Sixth Annual Land Use Conference
Lowell Thomas Law Building, 1900 Olive Street, Denver, Colorado
Freilich, Leitner & Carlisle
1000 Plaza West, 4600 Madison
Kansas City, Missouri 64112-3012
106 S. Mill Street, Suite 202
Aspen, Colorado 81611-1973
In Board of County
Commissioners v. Umbehr, 116 S.Ct.
2342 (1996), Umbehr had held a contract for
years with the county for trash hauling. He was a critic of the board
of its policies. The board terminated Umbehr's contract. The Court held
that the First Amendment protects independent contractors from the termination
of their at-will government contracts in retaliation for their exercise
of the freedom of speech. In O'Hare
Truck Service, Inc. V. City of Northlake,
116 S.Ct. 2353 (1996), the city maintained a list of companies to provide
towing services. The city's policy was to remove companies from the
list only for cause; however, O'Hare was removed from the list
after its owner refused to contribute to the mayor's reelection campaign.
The Court held that independent contractors are entitled to the same
First Amendment rights as government employees.
Unlike government employees and independent contracts,
applicants for land use permits have no continuing economic relationship
with government. Nonetheless, Umbehr and O'Hare may mean that denying an application for a land use permit because
of partisan politics violates the First Amendment rights of the applicant.
with the high intensity of development surrounding a lake, Leon County
officials rezoned a 30 acre parcel of property from intense development,
allowing 43.6 units per acres, to single family residential. The owner
of the property brought suit against the county for the rezoning, alleging
deprivation of a vested right due to reliance upon the prior regulatory
activities of the state.
The eleventh circuit held that there is no such thing as a substantive
due process "takings" claim. The right to a specific use of property
must be considered under the Fifth Amendment.
Finance took title to 196 lots of a subdivision in lieu of a foreclosure.
It brought suit against La Plata County in federal court based on a
fifth amendment takings claim and diversity of citizenship, along with
state law claims: the impairment of vested rights and inverse condemnation
under the Colorado Constitution. The lower court granted La Plata County's
Motion to Dismiss.
Holdings: Applying Suitum, the court of appeals
affirmed the lower court's decision, holding that SK Finance did not
obtain a final decision from the County regarding provision of sewer
service and that SK had obtained no vested right to construct a particular
type of sewer system.
are ranchers. They filed a §1983 action challenging Wyoming's hunting
licensing scheme. Defendants, an environmental group, intervened in
the suit. The district court upheld the licensing scheme as an effort
to advance a legitimate state interest -- the preservation of wildlife.
Further, the court held that the licensing scheme did not destroy the
beneficial use of the property, failing to result in a regulatory taking.
The Court of Appeals affirmed the lower court's decision.
Clajon Production Corporation lacked standing to bring its claim since
it has suffered no injury in fact. Citing Dolan, the court held that a
landowner can expect the use of this land to be limited from time to
time. In this case, the licensing scheme did not constitute a regulatory
taking because no complete physical occupation resulted as was involved
in both Dolan and Nolan.
developers of a residential subdivision, brought a §1983 action
in state court against the City of Troy for an alleged due process violation
in connection with the city's opposition to the creation of a lagoon
within the development. Plaintiff's final plat did not include the creation
of a lagoon. The lagoon was dug as an attempt to prevent a drainage
swell from filling with spring water. The District Court granted Summary
Judgment to the City.
Municipal regulations that diminish the value of property do not always
violate a developer due process rights. Substantive due process doctrine
was largely abolished in the 1930's and the plaintiffs received notice
and an opportunity to be heard.
to the County's denial of their application to subdivide, Plaintiff
filed a claim against the county in district court for statutory damages
for arbitrary agency action, inverse condemnation and a §1983 violation.
The County denied Plaintiff's application because of inadequate access
since the property in question was located adjacent to a dead end street.
