COM 0045.022 2002-2004 - Laserfiche WebLink

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residential or resort developments whose residents would arguably use such access to selected public resources or facilities could such a dedication be considered remotely reasonable. 1. Unconstitutional Land Development Regulations as Takings: the Constitutional Standards Judges and commentators have long suggested that conditions, exactions and dedications attached to land development permits must bear some proportionate relation to the land development upon which they are levied. See, e.g., Heyman and Gilhool, "The Constitutionality ofImposing Increased Community Costs on New Suburban Residents Through Subdivision Exactions" 73 Yale L.J. 1119 (1964). As the following analysis makes clear, such land development conditions (impact, mitigation and "in-lieu" fees and other exactions, and land dedication requirements) are development driven. It is the contemplated land development project that generates the need for the public facility or other infrastructure improvement which justifies the dedication or exaction. It follows that it is always inappropriate to levy or charge such exactions and dedications on the rezoning process. Zoning generates no such needs. It also follows that the fee collected or the interest in land acquired by government must be spent or used -and soon -for the public facility or improvement for which it was collected. Failure to spend or use the fee or land renders the basis for charging it invalid. So does failure to use or spend it reasonably quickly , or to spend it for a general or different purpose (i.e., a road fee for school purposes). However most litigation over land development conditions arises because of questions about the relationship of the condition on a land development permit to problems or needs generated by the contemplated development. The U.S. Supreme Court addressed this issue in two landmark cases: Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994), both of which struck down government land dedication conditions upon the issuance of land development permits (coastal zone and building permits, respectively) as unconstitutional takings of private property by regulation. In Nollan v. California Coastal Commission, the Supreme Court struck down a Coastal Commission requirement that a landowner dedicate an easement across the back portion of his lot and parallel to the public beach as a condition for permission to rebuild a beach house. The Commission said that the problem it sought to address was the blocking of views from the beach road to the beach by the expanded house, thus making it difficult for the public to see that there was public beach below. As the Court said: It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans' property reduces any obstacles to viewing the beach created by the new house. It is also impossible to understand how it lowers any "psychological barrier" to using the public beaches, or how it helps to remedy any additional congestion on them caused by construction of the Nollans' new house...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 linuts of "legitimate state interests" in the takings and land-use context, this is not one of them. 483 U.S. 836-839 (emphasis added). 11