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What Counts As an Exaction?
In Nollan v. California Coastal Commission, 483 US 825, and Dolan v. City of Tigard, 512 US 374, the United States Supreme Court established that constitutional scrutiny of government exactions is more stringent than constitutional scrutiny of other land use controls. Last month, the New York Court of Appeals addressed an issue not fully resolved by Nollan and Dolan: What counts as an exaction for takings clause analysis?
The Smith Case
Smith v. Town of Mendon (NYLJ 12/22/04, p. 19, col. 1) involved an application by the Smiths for site plan approval to build a single-family house on a portion of their 9.7-acre tract. Part of the tract, but not the proposed house, sat within areas classified by the Town Code as environmental protection overlay districts (EPODs). The first of these, a “steep slope” EPOD, prohibited construction and other activities without a development permit, which would be granted only if the landowner demonstrates that the proposed activity would not destabilize the soil, cause erosion, or destroy ground cover, and if the landowner demonstrates that there is no reasonable alternative to the proposed activity. The other EPODs, which apply to lands bordering a major creek, to established wooded areas, and to flood plains, include similar restrictions.
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