Historic Preservation and Exactions

[jgriff]

Historic districts can only be instituted with a supermajority vote, so they're pretty much the definition of democracy at the local level

We're supposed to have the judicial branch and the constitution to protect us from people voting in laws that take away rights from the minority. It seems that people always forget about that when there's a law they support though.

[jgriff]

Isn't that speaking at the federal level though?

 

Initiatives are used at the state and local level to bring issues to a popular vote.

 

Contrarily, couldn't a referendum be used likewise to repeal a Historic District if the popular vote was adequate? 

Well, if you ask me the constitution should trump everything. Unfortunately our history shows that it hasn't always been applied and still isn't. If you want to be able to create laws that go against the principles of the constitution there's probably not a lot of people in the U.S. now that will disagree with you. Most of them don't even know what the constitution is. Just don't be surprised when there's someone that takes away some of your rights and doesn't care what the constitution says.

[s3mh]

Well, if you ask me the constitution should trump everything. Unfortunately our history shows that it hasn't always been applied and still isn't. If you want to be able to create laws that go against the principles of the constitution there's probably not a lot of people in the U.S. now that will disagree with you. Most of them don't even know what the constitution is. Just don't be surprised when there's someone that takes away some of your rights and doesn't care what the constitution says.

 

It is a bit embarrassing when you claim that people in the US do not know what the constitution is when you clearly do not know that the US Supreme Court has long ago held that historic preservation laws are well within the police powers of a municipality and are not a taking as long as they permit a reasonable return on the owner's investment. 

[jgriff]

It is a bit embarrassing when you claim that people in the US do not know what the constitution is when you clearly do not know that the US Supreme Court has long ago held that historic preservation laws are well within the police powers of a municipality and are not a taking as long as they permit a reasonable return on the owner's investment. 

Like I said in my post.... we have not always enforced the constitution in this country.

[august948]

It is a bit embarrassing when you claim that people in the US do not know what the constitution is when you clearly do not know that the US Supreme Court has long ago held that historic preservation laws are well within the police powers of a municipality and are not a taking as long as they permit a reasonable return on the owner's investment. 

 

The US Supreme Court also held long ago that "seperate but equal" was a good idea. (Plessy v. Fergusun) and that it was ok to intern innocent Japanese-Americans during WW2 (Korematsu v. US).  There's a much longer list of questionable decisions made by the Supreme Court, but I don't have time to list them now.

[s3mh]

Like I said in my post.... we have not always enforced the constitution in this country.

 

Yes we have.  You are free to go to the courts to try to overturn Penn Central.  You are free to petition the government to amend the constitution.  Penn Central has been around for 45 years and has not been seriously challenged in the courts, and there is certainly no political movement to amend the constitution to ban historic preservation laws.  The constitution doesn't mean what you want it to mean.  It means what the courts say it means and is enforced accordingly.  If you disagree, you have remedies available to you.  If your viewpoint does not prevail, that does not mean that the constitution is not enforced.  It just means that you lost.

[fwki]

Cracks in Ways around Penn Central test, Supreme Court decision significantly expanding the rights of property owners to challenge the terms of land-use permits: http://www.eenews.net/stories/1059983522

 

"The 5-4 decision along ideological lines in Koontz v. St. Johns River Water Management District held that government conditions on a land-use permit are subject to a strict test to protect the landowner from a "taking," a violation of the Fifth Amendment's clause that states no private property may be taken for public use "without just compensation" -- even if the permit is never issued."

 

".....Justice Samuel Alito wrote for the majority that any monetary requirement -- such as hiring contractors ....must also clear the "Nollan-Dolan test," a product of two Supreme Court cases that said the government may not require a landowner to relinquish some of his property for a permit unless there is a "nexus" and "rough proportionality" between the demand and the effects of the proposed project.  The goal of the test is to protect property owners from "coercion" and even "extortion" because the government has a much stronger bargaining position in the permitting process....The extension of the Nollan-Dolan standard to money is significant because it opens up permit-granting agencies to a host of new lawsuits, legal experts said. Alito placed very few limits on when Nollan-Dolan applies.  Additionally, it will have a chilling effect on permit negotiations, because regulators will be worried that anything they put on the table could later be challenged in court as violating the standard, the experts said."

