*1 S033642. Mar. [No. 1996.] EHRLICH,
RICHARD K. Plaintiff and Appellant, CITY al., OF CULVER CITY et Defendants and Appellants.
Counsel Edward J. Horowitz and Lisa S. Ehrlich for Plaintiff and Appellant. Cammorata, Zumbrun, B. Paul Nicholas Ronald A. Edward J. Campos, Connor, Jr., Bittle, A. S. D. James Daniel J. Paul Timothy Burling, Popeo, Kamenar, Bohachek, Bohachek, McCutchen, Rubenstein & Earl L. Doyle, Enersen, Rivera, Kostka, Brown & Maria P. L. L. Stephen Geoffrey Robinson, Schussman, Cox, Barbara J. Castle & Nicholson and Kenneth B. as Bley Amici Curiae on behalf of Plaintiff and Appellant. Schwab,
Norman Y. Herring, City Keller and Carol Attorney, Evelyn Dep- Freilich, Kaufman, Kaufman, uty City Fox & Attorneys, Sohagi, Benjamin Kane, Berkman, Ballmer & Michael D. Pamela S. Schmidt and Montoya, W. Pannone for Joseph Defendants and Appellants. Walston, General, Roderick Chief Assist- E. Lungren, Attorney
Daniel E. General, Stevens, General, Richard S. Assistant Attorney Attorney ant Jan General, Masouredis, Louise H. M. Frank and Linus Deputy Attorneys Schwartz, Renne, (San Francisco), City Andrew W. Deputy City Attorney R. (Escondido), Attorney Epp, R. City Jeffrey David Attorney, Chapman, Dennis, Minette John Echeverría and Mary Sharon City Assistant Attorney, of Defendants and Amici Curiae behalf Appellants. Opinion route,
ARABIAN, J.*
been
having
case comes to us
circuitous
This
remanded
the United States
Court issued a writ of certiorari
after
Supreme
the Court of
and vacated that court’s
in favor of defendant
Appeal
judgment
Court of
of Culver
court’s order of remand directed the
City
City.
high
to reexamine its
“in
of Dolan v.
Appeal
City Tigard
prior judgment
light
(1994) 512 U.S.
L.Ed.2d
(Ehrlich
S.Ct.
. . .”
[129
2309].
_
(1994)
City
Culver
U.S.
L.Ed.2d
114 S.Ct.
remand, a divided
Following
Court of
reaffirmed its earlier
Appeal
ruling
in favor of defendant
in an
We then
unpublished opinion.
granted
for review
petition
owner and
to consider
by plaintiff, property
developer,
important
unsettled
extent which
questions concerning
high
court’s
in Dolan v.
Tigard
U.S. 374
opinions
L.Ed.2d
(Dolan)
and the earlier case of Nollan v.
2309]
Coastal Comm'n
As we we explain, conclude that the tests formulated court in high *6 its Dolan and Nollan for whether a opinions determining compensable has regulatory taking occurred under the of the Amend- takings clause Fifth case, ment to the federal Constitution under the circumstances apply, this to the monetary exaction imposed Culver as a condition of by approving that the real plaintiff’s request suit be rezoned property to permit construction a multi-unit condominium. residential We reject thus contention that city’s the heightened takings clause standard formulated by the court in Nollan and Dolan applies only cases in which the local land use to dedicate authority requires real use as developer condition permit approval. *Retired Associate Supreme sitting assignment Justice of the by Chairper Court under son of the Judicial Council.
We arrive at this conclusion not reference by to the constitutional takings alone, clause but within the framework statutory presented by Mitigation (Gov. Code, that, Fee Act. 66000 et We will conclude in seq.) this case § order to avoid substantial the constitutional questions concerning sufficiency of the act, standard embodied in the legislative the tests formulated court in high its Dolan and Nollan when a opinions determining regula- tory has taking occurred here to the act’s local apply that the requirement demonstrate a regulatory “reasonable between the authority relationship” exaction and the monetary public impact development. standard,
We thus the act’s “reasonable as interpret relationship” applied case, fee at issue in this the standard of embodying review formulated court in its Nollan and Dolan high opinions j the local of both an “essential nexus” or —proof by permitting authority between the condition and the relationship permit public impact and of a between the proposed development, “rough mag- proportionality” nitude of the fiscal exaction and the effects of the proposed development. case, conclude, first, this standard in
Applying this we that the has city met its burden of demonstrating required connection nexus between the rezoning—to a residential use of a permit land zoned for parcel recreational use—and the of a private exaction to be imposition monetary of recreational expended support as a means of purposes mitigating conclude, however, loss. We that the record before us is insufficient to sustain the determination that city’s a so-called fee plaintiff pay mitigation $280,000 as a condition for of his that the approval request rezoned to the construction of a permit condominium Because the project. be able to city may of some fee under the justify imposition recently Dolan, minted standard of we follow the Court’s Oregon Supreme disposi- tion in that case and direct that the cause be remanded to the additional in accordance with this proceedings opinion.
I Factual and Procedural Background
A Between 1973 and a vacant 2.4-acre lot on plaintiff acquired Overland Avenue in Culver and obtained *7 the city approval develop site as a tennis club and recreational At private facility. plaintiff’s request, the amended its ordinances city uses on zoning general plan governing the a residential) (retail from zone R-l property and C-2 split (single-family commercial) (commercial). A the was also specific plan adopted by C-3 of tennis club and for the a city providing operated privately recreational A officials in 1974 city facility.1 report by planning prepared “the of the that recognized recommending development permit approval one”; need for additional tennis in is a real the city facilities this planning commission resolution likewise observed that recommending approval “[t]he in with will proposed zoning specific the conjunction plan a provide located area within the for additional tennis club suitably in facilities the of a form tennis club.” From private plaintiff, others, alone or the through then operated sports complex—consisting by courts, courts, five swimming tennis pool, weight training racquetball and aerobic facilities—on the site. losses,
In in to financial to the for a response plaintiff applied city in site; land in order change use to construct an office on the building was abandoned after the commission recommended application city planning the against on the club approval ground existing tennis sports a needed commercial recreational within club provided facility the The city. in continued under a series until operation managers August when closed it as a result of plaintiff financial losses. The continuing following month, he for again an amendment to applied city general the plan, and amendment of the zoning change to allow specific plan construction a 30-unit condominium $10 valued at million. complex after the
Shortly submission of plaintiff’s the application, city expressed an interest acquiring for as operation owned municipally sports and hired outside facility consultants to study feasibility The acquisition. behind interest impetus was a defi- city’s perceived recreational ciency existing municipal facilities. Buying property, to a according council staff city report, offered “opportunity preserve an existing use sports/recreational facility and relieve pressure that, facilities.” The existing feasibility study concluded national stan- dards, short, two city was to four tennis courts and deficient in the number its public swimming pools and also gymnasiums. study concluded that club plaintiff’s had encountered financial problems through maintenance, combination of management and a problems, poor lack amenities offered competitive other clubs. extensive Without capital concluded, improvements, study club could not “compete financially health and fitness today’s market.” Based upon findings concluded that it study, lacked funds to purchase and the club as operate a general public sports complex, plan” implements 1A “specific general plan by allowing and refines the greater Code, specificity (Gov. permissible 65450.) uses. § *8 if it the and would incur substantial financial risks purchased operated city fee-for-service basis. In the April club on a limited membership, time, At the council city decided not to the the same purchase property. loss of a based on concerns over the disapproved application plaintiff’s meantime, In recreational land use needed the the by community. plaintiff obtained a demolition and tore down the site existing improvements. permit nets, The still-useful the tennis court and lock- equipment, including lights, ers, he to donated the city. the of his entered into discus-
Following rejection application, plaintiff sions with council and in an to city members staff city attempt restructure the He asserts that he was informed the would not project. project for the be unless he to build new recreational facilities approved agreed city. In raised the four response, plaintiff apparently possibility constructing filed, new tennis courts. this time but did During period municipal plaintiff serve, for writ of mandate and com- petition complaint damages this lawsuit. a closed-door to discuss mencing Following meeting ostensibly the council voted to pending litigation, city approve plaintiff’s applica- tion conditioned of certain exactions. In lieu of upon payment monetary tennis the construction of four as a courts condition approval, city $280,000 “to be used” as stated required payment ratifying ordinance, “for additional recreational facilities as directed by [public] Council.” The minutes of the council state that the city meeting $280,000 fee was to be used “for of the lost recreational partial replacement facilities . . .” occasioned amendment. The amount of specific plan the fee was based which showed that the costs city upon study replacement for the recreational facilities “lost” as a result of amending specific plan $250,000 $280,000 $135,000 150,000 would for the for the pool, courts, $275,000 $300,000 tennis for the tennis courts. paddle $280,000 fee, In addition recreation also city plaintiff required an exaction under the “art in pay city’s public places” program. By ordinance, new residential of more than four projects municipal units, commercial, industrial, as well as all with public building projects $500,000, valuation are “art work” building exceeding provide ordinance) (as defined for the in an amount to 1 project equal percent valuation, of the total or to an amount cash to building pay equal city fund. The valued $3.2 art million. He elected plaintiff’s project fee, $33,200, which totaled but his in interest initially pay successor
863 on the site rather his own choosing art of placed subsequently apparently fee.2 the in-lieu than pay
Thereafter, filed formal written city protests with the plaintiff $280,000 $33,200 fee art in of the recreation and the imposition public exaction, Government to Code sections 66020 and 66021. places pursuant his The Plaintiff then amended to city protests. complaint both rejected of the to allege that fees amounted an unconstitutional imposition taking of without violation the Fifth and Fourteenth Amend- just compensation I, States and article section of the ments the United Constitution 19 California The entered into an agreement Constitution.3 later parties whereby $280,000 fee under exchange to recreation plaintiff agreed pay protest Plaintiff for the for the building project. necessary grading permits lawsuit, would with retained his right agreed proceed $280,000 fee. obtain a lien on the for security payment site were sold to the The was and residential units subsequently developed public.
B mandate, The for writ of which to set aside the petition plaintiff sought $280,000 $33,200 recreation fee and the in-lieu art fee as unconstitutional was takings, bifurcated from the balance of the complaint. Following fee, $280,000 the trial court invalidated hearing, recreation holding there was “no reasonable relation . . . between the and the plaintiff’s project need tennis courts in public The trial court concluded that the City.” exaction was an effort to cost shift the benefit “simply providing public one no more for the need than other The trial responsible any taxpayer.” $33,200 fee, however, court declined to set aside ruling art that it was not an unconstitutional taking.
The Court of initially affirmed in its but on Appeal judgment entirety modified its rehearing to reverse that opinion portion judgment $30,000 2Plaintiff apparently required was also pay “parkland” pursuant in-lieu fee Code, City ostensibly section 33-E.l of the Municipal provide park Culver for local recreational facilities to plaintiff’s development. serve residents of condominium Plaintiff challenged has this in-lieu fee in present action. provides 3The Fifth Amendment person that “No shall be deprived property, . . . . . . law; process use, without due nor private property shall public just be taken for without compensation.” The applicable through Fifth Amendment was made to the states the Four Chicago, B & Q Ry. Chicago teenth Amendment Co. v. U.S. L.Ed. 581]. parallel provision provides, property may California Constitution “Private damaged to, or only just taken use compensation paid when first been ... has for, (Cal. Const., I, 19.) into court the owner.” art. § $280,000 (Ehrlich recreation fee. invalidating City Culver The Court of Cal.App.4th Cal.Rptr.2d Appeal (id. 1749) found there was “substantial nexus” between the proposed $280,000 condominium and the exaction. “The fee was project mitigation for the benefit conferred on the imposed compensate developer *10 of the townhome and for the by City’s burden to the approval project (Id. 1750.) from the loss of recreational facilities.” community resulting Thus, not, the recreation fee was in the Court of an Appeal’s judgment, unconstitutional without taking The Court of also just compensation. Appeal affirmed that the in-lieu art fee. portion judgment upholding
Plaintiff then certiorari from the United States sought Court. The Supreme court his vacated the Court of and high granted petition, Appeal judgment, remanded the case for further consideration in of its in Dolan. light opinion (Ehrlich U.S._[129 854, v. Culver 512 City, supra, 114 noted, remand, 2731].) As a divided Court of following Appeal conclusions, reached the identical result. In addition to its earlier it found $280,000 that the fee was in nature and extent to the “roughly proportional” Dolan, needs and therefore muster under generated by project, passed 320, 512 U.S. 114 S.Ct. at p__[129 pp. 2319-2320]. We granted for review and now reverse. plaintiff’s petition
II Code, The (Gov. Fee Act Mitigation 66000 et seq.) § noted, As this case arises within the framework of the statutory Mitigation (the Act), Fee 1600, Act introduced in the Bill Legislature No. Assembly Session, Regular 1987-1988 and enacted as Statutes chapter Act, effective January 1989. codified as sections 66000-66003 of the Code, Government sets forth of fees procedures protesting imposition and other exactions monetary on a a local imposed development by agency. evinces, As its the Act “in legislative history was passed by Legislature response concerns among developers local were agencies imposing fees for (Centex unrelated to purposes development projects.” Real Estate Corp. City Vallejo Cal.App.4th 48]; Sen. Local Gov. Cal.Rptr.2d Com. of Assem. Bill No. 1600 analysis 1; (1987-1988 Sess.) see Reg. also Garrick Co. v. Development Hayward School Dist. Cal.App.4th Cal.Rptr.2d Unified Plaintiff with the of Government Code section complied requirements with the by filing protest which enumerated all of the bases of city fees, his to the recreational and art challenge his constitutional including in were set forth claim. These claims subsequently complaint takings In and the agreement plaintiff city, between subsequent writ petition. fees and to a lien recorded disputed against have agreed pay plaintiff and the to allow the and further agreed project proceed, the property, this shall in waive or restrict agreement any way “[njothing stipulated has made under rights protest [plaintiff] [plaintiff’s] pursue [former] Code 66008 section above-mentioned Government [now 66020] § Thus, both claim expressly statutory lawsuit.” agreement preserved the Act and the claims set forth in under plaintiff’s statutory protest his lawsuit.4 nature, the for the most Act also embodies Although part procedural standard local statutory which exactions against monetary governments *11 Government its are measured. Code section 66001 subject provisions the local determine “how is a reasonable there relation requires agency between the use of a and both of exaction “the ship” proposed given type “the need for the and of development project” facility the public type Code, 66001, (Gov. the on which fee is development project imposed.” § addition, (a)(3), (4), added.) subd. In italics the local must determine agency how there is “reasonable “the amount of relationship” between the fee and the cost the or public facility portion facility attributable 66001, (Id., (b), the fee development on which is subd. imposed.” § added.) italics codifies,
The Act
as the
thus
statutory
applicable
standard
defini
exactions,
tion to
the “reasonable
nonpossessory monetary
relationship”
standard
in California and
measure
employed
elsewhere to
the validity
(or
dedications)
dedications of
required
land
fees
in lieu of such
imposed
that are
Fifth
challenged
(See,
under the
e.g.,
Fourteenth Amendments.
