By Heather A. Cunningham, Davison, Copple, Copple & Copple
You submit a development application or apply for a building permit and find that the relevant governmental agencies will approve your request . . . subject to a few conditions, of course. Those conditions can be surprisingly onerous, in some cases including requirements that you provide access for your neighbors across your property, requirements that you construct costly improvements to the road system, and/or requirements that you dedicate land for future rights of way. Your choices are: a) accept the conditions and go forward; b) reject the conditions and abandon your plan altogether; or c) negotiate with the government in an attempt to get the conditions imposed altered or removed and proceed.
In deciding what course of action to take, it may be helpful to know what conditions and/or exactions the government may legally impose upon you and what conditions/exactions they may not. For example, can the government force you to dedicate a greenbelt easement if you develop property adjacent to the Boise River? Can they force you to build a stub street to your neighbor's property to allow him future access through your property?
If you are faced with exactions or conditions of approval, ask:
- Does the condition/exaction further a legitimate government purpose?
- Does the condition/exaction serve the same purpose as denial of the permit/application?
- Has there been an individualized determination by the government that the condition/exaction is related in nature (type) to the proposed development?
- Has there been an individualized determination by the government that the condition/exaction is related in extent (scope) to the proposed development?
If any of these four requirements are not met, you may want to challenge the condition or exaction and force the government to comply with the constitutional requirement that just compensation must be paid when private property is required for a public purpose. Who says so? The U.S. Supreme Court.
The Supreme Court has considered cases dealing with conditions of approval and established the standards governing those conditions. In one case, Mr. and Mrs. Nollan, a California couple, applied for a permit to replace a run-down bungalow on the beach with a three bedroom single family residence. The new residence would be in compliance with applicable regulations and the surrounding neighborhood. The California Coastal Commission approved the permit but conditioned their approval on a requirement that the Nollans grant an easement across their property to allow the public access to beaches north and south of the Nollan residence.
After a series of appeals, court decisions and additional findings by the Coastal Commission, the Nollans took their case to the Supreme Court and argued that the required easement constituted a taking of private property without just compensation in violation of the U.S. Constitution. The Court held that there was in fact a taking, noting Similarly here, the lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of legitimate state interests in the takings and land-use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but an out-and-out plan of extortion.’ [citations omitted.] Nollan v. California Coastal Commission, 107 S.Ct. 3141, 3148-49 (1987).
The basic holding of Nollan is that the Constitution requires that there be an essential nexus between the condition of approval and the legitimate government purpose for which the condition is imposed. Therefore, when evaluating conditions imposed by the government, ask whether there is a legitimate public purpose and whether the condition is essentially related to that purpose.
In addition to the essential nexus requirement, the U.S. Supreme Court spelled out in a 1994 case, Dolan v. City of Tigard, 512 U.S. 374 (1994), that there must be rough proportionality between the condition imposed and the nature and extent of the proposed development.
Ms. Dolan owned a plumbing and electrical supply company in Oregon, adjacent to a creek. She sought a building permit to replace her 9,700 square foot store and gravel parking lot with a 17,600 square foot building and a 39-space paved parking lot. The City required dedication of a portion of the Dolan property for a pedestrian and bicycle path along the creek and dedication of the area in the flood plain for construction of a storm drainage system.
The City argued that the conditions imposed were reasonable because the paved parking lot would increase the impervious area and thereby increase storm water runoff, and the bike/walking path would provide an alternative means of transportation, likely reducing traffic in the area. The Supreme Court found that the City’s argument was not sufficient to withstand constitutional scrutiny. Although the essential nexus requirement of Nollan was met, the Dolan Court held that there must be a rough proportionality between the condition imposed and the proposed development. The Court stated, No precise mathematical calculation is required, but the 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. Dolan at 391.
Under Dolan, the burden is on the governmental agency imposing the condition to demonstrate that the condition is related to the development proposed. Ask whether what is being required is required because of the impact of the development, or merely because there is an application on the table which the government is using as an opportunity to achieve goals which exist separate and apart from the proposed development at issue.
While there are many valid public purposes, such as providing and improving public roads and pathways, the government cannot require individuals and developers who are applicants to provide public benefits for free. Whenever the public receives a benefit without paying for that benefit, the possibility of a taking is raised. Both the U.S. and the Idaho Constitutions provide that private property may not be taken for public use without just compensation.
The Court noted in the Dolan decision Cities have long engaged in the commendable task of land use planning, made necessary by increasing urbanization, particularly in metropolitan areas such as Portland. The city’s goals of reducing flooding hazards and traffic congestion, and providing for public greenways, are laudable, but there are outer limits to how this may be done. A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for change.’ [citation omitted] Dolan, 114 S.Ct. 2322.
You cannot legally be forced to give up your right to compensation, as the Dolan Court stated, Under the well-settled doctrine of unconstitutional conditions,’ the government may not require a person to give up a constitutional right here the right to receive just compensation when property is taken for public use in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property. [citations omitted]. Dolan, 114 S.Ct. 2317.
Heather A. Cunningham is a lawyer with Davison, Copple, Copple & Copple in Boise. Her practice focuses primarily on eminent domain/condemnation, land use regulation and private property rights issues.