 

"John Echeverria of Vermont Law School, who closely follows takings cases, said the new monetary requirement is "devastating"....Echeverria...said the decision shifts the burden of proof in these cases to the government. Instead of a property owner having to show that government terms were excessive, the agency will now have to show it meets the Nollan-Dolan standard. "That's enormously important," Echeverria said"

 

Edit: Addressing S3's point below, Penn Central is not the only way to attack governement takings, so it's not really a crack but an avoidance.

 

 

 

[s3mh]

Cracks in Penn Central, Supreme Court decision significantly expanding the rights of property owners to challenge the terms of land-use permits: http://www.eenews.net/stories/1059983522

 

"The 5-4 decision along ideological lines in Koontz v. St. Johns River Water Management District held that government conditions on a land-use permit are subject to a strict test to protect the landowner from a "taking," a violation of the Fifth Amendment's clause that states no private property may be taken for public use "without just compensation" -- even if the permit is never issued."

 

".....Justice Samuel Alito wrote for the majority that any monetary requirement -- such as hiring contractors ....must also clear the "Nollan-Dolan test," a product of two Supreme Court cases that said the government may not require a landowner to relinquish some of his property for a permit unless there is a "nexus" and "rough proportionality" between the demand and the effects of the proposed project.  The goal of the test is to protect property owners from "coercion" and even "extortion" because the government has a much stronger bargaining position in the permitting process....The extension of the Nollan-Dolan standard to money is significant because it opens up permit-granting agencies to a host of new lawsuits, legal experts said. Alito placed very few limits on when Nollan-Dolan applies.  Additionally, it will have a chilling effect on permit negotiations, because regulators will be worried that anything they put on the table could later be challenged in court as violating the standard, the experts said."

 

"John Echeverria of Vermont Law School, who closely follows takings cases, said the new monetary requirement is "devastating"....Echeverria...said the decision shifts the burden of proof in these cases to the government. Instead of a property owner having to show that government terms were excessive, the agency will now have to show it meets the Nollan-Dolan standard. "That's enormously important," Echeverria said"

 

 

Nollan-Dolan concerns regulatory exactions.  That line of takings decisions have nothing to do with Penn Central's holding that historic preservation is a valid exercise of the police power and the investment backed expectations test.  Apples and oranges.  And Penn Central was called the court's "polestar" in takings cases by J. O'Connor in Palazzolo v. Rhode Island.  Koontz just extended Nolan-Dollan analysis to fees imposed by government. 

[s3mh]

Cracks in Ways around Penn Central test, Supreme Court decision significantly expanding the rights of property owners to challenge the terms of land-use permits: http://www.eenews.net/stories/1059983522

 

"The 5-4 decision along ideological lines in Koontz v. St. Johns River Water Management District held that government conditions on a land-use permit are subject to a strict test to protect the landowner from a "taking," a violation of the Fifth Amendment's clause that states no private property may be taken for public use "without just compensation" -- even if the permit is never issued."

 

".....Justice Samuel Alito wrote for the majority that any monetary requirement -- such as hiring contractors ....must also clear the "Nollan-Dolan test," a product of two Supreme Court cases that said the government may not require a landowner to relinquish some of his property for a permit unless there is a "nexus" and "rough proportionality" between the demand and the effects of the proposed project.  The goal of the test is to protect property owners from "coercion" and even "extortion" because the government has a much stronger bargaining position in the permitting process....The extension of the Nollan-Dolan standard to money is significant because it opens up permit-granting agencies to a host of new lawsuits, legal experts said. Alito placed very few limits on when Nollan-Dolan applies.  Additionally, it will have a chilling effect on permit negotiations, because regulators will be worried that anything they put on the table could later be challenged in court as violating the standard, the experts said."

 

"John Echeverria of Vermont Law School, who closely follows takings cases, said the new monetary requirement is "devastating"....Echeverria...said the decision shifts the burden of proof in these cases to the government. Instead of a property owner having to show that government terms were excessive, the agency will now have to show it meets the Nollan-Dolan standard. "That's enormously important," Echeverria said"

 

Edit: Addressing S3's point below, Penn Central is not the only way to attack governement takings, so it's not really a crack but an avoidance.