The County removed the matter to federal court. The federal court dismissed
the claim for damages and the § 1983 violation, remanding the inverse
condemnation claim back to the state courts. On appeal, the 9th Circuit
Court of Appeals ruled against plaintiff on all three counts.
A taking did not occur because Plaintiff could not prove that the county
had denied the subdivision without advancing a legitimate state interest
or had denied them any economically viable use of their property. Further,
the court held that Plaintiff's federal claim was not ripe for adjudication
because the state had an adequate procedure for reimbursement for the
taking of property.
Landgate, Inc. V. California Costal Commission,
61 Cal.Rptr.2d 196 (CAL.Ct.App. 1997). Landgate purchased a 2.45 acre
lot and applied for and received county approval to build a single-gamily
home on the property. However, the California Coastal Commission denied
the application. In a subsequent action, the landowner prevailed and
the court required issuance of the permit by the Commission. The permit
was not issued by the Commission for a period of two years after the
original denial. Landgate then sought damages, alleging that the Commission's
permit denial constituted a taking of property under the Fifth Amendment.
The court found that compensation is proper where a regulation compels
a property owner to suffer a physical invasion of his property or denies
an owner all economically beneficial or productive use of its land.
The court held that the Commission's permit denial left the landowner
unable to use its land or negotiate for a different project for a period
of two years (after the original denial). The permit denial therefore
deprived the landowner of all economically viable use of its land for
two years, for which the landowner was entitled to compensation.
Ford v. Board of County Commissioners of Converse
County, 924 P.2d 91 (Wyo. 1996). Ford
owned a parcel of land designated as "rural residential" by the land
use plan. However, the county had never adopted any zoning resolutions
for the area. Ford began operating a fireworks stand on the subject
parcel without approval from the county. A comprehensive land use plan
is merely a policy statement which implemented by zoning enactment.
It is the proper zoning enactment which has the force and effect of
law; and the county never adopted any zoning resolutions. The comprehensive
plan lacked the legal effect of zoning laws and was insufficient to
regulate the use and occupancy of lands in the unzoned areas of the
county. Consequently, the Board of County commissioners had no regulatory
authority over the use of Ford's property.
Cary v. City of Rapid City,
559 N.W.2d 891 (S.D. 1997). Rezoning of property from general agricultural
classification to a medium density residential classification was challenged
based on a plebiscite provision which stated that if 40% of the neighboring
landowners objected to the rezoning it would not become effective. 40%
of the neighboring landowners objected and the rezoning was denied.
Subsequently, the statute allowing for the landowner protest was challenged.
The court held that the statute failed to establish
guidelines or standards for protesting an adopted ordinance, thereby
allowing for unequal treatment in violation of the due process clause.
In addition, there was no legislative bypass to allow for review of
the plebiscite proceeding. Accordingly, the court held that the statutory
provision was unconstitutional.
Anderson v. Board of Adjustment,
931 P.2d 517 (Colo.App. 1996). Property owners brought an action for
judicial review and a declaratory judgment action against the decision
of a board of adjustment which allowed a neighboring property to continue
accessory uses on the property as a nonconforming use. The city had
allowed an automated car wash as an accessory use to a gas station,
where the gas station originally existed as a noncomforming use in the
B-1 zone. The court held that the installation of the car wash constituted
the illegal expansion of a non-conforming use. The court rejected the
adoption of the "Modern Instrumentalities Doctrine" from Pennsylvania,
which would allow the expansion of nonconforming uses by replacing older
methods of operation with newer methods.
East Cape May v. State of New Jersey,
1997 WL 205815 (N.J. Super.A.D. April 29, 1997). East Cape May alleged
a taking and a temporary taking after being denied a permit to develop
100 acres or wetland property on the east side of a state road. The
developer's principal also owner 100 acres on the west side of the road,
which had already been developed. The government claimed that the denominator
for purposes of analyzing the taking was the entire 200 acre parcel,
and therefore no taking had occurred since the developer had not been
denied all beneficial use. The government also claimed that the developer
had failed to exhaust administrative remedies because a state safety
valve provision had not been used which allowed the government to relax
its regulations and reconsider its denial of the permit.
