Agenda - Planning Commission - 11/07/2013

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3. whether the "demand" by the District was sufficiently concrete to trigger a Nollan/ Dolan claim; and 4. whether the District did, in fact, comply with the requirements of Nollan and Dolan. THE SCOPE OF THE KOONTZ DECISION A concern of the dissent and of commentators following the decision is how far the Koontz decision extends in the realm of land -use exactions. For example, a key disagreement among lower courts has been whether to ap- ply Dolan to legislatively adopted, generally applicable mitigation of impacts, like impact fees. Though it purports to limit the extent of its holdings, the majority does not ad- dress directly the distinction between ad hoc exactions and legislatively adopted regulatory fees or mitigation, despite numerous conflict- ing lower court opinions on this particular issue. The majority felt that its holdings would be sufficiently limited by settled law and, oth- erwise, would not have the dramatic impact on planning that the dissent predicts. The ma- jority, for example, references "in -lieu" fees as Insisting that landowners internalize the negative externalities of their con- duct is a hallmark of responsible land use policy, and we have long sustained such regulations against constitutional attack. —Justice Alito, writing for the majority the types of exactions that should be subject to Nollan and Dolan, noting their "functional equivalent to other types of land use exac- tions." It then goes on to say that its holdings do not affect "property taxes, user fees, and similar laws and regulations," but gives little idea of what it would include in those catego- ries in the land -use context. By distinguishing "user fees" and "laws and regulations" it may be that the Court would not apply Nollan and Dolan to impact fees and other "legislatively imposed" mitiga- tion. On the other hand, the majority cites cases that applied, "or something like it," in dealing with impact fees and subdivision ex- actions to suggest, it would appear, that doing so will not create "significant practical harm." In short, it is unclear whether the pa- rameters the majority intended to draw dis- tinguish ad hoc exactions like those in Koontz from other legislatively imposed mitigation tools, like impact fees, mitigation fees, or in- clusionary housing requirements. As the dis- sent put it: "Maybe today's majority accepts that distinction; or then again, maybe not." WHAT ARE PLANNERS (AND THEIR ATTORNEYS) TO DO? The extent to which the Koontz opinion will change daily life for planners will vary, of course, from jurisdiction to jurisdiction. Nexus and proportionality are so ingrained in the impose any conditional exactions on approvals and will simply approve development without regard to off -site impacts on public infrastruc- ture and resources. Perhaps some may, but this would be an overreaction to the Koontz opinion. Even the majority notes that dedica- tions of property are a reality of the permitting process. While Nollan and Dolan may have a broader reach after Koontz, their nexus and proportionality principles have a long- standing presence in planning, and this case should not mark the end of reasonable and ® A required dedication for the creation of this bicycle pathway running behind the A -Boy hardware store in Tigard, Oregon, was central to the Dolan case. existing practice that the two central holdings in the case, standing alone at least, may not change the way of doing business for some. In those cases, the jurisprudential mean- derings of the justices will remain largely a concern for lawyers and less one for planners. However, with this opinion, one can only conclude that the Supreme Court intended to expand the reach of Nollan and Dolan and and that a few precautionary steps are advis- able until the courts clear things up. So what are the options? Option 1: Approve Everything Without Mitigation Commentators have suggested that, in light of Koontz, some agencies will be too afraid to proportionate development conditions as a part of the permitting process. Option 2: Deny Everything Without Mitigation At the other extreme have been those (in- cluding the dissenting justices) who suggest governmental agencies will now deny applica- tions without requiring (or even discussing) mitigation simply to avoid new threats of liti- gation. Again, this takes Koontz too far. First, as is discussed further below, most agencies either -are already conducting some level of nexus and proportionality analysis or can do so without significant increases in time or expertise in most cases. Second, a lawsuit resulting from a denial without conditions would simply be a different kind of lawsuit. ZONINGPRACTICE 1o.13 AMERICAN PLANNING ASSOCIATION i page 5