 

Please file a lawsuit in Federal court and try to cite to the exactions line of case law in your attack on historic districts and see how far that gets you.  It is not a way around Penn Central.  It is a different test for a different regulatory taking.  Just because you do not understand the difference between a regulation that is an exaction and one that is not does not mean that there is no difference.   

[fwki]

Please file a lawsuit in Federal court and try to cite to the exactions line of case law in your attack on historic districts and see how far that gets you.  It is not a way around Penn Central.  It is a different test for a different regulatory taking.  Just because you do not understand the difference between a regulation that is an exaction and one that is not does not mean that there is no difference.   

You do not understand Koontz, but there's been a lot written about it already, so get to work. The Defendent tried to push Penn Central, Koontz found a way around it.....conditions required by the permitting process constituted an exaction which itself was a taking, imposed or not.  This is what has all the liberal pundits (and SCJ Kagan) freaking out, you can use it just about anywhere.  Conditions imposed in order to be granted a permit is a permit exaction.  The court ruled that the permit exaction attempt itself was a taking and the strict test of Nollan and Dolan applied.  You want a building permit? Well do A, B and HAHC.  That's an exaction and now you have a precedent other than Penn Central if you are not disputing the City's right to regulate.

"The district [defendent] claimed that the comparatively strict Nollan/Dolan test does not apply to Koontz’s case; instead, the looser Penn Central test applies. The district stresses that Nollan and Dolan apply only when the permit exaction constitutes a per se taking that actually has been imposed (e.g., Nollan’s imposition of a beachfront access easement or Dolan’s required dedication of land). Here, the district claimed that Koontz was deprived of nothing: he lost no property and provided no money for offsite mitigation, and he never contended that the permit denial constituted a per se taking. Rather, Koontz sought and obtained statutory damages for the temporary taking of his land rather than compensation for the suggested offsite mitigation. Koontz could have sought relief under Penn Central for the condition imposed by the district, but he abandoned that claim in the state courts by not disputing Florida’s interest or authority to regulate land use for the purpose of environmental protection. Koontz never challenged the application of the Penn Central holding to his circumstance."

 

Edit: Moderator, can we move this legal discussion to a separate thread?

[s3mh]

You do not understand Koontz, but there's been a lot written about it already, so get to work. The Defendent tried to push Penn Central, Koontz found a way around it.....conditions required by the permitting process constituted an exaction which itself was a taking, imposed or not.  This is what has all the liberal pundits (and SCJ Kagan) freaking out, you can use it just about anywhere.  Conditions imposed in order to be granted a permit is a permit exaction.  The court ruled that the permit exaction attempt itself was a taking and the strict test of Nollan and Dolan applied.  You want a building permit? Well do A, B and HAHC.  That's an exaction and now you have a precedent other than Penn Central if you are not disputing the City's right to regulate.

"The district [defendent] claimed that the comparatively strict Nollan/Dolan test does not apply to Koontz’s case; instead, the looser Penn Central test applies. The district stresses that Nollan and Dolan apply only when the permit exaction constitutes a per se taking that actually has been imposed (e.g., Nollan’s imposition of a beachfront access easement or Dolan’s required dedication of land). Here, the district claimed that Koontz was deprived of nothing: he lost no property and provided no money for offsite mitigation, and he never contended that the permit denial constituted a per se taking. Rather, Koontz sought and obtained statutory damages for the temporary taking of his land rather than compensation for the suggested offsite mitigation. Koontz could have sought relief under Penn Central for the condition imposed by the district, but he abandoned that claim in the state courts by not disputing Florida’s interest or authority to regulate land use for the purpose of environmental protection. Koontz never challenged the application of the Penn Central holding to his circumstance."

You still do not understand what an exaction is. 

[Marksmu]

Does he not understand it, or do you just not like to admit that there is a weakness in your beloved case?

I may spend some time on this today and formulate a legal analysis myself. I like what I've read and I think s3MH may be deliberately downplaying rye significance of the case.

[s3mh]

Does he not understand it, or do you just not like to admit that there is a weakness in your beloved case?

I may spend some time on this today and formulate a legal analysis myself. I like what I've read and I think s3MH may be deliberately downplaying rye significance of the case.

