Takings and Mitigation (2016) / Chapter Skim
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Pages 21-28
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From page 21... ...
21 impacts via standardized formulas and tailor onsite mitigation conditions accordingly.155 Such standardized approaches employing reliable engineering methods and principles to tailor on-site exactions to mitigate the actual impact of development will generally satisfy the essential nexus test.
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22 development.160 In Nollan and Dolan, the U.S. Supreme Court appeared to expressly authorize permit conditions that would require developers to construct off-site transportation improvements to mitigate traffic impacts of the development.161 In part because such conditions do not encroach on the developer's real property, however, a number of jurisdictions in the years immediately following Dolan concluded that the essential nexus test did not apply to off-site exactions, such as requirements to fund improvements to the transportation system.162 Over the years leading up to Koontz, a handful of jurisdictions gradually came to the conclusion that the distinction between on-site and off-site exactions was artificial, and that the essential nexus test should apply to requirements to improve the transportation infrastructure.163 Although the Koontz decision makes it clear that the essential nexus test applies to any such off-site exaction, pre-Koontz courts rarely expressly applied the essential nexus test when evaluating off-site highway exactions, typically focusing instead on whether the state transportation agency or other permitting agency had the authority to impose offsite exactions.164 Certainly, as a preliminary matter, the question of statutory authority to impose the condition should be evaluated as part of the first element of the essential nexus test, to determine whether the permit condition serves a legitimate governmental interest.
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23 nexus test, the North Carolina Department of Transportation (NCDOT) Driveway Permit Appeals Committee initially upheld the condition because "the increase in traffic at the crossing is caused solely by the development, and widening of the crossing is necessary to protect the safety of the traveling public."169 Like the District of Minnesota in Vaughn, the North Carolina Court of Appeals (probably incorrectly)
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24 • Grade or sight-line improvements. • Improved highway lighting.
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25 property) to offset the negative environmental impacts of a development.
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26 digest, almost all of them reported that they do not impose off-site environmental mitigation conditions as a requirement for highway access permits.
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27 1. State Enabling Legislation Permitting agencies typically must be authorized by their state legislature to impose impact fees in lieu of physical exactions.
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From page 28... ...
28 government to engage in extortionate behavior. This risk diminishes when the fee is formulated according to preexisting statutes or ordinances which purport to rationally allocate the costs of development among a general class of developers or property owners.
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