Agenda - Planning Commission - 07/12/2018

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Zoning Bulletin June 10, 2018 I Volume 12 I Issue 11 ments—like the "expansion of the capacity of public schools, roads, and pub- lic safety facilities." Eventually, property owners in the county brought a class action lawsuit against the County, seeking to recover development impact fees. The "Dabbs" Class demanded refunds for an unspecified amount of impact fees collected by the County between fiscal years ("FY") 1997-2003. The Dabbs Class sought that refund on the ground that the impact fees were not expended or encum- bered in a timely manner as required under the County's Impact Fee Ordinance. The circuit court found that the County had applied the Impact Fee Ordinance as required, and concluded that there were no impact fees available for refund. The Dabbs Class appealed. On appeal, the Dabbs Class argued that the County's Impact Fee Ordinance was subject to the "rational nexus/rough proportionality test" for a government taking. In two different cases (Nollan and Dolan), the United States Supreme Court had held that "a unit of govern- ment may not condition the approval of a land -use permit on the owner's relinquishment 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." Here, the Dabbs Class argued that with regard to impact fees, the County had to "demonstrate that its expenditure of impact fees was attributable reasonably to new development and each such expenditure rea- sonably benefitted 'new development' and/or individual `against whom the fee was charged.' " The Dabbs Class argued that the County could not meet that test, and that therefore the impact fees should be refunded. The Court of Special Appeals rejected the Dabbs Class' argument. The court held that the rough proportionality/rough nexus test had no application here. The Dabbs Class then petitioned for certiorari, which was granted by the Court of Appeals of Maryland. DECISION: Judgment of Court of Special Appeals affirmed. The Court of Appeals of Maryland held that area -wide impact fees, such as those imposed under the County's Impact Fee Ordinance, were not subject to the rational nexus/rough proportionality test for a government taking In so holding, the court explained that the rational nexus/rough proportion- ality test for a government taking had been expanded recently by the United States Supreme Court (in Koontz) to "apply to a narrow set of monetary exac- tions, i.e., a condition of the payment of money for favorable governmental action on a required permit application for a specific parcel of land." The United States Supreme Court had held that "a monetary exaction for mitiga- tion as a condition for issuing a land -use permit to enable development of an individual property must meet the nexus and rough proportionality require- ments [test]." In other words, the Supreme Court held that "challenges to governmental demands for money (except application fees) in connection with the permit review process for a specific property are subject to nexus and rough proportionality analysis." Analyzing the Supreme Court cases, the Court of Appeals of Maryland emphasized that the nexus and rough proportionality analysis applied very © 2018 Thomson Reuters 7