1,
v.
Ayres City
Angeles (1949)
Council Los
11
Second, because the Legislature into Government Code sec- incorporated (a)(3) tion subdivision of the Act a standard that corre- generally to the one reflected in sponds (see court’s high takings jurisprudence Dolan, 320, 114 supra, 512 U.S. at S.Ct. at p__[129 p. 2319] think the ‘reasonable test relationship’ adopted by majority [“We state courts is closer to the federal constitutional norm .... do not [W]e such, it as because the term . . . seems similar to adopt partly confusingly .”]), the term ‘rational basis’ . . . it is for this court to appropriate interpret standard in a manner consistent with the court’s decisions statutory high act, in Nollan and Dolan so that a fee to the development imposed pursuant and that satisfies its will not be requirements, subject challenge constitutional the “reasonable stan- grounds. By interpreting relationship” dard Government Code section 66001 as adopted by imposing requirement standard, consistent with the NollanIDolan we serve the legislative purpose fees, from protecting developers excessive disproportionate carry out the intent of legislative between imposing statutory mon- relationship exaction and etary development reflects the project accurately prevailing takings clause standard.5 must, words,
We in other that in the recognize wake of Dolan the term “reasonable embraces both constitutional and relationship” mean- statutory which, for ings all have practical purposes, extent that the merged Dolan decision applies fees—an issue we address below. Thus, who wish developers fee on challenge development either statu- tory constitutional grounds must do so via the framework statutory (Cf. Glendale, the Act. provided by Hensler v. City 8 Cal.4th at pp. 13-15.)
Ill “Leveraging” the Permit Power and the Clause Takings Our account of the factual record should make it clear that we view *13 this case as one the presenting earmarks of what has come to be character ized in recent takings as a jurisprudence form of regulatory We “leveraging.” mean to convey such a by characterization what Justice Scalia to appears when, have had in mind the describing California Coastal Commission’s exaction of a beachfront easement from a homeowner as a condition of 5Contrary to the assertion of Justice Kennard litigated that case was “[t]his under the clause, takings Act; thus, Mitigation not our state’s Fee there is no need to construe the Mitigation (conc. Kennard, Fee Act J., to decide this post, opn. 903), case” & dis. at plaintiff complied requirements with the by asserting and statutory the Act both 4, ante, takings (See constitutional 865.) claims in protest. his fn. at plaintiff’s We resolve claim in the context of text, is, the Act for the reasons set in forth the main that unqualified statutory language channeling protests development all to through fees procedures prescribed by the Act and the identity formulaic statutory of the and constitutional standards. Nollan, a in
issuing development he wrote 483 U.S. permit, that a expect “One would in which this kind of [permit] regime leveraging [i.e., of unrelated exactions as a condition for imposition granting permit is allowed would land-use approval] police power produce stringent which the then to State waives other . . . regulation accomplish purposes 690], (Id. added.) fn. 5 italics view, In our the intermediate standard of scrutiny formulated judicial in court Nollan and Dolan is intended address such high indicators just land in use between owners and “bargains” bodies— regulatory those in which the local conditions permit given a approval on the use owner’s surrender of benefits which offset the purportedly impact It is proposed this context— development. paradigmatic permit where the individual property seeks to owner-developer negotiate approval of a planned the combined Nollan Dolan development—that test quint- effect, Its as least to those conditions that fail to applies. essential^" nexus, exhibit the constitutionally is to rule out of a the imposition certain species conditions: those which are either regulatory logically unrelated legitimate fail to regulatory objectives or exhibit the constitu- “fit” between conditional means and tionally required legitimate governmen- tal ends.
Where the local seeks to a permit exaction an authority justify given use, alternative to Nollan denying proposed requires court reviewing scrutinize the instrumental efficacy condition order to permit determine whether it furthers the same as would logically regulatory goal also, outright denial A court must under the permit. Dolan, standard formulated determine whether the factual made findings one is permitting body support condition as that more or less in both nature and proportional, scope, public impact proposed development.
Thus, although we conclude that the combined test of Dolan Nollan and case, exaction applies monetary Culver in this we imposed by also conclude the heightened standard of scrutiny triggered by narrow relatively class of land use cases—those exhibiting circumstances which increase risk that the local seek avoid will permitting authority is, obligation pay just Neither Nollan nor Dolan after compensation. all, Rather, a conventional case. as the court’s regulatory rationale *14 demonstrates, for its result in Nollan both are cases in which the local attached a condition the government to issuance of a development permit which, but claim that exaction is justified by greater power for a deny would permit altogether, have amounted an uncompensated requi- sition of private property.
869 clear, Nollan, U.S. makes 483 Scalia’s Justice opinion As risk inherent and that an heightened context discretionary presents such a conditions power impose will manipulate police local ends, what avoiding thereby land use legitimate regulatory unrelated to In such a just compensation. otherwise an obligation pay would context, of works to dispel Nollan-Dolan standard scrutiny the heightened ends link between and a sufficient such concerns by assuring constitutionally cases, in individual of land-use conditions It is means. imposition its nature allows for both the a scheme which authorized by permit for and an enhanced of police potential discretionary deployment power abuse, of the intermediate its the sine non for qua application constitutes in Nollan and Dolan. of the court scrutiny standard formulated of of seeks to demonstrate the these accuracy The remainder our opinion conclusions, case.6 which we then the record before us this apply
A Nollan and the “Essential Nexus” Standard Nollan, challenged In 483 U.S. residential owners a Coastal a requirement California Commission lateral they grant (or seaside) beachfront easement for access across back of their larger as a condition of building for construct approval permit Kmiec, (See, 6Scholarly unmanageably large. e.g., comment the two cases is almost At Last, 147; Takings (1995) Supreme Pol’y. Harv. The Court Solves the J. L. & Pub. 19 Puzzle Ryan, “Paying" Change: Using Kendall & Eminent Domain to Secure Exactions and 1801; Funk, (1995) Reading Tigard Sidestep Nollan and Dolan 81 Va. L. Dolan v. Rev. of 127; Huffman, (1995) City Tigard: Step Right 25 L. v. Envtl. Dolan Another in the Direction of Kushner, (1995) 143; Property Mysticism: Legality L. at The Exactions 25 Envtl. of (1992) Approval Development Rehnquist Public Court 8 Condition in the Time J. of 53; Been, Rethinking & Envtl. L. as a Use Land Use ‘Exit’ Constraint on Land Exactions: “ Notes, (1991) 473; My Unconstitutional L. Rev. ‘Take’ Conditions Doctrine 91 Colum. Please!”: Nollan v. Beach Coastal Commission and a Rational-Nexus Constitutional California 823; Kmiec, (1989) Analysis Development Original Exactions 69 L. Rev. The B. U. Understanding Taking (1988) Clause Is Neither Nor Obtuse Colum. L. Rev. Weak 88 Means, Motives, 1630; Lawrence, Takings: The Nexus Test Nollan v. Coastal California Conditions, (1988) 231; 12 Epstein, Commission Harv. Envtl. L. Rev. State Unconstitutional Power, 1, 58; Michelman, (1988) Takings, and the Limits 102 Consent Harv. L. Rev. (1988) 1600; Takings: (1987) Epstein, Sup. 88 Colum. L. Rev. Descent Resurrection 1; Karlin, 627; (1988) Ct. Back Rev. Rev. to the Future: From Nollan to Lochner Sw.U. L. Peterson, Regulatory ‘Takings’ Supreme Approaches Land Use Revisited: The New Court 335; Shimko, (1988) Hastings “Takings" Supreme L. J. Falik & The Nexus—The Court (1988) Planning: Hastings a New Chooses Direction in Land-Use A From View California 359; Taking Step L. Takings J. Note: Back: A Test Nollan Reconsideration 448; Supreme Court—Leading Coastal Commission Harv. L. Rev. California Cases 119, 240.) 101 Harv. L. Rev. *15 issue, it, beach The house. as the court high framed was not whether the permit condition would have deprived Nollans of all economically viable (it have), use of their would not but rather whether the exaction furthered a state legitimate interest. The Coastal Commission that the argued easement condition was to foster necessary “visual access" to the beach and to overcome the barrier” to “psychological its use created shorefront (483 development. 688].) U.S. at L.Ed.2d at p. p. [97 The Court assumed that the advanced Supreme the Coastal purposes were, Commission state interests and represented legitimate at least in the abstract, (483 inoffensive. constitutionally U.S. at 835-836 pp. L.Ed.2d [97 however, 688].) at The court that p. evident constitutional explained, “[t]he ... if the propriety disappears condition . . . fails to [permit] utterly further the end advanced as the (Id. for the justification at prohibition.” p. 689].) eliminated,” L.Ed.2d at When “that essential nexus is p. [97 observed, court of the exaction is legitimacy undermined and it “be- comes, of an quite simply, easement to serve some valid obtaining but without governmental (Ibid., purpose, payment italics compensation.” added.) standard, minted “essential Applying newly nexus” the court found the required between the relationship Nollans’ condition and permit the asserted state interest to be absent. The condition was an ease- permit ment for lateral access to allow visitors to traverse the Nollans’ property while from one beach to another. passing The court found it “quite impos- sible understand” how such an easement furthered the “visual access” or lowered the (Id. barriers” of “psychological already the beach. at people 690].) L.Ed.2d at p. It was this link p. [97 absence of a between the condition and the permit commission’s purported public purpose requir- (Id. it made the exaction a ing at 841-842 taking. L.Ed.2d at pp. pp. [97 691-693].)7 7The Nollan majority also made evaluating clear that the standard for takings claim differs latter, applied from that process challenge. a due majority explained, requires merely rationally the state “could regulation adopted have decided” that the land-use objective, (483 could achieve only its and thus judicial invokes a minimal level of review. p. 688], omitted.) claim, U.S. at fn. 3 L.Ed.2d p. at italics To survive a however, regulation the court stressed “substantially legitimate that the must advance” a state {Ibid.) Thus, the Nollan interest. majority consciously embraced what Justice Brennan had critically “demanding (483 characterized as a more standard” U.S. at (dis. Brennan, J.)) opn. of requiring “precise 696] a more fit between forms of burden and permit] previously [the condition . . . .” than had purposes been demanded for of due (Id. process. Brennan, particularly the Nollan In a expressive rejoinder majority rejected to Justice argument that the represented easement condition “exchange” a reasonable in return for the “benefit” of permit, declaring that right “the to build on one’s own
property—even though subjected its exercise can be legitimate permitting requirements—
B and Standard “Rough Dolan the Proportionality” has been recently applied nexus” announced in Nollan The “essential test Dolan, The 374. facts the in U.S. high and extended court court’s our attention in view particular in Dolan demand holding order the Court directing in this and its certiorari case subsequent grant The opinion. its of the Dolan judgment light reexamine prior Appeal Dolan, owned a chain of were The Mrs. plaintiff, facts straightforward. fairly stores, in the electrical one of which—located plumbing supply Portland, a a suburb—she Oregon by constructing Tigard, sought expand retail on the sales doubling space. new building existing parcel, nearly on building permit conditioned of the city necessary The had approval for flood control and traffic improve- dedications of portion parcel code, Mrs. ments. its local had development city required Invoking of the to a percentage parcel adjacent floodplain part Dolan dedicate “Greenway” additional stress its storm city’s system prevent (Id. 2314].) at S.Ct. at L.Ed.2d at drainage p__[129 p. p. system. area, To relieve in the had also traffic downtown congestion city the dedication of an additional 15-foot of land the flood adjacent strip as a (Ibid.) plain pedestrian/bicycle pathway.
