COM 0045.022 2002-2004 - Laserfiche WebLink

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The Court followed the Nollan case with Dolan v. City of Tigard in 1994.There,the Court struck down a municipal building permit condition that the landowner dedicate bike path and greenway/floodway easements to the city before the enlargement of a hardware store adjacent to a local stream. The purpose, according to the City, was to alleviate traffic problems and flooding which the expanded store was expected to generate. The Court agreed with the City that alleviating such problems was a legitimate state interest, and that bike lanes and floodway easements were appropriate means for ameliorating the problems, thus finding a required "nexus." However, the Court held that "the degree of the exactions demanded by the city's permit conditions [did not]bear the required relationship to the projected impact of petitioner's proposed development." (114 S. Ct. at 2318). The Court thus imposed a rough proportionality test as well as a nexus test: "[T]he 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." (at 2319-2320) The constitutional problem in both instances, said the Court, is "the loss of [their] ability to exclude" which the Court reminds us is one of the most essential sticks in the bundle of rights which characterize private property. See Callies and Breemer, The Right to Exclude Others From Private Property: A Fundamental Constitutional Right, 3 Wash. J. Law and Property 39 (2000). Together, these two cases require that to pass constitutional muster, land development conditions imposed by government: i. must seek to promote a legitimate state interest; ii. must be related to the land development project upon which they are being levied by means of a rational or essential nexus; iii. must be proportional to the need or problem which the land development project is expected to cause, and the project must accordingly benefit from the condition imposed. Under the first standard, legitimate state interest, an agency may only require a landowner to dedicate land (or interests in land) or contribute money for public projects and purposes, such as streets, roads and other public facilities and, presumably, for access to a public asset in Hawaii, like a beach. Under the second standard, essential nexus, an agency must find a close connection between the need or problem generated by the proposed development and the land or other exaction or fee required from the landowner/developer. Thus, for example, a modest coastal resort development could not possibly justify a requirement that a landowner dedicate an easement to a public beach. 12