The court held that a taking could only have
occurred after the developer had exhausted its remedies. The court also
found no delay in the administrative process which created a temporary
taking. Regarding the denominator for the parcel, it remanded the case
back to the trial court to determine: what entities own or owned the
property west of the road and their exact relationship to East Cape
May; what they built on the west parcel and were any parts disposed
of; when and for what consideration was any of the property acquired;
the differences in zoning on the east and west sides; and finally whether
the development on the west side was restricted in anticipation of more
stringent regulation on the east side.
Old West Town Neighborhood Association v.
City of Albuquerque, 927 P.2d 529 (1996).
The City of Albuquerque annexed land to the city, and adopted a sector
plan for the area (a component of the city's comprehensive plan) which
rezoned certain property when it was annexed into the city. A neighborhood
group challenged the rezoning of a six acre parcel on the grounds that
the city was required to follow the quasi-judicial procedures for the
rezoning of a single parcel in New Mexico. The court agreed and found
that the automatic rezoning of the parcel upon annexation and adoption
of the sector plan was illegal.
Chung v. Sarasota County, 686 So.2d 1358 (Fla.App. 1996). Sarasota County's settlement
agreement in zoning litigation, under which the county agreed to rezone
property subject to numerous conditions, constituted illegal contract
zoning. The settlement bypassed more stringent notice and hearing provisions
for rezoning, rendering the settlement illegal and not in compliance
with state statute.
Bauer v. Waste Management of Connecticut,
Inc., 686 A.2d 481 (Conn. 1996). A
town zoning and enforcement officer sought to enjoin a landfill officer
from violating zoning regulations that established height limitations
and from expanding nonconforming uses associated with landfill. The
trial court ordered an injunction and required the removal of waste
above the established height limitation. The court of appeals upheld
the injunction and order, finding that the trial court's action was
supported in part by evidence of a willful violation by the landfill
operator, based upon statements that the operator would never comply
with the city's order unless a court issued the same order requiring
compliance with the city height limitations.
Beale v. Planning Board of Rockland,
671 N.E.2d 1233 (Mass. 1996). A landowner appealed a decision of the
city planning board which denied a subdivision application, which concluded
the extension of a road for the creation of a shopping center. The property
lied partially inside the City of Rockland and partially within the
City of Hingham. The shopping center was proposed for construction in
Hingham, and the Rockland plan commission only needed to approve the
road connection to the shopping center site. The Rockland planning board
found that the proposed shopping center use, although not within Rockland,
violated the allowable uses on the parcel for which the road was proposed.
The basis of this decision was the rule that the use of land in one
zoning district for an access road to another zoning district is prohibited
where the road would provide access to uses that themselves are barred
if they had been located in the first zoning district (where only the
road is located).
City of Atlanta v. Watson, 475 S.E.2d 896 (Ga. 1996). Apartment owners in Atlanta brought
a suit against the city alleging a nuisance, inverse condemnation and
a violation of equal protection for the city's policy of purchasing
single-family residential property, but not multi-family property, as
part of the Airport Noise Abatement Program. The court found that the
purchase of single-family homes around the airport to the exclusion
of multi-family units bore a rational relationship to legitimate government
interest. The Texas Supreme Court found that the purchase of only single-family
homes served the purpose of reducing land usage incompatible with airport
noise in a sound fiscal manner while simultaneously avoiding the virtual
elimination of the surrounding residential base. The required purchase
of multi-family residential structures with the single-family structures
would have cost the city in excess of $900 million, and would have destroyed
the ability of the city to develop the former single-family property
for commercial uses that were compatible with the airport noise. The
initial purchase of only one type of property allowed the city to achieve
the goals of state and federal noise reduction programs in phases.
