Since the U.S. Supreme Court decided Koontz v. St. Johns River Water Management District last year, I have been on a speaking tour with a prominent government attorney, discussing the case’s impact on Washington law. One important point on which we both agreed was that Koontz clarified that an unlawful exactions case falls within the doctrine of unconstitutional conditions—a constitutional claim that is distinct from a due process or regulatory takings claim. That point is essential to properly deciding an exactions case because, over the years, the courts have developed many clause-specific defenses and procedural requirements that make no sense when applied outside their proper context. (Washington’s Municipal Research and Services Center published my paper on Koontz’s impacts on Washington law).
Well, it appears that our prognostications were a bit too optimistic. Last week, a trial court issued its decision in the first post-Koontz exactions case in Washington. Far from the doctrinal clarity we predicted, the decision bungled the unlawful exactions doctrine in a manner reminiscent of Mark Sanchez’s infamous butt-fumble.
The case, Common Sense Alliance v. Growth Management Hearings Board, arose from San Juan County’s decision to adopt land use regulations requiring all shoreline property owners to dedicate significant portions of their waterfront as “buffers” intended to provide the public with environmental benefits. A group of local landowners challenged the regulation, arguing that it violated the “essential nexus” and “rough proportionality” standards of Nollan v. California Coastal Commission (1987), and Dolan v. City of Tigard (1994). Together, the nexus and proportionality tests hold that the government cannot condition approval of a land-use permit on a requirement that the owner dedicate private property to the public, unless the government can show that the dedication is necessary to mitigate impacts caused by the proposed development.
The trial court, however, (1) characterized the exactions doctrine as a due process claim, (2) held that the claim was subject to procedural rules applicable to the due process clause, then (3), when addressing the merits of the case, applied a series of tests that had been developed specifically for regulatory takings claims.
Eventually, the court addressed the constitutional nexus and proportionality standards in one unilluminating sentence in which it concluded that, if an exaction is supported by a scientific study showing the public’s need for the land, then that study will per se “ensure nexus and proportionality.” The court provided no further discussion of the studies, nor any analysis of how they satisfy the heightened scrutiny demanded by the unlawful exactions doctrine. Indeed, it could not have done so because, standing alone, a determination of public need has never been sufficient to justify a government’s decision to put private property to a public use. Pennsylvania Coal Co. v. Mahon (1922) (“[A] strong public desire to improve the public condition is not enough to warrant achieving that desire by a shorter cut than the constitutional way of paying for the change.”).
If the government chooses to use the permit process as the mechanism to exact a dedication of private property for the public’s benefit, then it bears the burden of proving that there is a connection (i.e., a “nexus”) between the condition imposed and an identified impact that a new development will have on the public. If that nexus exists, then the government must also show that the development condition is roughly proportional to that portion of the public problem that is created or exacerbated by a landowner’s development. According to Dolan, generalized connections are “too lax to adequately protect petitioner’s right to just compensation if her property is taken for a public purpose.” That is because the purpose of these tests is to determine whether the government is taking advantage of the permit process to force “some people alone to bear public burdens, which in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States (1960) .
The San Juan County court fumbled the ball by focusing on science showing a “need” to use private property to provide the public with environmental benefits, rather than the impacts that development of shoreline lots may or may not have on the marine environment. Indeed, this very idea (i.e., that a government’s reliance on generalized science to determine how much land to put to public use should obviate Nollan and Dolan’s factual inquiry) turns the exactions doctrine on its head. Science is not a talisman that precludes judicial scrutiny; instead, it constitutes evidence that should be considered as part of a nexus and proportionality analysis. By circumventing that analysis, the San Juan trial court’s decision revealed absolutely nothing about the relationship between the buffer and any impact of proposed development. And, as a result, the court upheld a massive land grab without first determining whether the burden of protecting and enhancing the marine environment is properly placed only on those select few shoreline property owners who apply for permits, rather than being spread among San Juan County’s entire population as the Takings Clauses of the U.S. and Washington State Constitutions demand.