October 12, 2011

PLF asks U.S. Supreme Court to review Oregon unconstitutional exactions case

By PLF asks U.S. Supreme Court to review Oregon unconstitutional exactions case

Author: Brian T. Hodges

Today, PLF filed an amicus brief with the U.S. Supreme Court urging it to review the unconstitutional exactions case, West Linn Corporate Park, L.L.C. v. City of West Linn

The facts of the case are as follows.  The City of West Linn, Oregon, required West Linn Corporate Park to finance and build major off-site public improvements as a mandatory condition for receiving approval to develop an office park.  The City demanded that the company improve a freeway ramp, widen a street, construct additional turn lanes, create a bike path, move street lighting, build a new waterline system through solid rock at a cost of $172,000, make additional road upgrades for $265,000, and pay $182,000 in “system development charges.” 

The company sued, claiming that these demands violate the nexus and rough proportionality requirements of Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994), because they are not sufficiently related to impacts of the proposed development.  The nexus and proportionality tests are significant in that they subject exactions to heightened scrutiny, placing the burden of proof on the government.  The Ninth Circuit Court of Appeals, however, held that the protections of Nollan and Dolan do not apply.  This is a troublesome decision.

PLF’s amicus brief points out that West Linn is the latest in a trend of Ninth Circuit decisions refusing to apply the Nollan/Dolan standards to determine the constitutionality of an exaction, continuing and expanding its efforts to limit the application of this constitutional test.  This trend is in direct conflict with Nollan and Dolan, which instructed courts to focus on whether there is a sufficient relationship between the exaction and the proposed development to justify the impediment that is being imposed on the exercise of a constitutional right.  The Ninth Circuit, however, has shifted its focus to the form of the government demand as the sole determinative inquiry.  This, PLF argues, exposes landowners everywhere to extortionate development conditions without any avenue for meaningful review. 

A copy of the amicus brief can be found here.

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