Takings and Mitigation (2016) / Chapter Skim
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3TAKINGS AND MITIGATION By Timothy R Wyatt, Conner Gwyn Schenck PLLC, Greensboro, North Carolina I
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4most state transportation agencies, which already tend to apply reliable engineering methods to determine the impact of a development to the state highway system, allowing state transportation agencies to prescribe exactions (e.g., developer-funded improvements to the state highway system) that are tailored to mitigate the development's traffic impacts.
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5easement across the property and its purpose for denying a permit in the absence of the easement.14 Writing for the majority, Justice Scalia said that the nexus requirement was not satisfied because "the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition."15 The commission's supposed concern about the new residence was that it would obstruct access to the coast, but the easement exacted from the plaintiffs would not improve access to the coast but rather would improve access between public beaches for people already at the coast.16 The Court articulated the nexus requirement as follows: "[U] nless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but ‘an out-and-out plan of extortion.'"17 The dissent, led by Justice Brennan, argued that the easement condition should have been upheld under the deferential scrutiny of the "rational nexus" test used in many jurisdictions, because the purpose of the easement (i.e., to increase lateral access along the coast)
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6dedication comprising 10 percent of the lot area.26 The plaintiff requested a variance from this requirement, which was denied by the City.27 In another 5–4 ruling, however, the Court overturned the conditions. The Court distinguished this case from Nollan, specifically finding that "the reduction of traffic congestion" and "the prevention of flooding" are legitimate governmental interests, and that (unlike in Nollan)
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7This two-element test, and the heightened scrutiny (i.e., burden on the government) with which it is to be applied,40 is referenced herein as the "essential nexus" test.
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8conservation easement over the remaining approximately 14 acres, or 2) to supplement the developer's original proposal to develop 3.7 acres with an agreement for the developer to fund improvements to approximately 50 acres of existing wetlands owned by the district and located several miles away from the developer's parcel.51 First, the Court concluded that the fact that the permit was denied did not entitle the district's actions to the more deferential scrutiny of a regulatory takings claim.
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9low-level "rational basis" scrutiny, which is far more deferential to agency decisions than the essential nexus test.61 Under this more deferential test, landuse restrictions are typically upheld unless they serve to deny the landowner all "economically viable use of his land."62 The Penn Central test for regulatory takings applies to land-use restrictions such as zoning ordinances,63 and thus applies to cases in which development permits are denied because the proposed development is not a permitted use under the existing regulatory scheme.64 The Court's application of the Penn Central test to cases of outright permit denials has led to a great deal of the confusion and contradictory opinions seen in exactions cases at the lower courts, in which courts have analyzed attempted exactions in permit denial cases according to the more deferential test for regulatory takings rather than the essential nexus test. Koontz, however, makes clear that where the permit is not denied outright, but rather denied because the developer refused to accept the condition proposed by the permitting agency, the stricter essential nexus test applies.65 b.
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10 requirements were imposed on a private developer, they would be viewed with heightened scrutiny under the essential nexus test, and there would be legitimate constitutional concerns about mitigation requirements that are disproportionate to the anticipated impact of the development.72 These concerns are significantly lessened in the typical government construction project, where the improvement is made to public property rather than private property, and thus there is no "takings" concern. The dispute between a state transportation agency and an environmental agency over the appropriate level of environmental mitigation may be just as contentious as a similar dispute between a landowner and a permitting agency.
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11 modification of the zoning map in order for the developer's proposed use to be permitted. All of these permitting decisions are subject to the essential nexus test, where permits are approved based on the developer satisfying certain conditions.
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