Toys "R" Us v. Silva, 89 N.Y.2d 411, 676 N.E.2d 862 (1996). The New York Court of
Appeals found that the substantial discontinuation of a nonconforming
use, as opposed to the complete discontinuation, for a 2 year period
results in a forfeiture of that use. The court also held that the good-faith
intentions of the owner is irrelevant to the determination of forfeiture.
The Ne York zoning ordinance at issue defined discontinuance as something
less than complete abandonment, and this was supported by the policy
disfavoring nonconforming uses.
Paragon Properties Co. v. City of Novi,
550 N.W.2d 772 (Mi. 1996). A property owner brought an inverse condemnation
suit, arguing that the city's failure to rezone the property was an
unconstitutional taking. The Michigan Supreme Court held that the denial
of the rezoning request did not inflict an actual, concrete injury,
and this combined with the failure to request a variance rendered the
claim unripe for judicial determination. This decision comports with
Suitum v. Tahoe Regional Planning Agency,
117 S.Ct. 1659 (1997), which reaffirmed all of the United States Supreme
Court cases upon which the Paragon court relied.
Because only a preliminary injunction is involved,
the court has not made a final ruling as to the merits of the system.
The court found that the cases support growth control ordinances only
if they are (1) limited in duration and (2) tied to a specific and prompt
plan for those corrective actions needed to lift the growth control,
citing Ulmquist v. Town of Marshan,
308 Men. 52, 245 N.W.2d 819 (1976), Golden
v. Planning Board of Ramapo, 30 N.Y.2d
359, 334 N.Y.S.2d 138, 285 N.E.2d 291, app.
dismissed, 409 U.S. 1003 (1972), and
Conway v. Town of Strata,
120 N.H. 257, 414 A.2d 539 (1980). [The court ignored the fact that
the Golden case involved a permanent
growth management ordinance designed to control the timing of growth.
The court seems to confuse permanent ordinances regulating development
timing with temporary ordinances such as interim development controls.]
Sections III through V analyze decisions decided
after Dolan v. City of Tigard,
512 U.S. 374 (1994), which announced the "rough proportionality" test
for municipal exactions. The state and lower federal courts continue
to struggle with a variety of issues that remain unresolved after Dolan.
Between 1973 and 1975, plaintiffs acquired 2.4
acres of vacant land and obtained approval to develop the property as
a tennis club and recreational facility. The city amended its zoning
and general plan ordinances from R-1 (single family residential) and
C-2 (retail commercial) to C-3 (commercial). The property was operated
by various owners as a recreational facility until 1988, when plaintiff
closed the facility due to financial loss. Plaintiff applied for a zoning
change and plan amendment to allow construction of a 30-unit condominium
complex valued at $10 million.
The city expressed an interest in acquiring the
property as public recreational facilities, but in April 1989 decided
not to purchase the property due to financial and other constraints.
The application for a condominium development was also turned down over
concerns of loss of recreational land uses in the city. In subsequent
discussions, the development was approved. In lieu of placing four tennis
courts on the property, the plaintiff was required to pay $280,000 to
be used by the city for additional recreational facilities at another
location (recreation fee). Plaintiff was also required to pay an exaction
based on the city's "Art in Public Places" program, which totaled $33,200
Plaintiff challenged both the art fee and recreation
fee under the California Mitigation Fee Act, and also alleged an unconstitutional
taking through these fees. Plaintiff paid the recreation fee under protest,
received building and other permits to proceed with the development,
and preserved the right to challenge the fee through the lawsuit. Residential
units were then sold to the public.
The case arrived to the California Supreme Court
through a long procedural history. The trial court originally ruled
that the recreation fee was invalid, but that the art fee was not unconstitutional.
