addresses fairness in mitigation of development impacts

Transcription

1 New Supreme Court decision addresses fairness in mitigation of development impacts Steve C. Morasch Schwabe, Williamson & Wyatt October 2, 2013 Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 1

2 New holdings from Koontz: Dolan rule applies to both monetary and non-monetary exactions. Dolan rule applies where government denies permit to avoid rough proportionality. Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 2

3 What is an exaction? A government demand to: dedicate land, construct an improvement, or pay a fee issued as a condition of granting a permit for the development of land. Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 3

4 Two types of exactions Monetary and non-monetary Both types of exactions are used by government to mitigate for impacts of development Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 4

5 What is a non-monetary exaction? An exaction demanding a dedication of real property p already owned by the applicant. Typically a demand that the applicant dedicate or deed real property that the applicant already owns. Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 5

6 What is a monetary exaction? An exaction demanding something other than a dedication of real property p already owned by the applicant. Paying a fee Building a street Improving a wetland Buying additional right-of-way Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 6

7 Landmark Supreme Court cases: Nollan v. California Coastal Comm. (1987) Dolan v. City of Tigard (1994) Koontz v. St. Johns River Water Management District (2013) Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 7

8 Nollan v. California Coastal Comm. Nollans wanted to add a floor to their beach house Coastal Commission demanded an easement tin front of fthe house This was a non-monetary exaction Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 8

9 Nollan Easement would have connected two public beaches separated by the Nollan s property. Coastal Commission asserted the easement promoted the public interest of diminishing the blockage of the view of the ocean caused by the construction of a larger house. Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 9

10 Nollan: Supreme Court Holding There must be an essential nexus between a legitimate state interest and the exaction No nexus between view blockage and a lateral easement across the front of the Nollan property. Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 10

11 Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 11

12 Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 12

13 Nollan conclusion Must be a nexus between the impacts of a development and the exaction A nexus is a theoretical connection In other words, the exaction must remedy the same problem caused by the impact Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 13

14 Dolan v. City of Tigard (1994): City of Tigard demanded landowner deed flood plain and bike path to City as a condition of approval for an expanded plumbing store. Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 14

15 Dolan v. City of Tigard (U.S. Supreme Court 1994): Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 15

16 Dolan Like Nollan, Dolan also involved a nonmonetary exaction Unlike Nollan, the Dolan Court found there was a nexus between expanding a plumbing store and impacts to a bike path and a flood plain. Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 16

17 Dolan: Supreme Court adopts new rule requiring proportionality The exaction imposed must be roughly proportional to the projected impact This requires some sort of individualized determination, but not mathematical precision Burden of demonstrating proportionality is on the government Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 17

18 Monetary v Nonmonetary exactions After Dolan was decided, governments across the country began testing its limits Monetary vs Nonmonetary exactions was a recurring theme Oregon cases addressed this issue Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 18

19 Oregon Court of Appeals cases: J.C. Reeves v. Clackamas County (1994) Clark v City of Albany (1996) Rogers Machinery v. Washington County (2002) Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 19

20 J.C. Reeves and Clark both hold: There is no difference between a requirement that a developer convey title to the part of the property that is to serve a public purpose, p and a requirement that the developer himself make improvements on the affected and nearby yproperty p and make it available for the same purpose. Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 20

21 J.C. Reeves and Clark In other words, there is no constitutional difference between a monetary and nonmonetary exaction. Both can be equally burdensome Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 21

22 Rogers Machinery (2002) Impact fees do not need to meet Dolan test Court distinguishes pure fees from other types of exactions Imposed legislatively and uniformly Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 22

23 Quick summary of the law in 2002 Dolan proportionality applies to both monetary and non-monetary exactions Except for impact fees that are imposed uniformly Rule in Oregon, followed by a majority of states Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 23

24 West Linn Corporate Park LLC v. City of West Linn (2011) Oregon Supreme Court overrules Clark and J.C. Reeves Only non-monetary exactions are subject to Dolan s rough proportionality p Ninth Circuit reaches same conclusion in an unpublished opinion Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 24

25 West Linn Corporate Park rational Construction of public improvements is a functional equivalent of requiring the owner to pay money Court declined to extend Nollan and Dolan beyond situations where the government requires the dedication of private real property In other words, real property is special Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 25

26 Koontz v. St. Johns River Management District (2013) Landowner offered to dedicate di conservation easement to mitigate wetland impacts of development. Water district required landowner to scale back the size of the development or pay for off-site mitigation. Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 26

27 Koontz Nollan and Dolan both involved nonmonetary exactions Koontz involved a monetary exaction Issue of whether monetary exactions must satisfy the nexus and rough proportionality requirements of Nollan and Dolan squarely before the US Supreme Court for the first time Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 27

28 Koontz holdings Dolan rule applies to both monetary and nonmonetary exactions. Money is property, entitled to the same protection as real property Dolan rule applies where government denies permit to avoid rough proportionality. Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 28

29 Koontz impacts in Oregon Return the law to what it was under J.C. Reeves and Clark from 1994 through 2011 Both monetary and nonmonetary exactions are subject to the proportionality test Exactions that are proportional to impacts may be imposed Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 29

30 Koontz impacts in Washington RCW provides statutory protection similar to Dolan RCW does not apply in shoreline areas Koontz provides new protection to Washington shoreline owners Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 30

31 Koontz does not sound a death knell for planning... Koontz merely requires government demands for mitigation to be proportional p to the impacts that need to be mitigated Government maintains the right to impose mitigation that is proportional to the impacts. Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 31

32 Questions? Steve C. Morasch (503) Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA Washington D.C. 32