Regulatory Conditions on Land Development Flashcards
Today’s view of police power
public safety and addressing future harms
• Nollan v. California Coastal Commission – S. Ct. (1987) “Essential Nexus”
o F: P wants to tear down bungalow, build 2-story home on lot, which will obstruct part of the view of ocean; D conditions building permit on P providing public easement to the dry-sand beach area on P’s land
P forced to give up right to exclude people from walking on their property
Such a taking would normally require eminent domain
o H: For P
Conditions can be placed on the permit, but there must be an “essential nexus” between the condition and the original purpose of the building restriction
• Here, the condition was too tenuously connected to govt goal of maintaining view of the ocean
• Govt must use Eminent Domain and pay for land if it wants to use it
o Brennan dissent – commission trying to make maximum public access to the whole coastline in Nollan; over time everyone will bear the cost essentially a mutual reciprocity of advantage argument (Holmes supra)
Believes that the Nollans are being given a windfall here
o Test after Nollan
1. Does the condition further a legitimate state interest? (not hard to prove)
2. Is there an “essential nexus” between the condition and the original purpose of the building restriction? Is there an essential nexus between the condition and the state interest?
• Dolan v. City of Tigard – S. Ct. (1994) “Rough Proportionality”
o F: P owns store and wants to expand it; permit conditioned on easement for public greenway (drainage plan) and 15ft strip for pedestrian/bike lane
o H: For P
If city had asked for dedication of this property, would have had to pay just compensation
Is there a legitimate state interest? Yes.
Is there an “essential nexus” between the condition and the state interest? Yes.
Is there a roughly proportional relationship between the required dedication and the impact of the proposed development? No. [“Was the degree of exactions sufficiently related to P’s impact?”]
• Floodplain easement – city does not show reasonable relationship
• Bike path – need more than conclusory statement that the path could offset some of the traffic demand generated
Key point of Dolan
city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development
• Rough Proportionality Test- The government may not, without just compensation, place land use conditions on an approval of a private property development plan unless there is a “rough proportionality” between the conditions and the impact of the proposed development