 

He doesn't even understand the alignment of the parties and the arguments they made.  Koontz did not find a way around Penn Central.  He knew that he had no chance to prevail under Penn Central and sought to extend the Nolan Dollan test to his situation (offsite extraction in the form of a wetland mitigation requirement rather than requiring an onsite mitigation--Nolan and Dollan only dealt with onsite extractions).  If the Supreme Court viewed extractions as the same thing as historic preservation ordinances, they would have had to overrule Penn Central.  Penn Central held there was no taking by denying the right to build above the old train station.  The historic preservation ordinance in Penn Central did not require the developer to dedicate a portion of his property to the public or to buy and restore another property as a condition of getting his permit to build on top of the old train station. Restrictions on what you can build are not extractions.  Extractions are permit conditions that require dedication of land to public use.  In Dollan it was the requirement to dedicate a bike path and in Nolan it was a requirement to provide a public easement for beach access.  Apples and oranges.  And Koontz was remanded for further consideration.  He has not won yet.  All Nolan and Dollan do is require the government to show a nexus between the public purpose and the extraction and to show that the exaction was roughly proportional to the impact.  This line of case law has nothing to do with historic preservation rules because there is no exaction.  The only takings argument in a historic preservation issue is the investment backed expectations argument.  That argument isn't going to go too far in the Heights given the piles of cash everyone is making on real estate right now.

[fwki]

He doesn't even understand the alignment of the parties and the arguments they made.  Koontz did not find a way around Penn Central.  He knew that he had no chance to prevail under Penn Central and sought to extend the Nolan Dollan test to his situation (offsite extraction in the form of a wetland mitigation requirement rather than requiring an onsite mitigation--Nolan and Dollan only dealt with onsite extractions).  If the Supreme Court viewed extractions as the same thing as historic preservation ordinances, they would have had to overrule Penn Central.  Penn Central held there was no taking by denying the right to build above the old train station.  The historic preservation ordinance in Penn Central did not require the developer to dedicate a portion of his property to the public or to buy and restore another property as a condition of getting his permit to build on top of the old train station. Restrictions on what you can build are not extractions.  Extractions are permit conditions that require dedication of land to public use.  In Dollan it was the requirement to dedicate a bike path and in Nolan it was a requirement to provide a public easement for beach access.  Apples and oranges.  And Koontz was remanded for further consideration.  He has not won yet.  All Nolan and Dollan do is require the government to show a nexus between the public purpose and the extraction and to show that the exaction was roughly proportional to the impact.  This line of case law has nothing to do with historic preservation rules because there is no exaction.  The only takings argument in a historic preservation issue is the investment backed expectations argument.  That argument isn't going to go too far in the Heights given the piles of cash everyone is making on real estate right now.

.....Typical shallow thinking.

 

SCJ Kagan doesn't think like that.  In her dissent:

 

"Kagan also contended that the Supreme Court had held in other cases that money itself can't be a taking and noted that the majority's vague boundaries leave all sorts of permits open for challenges under the Nollan-Dolan test.

"Cities and towns across the nation impose many kinds of permitting fees every day. Some enable a government to mitigate a new development's impact on the community, like increased traffic or pollution -- or destruction of wetlands," she wrote. "Others cover the direct costs of providing services like sewage or water to the development. ... Still others are meant to limit the number of landowners who engage in a certain activity, as fees for liquor licenses do."

Because of the majority's opinion, she went on, "the Federal Constitution thus will decide whether one town is overcharging for sewage, or another is setting the price to sell liquor too high. And the flexibility of state and local governments to take the most routine actions to enhance their communities will diminish accordingly."

 

Shallow thinkers won't see what Kagan sees, that the cost in money or requirements costing money of a Permit itself is indeed a taking under this ruling.  You want me to do what for my building permit?  Did you say HA&HC?

[s3mh]

.....Typical shallow thinking.

 

SCJ Kagan doesn't think like that.  In her dissent:

 

"Kagan also contended that the Supreme Court had held in other cases that money itself can't be a taking and noted that the majority's vague boundaries leave all sorts of permits open for challenges under the Nollan-Dolan test.

