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Honorable Gary Safarik, Chair <br /> and Members of the County Council <br /> February 2, 2005 <br /> Page 5 <br /> Conservation Area: Forest and water reserves, natural and <br /> scientific preserves, [open,] areas in active management for <br /> conservation purposes. areas to be kept in a largely natural <br /> state. with minimal facilities consistent with open space uses. <br /> such as picnic pavilions and comfort stations. and lands within <br /> the State Land Use Conservation District. <br /> For those properties designated Conservation in the General Plan and <br /> which are in the Special Management Area, in part or in whole--regardless <br /> of the State Land Use Classification--will the SMA requirement that <br /> development be consistent with the General Plan sufficiently limit parcel <br /> development to be considered a "takings"? (i.e., LUPAG changes I-3, I-8) <br /> Answer: <br /> Overview of Takings Law <br /> The Fifth Amendment of the U.S. Constitution provides that private property shall <br /> not "be taken for public use without just compensation." Initially "takings" of <br /> property were considered to occur only when the government physically <br /> occupied or "took" private property. This changed with the U.S. Supreme Court's <br /> holdings in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). Cases now <br /> address whether a "taking" has occurred by other means than mere physical <br /> possession of the land. <br /> In Nollan v. California Coastal Commission, 485 U.S. 825 (1987), the court held <br /> <br /> that the California Coastal Commission could not require a property owner to <br /> allow public access across beachfront property in order to obtain a permit to build <br /> a new house on shoreline property. The court ruled that there must be a "nexus" <br /> between the permit condition/exaction and the burden imposed or benefit <br /> enjoyed by the new home. Since the requested access easement was held to <br /> not have an "essential nexus" with the impact of building the house, the condition <br /> <br /> was ruled invalid and a "taking" of the landowner's property. This was despite <br /> <br /> the Commission's belief that the public interest would be served by a public <br /> <br /> walkway along the beach. <br /> Generally, the legal principles applicable to exactions require that: statutory <br /> authority for exactions must exist; the exaction must be reasonably related <br /> (nexus) to the public need created by the development; the exaction must not <br /> <br />