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Often these cases ... have little
<br />impact beyond those litigating them.
<br />The appropriate course of action ...
<br />is to reevaluate all procedures related
<br />to mitigation or dedications ... to
<br />ensure ongoing compliance with
<br />Nollan and Dolan.
<br />4. that any communication or opinion, other
<br />than those issued as a formal assessment,
<br />are nonbinding and are not intended to be
<br />relied upon for purposes of development
<br />approval or final agency approval;
<br />5. the calculations or assumptions the gov-
<br />ernment will use to guide mitigation as-
<br />sessments; and
<br />6. the official or governing body with final
<br />decision -making authority.
<br />Development agreements also provide
<br />a more formalized framework for developing
<br />appropriate mitigation alternatives and an
<br />opportunity to document how the parties mu-
<br />tually arrived at its terms.
<br />Emphasize legislatively adopted fees and
<br />programs. Since the 197os, local governments
<br />have increasingly relied upon formally ad-
<br />opted standards and procedures for measur-
<br />ing the public impacts of private development
<br />against available capacity and for handling
<br />situations where those impacts would over-
<br />burden public facilities. These programs are
<br />referred to variously as adequate public facil-
<br />ity ordinances or concurrency management
<br />systems. Over the same period, impact fees,
<br />inclusionary housing requirements, housing
<br />mitigation fees, and the like have allowed
<br />local governments to handle off -site impacts
<br />with an established, generally applicable
<br />set of standards, instead of through ad hoc
<br />negotiations.
<br />These legislatively adopted techniques
<br />have historically been based on pre -adoption
<br />nexus and proportionality studies, which
<br />reduce the chances of running afoul of Nollan
<br />and Dolan. Certainly some local governments
<br />and some developers prefer the predictabil-
<br />ity of this approach. In any case, some local
<br />governments will consider formal concurrency
<br />programs and impact fees as a safer alterna-
<br />tive to ad hoc, negotiated exactions after
<br />Koontz.
<br />Note, however, this is not to say Nollan
<br />and Dolan do not apply to these legislative
<br />programs (indeed, they very well may under
<br />Koontz). It is to say, simply, that concurrency
<br />and impact fees are established tools that, by
<br />definition, have always included a rigorous
<br />verification of nexus and proportionality.
<br />CONCLUSION
<br />The confusion that resulted from the Supreme
<br />Court's "inelegant" decision in Agins v. City
<br />of Tiburon, 447 U.S. 255 (198o) took 25 years
<br />and a follow-up opinion (in Lingle v. Chevron
<br />U.S.A. Inc., 554 U.S. 528 (2005)) to correct.
<br />Will it take that long to sort out the questions
<br />created by Koontz? Has the majority's treat-
<br />ment of the issues created enough confusion
<br />to affect planners' daily lives, or do the over-
<br />arching holdings merely verify a standard that
<br />most planners already apply?
<br />It is too soon to tell, of course. Often
<br />these cases, despite the heights from which
<br />they are handed down, have little impact
<br />beyond those litigating them. The appropriate
<br />course of action at this point, however, is to
<br />reevaluate all procedures related to mitiga-
<br />tion or dedications, whether discretionary or
<br />a product of legislatively adopted ordinances,
<br />to ensure ongoing compliance with Nollan
<br />and Dolan.
<br />VOL. 3o, NO. so
<br />Zoning Practice is a monthly publication of the American Planning Association. Subscriptions are available for $95 (U.S.) and $120 (foreign).
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