![]() Use Conditions: The Inexact Exactions Doctrine conditions on land use permit applications to make development pay for itself. Valid permitting conditions are valuable tools for local governments to shift the financial burden of infrastructure improvements to developers. This article reviews the leading federal cases affecting what is known as the "unconstitutional conditions" or "exactions" doctrine. Land Use Condition? doctrine prohibits the surrender of a constitutionally protected property right Under Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), local governments can condition a permit on the dedication of some property interest provided that there is (1) a logical relationship between the condition and the development and (2) a degree of connection between the permit condition and the impact of the development. Thus, under Nollan/Dolan, there must be an "essential nexus" and "rough proportionality" between the condition and the surrender of the property interest. The Court in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013) applies these tests to monetary exactions in lieu of dedications. permit for a beachfront bungalow was conditioned upon the landowners' dedication of a lateral public pedestrian beach access easement across the rear of their property so as to prevent over-building and visual interference of the beach from a nearby street. an "essential nexus" to the project's impact would have achieved the same result as dedicating an easement. Without this logical connection to the state's goal, there was no "essential nexus" between the state's interest in guaranteeing the public's ability to view the beach and the lateral access easement across the rear of the Nollans' property. protecting visual access to the shoreline, but it never answered the question of how close a connection was required between a permit condition and a proposed development's impacts. Proportionality a landowner applied for a building permit to expand her store and pave her parking lot. The City imposed development conditions requiring the landowner to dedicate some of her land for a public greenway for flood- control purposes and for a bicycle and pedestrian pathway to alleviate traffic congestion. permit conditions and the development. However, even when an essential nexus exists, a "degree of connection between the exactions and the projected impact of the proposed development" must exist. ... individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." to the land was needed to further the goal of preserving the floodplain when the owner's plans never contemplated development in the floodplain anyway. Moreover, tentative findings about anticipated increased storm water flow and additional vehicular traffic were simply insufficient to justify the conditions. Harbert, P.A., where he leads the property rights practice group. He represents property owners, business owners and governmental entities in condemnation, inverse condemnation and land use cases throughout Florida. Two Landmark Center, Suite 600 225 East Robinson Street Orlando, Florida 32801 407.423.2016 Fax mateerharbert.com |