The Court of Appeals initially affirmed the trial court judgment in
its entirety, but than reversed that portion of the judgment invalidating
the recreation fee. Upon certiorari, the United States Supreme Court
vacated that decision and commanded the Court of Appeals to review its
decision in light of Dolan. Upon remand from the Supreme
Court, a divided Court of Appeals reached the same result. The California
Supreme Court has now reversed the Court of Appeals insofar as it determined
that the recreation fee was roughly proportional to the impact caused
by the proposed condominium development. The Court of Appeals had applied
the proper test, the Supreme Court decided, but case has been remanded
to the trial court for fact finding to determine if the exaction if
Four separate opinions were filed by the seven
justice panel. A plurality of the Court held:
There is debate among the federal and state courts
and literature regarding whether the "rough proportionality" requirement
of Dolan applies to all development exactions, or merely to an exaction
that requires a developer to deed portions of his property to the government.
Although many of the post-Dolan cases hold that Dolan applies to a dedication requirement, often the court was not
faced with the issue of whether Dolan applies only
to dedications, or should instead be extended to other forms of exactions.
In other words, simply because the court applied the Dolan test to a challenged dedication of land, this does not mean that
the court would not use the same analysis if faced with a challenge
to another type of exaction, such as an impact fee system. This section
covers both types of cases, however, where the court explicitly held
that Dolan applies only to dedications,
and where the court was not faced with that particular issue.
"[B]efore conducting the governmental interest inquiry, we must first determine whether the 'essential nexus' and 'rough proportionality' tests apply at all to regulatory takings claims. Based on a close reading of Nollan and Dolan, we conclude that those cases (and the tests outlined therein) are limited to the context of development exactions where there is a physical taking or its equivalent. . . . Thus, we believe that Nollan and Dolan are best understood as extending the analysis of complete physical occupation cases to those situations in which the government achieves the same end (i.e., possession of one's physical property) through a conditional permitting procedure."
applied to dedications of right-of-way for road improvements. No discussion
of whether Dolan would apply to other forms
of exactions, but the court stated: "Under Dolan, a land use regulation does not effect a taking if the local
government shows by individualized determination that its exaction is 'roughly proportional' to the impact of the development."
Id. at 746 (emphasis added).
An association of companies who managed and owned
parking lots challenged the city's ordinance requiring curbs, landscaping,
and trees for these parking lots. The Georgia Supreme Court held that
the ordinance was not a taking of property. The court held that this
ordinance did not physically take or occupy the property of the parking
The legislative versus adjudicative debate after
Dolan was energized by Justice Thomas' dissent from the denial of certiorari
(joined by Justice Connor) in Parking Association of Georgia, where he stated:
"It is hardly surprising that some courts have
applied Tigard's rough proportionality test even when considering a
legislative enactment. It is not clear why the existence of a taking
should turn on the type of governmental entity responsible for the taking.
A city council can take property just as well as a planning commission
can. Moreover, the general applicability of the ordinance should not
be relevant in a takings analysis. . . . The distinction between sweeping
legislative takings and particularized administrative takings appears
to be a distinction without a constitutional difference."
The court found that a right-of-way dedication
met both the "essential nexus" and "rough proportionality" standards.
to impact fees and other forms of monetary exactions in which a municipality
attempts to use its police powers to leverage exactions from the developer,
which are imposed pursuant to the approval of building and other permits,
and where the municipality threatens denial of the permit if the exaction
is not satisfied. (detailed extensively supra)
The rough proportionality analysis conducted
in Ehrlich is strictly limited to those types of fees that are imposed in
an adjudicative and discretionary manner in which the local government
threatens to deny the development or permit application if the fee is
not paid (use of leverage and the police power to exact a fee). Ehrlich does not apply, Loyola holds, to the general category of development fees that are imposed
legislatively, assuming those fees are properly calculated and imposed.
The court considered a transportation impact
fee imposed on new development. Dolan noted that Illinois has
always adhered to the "specifically and uniquely attributable test."