The be had made generalized findings concerning relationship its tween dedication conditions and the of Mrs. Dolan’s projected impacts As to the commission had project. pedestrian pathway, city’s planning “ it found was reasonable to assume that customers and employees future of this site adjacent uses could utilize pedestrian/bicycle pathway ” (512 this for U.S. their and recreational needs.’ development transportation 2314], added.) at at As for L.Ed.2d S.Ct. at italics p__[129 p. p. dedication, the “ found that the drainage system planning commission ‘anticipated increased storm water flow from to an subject property strained creek and basin can add to the need to already only drainage ” (Id. the stream at manage drainage channel for floodplain purposes.’ _[129 2315], added.) 114 S.Ct. italics Oregon conditions, state courts Mrs. Dolan’s upheld city’s permit rejecting argument that dedication were an requirements uncompensated taking her because were not to her sufficiently related they proposed development project. reversed,
The United States
Court
in its
Supreme
establishing
opinion
claims that
two-step procedure
so-called
analyzing
regulatory
”
833-834,
(483
remotely
‘governmental
pp.
cannot
be described as a
benefit.’
U.S. at
fn.
Nollan,
First,
builds on the
holding
In this latter elaborating upon that had requirement—one appeared the formulation the court in Nollan—the adopted by Chief Justice’s opinion observed that state courts “have been with this deal dealing problem good than we longer have” and (512 one of three standards. typically apply U.S. at States,” 2318].) L.Ed.2d at at p._[129 “In some noted, court “very statements as to generalized connections necessary between the dedication required and the seem to proposed development (Ibid.) suffice.” The court this high “deferential” standard as “too rejected lax” to a landowner’s adequately protect if her right just compensation is taken for a property (Dolan, 512 U.S. at purpose. p__[129 319-320, 2319].) pp. S.Ct. at p. Other state courts have strict required between the very correspondence exaction and the described as development, “specifically uniquely standard, attributable test.” Under this the local must demon strate that the exaction is to a burden precisely proportional directly otherwise, becomes, created specifically development; regulation Court, in the words of the Illinois “a veiled exercise of the Supreme power of eminent domain and a confiscation of behind the private property defense (Pioneer of police regulations.” Trust & S. Bank v. Mount Village Prospect 802].) Ill.2d 375 N.E.2d The court also high rejected this test as one a more requiring standard of than the exacting scrutiny federal (Dolan, Constitution demands. 512 U.S. at p__[129 319-320, at pp. S.Ct. at p.
Still other states have
what the Dolan court
adopted
characterized as an
“intermediate
position,” requiring
to show a “reasonable
municipality
between the
relationship”
exaction and
impact
proposed
these,
court,
development.
to the
Typical
is
according
Simpson City of
North Platte
297],
Applying principles dedications to its and the city’s required “Greenway” system pedes trian were not related” Mrs. Dolan’s pathway “reasonably proposed for the development project. Chief Justice Rehnquist’s opinion majority conceded that to the keeping portions floodplain adjacent petitioner’s free of could on the property logically mitigate city’s pressures However, observed, the court “the demanded more—it sewage system. city not wanted in only not to build but it also wanted petitioner floodplain, (512 petitioner’s along Creek for its Green U.S. way system.” [the] 321, at 2320].) L.Ed.2d at p. 114 S.Ct. at Yet p._[129 p. nothing city’s findings explained “why public greenway, opposed private one, added.) {Ibid., was the interest of flood control.” italics The required it court thus found “difficult to see” how access petitioner’s easement was related to floodplain [admittedly] “sufficiently city’s Creek, interest in legitimate reducing flooding problems along [the] has not city attempted make individualized determination to any support (Id. this of its at at part request.” p__[129 p. pp. Hence, 2320-2321].) held, the court “the which the findings upon relies city do show reasonable required relationship between the floodplain _ easement and the petitioner’s (Id. new proposed building.” at p. L.Ed.2d at 114 S.Ct. at p. dedication,
As for the proposed pedestrian pathway the court likewise that the acknowledged owner’s in lead to development might Nevertheless, creased traffic in the downtown streets. it concluded the city had not demonstrated that the additional traffic generated by develop ment “reasonably city’s a dedication of the requirement relate[s] pedestrian (512 easement.” /bicycle pathway U.S. at L.Ed.2d at p__[129 2321.) 114 S.Ct. at had found that the city merely creation of the “ pathway ‘could offset some of the traffic demand . . . and lessen the ” increase in traffic (Id. congestion.’ pp. 2321-2322], added, S.Ct. at omitted.) italics pp. fn. The fact that the pathway effect, however, “could” have had such an was insufficiently precise demonstrate the constitutionally between relationship develop ment and the dedication. compelled property must make some “[T]he effort to its quantify findings support dedication for the pedestrian/ wrote, bicycle pathway,” court statement that it “beyond conclusory *19 _ could offset some of the traffic (Id. demand generated.” at p. [129 323, L.Ed.2d at 2322].) 114 S.Ct. at p. that “the p. Concluding findings upon which the relies do not show city the reasonable required the relationship,” court ordered the case remanded for (Id. further proceedings. at pp._,_ 114 S.Ct. at [129 pp.
IV
Do Nollan and Dolan
Apply
Exactions?
Nonpossessory
Both Nollan and Dolan involved
schemes
regulatory
under which the local
had
the
dedication of
possessory
real
property by
owner as a condition for
issuing
necessary development
More
permit.
over, language employed
Justice Scalia in
by
his
for
opinion
majority
Nollan has been read
some students
by
of the high court’s contemporary
takings
as
jurisprudence
limiting
of the “essential
operation
nexus”
requirement
cases of
exactions. After
possessory
that the
observing
high
court’s modem
cases had
land-use restrictions that
upheld
“substan
advance” a
tially
(see,
state
legitimate
purpose
e.g., Agins v. Tiburon
This of does a for use as condition convey owner a portion parcel a to build the desired rezoning issuing permit of his granting request Rather, on a kind of exaction city insists condominium project. different $280,000. Does of development: payment as a condition authorizing of of the exaction make the Nollan diptych this distinction in nature con- Some and commentators have to this case? courts Dolan inapplicable cluded that it does. (1992) 3 County San Francisco In Blue Jeans West Equities 114], Court our example, Appeal Cal.Rptr.2d
Cal.App.4th in Nollan is limited to test contained heightened concluded that “any scrutiny (Id. 171.) The Court rather than cases.” regulatory takings possessory Court of on the United States Appeals relied Appeal part opinion by (9th 1991) v. Sacramento Cir. for the Ninth Circuit Commercial Builders There, a commer- F.2d divided court had contention rejected 872. nonresidential cial ordinance conditioning developers challenging fee burdens on of a to offset associated building permits payment municipal with the workers to fill created such relocating influx low-income jobs level on fee heightened scrutiny that Nollan such projects, imposed that had “con- exactions. other federal court Relying opinions appellate burdens on land use sidered ordinances constitutionality placed case after Nollan’'’ the concluded that have interpreted majority “[n]one the level of to be that do changing scrutiny regulations applied (Id. constitute St. citing encroachment on land.” physical *20 348, 357, 1990) (2d Bartholomew’s Church v. New Cir. 914 F.2d City York of 6, fn. cert. den. sub nom. Committee Sale St. Bartholomew’s Oppose of 214, 1103]; Church v. U.S. L.Ed.2d 111 S.Ct. Rector 905 499 (5th 1988) v. Federal Cir. F.2d Adolph Management 854 Emergency Agency 737; (4th v. Durham Cir. Naegele Outdoor Inc. Advertising, of 172, 178; 1988) 844 F.2d see also Land Dev. v. Tahoe Leroy Regional matter,” (9th 696.) Planning 1991) Cir. “As a threshold Agency 939 F.2d concluded, Ninth Circuit “we Nollan are not that materially persuaded the level of we must Sacramento ordinance changes scrutiny apply” (941 874; Kushner, issue. Mysticism: F.2d see also Property Legality Exactions as in the Approval a Condition Public Development of Court, 53, 166.) Time L. J. Land Use & Envtl. Rehnquist supra, of
There is no clause is protective question takings specially invasion—a that the against physical occupation or property proposition court’s Loretto v. opinion Teleprompter Manhattan CATV Corp. true, 458 U.S. 102 S.Ct. makes clear. It is also 3164] out, as the city points has generally greater leeway with to noninvasive forms of respect land-use where the courts have regulation, for the most part given greater deference to its power impose broadly fees, taxes, assessments, whether in the form of applicable user or develop- ment fees. Both Francisco, Blue Jean West Equities County San Sacramento, Cal.App.4th Commercial Builders v. F.2d dealt with such legislatively formulated assess- development ments on a imposed broad class of owners. Fees property of this nature may indeed be to a lesser subject standard of than judicial that formu- scrutiny lated the court in Nollan and Dolan because the heightened risk of the “extortionate” use of the to exact police power unconstitutional conditions is Nonetheless, not present. we reject that Nollan and Dolan proposition are without entirely application monetary exactions. When such exactions are in this imposed—as case—neither nor generally but on an ministerially, basis, individual and discretionary we conclude that the standard heightened judicial Nollan and Dolan scrutiny is triggered. One of the central promises clause is that truly public burdens will be borne. Where the publicly land-use of local regulatory power government is deployed against individual owners property the use through exactions, of conditional permit Nollan test to secure that helps promise that the by assuring over monopoly power permits illegitimately exploited by imposing conditions that lack any logical affinity is, of a public impact land use. The particular essential nexus test short, a “means-ends” intended to equation, limit the government’s bargain- ing mobility imposing permit conditions on individual owners— whether consist of they dedications or the possessory exaction of cash payments—that, because to lack they appear evident connection any use, impact land proposed conceal an may illegitimate “ ” words, in other demand—may, amount to ‘out-and-out . . . extortion.’ (Nollan, supra, 483 U.S. at L.Ed.2d at p.
Under this view of the constitutional role of the consolidated “essential tests, nexus” and “rough proportionality” it matters little whether the local land use permit demands authority the actual or the conveyance *21 payment a exaction. In a monetary context in which the contraints imposed by legislative political are absent or processes substantially reduced, the risk of too elastic or diluted a standard—the takings vice of distributive in injustice the allocation of civic costs—is in either heightened case. for this view Support of the test can be scope drawn from a close of the text of reading Justice Scalia’s in opinion Nollan and from the Chief Justice’s opinion Dolan.
