Tuesday, September 29, 2009

On Vacation

Just a note to let you know Rana and I have been traveling in Italy and France since September 17th. We spent our first week in Venice, Italy, where Rana attended an oceanographic conference. At the moment, we are visiting with an former colleague from graduate school days, Stanley Pons, in the Italian Maritime Alps. We are in a perched, very old, village (Corte) about an hour from the Mediteranean coast, and about two hours from Nice, France. (Our hosts also have dsl internet access and a WiFi network in their ancient, stone, summer home.) We expect to be home on October 2nd, and will be back to work by October 5th. Ciao!

Wednesday, September 9, 2009

Nollan-Dolan Exactions May See More Play

Since 1976, the State of Florida and the Monroe County (Florida Keys) Commission have imposed ever-increasing restrictions on the use of Florida Keys property -- using regulatory authority to confiscate private property without paying Just Compensation -- on the fuzzy theory that this will somehow better the universe (at no cost to the State and County taxpayers). The major shift took place on September 15, 1986, when the State "approved" a confiscatory comprehensive plan (that was written by the State) that prohibited the development of thousands of legally-platted lots within the Florida Keys, and downzoned thousands more.

In 1987 and 1994, the Supreme Court issued two regulatory taking opinions that did little more than muddy the waters. The 1987 decision, Nollan v. California Coastal Commission, 483 US 825, stemmed from a request for a building permit to rebuild the Nollans' oceanfront property with a larger residence. The California Coastal Commission acquiesced on the condition that the Nollans dedicate a portion of their property as a "viewing easement," that would allow passers-by to see the ocean from the street in front of the Nollans' home. Though many landowners had caved in to the Coastal Commission's demands, the Nollans sued, claiming the easement was an unconstitutional exaction. The Supreme Court agreed, explaining that a permit "condition" must be related to the "impact" of the development approved by said permit. In Nollan, the Supreme Court could not see a connection between the enlargement of the Nollan's home, and the need for passers-by to see the ocean.

In their 1994 decision. Dolan v City of Tigard, 512 U.S. 374, the Supreme Court supplemented the Nollan "connection," with a Dolan "proportionality" requirement for exactions imposed on private property owners. The Dolan decision has always been difficult to articulate. However, the 2006-2008 Utah Supreme Court has done a nice job explaining Dolan.

In B.A.M. Development v. Salt Lake County (I), 128 P. 3d 1161 (Utah 2006), and B.A.M. Development v. Salt Lake County (II), 196 P. 3d 601 (Utah 2008), the Utah Supreme Court reduced the Dolan "proportionality" requirement to dollars. In short, if the cost to the taxpayer exceeds the costs of its improvements (to the public), the taxpayer has been impermissibly overcharged. The difference is a Fifth Amendment taking.