Nollan/Dolan | Exactions

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Following up on yesterday’s post about the West Hawaii Today series on the legality of Hawaii County’s “fair share” impact fee system, the paper posts three stories about the issue:

  • How much, for what and when? (“The county may have illegally collected $7.4 million in fair share assessments from housing developers since the early 1990s. Fairshare assessments have been under fire since 2007, when 3rd CircuitCourt Judge Ronald Ibarra — as part of his ruling on a condemnation lawsuit — ruled the county’s system is illegal because it doesn’t meetstate regulations. Accordingto the Hawaii Revised Statutes, “impact fees may be assessed, imposed,levied and collected by (any county) provided that the county enactsappropriate impact fee ordinances.”)
  • Council members divided on fair share (noting that several council members question the legality of the “fair share” system, while others adhere to the not-disclosed-in-the-story advice of the Corporation Counsel’s office that the “fair

…
Continue Reading More On Hawaii County’s “Fair Share” Impact Fees

Worthwhile article today from West Hawaii Today (the daily newspaper of the Kona side of the Big Island), “Is county practice legal?” The story details the County’s practice of demanding “fair share” payments from property owners and developers who wish to make use of their properties and seek County approvals:

The fair share cost system assesses developers afee whenever their projects require a rezoning as compensation for theimpacts the projects will have on county infrastructure. Moneycollected through fair share assessments could be used toward road andwater system improvements, new parks and expansion of police and fireservices.

However, a ruling made by 3rd Circuit Court Judge Ronald Ibarra in 2007 in a condemnation proceeding apparently deemed the fair share system illegal.

Thecounty filed two condemnation suits against the Charles and Joan CoupeTrust, one in 2000 and the other in 2005, to obtain a 3-acre propertyneeded to build a planned…

Continue Reading West Hawaii Today Series: Is County [“Fair Share” And Impact Fee] Practice Legal?

Florida’s appellate courts have been active lately in the regulatory takings arena.  Here are links to summaries and analysis of the decisions.

First, from the Florida Land Use Law blog:

Next, from Grand Theft: Property

Continue Reading PING: Well HatchedURL: http://livepress.in/kickstart-your-career/IP: 219.234.82.86BLOG NAME: Well HatchedDATE: 02/09/2013 03:34:47 PMinversecondemnation.com: Florida Regulatory Takings Links

Why does inversecondemnation.com, a blog about land use issues, care about Hawaii Insurers Council v. Lingle, No. 27840 (Haw. Dec. 18, 2008) enough to have posted about it, you ask?  The case involved whether the State of Hawaii Insurance Commissioner could collect fees from insurance companies, and whether the state legislature could thereafter transfer the money collected into the general fund. The short answer by the Hawaii Supreme Court is that the collection of the fees were proper “regulatory fees,” but that the legislative transfer was an unconstitutional violation of the separation of powers. Not exactly typical land use law fare.

But here’s the interesting part. The Hawaii Insurers case analyzed State v. Medeiros, 89 Haw. 361, 973 P.3d 736 (1999), which set forth the test for when a charge imposed by an administrative agency pursuant to the state’s police powers is valid, and when it crosses…

Continue Reading Of Taxes, Exactions, User Fees, and Regulatory Fees

How often in an appellate opinion does the court use the term “glom?” 

[The Appellee] gloms onto the “police power” aspect of the definition [of regulatory fees] in arguing that “Medeiros plainly concern[ed] the ‘police power’ of ‘criminal investigative services,’ not a user fee as suggested by [the state].”

No matter what you may think of the phraseology of Hawaii Insurers Council v. Lingle, No. 27840 (Haw. Dec. 18, 2008), the decision is important because who can take your money,  how they go about doing it, and what happens to your money afterwards, matters. As Chief Justice John Marshall famously wrote in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), “the power to tax is the power to destroy,” and that may be even more true today where the power to regulate and impose fees may be the same thing.