A claim of the takings analysis its substantive begins The Nollan opinion to Nollans the California simply that “[h]ad with proposition a to on the public their beachfront available an easement across make have the beach ... we access to in order to increase basis permanent (483 L.Ed.2d U.S. at p. there have been a taking." [97 no doubt would 685].) and uncompensated requisition the state’s unilateral Assuming at p. clause, have offended takings easement from the Nollans would a lateral as a to conveyed then “whether court asked requiring [an easement] (Id. outcome.” at p. a land-use alters the condition issuing permit said, court was “yes.” that at The answer to question, L.Ed.2d that the same legitimate a condition “serves permit imposition court as a to issue the permit," high refusal police-power purposes reasoned, to permit be found a issue the “should not to be taking if refusal 689], italics taking.” (Id. not constitute a would “Thus, that to some condition added.) if the Commission attached the permit to beach notwithstanding have see the protected public’s ability would could have of the new house ... so as the Commission long construction alto its forbid the house exercised ... construction police power (Ibid.) of the condition would also be constitutional.” gether, imposition continued, lay The heart Justice Scalia’s opinion analysis, (or absence) of a between deny link the commission’s presence power its the Nollans development permit altogether, power impose on its condition issuance that furthers the same end as an outright prohibition on “If a that development. designed accomplish purpose prohibition be a it would exercise of the rather than a legitimate taking, police power would be to conclude the owner an alternative to strange providing (483 not.” U.S. at accomplishes which the same prohibition purpose pp. 689], 836-837 added.) italics Nollan, however, The vice of the was commission’s condition permit the absence of connection between the condition and the any logical pur- con- justification for an ban on evident ported “The outright development. stitutional its issu- propriety”—between denying permit conditioning ance means— achieving same alternative purpose through wrote, the court “if the substituted for “disappears,” condition the end advanced as the prohibition utterly justification fails further eliminated, prohibition. When that essential nexus is the situation becomes theater, as if the same California law but forbade fire in crowed shouting those trea- granted dispensations $100 to contribute to the state willing . . sury. original lack nexus between the condition and the [T]he *22 878
purpose building restriction converts that to other purpose something becomes, The than what it was. then the purpose of quite simply, obtaining an some easement to serve valid but without governmental purpose, payment (483 689], of added.) U.S. at 837 L.Ed.2d compensation.” at italics p. p. [97 short,” concluded, “In Justice Scalia “unless the condition serves permit ban, the same governmental purpose as the the restric- building tion is not a valid of land use but regulation ‘an out-and-out of plan ” 689], (483 extortion.’ U.S. at 837 L.Ed.2d at J.E.D. p. p. quoting [97 12, (1981) 14-15], Associates v. Atkinson 121 Town N.H. 581 A.2d [432 of added.)8 italics court, In before this and several amici briefing plaintiff curiae supporting insist that the club because was a accessible privately facility, operated only members, a the from such dues-paying zoning change withdrawing parcel use a private recreational could not have aas cognizable public impact court, matter of The trial law. its memorandum granting opinion judgment for this club . . plaintiff, adopted argument, reasoning . “[plaintiff’s] was at all times the never interest in it private property; any owned nor was it ever any public dedicated to use. . . . actions part [Plaintiff’s] courts, cannot to be said the tennis neither did deprive City because have [plaintiff] an affirmative tennis courts to the or its provide duty City residents nor would tennis courts necessarily available but for City . . . could [plaintiff’s] City The have condemned a project. portion [^D courts, for use [plaintiff’s] City tennis but the would then of property Here, course have had for the land pay land. instead of for which it taking would have had the but take not land This pay, money. proposes is equally impermissible.” that, because recre- assumption designated private use,
ational it lacks value that its withdrawal has no subsequent Nollan, Scalia, 8Justice author of majority opinion 483 U.S. in Pennell takings elaborated on v. San Jose his view essence of the clause in his dissent 1, 17, 849], challenging 485 15 U.S. L.Ed.2d S.Ct. a rent [99 case control ground ordinance on proposed that one of its hike criteria increases—whether would hardship work uncompensated taking. Although majority to a tenant—constituted an held takings premature, claim provision Justice Scalia would have held . . . “that . . . (Ibid.) taking private property compensation effects a just Invoking without . . . .” Armstrong 1554, 1561, v. United States language 364 U.S. L.Ed.2d [4 1563], regulation his dissent reasoned that land-use . . . does not violate” “[traditional in Armstrong principle embodied there relationship “because is a be cause-and-effect tween the regulation regulation use restricted and the social evil that seeks (485 (dis. Scalia, remedy.” p. J.).) at p. U.S. opn. L.Ed.2d at The essence of 19] clause, reasoned, dissent simply making “is pay, unfairness of one citizen taxes, (Id. problem some fashion other than remedy a social that is his creation.” none of Nollan, 22]; cf. 483 U.S. at fn. *23 owned and logic. Although privately a matter of is flawed as impact public establishment, accessible club a business health was operated, plaintiff’s The of Culver fee. of a membership opportunity on the payment the public created a public recreational facilities to use such private residents a Without such of such facilities. availability enlarging benefit farther, with wait longer, put have travel up residents would facility, their recreational pursuits. choices in inconveniences and restricted other Thus, than is rather facility publicly fact that a recreational privately value to the public. owned does not erase its use have of a land private may
This the discontinuation principle—that Indeed, in well in land-use law. distinctly public consequences—is accepted that loss of private open Justice Scalia as much as conceded Nollan itself lead to an adverse from beach could residential resulting space diminution of coastal a views—justifying requirement public impact—a with the Nollans a on their viewing passersby “provide spot (483 U.S at of the ocean their new house would interfere.” whose sighting below, the that a as we fact Although, explain affect the may recreational is rather than owned facility privately publicly loss, on its constitutionally place private value magnitude may se its value for land-use status alone does not erase intrinsic public per short, in In it is well both case regulatory accepted purposes. can have a of a land use statutory law the discontinuance private it. We a exaction to alleviate significant monetary perceive impact justifying no reason cannot be said of the loss of land devoted why private same being a use a result of recreational use its withdrawal from such through zoned” to accommodate uses. “up incompatible a There between thus exists a basis connection logic potential $280,000 and the social need condominium generated by plaintiff’s project fee mitigation imposed by city.
B Dolan, the Chief 512 U.S. both Justice opinion Nollan, nexus the next incorporates analytical essential test of and takes only the extent which the clause step—determining imposes connection and the logical permit impact between condition public use, land but the nature of “fit” between means given dictates the required and ends. While the court in was with the nature of Nollan concerned exaction, between a and a governmental relationship proposed development focus Dolan its is on the connection. Instead degree a given “what the nature between asking relationship permit (a condition and the costs of a land use” proposed question answered *24 formulation), in Nollan by “essential nexus” the court asked Dolan is the connection required degree between the exactions “[W]hat imposed and the by (Id. of the projected impact[] at proposed development?” _ 311, 2312], added.) L.Ed.2d at 114 S.Ct. at p. p. italics p. seen,
The answer to that as we have is twofold. The question, condition must not imposed by challenged regulation only roughly proportional, held, the Dolan court both in “nature and extent to the impact 320, (512 U.S. at L.Ed.2d at proposed development” p__[129 114 S.Ct. p. 2320]), at but the must be p. required demonstrated “some proportionality by 320, sort of (Id. individualized determination.” L.Ed.2d at p._[129 p. 2319].) 114 S.Ct. at The court framed the first p. of its leg rough propor- test as an into tionality “whether the inquiry exactions de- degree manded by city’s conditions bear the permit required relationship (Id. projected impact petitioner’s proposed development.” p._[129 318,114 L.Ed.2d at S.Ct. at 2318].) The antecedent question underlying is, course, the exact nature inquiry of the “required relationship” seen, imposed by clause. As we have the court answered its own an question by applying “intermediate” level of constitutional scrutiny— “rough proportionality”—to between the relationship city’s permit conditions and the costs associated with Mrs. Dolan’s public proposed development.
We need not here the extended account of the Dolan repeat court’s (ante, that, set out above reasoning 869-872), at pp. to note as we except read the court’s high the chief opinion, analytical advance of Dolan over the formulation the court in Nollan to lie in the appears that the requirement local “make some sort of permit authority determination that individualized dedication is related both in nature and extent to the impact (512 U.S. at proposed development.” L.Ed.2d at pp__-__[129 2319-2320], added, 114 S.Ct. omitted.) at pp. italics fn. We view the requirement the local government factually demonstrate a sustainable between the effects of a proportionality land use and a proposed given exaction as one which furthers the assurances in the Nollan test that implicit the condition at issue is more than or even related to theoretically plausibly ends. legitimate regulatory
Nollan and Dolan are thus concerned with one of the implementing fundamental of modem bar Govern- principles takings jurisprudence—“to which, ment from some alone to bear in all forcing burdens people public fairness and justice, should be borne as a whole.” (Armstrong course, States, 1561].) Of 364 U.S at 49p. v. United (and observed, is not clear that the rationale it at all already we have to cases in and Dolan Nollan scrutiny) applies standard of heightened fee form of exaction takes the a generally applicable which the deferred to legislative which the courts have assessment—cases in benefits to formulate “public adjusting processes programas] political (Penn Central life to the common good.” burdens of economic promote U.S. Co. v. New York Transp. discre- imposes special, But when local government owners *25 on individual development by conditions
tionary permit in this and case the recreational fee at issue case—Nollan —as in the of conditions, whether consist of they possessory that such Dolan require exactions, be scrutinized under the heightened dedications monetary standard.
V in This Case Heightened the Standard Applying come, then, We to the of the combined Nollan-Dolan application nexus” test to the in the record “essential and facts “rough proportionality” Dolan, 374, we Like court in 512 U.S. will supra, before us. the high that, with respect relationship conclude the although city’s findings the and of a of land within between exaction the withdrawal parcel monetary zoned for recreational use satisfies Culver City restrictively private standard, nexus record is to inadequate essential present support $280,000 desired a of for the recreational fee plaintiff requirement pay We may conclude instead be able city justify permit. although amount, exaction is we unable in some what that are monetary figure quite this record. say
A $280,000 fee The land-use on which relies to its limitation the city justify com exaction consists use of of a restriction his plaintiff’s activities, mercial could with changed recreational restriction that not be both amending specific applica out Culver City’s general plan plan on use ble to the It is well that such limitation parcel. settled advance legiti constitutional unless the restriction “does not substantially use of mate state interests ... or denies an viable his owner economically Tiburon, v. (Agins land.” U.S. at supra,
The is to the use of general regulate purpose zoning planning welfare, a courts very land to have construed promote power Indeed, one of the traditional uses lies in broadly. police power (See, citizens recreational Associated providing adequate opportunities. e.g., Builders, Home Cal.3d elimination of open space [“The California is a melancholy increase aspect unprecedented population [Gjovem which has characterized our state in the last . few decades. . . mental entities have the and recreation land to responsibility provide park .”].) accommodate this human . . . We thus have no expansion doubt that use of to facilitate the recre zoning availability private ational facilities to the of Culver is within the residents scope city’s police power.
Nor is it an unreasonable use of
police power
use,
broad
of land
such as “commercial” and
prescribe
only
categories
“residential,”
but
specify, through
general plan, specific plan,
of businesses that can be carried on at a
zoning regulations,
types
given
site,
course,
so
as the restrictions meet the
standard
long,
two-part
Tiburon,
embodied in
We thus have no doubt as to the city’s legitimate authority impose (See fees for and recreational Associated development impact park purposes. Builders, 633; Code, 66001, 66477.) Home 4 Cal.3d Gov. Nor is §§ $280,000 fee, there which the has commit- any genuine dispute city facilities, ted to the of additional recreational will purchase substantially advance its interest a demonstrated legitimate correcting deficiency Nollan, recreational resources. Unlike where the court found municipal high no connection between the for a lateral ease- logical commission’s demand ment across the owner’s and the property purported governmental purpose access, enhancing visual the “essential nexus” in this case is plain.
B We must next decide whether there is a between “rough proportionality” of the land use fee. The Dolan the recreational public impact change court, in an effort to balance the need to government’s legitimate impose reasonable exactions owner’s to be free of undue against right and a burdens, corresponding of review intermediate standard an formulated as to statements on local government. “[Generalized burden evidentiary and the proposed dedication the required connection between necessary insufficient, (512 to the court. according constitutionally are development” noted, _ 2318].) As S.Ct. at at U.S. however, claim that the government also majority rejected the Dolan to the specifically is directly proportional that its exaction “demonstrate (Id. demands. Fifth Amendment more than the need” as being created _ 114 S.Ct. at p. L.Ed.2d at p. Dolan, project court conceded that
In both Nollan its using could city mitigate effects that the negative would have at issue however, substantial, the connection insufficiently It found police power. Similarly, dedications. and the required public between those effects findings individualized any in this case is devoid record before us and the loss of exaction monetary “fit” between support that its recreational use. The city argues zoned for commercial parcel $280,000 for the loss is warranted as compensation recreation fee partial $800,000 located formerly that were some in recreational improvements the lost recre- case it is error to measure But this plaintiff’s property. club. The loss which lost value of health ational benefits plaintiff’s not the recreational fee is the contested mitigate levying seeks reserved the loss of recreational but facility, loss of any particular recreational use. private if it refused to change had to be city appears arguing, implicitly, recre- on a private its and insisted general plan designations, specific *27 land, been resur- would have ational use of the a new recreational facility site, From or their rected on the one four tennis court containing equivalent. has in land use granted plaintiff this the asserts that the city change premise, built had that would have been resulted in the “loss” of four tennis courts could be Even if such a supposition that land-use not been change granted. $280,000 fee, however, cost because the it would still not justify proven, the fees of new have been for by of these tennis courts would private paid not open club members the courts would have been private, private to all members of the free of public charge. receive,
Thus, formula, would ex gratia, under the city’s public $280,000 which it would otherwise worth of recreational facilities the cost of for is asked to pay have to finance fees. Plaintiff through being membership whole, or aby for either should something paid by public constitution- The may in business for entrepreneur city private profit. exaction, loss, recreational measure the of its or of the ally magnitude value of facilities it no without payment. had right appropriate however, of recreational fee
This is not to that some say, type imposed and related cannot be zoning changes justified. as a condition of the city fee, however, be tied more to the actual amount of such a must closely we are of the land-use change city granted plaintiff. Although impact discern, record, or the economic cost of on this value unable to precise One such several themselves. possibility these impacts, possibilities suggest incurred in redesignat- the additional administrative expenses to be likely recreational use. The director city’s other within Culver for ing services, a recreational use who the abandonment of of human opposed recre- that to this “permit type restriction on stated plaintiff’s property, . arduous and re- costly elsewhere would . . involve ational development It be reasonable to require plaintiff would zoning hearings.” public costs, so that the city toward these defraying anticipated rezoning contribute them to future does not have to bear them itself pass along private facilities. to construct recreational developers seeking condominium project More generally, city’s approval plaintiff’s rise to costs in the form of a diminished ability have may given public show that it would recreational If the can city attract private development. of suitable recre- have to incur costs to attract a developer private greater is no reserved such longer ational facilities because plaintiff’s parcel use, to be a of the impact recreational it consider these costs may part such an would be constitutionally permitted impose plaintiff’s project, health club Such a fee would enable the to induce city private exaction. incentives monetary roughly proportional development by offering it the recreational use land use incentive it when removed relinquished restriction from plaintiff’s property. course, to dedicate
Of
could not constitutionally require plaintiff
city
however,
could,
It
the same amount of land for
recreational facilities.
transfer,
the restricted land-use designation
so to
require plaintiff
speak,
owns within
the Overland Avenue site to a
parcel plaintiff
comparable
as it existed prior
approval
thus
to the status
city,
returning
quo
is,
land
a similar
of vacant
the condominium
with
parcel
project,
an inducement to the development
private
reserved
recreational use as
*28
however,
decides,
that such a restricted
recreational facilities. If the city
in-lieu exaction to
land-use transfer is
it
an
surely levy
impracticable, may
Such a fee would serve the same purpose
the same
accomplish
objective.
the
with a means of escaping
do all
fees:
the
development
providing
city
or
altogether
narrow choice between
his
denying plaintiff
project permit
development plans.
interests to
subordinating legitimate public
plaintiff’s
record, what,
recreational fee
We cannot
if any,
on this
say,
incomplete
of
its net cost as a result
the evidence
might justify. Although
calculating
must take into account any
Overland Avenue
the
parcel
city
the
upzoning
to the
interest
relative benefit that
would contribute
plaintiff’s project
public
fee is
the record
some exaction
be
suggests
may
for which the
imposed,
to return
to the
its
warranted. It is thus
the case
reconsider
city
appropriate
the fee in
the
have articulated. Remand to
valuation of
of
we
light
principles
the
occurred in Dolan itself after the case was
was
what
city
apparently
(See
returned to the
Court.
