Agenda - Planning Commission - 09/05/2013

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Zoning Bulletin August 10, 2013 I Volume 7 I Issue 15 on Koontz's land -use permit applications had to have a "nexus and rough proportionality" to the effects of Koontz's proposed land use. The District had argued that the Nollan and Dolan requirements did not have to be met where the government denies a peiniit because the ap- plicant refuses to turn over property/meet the conditions. The Supreme Court of the United States disagreed. It found that the "principles that undergird 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." "Recognizing such a distinction would enable the government to evade the Nollan/Dolan limitations simply by phrasing its demands for property as conditions precedent to permit approval," said the court. Thus, the court held that the Nollan and Dolan standard applies not only when the government approves a land -use permit conditioned on the landowner'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). Here, found the court, the District's "[e]xtortionate demands for prop- erty" in the land -use permitting context ran "afoul of the Takings Clause not because [the District took] property but because [the District] impermissibly burden[ed] [Koontz's] right not to have property taken without just compensation." The District had also argued that Koontz's claim failed, and there was no unconstitutional taking of property, in the condition the District placed on Koontz's land -use permit applications that Koontz hire contractors to make improvements to District -owned wetlands. The District had contended that condition would have had Koontz spend money rather than give an easement on his land and that an obligation to spend money can never provide the basis for a takings claim. Again, the Supreme Court of the United States disagreed. It held that "so-called `monetary exac- tions' "—such as with "in lieu of" fees —must satisfy the nexus and rough proportionality requirements of Nollan and Dolan where the monetary obligation burden's the land -use permit applicant's ownership of a specific parcel of land. Nollan and Dolan must apply where there is a "direct link between the government's demand and a specific parcel of real property," said the court, because that direct link implicates a central concern: "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." Here, the District's land use permit condition that Koontz hire contrac- tors to make improvements to District -owned wetlands several miles away would, found the court, "transfer an interest in property" from Koontz to the District, amounting to a per se taking similar to the taking of an ease- ment or a lien. Accordingly, the District's condition that Koontz hire © 2013 Thomson Reuters 5