Dolan explicitly rejected this
test as too exacting of a requirement, instead opting for the middle-ground
"reasonable relationship" (rough proportionality) test. The Northern
Illinois court nevertheless applied
the "specifically and uniquely attributable" test to the transportation
impact fee (pursuant to statutory requirement), and found that the impact
fee passed the test. The impact fee would therefore, by necessary implication,
pass the Dolan test. Dolan is cited throughout the opinion. This case is particularly useful
to analyze the legislative validity of a municipal transportation impact
fee ordinance, and the structure of the impact fee system
Landlords brought suit against an ordinance that
required them to pay relocation costs for displaced low-income tenants.
The court held that the ordinance was not a taking. In applying Dolan, the court found that a rough proportionality exists "between
the redevelopment of plaintiffs' property and the economic hardship
placed on low-income tenants by displacement resulting from this redevelopment."
Id. at 1326. Earlier in the opinion,
the court stated that the ninth circuit had limited the application
of Dolan to dedications of land
in adjudicative settings -- but nevertheless went on to analyze the
regulation under Dolan.
Costs associated with maintenance of railroad
near bridges and culverts to provide continued and adequate drainage
did not fall under the Dolan takings analysis because
duty to assume these costs was imposed upon railroads by general legislative mandate; by implication,
Dolan would apply to expenses associated with railroad maintenance
if such duty were imposed in an adjudicative manner.
One of the focal points of the Dolan holding was that the City of Tigard was attempting to exact a
dedication of land from the property owner in an adjudicative manner.
That is, the City was not applying a generally formulated legislative
policy, but rather decided to exact the land upon the landowner's application
for a building permit.
As a result, the courts considering the question
have almost uniformly held that the rough proportionality requirement
only applies to an adjudicative decision by a local government, and
not to analysis of legislative requirements. However, there may be room
for a carefully crafted argument, in the proper case, that the rough
proportionality requirement should apply to the study
and evaluation which precedes the enactment of a legislative
standard for some form of exaction. For example, the courts have not
yet been faced with a challenge to an impact fee system wherein the
property owner argues that the rough proportionality analysis, and possibly
heightened scrutiny, should be applied to the local government's study
that precedes the enactment of an impact fee formula, which is in turn
applied to individual property owners at some stage in the development
A water service fee did not fall under Dolan scrutiny because ordinance allowed no discretion in setting the
fee uniformly across identified classes of development. Dolan involved adjudicative, staff level discretion, while Scottsdale
ordinance was uniformly applied to all property.
not to apply to city ordinance which required mobile home park owners
closing their parks to pay relocation costs to park residents. The court
held that the Dolan analysis "applies only
to adjudicated determinations that condition approval of a proposed
land use on a property transferred to the government, which, standing
alone, would clearly constitute a taking." The court held that the Dolan analysis is confined "to adjudicative land-dedication situations
or to classic 'subdivision exaction' cases." 552 N.W.2d at 286.
As discussed above, the court ruled that the
Ehrlich holding is strictly limited to adjudicatively imposed fees, and
not property formulated development fees.
The court held that the Dolan rough proportionality test
did not apply to a legislative determination of mandatory agricultural
and open space easement requirements for entire county "Dolan makes it clear that it does not reach the type of legislative
determination classifying entire areas of a county . . . . Rather, its
reach is limited to adjudicative decisions conditioning permit applications
on particular parcels." Id. at 131.
However, the court noted that an adjudicative decision would
arise when the property owner submitted an application to subdivide
land in the coastal zone. At that time, an adjudicative decision would
be made as to the appropriateness and extent of the easement. Id. at 132.
not apply to general legislative requirement that parking lot owners
install landscaped areas and one tree for every eight parking spaces.
The court applied the rough proportionality test
to an adequate public school facilities ordinance to find that the ordinance
did not result in a facially unconstitutional taking of private property.
The factual circumstances of this case were very unusual. Through a
misunderstanding regarding the ownership of the property in question,
the parcel was "mistakenly" rezoned to OS Open Space in the 1970s. The
OS zoning allowed no development, and was reserved for those parcels
that contained environmentally sensitive or recreational lands upon
which development was intended to be prohibited. (The OS District, the
court notes, was originally intended to be applied only to public or
community associations' property, and not private property -- its application
to the subject property was a "mistake," but nevertheless binding.)