Dolan v. City Tigard
Oregon Supreme
of
P.2d
case is
to the
for
VI The Art in Public Fee Places ordinance, Under the art in could city’s places plaintiff receive a certificate of any townhouses in occupancy project $32,200 until he (1 either paid art fund of the total city percent valuation) or an building contributed work of art an approved equivalent site, value. Under latter the art be either on which option, may placed case it remains the it applicant, may donated the city fee, elsewhere. placement Although petitioner initially opted pay his successor interest art of his own subsequently placed on the choosing site and received the 30 certificates of during this occupancy pendency action.
Plaintiff contends that the required dedication of art or the cash equivalent follows, thereof constitutes a under the taking Nollan-Dolan standards. This asserts, he from the fact made no city individualized determination that the art mitigates need generated project. matter, defends the art fee several As a it grounds. threshold
contends failed plaintiff his preserve litigate right the claim because his successor satisfied the *29 requirements ordinance and accepted
benefit of all 30 certificates of receiving occupancy during pendency shows, however, these The record filed a written proceedings. plaintiff Government to the of the fee in with accordance Code protest imposition section entered into an with the in subsequently agreement city which he his to maintain this “lawsuit” both the preserved right challenging Thus, recreation fee and the art fee. the claim has not been waived. Nevertheless, we with the that the art fee is agree city public places exaction of the kind subject takings Nollan-Dolan concluded, As both the trial court and the Court of analysis. Appeal either art or a cash thereof is more akin to requirement provide equivalent setbacks, traditional land-use minimal regulations imposing building parking conditions, and other condi lighting design landscaping requirements, schemes, tions such as color materials and architectural amenities. building Such aesthetic conditions have been held to be valid exercises of the long traditional and do not city’s amount to a police power, merely taking use, value, because restrict a diminish they might incidentally or impose (See, a cost in connection with the Metromedia Inc. v. San property. e.g., 490, 508, 800, 815, 453 U.S. fn. 13 Diego 101 S.Ct. outdoor [approving prohibition against Penn Central advertising]; 2882] Co. v. New York Transp. City, U.S. 104 supra, [upholding municipal structures]; Tiburon, power landmark v. 447 U.S. preserve Agins supra, views].) condition to [upholding scenic preserve requirement is, art in an area of the providing accessible to the project reasonably like other a kind of aesthetic design control landscaping requirements, well within the authority impose.
Conclusion
A
an observer of the
generation ago,
court’s
high
takings jurisprudence
called the
of when land-use
question
regulation under the police power
becomes
“the most
compensable
haunting
jurisprudential problem
field of
(Harr,
(3d
land-use law.”
contemporary
Land-Use
ed.
Planning
1977)
Cases,
in The
quoted
Supreme
101 Harv.
Court-Leading
119, 241.)
L. Rev.
more
After
than half a
which the content
century during
clause
between
lay comparatively unexamined—roughly
Pennsylvania
Coal v. Mahon
260 U.S.
L.Ed.
43 S.Ct.
393 [67
1321],
28 A.L.R.
and Penn Central
Co. v. New York
Transp.
City, supra,
887 court’s recent remains takings jurisprudence direction of the short-term mark, Dolan scholars have suggested, Nollan and as some Perhaps uncertain. of use shift of the in land cases.” major power government (Epstein, “a Resurrection, 1, 43); Descent Ct. Rev. Takings: supra, Sup. and per- as others have “a backwards” from they step argued, represent haps, A (Note, Back: Taking Step of protection property rights. heightened Test Coastal Commis- Takings Reconsideration Nollan of of California sion, 448, 468.) L. Rev. Our own lies somewhere reading Harv. these two margins. between reversed; the cause is to of the Court is remanded judgment Appeal court with directions order the case returned of Culver City
City.
Lucas,
J.,
J.,
C.
and
concurred.
George,
MOSK, J., Concurring.
I concur in the plurali
and
much of
I
V
judgment,
with
its
with
ty’s
agree
analysis.
fully agree
part
Culver
(the
of the
be able to
plurality opinion—that
may
City)
charge
use,
for the loss of
designated
fee
for recreational
but that it
failed
too,
fee. I
employ
method
such a
with
proper
calculating
agree,
part
VI of the
the art fee is constitutional. I write
plurality opinion—that
sepa
rately
address the
larger question
constitutional stan
appropriate
dard
monetary exactions on
As I will
reviewing
elaborate
development.
below, the
heightened standard
found Nollan v.
scrutiny
California
677,
(1987)
Coastal Comm’n
As explained
in the
nothing
United States
Court’s recent
Supreme
can
understood
jurisprudence
in the rule—
signify
change
founded
the fundamental
principles
separation
powers
judicial restraint—that state
local
considerable
governments possess
authority
different and
impose
financial burdens on
unequal
owners, subject
to the rational
only
basis
of the Fourteenth
requirements
Amendment’s equal
clause.
protection
when
Only
engages
(1987)
472, 488,
Bituminous Coal Assn. v. DeBenedictis
480 U.S.
L.Ed.2d
1232];
S.Ct.
First
Angeles
Lutheran
v. Los
County
Church
I. A. Physical and the Takings, Regulatory Takings, Nollan/Dolan Standard.
Nollan and Dolan must be viewed within the framework of general takings One of the cornerstones such of is the jurisprudence. jurisprudence special to the physical invasion or of real protection given under occupation property land, the Fifth A Amendment. government regulation that affects the use of ordinance, such as a not deemed to be a zoning generally unless the taking “does not regulation advance substantially state interests legitimate [citation] or denies an owner viable use of his land economically (Agins [citation].” 255, (1980) 106,112, Tiburon 447 U.S. 260 2138].) L.Ed.2d 100 S.Ct. In [65 cases, these the burden rests with those challenging regulation to dem Dolan, (See onstrate its unconstitutionality. 512 U.S. at fn. 8 p._, However, 2320].) L.Ed.2d at 114 p. S.Ct. at p. “regulations [129 ” ‘invasion,’ compel owner to suffer a property will physical generally intrusion, determined to be “no matter how takings minute the and no matter how weighty (Lucas behind public purpose it.. . .” v. South Carolina (1992) 798, 812, Coastal Council 505 U.S. 1015 L.Ed.2d 112 [120 2886, 2892], added.) italics The of centrality invasion in physical is nowhere jurisprudence more clearly stated than in Loretto v. Manhattan Teleprompter Corp. CATV 458 U.S. (Loretto). L.Ed.2d 102 S.Ct. [73 There the 3164] court invalidated a New York law owners requiring apartment buildings to permit cable television to install cable companies wires boxes on their The court premises. stated that it had considered a intrusion “long physical by government be a restriction of an serious property character unusually purposes Clause. Our Takings cases further establish that when the intrusion physical reaches the extreme form a occu- permanent physical case, pation, has occurred. In taking such ‘the character of the government action’ not is an only factor whether the important resolving action works but (Id. is also taking 876].) determinative.” L.Ed.2d at As p. p. [73 the court emphasized, landowner’s to exclude ‘one of the most right “[a] [is] essential sticks in the bundle of that are characterized as rights commonly ” (Id. at property.’ 881].) L.Ed.2d at In a permanent physical occupation “the government does not take a simply single bundle, it property rights: chops through from ‘bundle’ ‘strand’ (Id. a slice of strand.” taking every statute to be unconstitutional because of its therefore found the cable
court consent to the of their occupation that landlords requirement permanent was far less the economic this statute onerous although impact property, a number of the court that restricted the use than other regulations upheld by (See, but its invasion. Penn did not authorize physical e.g., York Central Co. v. New 438 U.S. Transp. *32 to build for the sake of a rise historical high
98 permit 2646] [denial Coal Assn. DeBenedictis Keystone Bituminous 480 preservation]; 472, 107 470 L.Ed.2d S.Ct coal mines U.S. [regulation requiring [94 1232] in the of coal in order to subsidence keep percent ground prevent to taking].) a must be as a
Nollan considered further development principles Nollan, the a enunciated Loretto. In court considered government regula- that tion invasion of a condition of permitted physical a The Nollans to granting development permit. sought replace dilapidated ocean, on bungalow and were property bordering obtain coastal As a condition of the development Nollans would permit. permit, been have lateral compelled provide public along portion access their seawall, bounded the ocean and their enable by members of the to walk between two beaches public public bordering Nollans’ property. The court its began analysis in Loretto holding that reaffirming results in governmental action physical permanent occupation’ “[w]here ‘[a] [citation], itself or property, by others ‘our cases have found a uniformly taking the extent of without occupation, to whether the achieves regard action an benefit or has important public only minimal economic on the (Nollan, owner ....’” impact supra, U.S. at Loretto, 686], 831-832 L.Ed.2d pp. p.at quoting supra, [97 U.S. at pp. 882].) 434-435 L.Ed.2d at The court continued: “We think a [73 ‘perma- occurred, nent physical rule, has of that occupation’ where purposes fro, individuals are given a permanent right continuous to and pass so traversed, that real property be even may continuously though no partic- ular individual is to station permitted himself permanently upon pre- (Nollan, mises.” 686].) 483 U.S. at p. 832 at p. view, Given be it might that the court would hold that expected Nollan, Loretto, easement in like cable statute in was a se per taking, which the no government must matter pay what the But the justification. it, court recognized regulation that the in the case before unlike the statute Loretto, was as a condition of imposed a development approving application, could,
and that a if the public agency contravened a proposed development valid land use “If a regulation, deny application altogether. prohibition designed lawful development] accomplish would be purpose [to [a state] exercise of the rather than a it would legitimate police power taking, to conclude that the owner an strange alternative to that providing prohibi- (Nollan, tion which the same is not.” U.S. accomplishes supra, purpose 689].) 836-837 L.Ed.2d at pp. Thus, the otherwise unconstitutional of a easement on imposition derives its constitutional from the fact that a private property legitimacy “The prohibition evident con constitutionally justified. however, stitutional if the condition substituted for the propriety disappears, fails to further the end utterly advanced as the prohibition justification (Nollan, 483 U.S. at prohibition.” nexus,”
Without this “essential between the condition and the permit devel ban, “the restriction is not a valid opment building regulation land use but ” (Ibid.) *33 ‘an out-and-out of extortion.’ The Nollan court found no such plan nexus in the case before it. The for purported justification limiting develop ment—the interference of the constructed house with a view of newly public the ocean—was not served a lateral easement by individuals to allowing (Id. 690].) walk the ocean. at along pp. 838-839 L.Ed.2d at p. That the Nollan case turned on the fact that the was a regulation physical is further accentuated Justice Scalia taking at the conclusion of the by “We view the Fifth majority opinion: Amendment’s Clause to be Property more than a cases pleading requirement.... describe the condition [0]ur of abridgment property rights through a ‘substantial police power of a state interest. We are advancing]’ legitimate inclined to be particularly careful about the where the actual adjective conveyance is made property of restriction, a condition to the of a land-use since in that lifting context there is a risk that the heightened is avoidance of the purpose compensation rather requirement, than the stated (Nollan, police-power objective.” 692], 483 U.S. at p. added.) L.Ed.2d at second italics in Thus Nollan, the rule that the government’s of physical occupation private prop- transformed, ais se erty per taking the context of a development into a rule application, heightened scrutiny ensure that a required dedication is not a mere to obtain or development otherwise pretext physi- invade cally without just compensation. Dolan,
In the court considered the issue of close the nexus between how case, restriction development dedication must be. In that Dolan sought the of her hardware expansion store. The that the city court conceded had found that legitimately the expansion would affect two valid government First, the store to a would increase expansion, floodplain, interests. adjacent Second, over a surface area. flooding paving greater the risk of by would increase traffic on streets. The congestion nearby store expanded there was a nexus between those and the court also conceded that impacts conditions in dedication an easement question—the along and the a dedication an additional greenway, floodplain (Dolan, a easement for U.S. at bicycle p__[129 path. found, however, S.Ct. at The court the nexus to be
insufficient. There must a between the “rough proportionality” develop dedication, ment and the and a “must sort make some public agency impact determination of individualized that the dedication is both in related (Id. nature and extent to the at impact development.” the proposed pp. 2319-2320], omitted.) fn. pp. court, court, The its Dolan like the Nollan reiterated that holding depended on the that the clause affords part special protection against physical occupation private property government. develop ment conditions Dolan “were not a limitation the use simply petitioner of her make own but a that she might deed parcel, requirement portions Nollan, her In supra, we held that city. governmental exact such condition was Fifth authority circumscribed Fourteenth Under Amendments. the well-settled doctrine of ‘unconstitution al conditions’ government may person require give up constitutional right—here to receive right just compensation when prop is taken for erty use—in *34 exchange for a benefit discretionary conferred the government where the or no property sought has little _-_ (Dolan, to the benefit.” 512 at relationship U.S. pp. [129 316, 2316-2317], L.Ed.2d added.) at 114 S.Ct. at p. italics The Dolan pp. court an found additional reason for the dedication in treating question a according to standard. higher Most land-use essen regulations “involved tially legislative determinations . . . areas whereas classifying city, here the made an city decision to adjudicative condition petitioner’s appli _ cation for a on an building (Id. individual permit at parcel.” p. [129 316, L.Ed.2d 2316].) at 114 S.Ct. at p. p. The court also made that in clear such cases the burden with rests “to justify required dedication.” _, (Id. 320, at fn. 8 p. L.Ed.2d at [129 dedications, Are development fees more like which will receive height- ened restrictions, judicial or like scrutiny, other zoning and land-use which are reviewed with greater deference? answer is not question some simple—to extent monetary exactions are sui generis. But one sense, fundamental are monetary exactions more like restrictions: zoning like these restrictions do not involve a they invasion of physical property, such,
but a diminution its economic value. As merely fees development in a class not with such land use but also may placed only regulations, with other sorts of economic reduce the regulations may significantly or value derived from are not deemed to be profit property, yet (See unless are 20th regulations arbitrary confiscatory. Century Ins. Co. v. Garamendi 8 Cal.4th 292-297 Cal.Rptr.2d P.2d can be a if regulation only taking United States confiscatory]; 566] [rate 290, 301, U.S. Sperry Corp. 110 S.Ct. user fees that reduce the value of arbitration award not a 387] [reasonable taking].)
