Skip to content

Supreme Court Puts Additional Limits on Land Use Permit Authority

July 15, 2013

Land use law is inherently local; a landowner’s application for permission to use his/her property is processed by a city or county planner.  Some 25 years ago, however, the United States Supreme Court stepped squarely into the process, applying the constitution’s Takings Clause.

Local governments long had relatively free rein to make a landowner dedicate a portion of his or her land to the public as a condition of permit approval.  In Nollan v. California Coastal Commission and Dolan v. City of Tigard, however, the Court drew limits on the practice.  In Nollan, it said that such a permit condition must mitigate the type of impact that the proposed land use will occasion; a county may not make you widen a drainageway because your proposed land use will increase vehicle traffic.  In Dolan v. City of Tigard, the court added that a permit condition must be roughly proportional to the extent of such impact; a county may not make you build a new treatment plant for simply adding a restroom.

Local governments responded to these cases, in part, by significantly increasing use of fees as a way to avoid the constitutional issue.  That is, rather than require a permittee to dedicate an easement, the government would simply require him or her to pay a fee.  The Court limited this practice in the recent case of Koontz v. St. Johns River Water Management District.

Koontz’ father purchased a vacant 15-acre lot in 1972.  Florida regulations placed all but 1.4 acres of the property in a “riparian habitat zone.” So, when the elder Koontz later sought District permission to develop a portion of it, he was required to obtain permission from the St. Johns River Water Management District. The District told Koontz it would approve the permit on the condition that he either deed the remainder of his property into a conservation area and perform offsite mitigation or reduce development to one acre and turn the remaining 14 into a deed-restricted conservation area. Koontz refused to accept either condition and, when the District denied the permit, he sued.

The Court ruled for Koontz.  In doing so, it made two new announcements about the Takings Clause. First, prior cases had restricted conditions of permit approval. Here, the Court said for the first time that an agency may not deny a permit because a property owner refuses to acquiesce to an unconstitutional condition.  This proposition was not controversial; all nine justices agreed with it.

The Court’s second announcement was controversial, gaining a bare 5-4 majority of the Court, and is potentially much more important.  Citizens paying fees to offset the cost of government has a long history and, in the land use context, has been less controversial that appropriating land.  The Koontz decision changed the game by stating that this practice also must demonstrate compliance with the Nollan/Dolan doctrine.  That is, a fee must offset the type of impact that the land use will have and be roughly proportional to the extent of the impact.

The extent to which the government may exact a fee as a condition of permit approval remains unclear in the wake of Koontz.  Fees paid to mitigate the impacts of a proposed land use – called “system development charges” in Oregon – are probably still okay.  However, requiring such payment “in lieu” of dedicating real property is apparently not.  One thing though is clear, the Court has opened the door to challenging permit approvals on a basis that was previously considered off limits.

Comments are closed.

%d bloggers like this: