Can a county turn your land into a water treatment facility without paying?

This week Pacific Legal Foundation filed this petition in the Supreme Court of the United States, asking it to decide whether the government can make shoreline property owners give up part of their land to serve as water quality buffers for the surrounding community. This case, Common Sense Alliance v. San Juan County, deals with a perennial problem that property owners face. Government jurisdictions require permits to develop property, and use that authority as leverage to take property which they would otherwise have to pay for. The Supreme Court has aptly described this as an “out-and-out plan of extortion.“

The Fifth Amendment to the U.S. Constitution requires just compensation when the government takes private property. Many Supreme Court decisions hold that the government may only demand property from a permit applicant when necessary to mitigate a harm that the proposed project would cause. PLF litigated some of the most important of these cases. Nollan v. California Coastal Commission, 483 U.S. 825 (1987), holds that government may only demand property as a condition of permit approval if there is an essential nexus between the demand and some harm that the project would cause. Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013) holds that this requirement applies to demands for money or services, just as it does to real property interests, and confirms, as the Court previously held in Dolan v. City of Tigard, 512 U.S. 687 (1994), that the government must also prove that the demand is roughly proportional to the impact.

In Common Sense Alliance, the Washington state court refused to apply Nollan and Dolan to a San Juan County buffer exaction because it was imposed by a generally applicable ordinance instead of made up on-the-fly by a land use planner. PLF is asking the Supreme Court to clarify that Nollan, Dolan, and Koontz prevent government from extorting property owners seeking permits, even when the property demands result from generally applicable ordinances, and even if the demanded property would be useful for general government purposes.

Nice coastal property you have there. San Juan County would be happy to let you develop it; you will just need to make a “donation” at the office.