Use Conditions: The Inexact Exactions Doctrine
conditions on land use permit
applications to make development
pay for itself. Valid permitting
conditions are valuable tools for local
governments to shift the financial
burden of infrastructure improvements
to developers. This article reviews the
leading federal cases affecting what
is known as the "unconstitutional
conditions" or "exactions" doctrine.
Land Use Condition?
doctrine prohibits the surrender of a
constitutionally protected property right
Under Nollan v. California Coastal
Commission, 483 U.S. 825 (1987), and
Dolan v. City of Tigard, 512 U.S. 374
(1994), local governments can condition
a permit on the dedication of some
property interest provided that there is
(1) a logical relationship between the
condition and the development and
(2) a degree of connection between the
permit condition and the impact of the
development. Thus, under Nollan/Dolan,
there must be an "essential nexus"
and "rough proportionality" between
the condition and the surrender of the
property interest. The Court in Koontz
v. St. Johns River Water Management
District, 133 S. Ct. 2586 (2013) applies
these tests to monetary exactions in lieu
of dedications.
permit for a beachfront bungalow was
conditioned upon the landowners'
dedication of a lateral public pedestrian
beach access easement across the
rear of their property so as to prevent
over-building and visual interference
of the beach from a nearby street.
an "essential nexus" to the project's
impact
would have achieved the same result as
dedicating an easement. Without this
logical connection to the state's goal,
there was no "essential nexus" between
the state's interest in guaranteeing the
public's ability to view the beach and the
lateral access easement across the rear
of the Nollans' property.
protecting visual access to the shoreline,
but it never answered the question of
how close a connection was required
between a permit condition and a
proposed development's impacts.
Proportionality
a landowner applied for a building
permit to expand her store and pave
her parking lot. The City imposed
development conditions requiring the
landowner to dedicate some of her
land for a public greenway for flood-
control purposes and for a bicycle and
pedestrian pathway to alleviate traffic
congestion.
permit conditions and the development.
However, even when an essential nexus
exists, a "degree of connection between
the exactions and the projected impact of
the proposed development" must exist.
... individualized determination that the
required dedication is related both in
nature and extent to the impact of the
proposed development."
to the land was needed to further the
goal of preserving the floodplain when
the owner's plans never contemplated
development in the floodplain anyway.
Moreover, tentative findings about
anticipated increased storm water
flow and additional vehicular traffic
were simply insufficient to justify the
conditions.
Harbert, P.A., where he leads the property rights
practice group. He represents property owners,
business owners and governmental entities in
condemnation, inverse condemnation and land use
cases throughout Florida.
Two Landmark Center, Suite 600
225 East Robinson Street
Orlando, Florida 32801
407.423.2016 Fax
mateerharbert.com