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No Need to Give Up the Farm!


Most folks know that because of the “takings clause” of the U.S. Constitution, the government cannot take property without fairly compensating the owner. But what about those land development requirements that just feel a little heavy-handed? Yes, it protects against those, too, by limiting what local governments can require property owners to give up when they apply to subdivide or develop property – whether the requirement takes the form of a land dedication (such as public right-of-way), property rights (such as easements), money, (such as impact fees and fees-in-lieu of land dedication), or other costly conditions of approval.


Three U.S. Supreme Court cases, Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Koontz v. St. Johns River Water Management District, set limits on the government’s ability to exact property rights from land use applicants. There must be a “nexus” and “rough proportionality” between the government’s demand and the effects of the proposed land use.


In Nollan, the California Coastal Commission demanded a public beach easement from a homeowner who was replacing a dilapidated residence. In Dolan, the City of Tigard, Oregon required dedication and development of a public greenway from a store owner seeking to expand the store and pave a parking lot. In Koontz, a water management district required a landowner seeking to develop 3.7 acres of wetlands to either reduce the development to one acre or pay for improvements to District property miles away. In each case, the Supreme Court found the requirements were takings of private property without just compensation.


So, if a local government planner says you must dedicate a 60-foot right-of-way before it will approve your accessory structure, Nollan-Dolan standards might well say that’s too much. While government can require development to “pay its own way,” it can’t require property owners to foot the bills for unrelated government projects or agendas. If you are wondering, give us call; there might well be a less burdensome alternative that would satisfy the Nollan-Dolan test and still move the land use application forward.


By Shelly Dackonish