"Cities and towns across the nation impose many kinds of permitting fees every day. Some enable a government to mitigate a new development's impact on the community, like increased traffic or pollution -- or destruction of wetlands," she wrote. "Others cover the direct costs of providing services like sewage or water to the development. ... Still others are meant to limit the number of landowners who engage in a certain activity, as fees for liquor licenses do."

Because of the majority's opinion, she went on, "the Federal Constitution thus will decide whether one town is overcharging for sewage, or another is setting the price to sell liquor too high. And the flexibility of state and local governments to take the most routine actions to enhance their communities will diminish accordingly."

 

Shallow thinkers won't see what Kagan sees, that the cost in money or requirements costing money of a Permit itself is indeed a taking under this ruling.  You want me to do what for my building permit?  Did you say HA&HC?

Now you are just embarrassing yourself.  The case does not hold that fees are a taking.  It just opens the door for a constitutional challenge to exactions.  Kagan just makes a "taken to its logical limits" argument.  If you want to file a Federal lawsuit citing Koontz seeking to declare the permit fee for a certificate of appropriateness, you will first have to find a fee to pay (there is none for a COA).  Then, you will have to argue that the approval of a historic commission is an exaction under Koontz.  It is not.  If Koontz went that far, then setbacks, building codes, and even the ADA standards could be subject to constitutional attack because they all burden property owners.  But that is not what Koontz is about. Koontz extends Nolan Dollan analysis to offsite exactions that take the form of a requirement to purchase land for mitigation.  Kagan just points out that many municipalities have similar programs that require developers to pay impact fees in exchange for permits.  Read broadly, Koontz could allow a constitutional takings challenge under Nolan Dollan to those sort of exactions (apologies for the typos above on "extractions"--too much oil and gas law for me).  No judge would ever extend Koontz to every last restriction on real property.  Koontz is only about exactions.  Penn Central and a number of other takings cases cover regulatory control over how property can be developed which is plainly distinct from the exactions covered by Koontz.  As I said before, until you figure out what an exaction is, you will be barking up the wrong legal tree. 

[fwki]

It sounds like you're hearing cracks.

[s3mh]

It sounds like you're hearing cracks.

 

Still waiting to hear your argument that compliance with a historic ordinance is an exaction that is subject to Nolan Dollan.  No cracks until you can clear that hurdle.

[fwki]

Does he not understand it, or do you just not like to admit that there is a weakness in your beloved case?

I may spend some time on this today and formulate a legal analysis myself. I like what I've read and I think s3MH may be deliberately downplaying rye significance of the case.

 

Read this, especially Kagan's dissent starting at Page 27..http://www.law.cornell.edu/supct/pdf/11-1447.pdf...very interesting, especially where she explains how this ruling will impact any discussions or negotiations that precede a permitting process which is exactly what occurs with Planning prior to the HAHC.  She contends that this ruling now exposes the govering body to legal action under Nollan-Dolan.  To s3mh: you've already apologized for her once, no need to apologize again.

[s3mh]

Read this, especially Kagan's dissent starting at Page 27..http://www.law.cornell.edu/supct/pdf/11-1447.pdf...very interesting, especially where she explains how this ruling will impact any discussions or negotiations that precede a permitting process which is exactly what occurs with Planning prior to the HAHC.  She contends that this ruling now exposes the govering body to legal action under Nollan-Dolan.  To s3mh: you've already apologized for her once, no need to apologize again.

 

Forget Kagan's dissent.  Look at J. Alito's opinion:

 

"Because the government need only provide a permit applicant with one alternative that satisfies the nexus and rough proportionality standards, a permitting authority wishing to exact an easement could simply give the owner a choice of either surrendering an easement or making a payment equal to the easement's value.  Such so-called 'in lieu of' fees are utterly common place . . . and they are functionally equivalent to other types of land use exactions."

 

How in the world do historic district requirements fit into the monetary land use exactions described by J. Alito?  There isn't even a permit fee for HAHC.  A monetary exaction is not a diminished return on development of real property caused by a land use restriction.  Penn Central's test covers that issue ("investment backed expectations").  Nollan/Dolan require an exaction, whether it be monetary or dedication of land.  All Koontz does is expand Nollan/Dolan to monetary exactions.  No monetary exaction, not Nollan/Dolan.  Koontz does absolutely nothing for someone opposing historic building regulations. 

