Almost a century ago, Justice Holmes famously warned that “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” This warning could not be more timely or relevant.
At issue in Common Sense Alliance v. Growth Management Hearings Board is whether the government can force shoreline owners to dedicate their waterfront property as buffers designed to filter runoff originating on other properties, including county roads. The “essential nexus” and “rough proportionality” tests established by Nollan v. California Coastal Commission and Dolan v. City of Tigard say no. Together, those tests hold that the government cannot condition approval of a land-use permit on a requirement that the owner dedicate private property to the public, unless the government can show that the dedication is necessary to mitigate for impacts caused by the proposed development.
The Nollan/Dolan doctrine is simple and predictable: the government can’t demand indirectly what the law wouldn’t allow it to take directly. But over the years, the lower courts have carved a massive hole through the doctrine, allowing the exact type of permit conditions disallowed by Nollan and Dolan if the government body demanding property is legislative in character—as if the Constitution’s reach was limited to only certain branches of the government!
In Common Sense Alliance, the Washington courts joined that troubling trend, issuing a decision holding that legislative demands are subject only to meaningless scrutiny, asking whether or not the dedication advances a government interest. Of course it will—placing the cost and burden of public projects on an individual will always advance the government’s interest.
Earlier this year, PLF petitioned the U.S. Supreme Court to take review of the Washington case and finally resolve the legislative exactions question that has been fomenting for decades.
The importance of resolving this issue now cannot be overstated. Two decades ago, Justice Thomas observed, writing in dissent to the denial of certiorari in Parking Ass’n of Georgia, Inc. v. City of Atlanta, Ga:
It is not clear why the existence of a taking should turn on the type of government entity responsible for the taking. A city council can take property just as well as a planning commission can. Moreover, the general applicability of the ordinance should not be relevant in a takings analysis. If Atlanta had seized several hundred homes in order to build a freeway, there would be no doubt that Atlanta had taken property. The distinction between sweeping legislative takings and particularized administrative takings appears to be a distinction without a constitutional difference.
Justice Thomas repeated that observation earlier this year, expressing “doubt that ‘the existence of a taking should turn on the type of governmental entity responsible for the taking.’” California Building Industry Ass’n v. City of San Jose. So too, Justice Kagan noted in her dissent in Koontz v. St. Johns River Water Management District, that the fact that this Court has not yet resolved the split of authority on this question “casts a cloud on every decision by every local government to require a person seeking a permit to pay or spend money.”
Unless and until the High Court closes the legislative exactions loophole, government will be free to demand property as “payment” for permit approvals without any real, meaningful limits. We are hopeful that Common Sense Alliance will provide the Court with the vehicle to finally resolve this issue.
Conference on this case is currently scheduled for September 26, 2016.