It could be
that the
of a
owner’s
argued
appropriation
money,
fee,
form a
can be considered a
invasion” of
“physical
assets, and therefore as
as the
monetary
constitutionally objectionable
phys-
ical
of real
The United States
Court has
occupation
property.
Supreme
such
In United States v.
decisively rejected
equivalency.
Sperry Corp., supra,
below,
In unlike the of real physical appropriation property, *35 “takes” from in money owners numerous circumstances with property typi- constraints, cally minimal constitutional as discussed below. immediately Taxes, Assessments, Fees, B. Constitutional Review User and Other of Fees. different,
To the matter of put is under the Fifth simply, taking money Amendment, from the of real or The of taking personal property. imposition exactions—taxes, assessments, various monetary and user fees—has special below, been accorded substantial deference. As elaborated if judicial many
893 are categor- fees resemble such exactions that they not most development of types to a class—to all or certain ically general developments applied fees, like general The of such other imposition development development. fees, also deference. What follows is brief given has been substantial of used determining validity account of constitutional standards these various of exactions. types monetary able,
First, to take from money obviously constitutionally, of owners as of a valid scheme taxation. of property part separation that courts states their doctrine dictates allow subdivisions powers considerable in the of tax burdens on flexibility different imposition varying course, States, classes of “Of the exercise of taxpayers. their taxing are Protection Clause of the power, subject requirements Equal Fourteenth But Amendment. that clause no iron rule of imposes equality .... different taxes different trades and may impose specific upon [States] the rate of professions vary excise various may upon products. [They to resort to close distinctions or to maintain a are] precise, (Allied scientific with reference to or use value.” uniformity composition, (1959) Stores Ohio v. Bowers 358 U.S. 526-527 L.Ed.2d [3 of 437].) 79 S.Ct. will Courts not invalidate a state taxation scheme unless classifications used are without “rational basis” and are arbitrary.” “palpably (Id. 527 [3
Of
fees,
particular relevance for the issue of development
California
courts have
upheld
numerous occasions
excise taxes
fees on
charge
revenue,
new development for
of
in which
purposes
raising general
no close
“nexus” or
(See
“reasonable relationship” is
Centex Real Estate
required.
Corp.
City
(1993)
Vallejo
1358
Cal.App.4th
Cal.Rptr.2d
[24
48]
of
$3,000
excise
tax
unit
[upholding
$.30
of residential
per
foot of
per square
nonresidential
The Pines v.
development];
Santa
(1981)
Monica
895 ” land,’ a use of and was therefore not taking. beneficial or productive [the] (Ibid.)1 fees, user and the
The is also broad discretion to given charge government 52, Sperry, that review of supra, judicial recent case of 493 U.S. makes clear In the court such fees under the clause is narrow. that case similarly takings a of a upheld portion judgment deduction a against takings challenge awarded to from the Iranian in order to pay plaintiff corporation Tribunal, for the although Iran-United States Claims expenses not have benefited from tribunal. claimed to corporation proportionately (Id. reaffirmed, 304].) Sperry at 63-64 L.Ed.2d at As the court pp. p. [107 “the Just Clause ‘has never been read to the . . . Compensation require courts to calculate a whether individual has suffered burdens ... specific excess of the benefits received’ whether a has ‘taking’ determining (Id. 302].) occurred.” at 7 In fn. order to withstand p. [107 fee a a user does not have to be to takings challenge, calibrated “precisely the use that a makes Government services. ... All we party have “ is that the user be a fee ‘fair the cost of benefits approximation ” (Id. at 60 court supplied.’ The “that recognized when the Federal Government user to a number of applies charges large it will a more than parties, probably charge user or less it would under a user-fee system, but we to a perfect that the impose requirement [decline] Government ‘give to factor weight every affecting appropriate compensation 1Although assessments, are involving there no special recent cases in California challenge special to typically assessment district is framed in terms similar somewhat to a takings challenge—that property being owner is asked pay for services which he from benefit, specially she does not public through and which be borne should as a whole (See taxation. v. Knox Orland 4 143 Cal.Rptr.2d Cal.4th P.2d 841 144] challenged failing provide special is “special [assessment as and is benefits therefore tax”].) But as have we “The scope judicial stated: review of such is . . . [assessments] narrow. ‘The supervisors board of authority empowered finally which is ultimate determine what lands are against benefited and what amount of benefits shall be assessed parcels several benefited.... This is made full hearing determination after a accorded to all persons objection they interested to make such see fit. In a case will such the court not record, declare the plainly assessment void unless it can see from the face of the fromor facts known, judicially benefits, that the finally proportional assessment so confirmed is not (Dawson, or that no benefits could accrue the property assessed.” Cal.3d 684; Orland, see also Knox v. 4 Cal.4th [reaffirming validity standard]; Dawson see Companies City Diego (1984) also J.W. Jones Cal.App.3d San Cal.Rptr. [approving development benefit assessment for new 580] based on long-range generated by estimates of the development].) need facilities the new Moreover, special even if a assessment is disproportionate found be the benefit A, provided, and “special meaning therefore a tax” within the XIII article section of the Constitution, California it taking. does not follow that the assessment would also be a conclusion that a really fee is a special only signifies tax that the fee cannot be adopted approval electorate, without of two-thirds of the lawfully it cannot all, adopted at as would be taking. the case were the assessment a *38 302]; see also Webb’s Fabulous
(Id. at 61 L.Ed.2d at p. [107 155, Pharmacies, U.S. 163 Inc. v. Beckwith 449 [66 366,101 if fees will be have some they police power upheld 446] [user justification].) taxes, bear a close resemblance to the excise fees
Many development best discussed above. are They perhaps assessment fees and user fees on calcu- characterized as a assessment special placed developing property, foot- formulae based on legislative to according preestablished square lated (See Jones v. San Companies City unit of J.W. development. age per future public 157 745 Diego, supra, Cal.App.3d apportioning projected [fee in several areas of the see also city]; costs of among developers development Bd. Owners’ Assn. v. State Water Resources Control Keys Property Tahoe [$4,000 lot environ- (1994) 23 1459 Cal.Rptr.2d per Cal.App.4th [28 734] fee]; Garrick Co. v. School Development Hayward mental mitigation Unified $1.50 (1993) 3 320 fees of per Dist. Cal.App.4th Cal.Rptr.2d [4 897] [school Blue Jeans West v. Equities foot nonresidential development]); square 170-171 San Francisco 3 County Cal.App.4th $5 fee of foot levied Cal.Rptr.2d [transportation up per square 114] (9th Cir. Commercial Builders v. Sacramento commercial development]; 1991) low-income fee on com- housing 941 F.2d 874-875 [upholding Industries, formula]; mercial according legislated Shapell development (1991) 1 218 Cal.Rptr.2d Inc. v. Board Governing Cal.App.4th 818] foot].) $1.50 fees of Courts have considerable granted per square [school fees, such and have them upheld discretion to local impose (See, Co. and related Garrick against takings challenges. e.g., Development Dist., 337; at Tahoe Keys School Hayward supra, Cal.App.4th Unified Bd., Owners’ Assn. v. State Water Resources Control Property supra, 1477-1478; West v. County Blue Jeans Cal.App.4th pp. Equities Francisco, 170-171; Commercial Builders supra, San Cal.App.4th pp. of v. Sacramento, 874-875.) 941 F.2d at supra, pp. difference, clause above cases illustrate purposes between review of the government’s physical taking jurisprudence, judicial of fees. A of these cases with and its property charging comparison Loretto, While 458 U.S. this difference into clearer focus. brings taxes, will be laws that assessments and fees impose generally applicable based, if are an they rationally equivalent, generally applicable upheld of a small of prop measure that authorizes the physical occupation portion for cable to a class of owners—forced access erty belonging large (Loretto, taking. television wires and boxes—is deemed to be U.S. at It therefore illogical doctrinally case, assert, and his amici curiae do in this as numerous plaintiff fees will same constitu- invariably subject rigorous dedications of scrutiny compelled tional property. sum, judicial
In it does not that Nollan or Dolan alter the restricted appear fees—a restriction rooted in the general review applicable governmental can because owner recast separation powers doctrine—merely *39 claim, that he takings asserting being his to a fee as a was asked to challenge for a share of or services in improvements pay disproportionate public On the the for the cases show that contrary, exchange development permit. of will be such fees under standard of constitutionality judged scrutiny closer to rational than basis review clause protection equal of and Nollan Dolan. heightened scrutiny
This is not to
fees do not
imply
legislative development
implicate
Because
fees are
land
clause.
these
forms of
use
regulation, they
Tiburon,
legitimate
must “advance
state interests.”
v.
447 U.S.
(Agins
supra,
112].) A
260
L.Ed.2d at
fee
raises the
disproportionate
possibility
of
or
action. But Nollan
Dolan do
arbitrary
discriminatory
and
the basic
that courts will not
interfere with the
change
principle
unduly
of
function
fees and fee structures that
essentially legislative
adopting
words,
advance the
other
fees
interest. In
such
are
public
“public program[s]
common
the benefits and burdens of economic life to
adjusting
promote
will be
which
reviewed
courts in a more deferential
than
good”
manner
(Penn
of
invasions
Central
Co. v. New York
physical
property.
Transp.
City,
648].)
There than the Fifth Amendment—on the government’s ability impose develop 66000 et ment fees. Government Code section seq. extensively regulates fees, that the including requirements purpose imposition development the fee must be identified with that a “reasonable relation specificity, fee’s and the must exist between the use ship” type development project Code, (Gov. (a)(3).)2 fee is subd. on which the imposed. § also mandates a for the hearing process adoption scheme statutory fee, (Gov. fee. and a for the refund of unused procedure portions Code, 66016-66018; see also Garrick (f), Develop (e) subds. & §§66001, Dist., School 320.) Hayward ment Co. v. Cal.App.4th Unified Moreover, fee which exceeds the burdens and benefits of a development will be found to be a tax that two-thirds voter requires special A, (See XIII under article section of the California Constitution. approval Los Angeles Bixel Associates Cal.App.3d *40 of excessive fire fee as a hydrant special Cal.Rptr. 347] [invalidation Beaumont Investors v. Water Dist. tax]; Beaumont-Cherry Valley 165 227, 238 of water system Cal.App.3d Cal.Rptr. 567] [invalidation tax].) fee as a hookup special agree plurality incorporated 2I with the that Government Code section 66001 a “reasonable etc., Creek, relationship” standard set forth in Associated Home Builders Inc. v. Walnut of 640, supra, page progeny, exacting “rough 4 Cal.3d at its a standard less than Dolan’s history proportionality” legislative Assembly A Bill test. review No. 1987- 1600), Regular (Assembly Session Bill No. which included section confirms that 1988 analysis Assembly In Bill view. an No. 1600 the Senate Local Government Committee bill, immediately Supreme before the enactment of the it was stated: “The U.S. Court’s June imposition 26 Nollan overturned the California Coastal Commission’s of a lateral [case] development in approving access easement as a condition of a residential the coastal interpreted agencies zone. . . . Some have this decision as an instruction to local observers [Assembly public purposes. find a more direct link between exactions and Bill 1600 No.] goes enough. does moves in this direction. The issue will be whether it far Because the bill 1, 1989, January Legislature ample opportunity effect until to conform take will have case, (Sen. Rep. it with the Nollan if it chooses.” Local Com. on Assem. Bill No. 1600 Gov. 18,1987, (1987-1988 Sess.) 2.) Reg. Aug. p. Legislature as amended The fact that the did not fully incorporate bill amend the after that indicates that it did not intend to the Nollan standard fees, development years much less the Dolan standard formulated seven later. The same
report relationship” also makes clear that the “reasonable standard of section 66001 was law,” i.e., intended to “conform to case Associated Home Builders and related California (Sen. 3.) Rep. p. cases. Local Gov. Com. Bill Assem. No. at demanding statutory demanding Whether the less standard standard or more constitutional applies ultimately question depends, argued, is a constitutional as I have and as the other appear agree, generally applicable. members of this court on whether or not the fee is is, course, applies, plurality concluding anyone Whichever standard in correct challenging statutory validity development either the or constitutional of a fee must follow the And, procedures seq. set forth in Government Code section 66020 et section 66001 while sense, agree incorporated any cannot be said to have formal I Nollan/Dolan standard plurality relationship’ with the that “the term embraces both constitutional and ‘reasonable which, statutory meanings practical purposes, merged Dolan for all have to the extent that the ante, (Plur. original.) applies development opn., decision fees . . . .” at italics review, a court’s into the validity Even under more deferential inquiry between a fee and a the reasonable relationship development development Industries, (See, will not be a “rubber Inc. v. stamp.” e.g., Shapell impact Board, 218, 235-236; Balch Inc. Governing supra, Enterprises, Cal.App.4th Haven New School Dist. 794-795 Cal.App.3d Unified 543].)3 But Nollan and Dolan most cases no additional Cal.Rptr.2d impose burden on the constitutional fees justify development beyond (See the burden it bears under the state constitution and already statute. Dist., Garrick Co. v. School Development Hayward Unified 337; at Blue Jeans Equities West v. San Cal.App.4th County of Francisco, 171.) Cal.App.4th sum,
In fees will general to a less development usually subject exacting standard of review under the clause than the physical taking property. Nollan,
C.