Under Hawaii law, only the state…

Continue Reading HAWSCT: Separation of Powers Prohibits Legislative Transfer of Agency’s Regulatory Fees to General Fund

A panel of the Ninth Circuit has revised its earlier opinion in McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), adding a footnote:

On slip Opinion page 13750, insert a new footnote 3 at the bottom of the page after the sentence that ends “. . . applies to Ordinance 1603.” (and renumber the subsequent footnotes) [page 15838 of the revised slip opinion]:

We observe that the ordinance before us concerns a permit condition designed to mitigate the adverse effects of the new development. New construction increases the burden on the City’s sewer system and increases the loss that might result from flooding. After experiencing considerable flooding, the City enacted Ordinance 1603 to require most new developments to include specified storm pipes. We are not confronted, therefore, with a legislative development condition designed to advance a wholly unrelated interest. We do not address whether Penn Central…

Continue Reading 9th Circuit: Revised Opinion in McClung v. City of Sumner

“This case presents an issue of first impression in this Circuit — whether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction, should be reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm,holding that the Penn Central analysis applies to the 12-inchpipe requirement.” 

McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), slip op. at 13744-45.  More, after a chance to review the opinion.Continue Reading Ninth Circuit: Legislative Exactions Not Subject to Nollan/Dolan

The transcript of the June 2, 2008 arguments in the federal lawsuit challenging Maui’s affordable (“workforce”) housing exaction has been released. That hearing resulted in a lengthy opinion by the District Court holding that the plaintiff’s Nollan/Dolan claims were not ripe, and a recent order holding that the facial due process and equal protection claims should be dismissed.

The most interesting part of the hearing was when the county admitted the motivation for the 40-50% exaction was to not give all infrastructure away to “millionaires from the Mainland,” or even “millionaires on Maui.”  The court, as one might expect, had a bit of difficulty with that reasoning:

MS. D’ENBEAU: And this is for people, good solid middle income people who find themselves priced out of the market on Maui. So the county council in its wisdom decided, All right, since we have limited water, we have limited roads, …

Continue Reading Transcript of Arguments in Maui Affordable Housing Exaction Case

The US District Court for the District of Hawaii has granted (in part) the County of Maui’s motion for reconsideration of the court’s earlier order granting in part and denying in partthe County’s summary judgment motion.  Here’s a copy of the court’s latest order.

The court entered summary judgment in favor of the county on the plaintiff’s facial equal protection and facial due process claims, and allowed the “class of one” equal protection claim, and the as-applied equal protection and due process claims to proceed. 

The case involves a Maui property owner’s challenge to the County’s “workforce housing” exaction ordinance, which requires aproperty owner to commit 40% to 50% of the unitsin most new housing developments to below-market-rate ownership orrental.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  The plaintiff challenged theordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the…

Continue Reading Court Strikes Facial Due Process and Equal Protection Claims in Maui Affordable Housing Exaction Case

When a court labels the Nollan/Dolan line of decisions “so-called exaction cases” (and your claim is that an exaction is not related or proportional) you know right away you are in trouble.

First, the dry summary.  In Action Apartment Ass’n v. City of Santa Monica,No. B201176 (Aug. 28, 2008) (slip opinion available here), the California Court of Appeal (SecondDistrict) denied a facial challenge to the city of Santa Monica’saffordable housing exaction ordinance.  The court relied upon thelegislative/adjudicative distinction holding that Nollan/Dolananalysis is only applicable to individual decisions regarding permitapplications, and cannot be used to challenge legislative decisionsgenerally applicable.

Second, some background on “facial” challenges as contrasted with “as applied” challenges. A “facial” takings challenge to a statute or ordinance asserts thatits mere enactment is unconstitutional.  The U.S.Supreme Court recently explained the nature of facial challenges:

Under United States v. Salerno,481 U. S.

Continue Reading My So-Called Exaction Case: More on Action Apartment