Agenda - Planning Commission - 09/05/2013

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August 10, 2013 I Volume 7 I Issue 15 Zoning Bulletin contractors to improve District -owned wetlands in order to obtain land - use permits also had to satisfy the Nollan and Dolan requirements. See also: Nollan v. California Coastal Com'n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677, 26 Env't. Rep. Cas. (BNA) 1073, 17 Envtl. L. Rep. 20918 (1987). See also: Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304, 38 Env't. Rep. Cas. (BNA) 1769, 24 Envtl. L. Rep. 21083 (1994). Case Note: The District had also argued that because it gave Koontz another avenue to obtain permit approval, the court did not have to decide whether its demand for offsite improvements satisfied Nollan and Dolan. The court acknowledged that had Koontz been offered at least one alternative that satisfied Nollan and Dolan, he would not have been subjected to an unconstitutional condition. Here, however, Koontz had sought to develop 3.7 acres, but the District in effect told Koontz that it would not allow him to build on 2.7 of those acres unless he agreed to spend money improving public lands. Koontz claimed that he was wrongfully denied a permit to build on those 2.7 acres. For that reason, the court found that the District's offer to approve a less ambitious building project did not obviate the need to determine whether the demand for offsite mitigation satisfied Nollan and Dolan. Case Note: In its decision, the court noted that, while 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), 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. However, 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 cre- ated by state law for imposing such a condition; but he cannot be entitled to constitutional compensation for a taking of property. Because Koontz brought his claim pursuant to a state law cause of action, the Court had no occasion to discuss what remedies might be available for a Nollan and Dolan unconstitutional condi- tions violation either here or in other cases. 6 © 2013 Thomson Reuters