Dolan and
Recreation Fee.
Nonetheless, I
with the
agree
that a somewhat
plurality
level
higher
constitutional
should be
scrutiny
fee when it
applied
“neither
nor
imposed
but on an
generally
individual and
ministerially,
ante,
(Plur.
876.)
basis.”
discretionary
opn.,
heightened scrutiny
*41
under these circumstances is derived from Nollan’s and Dolan’s central
“
concern that
not
government
convert a valid
of land use into
regulation
‘an
_
out-and-out
of
(Dolan,
extortion’”
plan
512
at
supra,
U.S.
p.
[129
2317],
Nollan,
900 hoc, enacted the time the was development ad at there application approved, is a likelihood that it is motivated desire to greater extract from the owner maximum revenue property seeking development permit, than on of legislative rather a of policy mitigating public impacts or of otherwise the burdens of reasonably achiev- distributing ing legitimate government objectives.
Indeed, even in case of to which courts zoning regulations, have been deferential, review, a more form of traditionally rigorous judicial fueled motive, of been when suspicion has legislative employed regulation ato owner—so-called applies uniquely single property “spot Spot zoning.” “ is said to exist a small is less zoning parcel restricted given *[w]here ” rights (Ross than the . . . .’ surrounding City Linda of Yorba (1991) 1 When the Cal.App.4th Cal.Rptr.2d zoning ordinance owner to a appears subject special restriction situated courts will applicable similarly conduct a more adjacent property, into the searching reasons and motives of the inquiry legislative body (See determine if the zoning Wilkins v. arbitrary discriminatory. 542]; San Bernardino 29 Cal.2d P.2d Ross v. City of v. Linda, 962-963; Yorba supra, Cal.App.4th pp. Arnel Co. Development 723]; Costa see Mesa Cal.App.3d Cal.Rptr. (1995 1.34.) Longtin, also California Land Use As supp.) explained § Co.: Arnel “The usual test when a ordinance is Development attacked zoning as in excess is whether being police or not ordinance bears power a substantial and reasonable welfare. relationship [Citations.] However, into the principle limiting judicial inquiry legislative body’s ‘[t]he issue, does power objectives not bar of a different police scrutiny quite of discrimination “A against particular parcel cannot property. land, unfairly discriminate and the against particular parcel may courts to whether the scheme classification has been properly inquire applied ’ ” (Arnel, in each instance.” fairly impartially Cal.App.3d 336.) *42 manner, In the same when a aout municipality singles property developer others, a fee for on a somewhat development imposed heightened of that fee is scrutiny required being to ensure is not developer subject treatment for extortionate These fees arbitrary singular motives. a greater that the is present possibility government unfairly imposing dispro- lone, vulnerable, on and burdens therefore portionate public particularly owner. Hence need for closer review.4 judicial That is not to that a local will be imply actions government’s subject each time it in the of heightened assessment scrutiny engages individualized 4I note generally applicable the distinction between and those regulations imposed discretionarily single-property takings jurisprudence on a owner critical in the of is context Indeed, be may such assessments impacts. project’s public a development that are completely to fees accuracy, and reasons of fairness preferable, formulae, it would be legislative according rigid predetermined hurdles. But formidable constitutional them more impose illogical fee case, of exacts when, type local as in this else, based on no preexisting and which is on no one is which imposed the basis into constitutional inquiry more searching guidelines, legislative of the fee is required. and Dolan is neces-
Thus, set forth in Nollan review judicial type above, “that the to ensure described the limited circumstances under sary, is not illegiti- over development permits monopoly power [government’s] affinity that lack any logical conditions mately by imposing exploited ante, 876.) I (Plur. at p. land use.” opn, of a particular public impact in the case present recreation fee at issue conclude that the therefore under standard prescribed to meet the “rough proportionality” Dolan.
II. above, fee. of the recreation analysis As stated I concur the plurality’s I would add two additional points.
First,
has asserted an interest
this is not a case in which the government
as when government
facilities or improvements,
protection
specific
(See Terminal
or conversion of rental housing.
closure
regulates
Plaza
San Francisco
City
County
Cal.App.3d
Corp.
hotels
on conversion of residential
Cal.Rptr.
898-899 [223
379] [controls
costs
Nash v.
to contribute to replacement
upheld];
requirements
688 P.2d
Santa Monica
Second, it should be recognized must although employ remand, “rough the issue proportionality” analysis before it is a different cases, one from that in Nollan and Dolan. In both those presented courts assumed that the had of some developments question public impacts but found magnitude the evidence that the ease- lacking taking public ments (Nollan, those significantly mitigated impacts. U.S. at pp. _ 690]; Dolan, 838-839 L.Ed.2d at 512 U.S. at p. 321-323,114 2320-2322].) pp. pp. that must question case, hand, addressed on the other present is whether and to what extent the in the recreational land change use designation plaintiff’s had a public loss of impact—the recreational opportunities residents the would City—that recreational fee. But justify assum- special that a ing is identified and a fee of some public impact amount is constitu- there is no tionally justified, that the question use of such City’s proposed fee—to construct tennis courts or other such facilities—would di- rectly mitigate impact.
Thus, although must calculate the amount of the recreation fee in terms of the added costs of the creation of inducing recreational private ante, facilities attributable to the 884), land use changed it (plur. opn., is not forbidden from constitutionally that the best use of the fee determining is to build public tennis courts or other facilities. It is the role of the courts, legislative rather than the body, to determine the best uses of the fee, revenue obtained from a as the long expenditure fee is related to the reasonably alleviation of the that is development impact its purported justification.
I also
with
agree
that the art fee is
plurality
fee
generally applicable
related to
substantially
aesthetic
legitimate
objectives
City.
promoted by
constitutional,
It is therefore
and not
to the Nollan/Dolan
subject
analysis.
*44
I concur
the judg
KENNARD, J., Concurring and Dissenting.
Dissenting.—
and
Concurring
with
fee. I
agree
it
the “art in public places”
as
upholds
ment insofar
fee,
is
an ordinance of general applicability,
that this
under
imposed
majority
require
and “rough
not
to the “essential nexus”
proportionality”
subject
in Nollan v. Cali
Court established
that the United States Supreme
ments
677, 107 S.Ct.
(1987)
I further with in Justice disagree plurality’s expressed Arabian’s opinion, “gloss” certain state laws fees regulating mitigation (Gov. Code, Act) 66000 et make hereafter Fee their seq.; Mitigation § coincide with the restrictions provisions exactly imposed by takings clause of the Fifth This Amendment to the United States Constitution. case clause, Act; was under the Fee not our litigated Mitigation state’s thus, there is no need to construe the Fee Act to decide this case. Mitigation
I (Ehrlich) Between 1973 and Richard Ehrlich a 2.4-acre lot acquired in Culver City (City) tennis applied approval private develop club and recreational on the site. its zoning amended facility ordinances general to allow for the con- plan plan adopted specific Ehrlich, struction of the facility. When the site had five tennis developed by *45 courts, courts, a heated tennis an aerobics swimming pool, Jacuzzi, paddle area, and a for lockers and other facilities. separate building
In after a number of different had failed to make the managers club at a Ehrlich for operate profit, applied approval replace private recreational club with an office When private building. City’s planning commission on the that Ehrlich’s opposed application ground private facilities, club filled a need for recreational Ehrlich abandoned community the application.
In Ehrlich closed the because of financial August facility continuing He for a losses. then amendment and tentative tract applied specific plan the site into a 30-unit townhouse map approval develop project. interest in for use as a initially City expressed acquiring property Its recreational staff advised that Ehrlich’s city-owned facility. City property offered “to an an for opportunity preserve existing sports/recreational facility An use relieve on facilities.” public pressure existing independent that, commissioned concluded to national feasibility study by City according standards, needed two to four tennis courts and more City swimming public criticized Ehrlich’s pools gymnasiums. Although study operation on it club also found that extensive private formerly property, capital would be the site for make viable improvements necessary financially recreational use.
In March Ehrlich obtained a demolition and demolished permit site, recreational facilities at the that was still donating City equipment decided, In useful after demolition. based on its April City indepen- dent that it sufficient the site did have funds feasibility study, acquire and use it as a It also decided not to assume the public sports complex. financial substantial risks involved for acquiring operation fee-for-service Based on its concern about the loss of basis. membership, use, site recreational land denied Ehrlich’s application develop with townhouses.
In discussions with Ehrlich told that his was subsequent City, develop- ment if recre- would be he to build new application granted only agreed serve, filed, In ational facilities for Ehrlich but did not City. response, for writ of mandate and in this case. petition complaint damages then rescinded its it earlier denial of Ehrlich’s application granted conditions, $280,000 to certain of a recreational subject including payment $33,200 fee and a “art in fee. The recreational mitigation public places” fee was to be used “for additional recreational facilities” to mitigation his using Ehrlich ceased “lost” when facilities replace fee was based on of this The amount recreational purposes. commercial The “art facilities. recreational building of the cost estimate City’s ordinance requires under a municipal was fee imposed in public places” $500,000 to either art provide in excess of with a value commercial projects *46 total value of of the amount equal percent in an work for the project art fund.1 amount to the City an or to equal building pay “art fee and the mitigation both the recreational Ehrlich formally protested his Ehrlich amended his When denied City protests, fee. places” public unconstitutional fees were an that the this action allege pleadings fees under would that Ehrlich pay then City agreed Ehrlich and taking. lawsuit, for City’s in return with this right proceed retaining protest, of the necessary development permits. issuance $280,000 action, recreational trial court invalidated In Ehrlich’s the cost of providing to shift it was an effort “simply fee because mitigation other need than any for the one no more responsible benefit to public $33,200 “art in of the the constitutionality The trial court upheld taxpayer.” fee. places” public but then court’s judgment, affirmed the trial initially
The Court of Appeal
and,
(Ehrlich v.
Culver
City
in a
rehearing
published opinion
granted
468]),
the trial
reversed
(1993) 15
City
Cal.App.4th
Cal.Rptr.2d
[19
$280,000
an unconstitutional taking.
court’s
that the
fee was
ruling
nexus between
Court of
reasoned that there was
substantial
Appeal
for
City
and the fee because the fee compensated
project
proposed
recre
Ehrlich’s
caused
the “loss” of
private
burden to
community
by
then
1750.)
States
Court
(Id.
facilities.
The United
Supreme
ational
“for further
the case to the Court Appeal
certiorari and remanded
granted
L.Ed.2d
II
Constitution, made
The Fifth Amendment to the United States
applicable
Amendment,
the Fourteenth
prohibits
to state and local governments by
$30,000
provide
anticipated
1City
pay
parkland
also
Ehrlich to
fee
proposed
public park
the residents of the
increased demand on
and recreational
facilities
at issue
validity
of this fee and it is not
development.
townhouse
Ehrlich has not contested
appeal.
on this
from
use without
com-
taking private property
public
just
“One of the
Clause is ‘to
purposes
Takings
bar
pensation.
principal
which,
Government from
some
alone
bear
burdens
forcing
people
public
”
in all
be borne
as a
fairness and
should
whole.’
justice,
(Nollan,
825, 835-836,
688],
483 U.S.
fn.
supra,
quoting
1554, 1561,
v. United
Armstrong
States
U.S.