In 1994, the property owner requested rezoning to the R5 Residential
District. The rezoning was denied because the new residential development
allowable in the R5 District would not satisfy requirements under the
adequate public school facilities ordinance.
After stressing that the Dolan rough proportionality test
was nothing more than a reformulation of the "reasonable relationship"
test adopted by the Maryland courts in Howard
County v. J.J.M, Inc., 482 A.2d 908
(Md. 1984), the court held that, "[T]he statutory scheme [adequate public
facilities ordinance] satisfied the reasonable relationship test. The
regulation itself involves a regulatory area that may be a reasonable
application of the police power." Id. at 642.
The court went on to hold that, although the
adequate school facilities ordinance facially passed muster under the
reasonable relationship test, the denial of rezoning based on the adequate
facilities ordinance, as applied to the property, was an unconstitutional
taking of property because it denied all economically viable use under
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992).
Facial validity of an ordinance was challenged,
requiring "proffers" for capital improvements, akin to an impact fee
system. The court held that the ordinance was valid under Dolan because the court could envision no circumstance in which rough
proportionality could not theoretically be met, assuming the proper
study and analysis, under the terms of the ordinance. Dolan was therefore effectively applied to a legislative enactment,
but the court's analysis was more in accord with what would be conducted
in an as-applied challenge.
The court allowed plaintiff to challenge Santa
Monica's rent control law on the grounds that it has the effect of harming
the low-income persons it is designed to help, thereby violating the
"substantial advancement" test articulated in Nollan
v. California Coastal Commission, 483
U.S. 825, 834- 37, 107 S.Ct. 3141, 3147-3148, 97 L.Ed.2d 677 (1987).
Citing Ehrlich, the court stated that "the trend toward more far-reaching (and
numerically more) socially engineered land-use regulations as supports
our interpretation of Nollan and our holding that its
rules apply to the type of regulatory taking at issue in this case."
50 Cal.Rptr.2d at 734. The court attempted to limit the extension of
Blue Jeans Equities West v. City and
County of San Francisco, 3 Cal.App.4th 164, 171, 4 Cal.Rptr.2d 114 (1992) in which the
court rejected a challenge to transit impact fees under Nollan by stating that Nollan is limited to possessory
rather than regulatory takings cases. Santa Monica Beach has been superseded
by the California Supreme Court.
The court considered findings relating to the
sufficiency of dedication and road improvement requirements. An incorrect
understanding of the location of certain public facilities tainted the
findings and necessitated remand.
The court upheld a condition to a conditional
use permit for a proposed asphalt manufacturing plant which required
either a supplemental EIS or the construction of freeway ramps to mitigate
traffic conditions. Noting that the record was not sufficient to determine
whether the access ramp condition was reasonably related to the asphalt
plant, the court noted that "this is precisely the problem the Board
faced and for which it ordered a supplemental EIS." In other words,
the burden may be placed on the applicant to provide the information needed
to formulate the "individualized determination" required by Dolan.
The City's findings in an urban renewal case
were found to be sufficient. Discussing Dolan, the court noted that no
precise mathematical calculation is required and indicated that the
court in Dolan "suggested the City's finding
would have been cured with an equally conclusory finding the pathway
system will, or is likely to, off-set some traffic demand." 552 N.W.2d
The court found that the individualized determination
was sufficient to require land owners to grant a scenic and conservation
easement as a condition of approving the construction of an addition
to their home. The court noted that the environmental assessment form
"discusses the specific environmental impacts of the proposed construction
and the best manner by which to ameliorate them." The court noted that
the easement is an appropriate measure to address the specific environmental
impacts of the proposal, and augments the city's ability under other
legislation to preserve the restricted area.