Agenda - Planning Commission - 09/05/2013

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August 10, 2013 I Volume 7 I Issue 15 Zoning Bulletin 114 S. Ct. 2309, 129 L. Ed. 2d 304, 38 Env't. Rep. Cas. (BNA) 1769, 24 Envtl. L. Rep. 21083 (1994). Those cases held that "the government may not condition the approval of a land -use peiiiiit on the owner's relinquish- ment 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." The District Court of Appeal affirmed. However, the State Supreme Court reversed on two grounds. It held that the District's demand for property from Koontz did not have to meet the Nollan and Dolan require- ments and have a nexus and rough proportionality to the effects of the proposed land use since: (1) the District denied the permit (unless Koontz met the conditions); and (2) the District's demand was for money (to hire contractors to improve offsite wetlands on public lands). Koontz appealed. Recognizing that the majority opinion of the Florida Supreme Court rested on a question of federal constitutional law on which the lower courts were divided, the Supreme Court of the United States granted the petition for a writ of certiorari. DECISION: Reversed, and matter remanded. The Supreme Court of the United States held that the government's demand for property from a land -use permit applicant must satisfy the Nollan and Dolan requirements and thus have a nexus and rough proportionality to the effects of the proposed land use even when: (1) the government denies the permit; and (2) the government's demand is for money. The court explained: The " `unconstitutional conditions doctrine' vindicates the Constitution's enumerated rights by preventing the govern- ment from coercing people into giving them up." In the land use context, the unconstitutional conditions doctrine protects the Fifth Amendment right to just compensation for property the government takes when own- ers apply for land -use permits. Pursuant to Nollan and Dolan, a govern- ment's demand for property from a land -use permit applicant is constitu- tional as long as it has a "nexus and rough proportionality to the effects of the land use." In other words, the government can 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 property that the government demands and the social costs of the applicant's proposal. Those requirements accommodate two "realities of the permitting pro- cess," explained the court: (1) "the broad discretion of a government to deny a permit that is worth far more than property it would like to take"; and (2) the fact that "many proposed land uses threaten to impose costs on the public that dedications of property can offset." Thus, under Nollan and Dolan, "the government may choose whether and how a permit 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." Accordingly, in this case, any conditions that the District placed 4 © 2013 Thomson Reuters