49 [4
decisions—Nollan,
Dolan,
In two landmark
483 U.S.
If a condition is to an ordinance or rule of imposed pursuant general is, as a result of a determination—the condi- applicability—that legislative tion is unless the landowner meets his or her constitutionally permissible burden of that the condition either does not advance a proving substantially legitimate the landowner econom- governmental purpose deprives any (Dolan, 374,_, viable of the 8 use land. 512 U.S. fn. ically supra, [129 304, 315-317, 320, 2309, 2316-2317, 2320]; L.Ed.2d 114 S.Ct. Agins 255, 106, 111-112, (1980) Tiburon 447 U.S. 260 L.Ed.2d 100 S.Ct. [65 however, If a condition is bears adjudicatively imposed, the burden of that the condition has an “essential nexus” establishing with a interest that would have denial of the legitimate government justified between burden that there is a permit, “rough proportionality” of the condition and the imposed by projected impact proposed develop- U.S, _ 374, 304, 317-318, (Dolan, ment. L.Ed.2d 114 S.Ct. supra, Nollan, 825, 677, 2317-2319]; L.Ed.2d U.S. 834-837 supra, 687-689].) mind, I
With these standards in to the issues here. presented proceed A. The Fee Act Mitigation matter,
As a in Justice Arabian’s preliminary plurality, explained Fee Act decides to of California’s opinion, “gloss” provisions Mitigation Code, (Gov. 66000 et to make its correspond seq.) provisions § Nollan, standards that the United States Court enunciated Supreme supra, Dolan, ante, (Plur. 483 U.S. at pp. U.S. 374. opn., 859-860, 866.) I see no need for this. Ehrlich has not challenged validity Act, court. In the trial this issue addressed Fee nor was Mitigation of the forth in the Mitigation standards set between the conflict event of some Constitution, the constitu- the federal and the standards Fee Act in this case the issue Accordingly, control. necessarily must tional standards constitutional, not statutory. Places” Fee “Art in Public B. The under a ordinance fee was municipal imposed
The “art public places” $33,200 valid constitutionally fee is Accordingly, applicability. general a legitimate govern the fee either does not serve unless Ehrlich proves of the land. viable use economically him of any ment or deprives purpose 315-317, 320, 374, _, fn. 8 (Dolan, 512 U.S. 2316-2317, the aesthetic environment 2320].) Enhancing Ehrlich has not demon is a community legitimate government purpose, fee, of the project which equals only percent strated that the amount him value, or otherwise unfeasible economically deprives makes project I concur with the viable use of the land. Accordingly, of any economically that this fee is majority constitutionally permissible. Fee Mitigation
C. The Recreational
1. Is Nollan-Dolan to a monetary applicable fee? 374, Dolan, Nollan, 825, 512 U.S. In both 483 U.S. supra, supra, interest condition at issue the landowner to grant possessory on this Seizing of the or to the government. part property circumstance, that Nollan-Dolan"s “essential factual here contends condi nexus” and to such only “rough proportionality” requirements apply however tions and not to conditions of a sum requiring money, payment contention, that the “essential nexus” this large. majority rejects holding the United States and “rough imposed by proportionality” requirements not to condi only Court’s construction clause Supreme apply land, condi tions surrender of a interest in but also to requiring possessory are adjudi tions that the conditions requiring monetary payments, provided ante, (Plur. in a catively opn., pp. imposed discretionary permit process. 866-868; J., 860, 912.) For the post, conc. & dis. opn. Werdegar, reasons I concur in this given holding. majority, $280,000 on Ehrli-
Because the recreational fee was mitigation imposed ch’s to an ordinance and not development application individually, pursuant fee is evaluated or rule of of this general constitutionality applicability, “rough the Nollan-Dolan “essential nexus” and using proportionality” analysis.
2. Essential Nexus in the Nollan-Dolan whether analysis determining The first component nexus” with a legitimate govern- condition has an “essential challenged that would have denial of the This ment interest justified permit. component, turn, (1) whether be broken down into three may steps: determining (2) could have denied the permit application entirely; identify- government interests that would have one or more legitimate government justified ing (3) denial of the whether condition has determining permit application; of the on one or an “essential nexus” with impact proposed development more of the identified interests. effects a
The denial of a land-use permit application taking prop the denial does for which the must if pay compensation, erty, interest or if it advance a state legitimate deprives substantially ” “ (Dolan, 512 U.S. viable use of his land.’ ‘economically owner of _ 374, 304, 316, 2309, 2316], Agins L.Ed.2d 114 S.Ct. quoting 106, Tiburon, 112]; also Lucas v. 447 U.S. L.Ed.2d see 1003, 1016, South Carolina Coastal Council 505 U.S. 1017 [120 Thus, 2894-2895].) it is necessary have de determine whether denial of Ehrlich’s would permit application him of viable use of his land. The majority entirely prived economically omits this part analysis.
Here, (1) to remove the Ehrlich’s had two purposes: permit application restriction that Ehrlich’s be used only private specific plan property club; with a recreational to authorize The evidence in the record raises townhouse complex. presented thirty-unit club was an eco- substantial as to whether a recreational private question to use the viable use of the Ehrlich had property. attempted nomically it but was unable to make for this for a purpose period years *49 Moreover, of itself City several profitable despite changes management. the of itself declined to assume of the purpose ownership club, risk that the financial concluding recreational operating private would be too great. viable use
A health was not an economically conclusion that club private mean, course, to grant would not of that was City required of the property townhouse that Ehrlich a 30-unit requested: alternative use specific to authorize some But it would mean that would be City complex. use, all applica- alternative rather than simply denying viable economically tions for to other uses. redevelopment issue, I not and do on the need the record raises serious doubts
Although Ehrlich’s denied permit not decide whether could have City completely in maintaining adequate interest of the government on the basis application below, because, I conclude as explained recreational facilities private Nollan-Dolan test. part fee fails another recreational mitigation of Ehrlich’s that a denial permit argument, Assuming, purposes viable use economically him of an not have deprived would application fee that he a recreational mitigation the condition pay his would property, interest? government “essential nexus” a legitimate have an interest in providing not that a has legitimate I do doubt But facilities, for its residents. both private, recreational public adequate as a from landowner fee” mitigation exaction of a “recreational a city’s the Nollan-Dolan satisfy requirement must approval condition permit interest in denying between the fee and city’s an “essential nexus” 825, (Nollan, 483 U.S. supra, application. proposed development whether recreational 689].)2 I need decide in this case L.Ed.2d however, nexus because requirement, fee satisfies this essential mitigation below, “rough fee fails under the test. proportionality” I explain 3. Rough Proportionality determining analysis
The second the Nollan-Dolan component there the burden whether is a between “rough imposed proportionality” condition and projected impact proposed permit approval 317-321, 374,_[129 (Dolan, 512 U.S. L.Ed.2d development. 2309, 2317-2320].) 114 S.Ct. land
Because of 30 townhouses on his Ehrlich’s construction proposed would have increased the stock and thus the number housing community’s residents, its could a fee to offset the increased reasonably impose demand on public recreational facilities attributable the increase popu- lation from the did this resulting exactly imposing development. $30,000 (See ante.) fee. fn. has not “parkland” Ehrlich disputed of this fee. validity $280,000 fee Ehrlich recreational on mitigation City imposed designed
was not to offset the increased demand on recreational imposed 2Whether an nexus exists essential turns on the connection between condition (Dolan, projected impact development” and “the the proposed _ 304, 317, 2309, 2317]). Supreme 512 U.S. The United States yet impact” only positive Court has not whether such projected clarified “the includes effects *50 (in community the additional this impose as burdens that the new will on the case, townhouses) or resulting the increased demand for of 30 services from the addition negative also effects such as the in the zoned for use particular reduction total area of land a case, (in uses) designated public this in land the reduction for recreational or the loss of case, (in City benefits from derived preexisting use of the land this benefits residents facilities). from use of the athletic units, facilities caused the addition of 30 by residential but instead for the club compensate private “loss” recreational that had previously on the The existed distinction is property. crucial.
The rejects and “lost “lost majority partly partly City’s use” or accepts rationale fee. for recreational opportunity” mitigation the rationale insofar as it is based on the majority rejects assumption a landowner that be as a condition to may required, redeveloping property use, a different for facilities on the with private replace property compa- Thus, rable facilities. as the public not majority recognizes, City may require to build Ehrlich recreational facilities to public replace facilities private that existed on his nor it fee in a an amount property, may calculated impose states, achieve this end. As the majority aptly constitution- “may loss, exaction, measure the of its ally or of the recreational magnitude by value facilities it no right (Plur. had without for.” appropriate paying ante, 883.) at p. opn.,
But the “lost “lost use” or rationale majority City’s accepts opportunity” insofar as it is based on the that a landowner as assumption may required, use, condition to a for a different property any underwrite redeveloping to be incurred likely in the government expense process replacing private facilities on the with facilities on other property comparable private privately Thus, owned land. concludes that Ehrlich majority City may charge recreational fee measured either mitigation “the additional administrative expenses incurred in other within for redesignating Culver ante, 883; recreational use” also at see conc. & dis. (plur. opn., opn. J., 912) at or “to Werdegar, post, incentives” needed “monetary ante, induce private health club on land development” other (plur. opn., 884; J., see 912). also cone. & opn. dis. I Werdegar, post, disagree. A fee calculated in either manner would Ehrlich to bear a require grossly share of what is disproportionate essentially expense.
The fundamental flaw in the is the that majority’s reasoning assumption clause, City, without violating could restrict Ehrlich’s property above, As recreational discussed well private such restriction might uses. Ehrlich deprive viable use land and be economically of his invalid on basis, But basis. even if constitutionally valid the restriction would be invalid it because out Ehrlich’s singled impermissibly special restriction. This is akin to prohibited spot zoning.
“Spot occurs where a small is restricted and lesser zoning given parcel than the surrounding a lot in the center of rights property, where business commercial district limited to uses residential purposes in the thereby creating an ‘island’ middle of a area devoted to other larger
911 15, (1979) 22 92 (Viso Cal.App.3d [154 v. State uses.” of California (1991) 1 Linda 580]; Cal.App.4th Ross v. City see also Cal.Rptr. of Yorba 954, 638].) zoning” Because discriminates “spot Cal.Rptr.2d 960-961 [2 restriction, it is invalid unless the out the for parcel singled special against the treatment. disparate ground establishes some reasonable 104, 438 132 (1978) York U.S. Co. v. New (See Transp. City Penn Central 634-635, 2646]; 631, (1928) 277 Cambridge Nectow v. S.Ct. [57 844-845, 447]; v. City Wilkins L.Ed. U.S. 188-189 of v. 542]; 340-341 P.2d Reynolds Cal.2d San Bernardino P.2d (1938) 12 Cal.2d Barrett in the promotion has a interest legitimate government
Although City meet recreational of its facilities to needs recreational adequate private residents, in this interest out individual City single advancing may to a share landowners or small of landowners bear groups disproportionate it This is what does when City permits only burden. precisely recreational on an individual that is otherwise indistinguishable uses parcel a uses is from on which much broader range surrounding parcels permitted.
Here, Ehrlich the recreational use restriction initially voluntarily accepted a for the So as condition of approval specific plan property. as benefits he plan, might Ehrlich continued long specific accept well have of the restriction. But been estopped challenge validity Ehrlich has waived all benefits he received under previous specific now a use. in order to different surren- redevelop Having plan benefits, dered the he should to bear the burden of no longer recreational restriction. Ehrlich to use his use should now permit in a manner consistent with the uses of without surrounding parcels, him for his unsuccessful a unfairly penalizing operate private attempt recreational club.
Had than Ehrlich 1975 for build townhouses rather applied approval club, a would have reason to a fee recreational had no private impose for the “loss” of a Absent some evidence recreational land-use designation. Ehrlich lasting some suffered some gained enduring advantage City detriment as a result of Ehrlich’s unsuccessful efforts operate private land, recreational his use restriction club on the removal the recreational (See fee. any 1975 will not additional imposed imposition support Kmiec, Last, At Harv. Supreme Court Solves Takings Puzzle 147, 156, J. L. & an “extraordinary Pub. fn. 43 Pol’y. [characterizing notion” assertion “that has once landowner undertaken private use, common law like permitted private swimming pool [construction of] court, or tennis he either must continue that or must pay use stop”].) *52 For had Ehrlich received some as an inducement to example, subsidy restriction, the recreational he well be accept use to reim- might required for of the burse all or abandonment of the for part subsidy use upon which had been But subsidy given. he had received returning subsidy be the would extent of his There neither obligation. justice nor logic Ehrlich majority’s suggestion that now be to may required subsidy fund a another induce landowner of his or her accept “spot zoning” property Likewise, that would restrict that recreational uses. private Ehrlich although required an fee to may pay application compensate costs in his City’s own processing permit applications, City may him also to underwrite administrative costs use City’s for land require to other proceedings relating parcels.
Conclusion All of us fair share must bear our of the costs of and maintaining the communities in which we live and work. But the United improving Constitution, Amendment, States of the through clause Fifth us all from out and protects being arbitrarily bearing singled subjected share these costs. This constitutional does not disproportionate protection when we discontinue a use of our that evaporate we gratuitously undertook that the could not have constitutionally continue, tous no how matter have greatly community may benefited that from use.
Because I the trial conclude that court decided the issues in this correctly case, I would reverse the Court of with directions judgment Appeal affirm trial court’s judgment.
Baxter, J., concurred. WERDEGAR, J., Concurring and Dissenting. Concurring Dissenting.—
I concur in the I with also judgment. agree reasoning II, contained in plurality opinion, except respecting Mitiga part Act, Fee tion Government Code section et I with Justice seq. agree Kennard there is for us to no need construe the act in order to decide this (Cone, Kennard, J., ante, 903.) case. and dis. I opn. Accordingly, would decline to do so. Richard K. petition Ehrlich for was denied appellant rehearing J., Baxter, Kennard, J., 1996. were
April opinion should be petition granted.