Nexus and Proportionaity Flashcards
What is required for a city to put conditions on a permit.
Must have essential nexus (Nollan) and rough proportionality (Dolan) to place a condition upon permits.
Connection between what the developer is about to do and the need generated. The condition must also be roughly proportional to the need generated.
What is the essential nexus requirement?
Must be an “essential nexus” (correlation) between the landowner’s development/building and what the government is trying to accomplish. Development must drive the need for whatever is being required by the government.
Must exist a reasonable causal connection between the prevention of the perceived adverse impacts of the development project and the health, safety, and general welfare condition the government has imposed on the permit.
(Nollan)
What is the proportionality requirement?
Requires a rough proportionality of the need generated. Not proportional to the project, but proportional to the need generated (20 acres out of 1,000 not an issue; if that full 20 acres required for parks and schools is based on the amount of people moving into the area being developed). (Dolan)
What is the result if a condition is not justified?
It is an unconstitutional condition.
What is the requirement for conditions placed on rezoning?
Nollan/Dolan is required for building permits on land that is already zoned for the use. What happens if a landowner applies for a zoning change from Ag to Res? Are conditions allowed to be placed on the zoning change? If so, are they required to follow Nollan/Dolan? Courts have not ruled on this.
How are mitigation fees examined?
Court says that mitigation fees (money-in-Lieu) must follow Nollan/Dolan. Nexus and proportionality requirements do apply to mitigation fees. (Koontz)
What is the diffrence between impact/mitigation/in-lieu fees?
- Impact fee - impact of the development will increase requirements for city services (e.g. - 500 new houses could require additional schools, fire, and police support)
- Mitigation fee - mitigates damage likely to result from the development.
- There is not much of a difference from these. Impact fee is a logical extension of Koontz, which will likely apply to all land development conditions.
What is the Dual Rational Nexus Test for the constitutionality of impact fees?
Whether there is a reasonable connection between the need for additional capital facilities and the growth in population generated by the subdivision, and
if a reasonable connection exists, whether there is a reasonable connection between the expenditure of funds collected through the imposition of an impact fee and the benefits accruing to the subdivision.
(Volusia County, senior housing development required to pay impact fees for public schools)
How are impact fees different from a tax?
Impact fees are for the benefit of the person paying the fee.
Taxes go into a general fund to benefit the public as a whole. County needs statutory authority to levy a tax.
In Hawaii, what two powers does the state have over development?
Boundary amendment
Special and unique permissions to develop (usually in Ag land)
What does the Hawaii Impact Fee law require before an impact fee is assessed?
Follows the dual rational nexus test requirements.
Requires a needs assessment study for any impact fees to be levied
Requires the county to examine other ways to cover the cost without impact fees.
* Must place the funds collected in a special account to spend in benefit for that particular development. Must spend on the purpose for the impact fee. * Funds must be spent within six years, or, at the request of the developer, be refunded with interest.
