COM 0200.051 2006-2008 - Laserfiche WebLink

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B. Case law confirms that imposing an affordable housing condition on the Project is unconstitutional. There are several "landmark" cases regarding municipalities imposing zoning conditions or exactions which affect landowners' property rights. These landmark cases establish limits on the ability of cities, counties and other government agencies to use zoning and land use regulations to compel landowners to make unrelated public improvements. In an effort to provide the Council with an explanation and guide for crafting affordable housing conditions which meet constitutional requirements, we are providing the following summaries of U.S. Supreme Court and other case law, which involve exactions, impact fees or affordable housing requirements which were either overturned as unconstitutional, or cases here such requirements were upheld as constitutional. Nollan v. California Coastal Commission, 483 U.S. 825 (1987). Established the "Essential Nexus" Test and overturned a permit condition imposed by the California Coastal Commission to require land owner Nollan to dedicate a public beach easement as a condition to building a larger home. In Nollan, the U.S. Supreme Court held, among other things, as follows: o Required that before imposing such requirements on the landowner, the government must satisfy an "Essential Nexus Test" -proving that the "same" interest be served by the government's permit condition/exaction; o '...unless the permit condition serves the same governmental purpose..., the building restriction is not a valid regulation of land use but 'an out-and-out plan of extortion."' o Where there is no evidence of an "essential nexus" between the development (building an extension to a home) and the problem that the exaction seeks to address (beach access), the exaction cannot be upheld" • Dolan v. City of Tigard, 512 U.S. 374 (1994). Later, the Supreme Court further applied a "Rough Proportionality" Test and overturned the City of Tigard's requirement that as a condition for approval of a variance to expand her plumbing store and parking lot, landowner Dolan was required to dedicate land (1) for a public greenway along an adjacent creek to minimize flooding and (2) for apedestrian/bicycle pathway. In this case, the Supreme Court applied atwo-prong test, as follows: o First, the city has the burden of satisfying the Essential Nexus Test -whether there is an "essential nexus" between the permit conditions and a legitimate state interest; o Second, under the Fifth Amendment, the city is required to satisfy the Rough Proportionality Test -the city must make some sort of individualized determination that the degree (or proportion) of the dedication exaction required by the permit