Takings and Mitigation (2016) / Chapter Skim
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Pages 12-20
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From page 12... ...
12 Because most of the cases involving highway access permits only address whether the state transportation agency has the statutory authority to impose the condition, the cases rarely consider the rough proportionality element of the essential nexus test. This may be because statutes authorizing state transportation agency exactions, and state transportation agency policies and regulations implementing those statutes, typically limit the state transportation agency to exacting no more than the impact of the development84 (i.e., rough proportionality is often built into the state transportation agency's enabling statute and practices)
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From page 13... ...
13 on the landowner's use of specific portions of the real property.89 Although such requirements imposed on the landowner outside of the development permitting context could be considered an unconstitutional taking of property without just compensation, such exactions in the permitting context have long been upheld as a fair exchange, requiring the developer to ameliorate the burdens that the development will impose on the public.90 The essential nexus test was formulated in Nollan and Dolan specifically in the context of such on-site exactions. Permitting agencies must demonstrate that the on-site exaction serves a legitimate governmental interest or public purpose within the agency's permitting authority, and that the on-site exaction is roughly proportional to the anticipated adverse impact of the proposed development.
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From page 14... ...
14 the developer and the permitting agency over the construction standards (and expense) required, as the developer may consider the permitting agency's requirements for street width, grade, curvature, pavement thickness, pavement drainage, sightlines, and setbacks to be excessive.
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From page 15... ...
15 development.104 If an easement across the property is demanded not because of loss of access caused by the development, however, but merely to further the government's general interest in improving access, then the condition will fail the essential nexus test.105 In the more typical dedication requirement, when real property adjacent to an existing highway is exacted from the developer to support improvements to the existing highway, it is the responsibility of the government permitting agency demanding the dedication to demonstrate that the exaction is not disproportionate to the traffic impact of the proposed development.106 Although the essential nexus test puts the burden on permitting agencies such as state transportation agencies to show that exactions for highway improvement are roughly proportional to the traffic impacts of the permitted development, this does not generally present a significant obstacle. Before requiring a dedication of real property, state transportation agencies typically require a traffic impact study,107 in which reliable engineering principles and methods are used to assess and quantify the additional trips generated by a proposed development, as well as the increase in highway capacity resulting from proposed highway improvements (e.g., new roads or additional travel lanes for existing roads, or intersection improvements such as turn lanes)
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From page 16... ...
16 across the developer's property.109 Like the pedestrian and bicycle easement in Dolan, it can be difficult to reliably quantify the reduction in highway demand attributable to alternative transportation strategies.110 Therefore, on-site exactions to address the traffic impacts of development are most likely to satisfy the essential nexus test if the on-site exactions are for improvements to the highway system, rather than alternative transportation strategies.111 In the survey of state transportation agencies conducted for this digest, a slight majority of survey respondents (15 out of 27) indicated that they do not regularly exact dedications of a portion of the developer's parcel as a condition of granting highway access permits.
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From page 17... ...
17 such general dedication requirements,116 as they are similar to the "comprehensive program" of extorting easements in exchange for development permits that was considered an uncompensated taking in Nollan.117 B On-Site Environmental Exactions The essential nexus test applies when permitting agencies impose environmental mitigation conditions or restrictions on use of the land as a condition for approving a development permit.
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From page 18... ...
18 than the heightened scrutiny of the essential nexus test.126 There is a large body of pre-Koontz case law in which both state and federal courts have routinely rejected application of the essential nexus test to onsite environmental mitigation conditions, opting instead for the reduced scrutiny of the Penn Central test.127 The logic in these cases seems to be that, if development could be denied outright due to legitimate environmental concerns, and such denial would be evaluated under the regulatory takings test, then it is illogical to apply stricter scrutiny to granting a development permit subject to certain conditions to protect the same environmental concerns.128 However logical this argument appears, it was specifically rejected in Nollan, in which the U.S. Supreme Court applied the essential nexus test to on-site mitigation conditions even though an unconditional permit denial would have been evaluated according to the test for regulatory takings.129 Nevertheless, there remains a large body of post-Nollan, pre-Koontz case law rejecting the essential nexus test for on-site environmental conditions, and many of the cases have not been formally overturned, although they appear to be in conflict with the Court's exactions jurisprudence.
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From page 19... ...
19 additional wetlands. Both courts supported their conclusion that the essential nexus test probably did not apply based on the fact that there was no "permanent physical invasion" of the property -- transferring ownership of the wetlands to the developer- controlled property owners association appeared less onerous than the government taking title to, or an easement over, the wetlands.135 Nevertheless, both courts concluded that, even if the essential nexus test applied, it was satisfied because the requirement to create and preserve wetlands bore a nexus to the opportunity to fill and dredge other wetlands on the property.136 Neither Norman court considered the rough proportionality prong of the essential nexus test -- i.e., whether the 195 acres of wetlands that were required to be created or restored, and the requirement to preserve 220 acres of wetlands in perpetuity, were roughly proportional to the 60 acres of wetlands that would be lost due to the proposed development.
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From page 20... ...
20 Appeals scrutinized a number of conditions imposed by a municipality on a residential development permit,143 including a number of on-site drainage improvements required by the municipality. For example, a requirement to add stormwater drainage inlets to prevent flooding of lots within the subdivision was upheld under the essential nexus standard.144 First, the nexus element was satisfied for the on-site drainage inlet condition, because "[p]
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