property dedication. Additionally, the decision means that governments need to be cautious about the off-site improvements they seek as a condition of land use decisions.
In Koontz v. St. Johns, the landowner, who had property near Orlando, Fla., sought to build on approximately three acres of a 14-acre parcel comprised mostly of wetlands. The wetlands that comprised the building site had been degraded by neighboring commercial developments.
As part of the development, the landowner proposed providing the government with the use and preservation of the remaining 11 acres through a conservation easement. The district imposed additional conditions of approval that are the subject of this case.
The Supreme Court ruled that the landowner’s rights were violated by a land use condition of approval requiring mitigation projects on government-owned land several miles from the landowner’s property. The Supreme Court also ruled that requiring a monetary payment for off-site improvements must meet the test of having the “essential nexus” and “rough proportionality” to the impacts of the proposed development as set out in the Nollan and Dolan cases of 1987 and 1994, respectively.
Nollan v. California Coastal Commission established the “essential nexus test.” In this case, the Nollans applied for a permit to replace their beachfront house with a larger home. The Coastal Commission approved their permit, with a condition of approval requiring dedication of an access easement across the beach frontage of the property.
The court said that requiring such an easement was a “physical invasion” of the property and that requiring the easement as a condition of approval was a taking under the Fifth Amendment. The requirement of the easement across the beachfront of the property did not have the “essential nexus” to the Coastal Commission’s stated purpose, which was to mitigate the negative impact of the larger house on the view of the beach from the street.
In Dolan v. City of Tigard, argued at the Supreme Court by Jordan Ramis PC attorney Tim Ramis, the “rough proportionality test” was established. The city of Tigard required a bicycle path and greenway as conditions of approval to expand the Dolans’ hardware store.
The court found no sufficient demonstration that the bike path or the greenway were related to the impacts caused by the expansion of the hardware store and that the city had not sufficiently shown that a bike path would mitigate the increased traffic as a result of expanding the store.
The court said, “We think a term such as “rough proportionality” best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”
The court stated that the government had the burden of demonstrating “rough proportionality.”
While concerns had been expressed that the rulings of Nollan and Dolan had been curtailed, it appears that the Supreme Court is actually strengthening the need for governments to demonstrate an essential nexus and rough proportionality between the impacts of a development and the exactions that governments require to mitigate those impacts.
The recent Koontz v. St. Johns case also strengthened the unconstitutional conditions doctrine, which says that if a government requires funding of an off-site project that does not meet the Nollan and Dolan tests of nexus and rough proportionality, then the government will pay for its improper exactions.
Scott Anders is an attorney and shareholder at Jordan Ramis PC, Oswego, Ore. He is a former civil prosecutor and former Washington district court judge.