529 U.S. 1045 | SCOTUS | 2000
Dissenting Opinion
dissenting.
Petitioners Claude and Micheline Lambert own the Cornell Hotel in San Francisco. The hotel has 24 residential units and 34 tourist units. After experiencing difficulty renting the hotel’s residential units, petitioners applied to the San Francisco Planning Commission for a conditional use permit to convert those units to tourist use.
The record belies the Court of Appeal’s claim that the commission ignored petitioners’ refusal to meet its demand for a $600,000 payment. After acknowledging petitioners’ offer of $100,000, the commission compared this figure with the amounts offered by two other hotels that had successfully requested similar conversions. 1 Appellants’ App. in No. A076116 (Cal. Ct. App.), pp. 100, 102. It noted that in those two applications, the fee amounted to $10,000 and $15>000 per room, respectively. See id., at 102. (The fee in petitioners’ case, by contrast, amounted to only $3,226 per room. See 67 Cal. Rptr. 2d, at 571.) The commission then found that petitioners’ application was “not comparable to those previously granted . . . ,” because petitioners “failed to demonstrate that the amount offered” was “sufficient to mitigate the loss of
The Court of Appeal itself, after asserting that “San Francisco did not demand anything” from petitioners, 67 Cal. Rptr. 2d, at 569, in the next breath found it “somewhat disturbing that San Francisco’s concerns about congestion, parking and preservation of a neighborhood might have been overcome by payment of [a] significant sum of money,” ibid, (emphasis added). This observation makes no sense, of course, unless the court concluded from the record that the commission might have rendered a different decision if petitioners had been more generous. It sought to evade the natural consequence of that conclusion with the following unelaborated assertion: “That the Planning Commission might have granted the permit upon payment of $600,000 does not make its refusal to issue the permit into a taking.” Ibid, (emphasis added).
There are three possible readings of the Court of Appeal’s opinion. First, and most obviously, one might take at face value, the court’s factual finding that the fee played no role in the decision. That would be a gross distortion of the record.
Secondly, one might ignore the court’s initial see-no-evil disclaimer, and assume that it accepted what the record undeniably showed, that petitioners’ refusal to meet the fee demand was a motivating force behind the commission’s decision. On that assumption, the court’s refusal to apply Nollan and Dolan might be thought to rest upon its determination that that factor was irrelevant, since the commission also relied upon ordinary criteria under the Planning Code. But it is always the case that if the permit applicant does not yield to the extortionate demand, the ordinary criteria will be invoked to deny his. permit. If indeed unjustified denial can constitute a taking (the question presented by the third basis for the decision, discussed below), Nollan and Dolan can surely not be evaded by simply adding boilerplate “ordinary criteria” language to the denial. The increasing complexity of land-use permitting processes, and of the criteria by which permit applications are judged, makes an “ordinary criteria” claim almost always plausible. When there is uneontested evidence of a demand for money or other property — and still assuming that denial of a permit because of failure to meet such a demand constitutes a taking — it should be up to the permitting
Finally, and still on the assumption that the Court of Appeal acknowledged that petitioners’ failure to accede to the fee demand was a motivating factor in the commission’s denial, the court’s refusal to apply Nollan and Dolan might rest upon the distinction that it drew between the grant of a permit subject to an unlawful condition and the denial of a permit when an unlawful condition is not met. See Cal. Rptr. 2d, at 569 (Strankman, P. J., dissenting) (characterizing the majority’s opinion in this fashion). From one standpoint, of course, such a distinction makes no sense. The object of the Court’s holding in Nollan and Dolan was to protect against the State’s cloaking within the permit process “ ‘an out- and-out plan of extortion,”’ Nollan, 488 U. S., at 837 (quoting J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432 A. 2d 12, 14-15 (1981)). There is no apparent reason why the phrasing of an extortionate demand as a condition precedent rather than as a condition subsequent should make a difference. It is undeniable, on the other hand, that the subject of any supposed taking in the present case is far from clear. Whereas in Nollan there was arguably a completed taking of an easement (the homeowner had completed construction that had been conditioned upon conveyance of the easement), and in Dolan there was at least a threatened taking of an easement (if the landowner had gone ahead with her contemplated expansion plans the easement would have attached), in the present case there is neither a taking nor a threatened taking of any money. If petitioners go ahead with the conversion of their apartments, the city will not sue for $600,000 imposed as a condition of the conversion; it will sue to enjoin and punish a conversion that has been prohibited.
The first two of the conceivable bases for the Court of Appeal’s decision are so implausible as to call into question the state court’s willingness to hold state administrators to the Fifth Amendment standards set forth by this tribunal. There is reason to believe that this may be more than a local and isolated phenomenon. See, e. g., Delaney, Development Agreements: The Road from Prohibition to “Let’s Make a Deal!” 25 Urb. Law. 49, 52 (1993) (“In
When petitioners first sought to convert their residential units to tourist use, the hotel contained 31 residential units. Petitioners were successful, however, in convincing the San Francisco Board of Permit Appeals to reclassify seven of those as tourist units, producing the hotel’s configuration noted in the text.
Lead Opinion
Ct. App. Cal., 1st App. Dist. Certiorari denied.