[fwki]

Forget Kagan's dissent.  Look at J. Alito's opinion:

 

"Because the government need only provide a permit applicant with one alternative that satisfies the nexus and rough proportionality standards, a permitting authority wishing to exact an easement could simply give the owner a choice of either surrendering an easement or making a payment equal to the easement's value.  Such so-called 'in lieu of' fees are utterly common place . . . and they are functionally equivalent to other types of land use exactions."

 

How in the world do historic district requirements fit into the monetary land use exactions described by J. Alito?  There isn't even a permit fee for HAHC.  A monetary exaction is not a diminished return on development of real property caused by a land use restriction.  Penn Central's test covers that issue ("investment backed expectations").  Nollan/Dolan require an exaction, whether it be monetary or dedication of land.  All Koontz does is expand Nollan/Dolan to monetary exactions.  No monetary exaction, not Nollan/Dolan.  Koontz does absolutely nothing for someone opposing historic building regulations. 

Finally some meat, I quote the dissent:

"By applying Nollan and Dolan to permit conditions requiring monetary payments—with no express limitation except as to taxes—the majority extends the Takings Clause".

The Ordinance states that a condition for permiting is a CoA.  No one would argue that a CoA does not require monetary payments, many payments to many people, solely for Doug Elliott's amusement.  Furthermore the requirements for CoA include additional monetary payments to make things look old and crappy again since my renovation would destroy some old and crappy stuff that Doug wants me to keep for the public good.  They make me negotiate the level of these reparations to get my permit. Sounds like extortion to me, which is exactly what the Koontz decision is designed to prevent.

[s3mh]

Finally some meat, I quote the dissent:

"By applying Nollan and Dolan to permit conditions requiring monetary payments—with no express limitation except as to taxes—the majority extends the Takings Clause".

The Ordinance states that a condition for permiting is a CoA.  No one would argue that a CoA does not require monetary payments, many payments to many people, solely for Doug Elliott's amusement.  Furthermore the requirements for CoA include additional monetary payments to make things look old and crappy again since my renovation would destroy some old and crappy stuff that Doug wants me to keep for the public good.  They make me negotiate the level of these reparations to get my permit. Sounds like extortion to me, which is exactly what the Koontz decision is designed to prevent.

The majority opinion is clear that they are only extending Nollan and Dolan to requirements of monetary payments to the government because those payments can be akin to a taking if they are the equivalent of the cost of dedicating a portion of your property to the government (payment in lieu of dedication=monetary exaction).  Nothing in the opinion suggests that the Court would apply Nollan Dolan if government regulation required a land owner to incur a cost paid to a third party.  Even Kagan's argument, which you are in love with, is clear that the hypothetical challenges under the new Dolan/Nollan analysis are all fees paid TO GOVERNMENT.  A regulation that burdens property with additional costs to comply is still analyzed under the Penn Central line of decisions.  That is because there is a difference between a mere regulation and an exaction. 

[fwki]

I find Kagan's arguments here interesting, but you're the type that could fall in love with her legal slant.  I run with Clarence and that Italian.  And if you will recall from the first link I posted: ".....Justice Samuel Alito wrote for the majority that any monetary requirement -- such as hiring contractors ....must also clear the "Nollan-Dolan test."  The district offered Koontz the option to hire contractors to restore wetlands elsewhere to compensate for the loss his project may have caused.  Nowhere do they limit the test to fees paid to the government.  Matter of fact they put few limits if any on how it must play out.

[s3mh]

I find Kagan's arguments here interesting, but you're the type that could fall in love with her legal slant.  I run with Clarence and that Italian.  And if you will recall from the first link I posted: ".....Justice Samuel Alito wrote for the majority that any monetary requirement -- such as hiring contractors ....must also clear the "Nollan-Dolan test."  The district offered Koontz the option to hire contractors to restore wetlands elsewhere to compensate for the loss his project may have caused.  Nowhere do they limit the test to fees paid to the government.  Matter of fact they put few limits if any on how it must play out.

Ordering wetland restoration is basically the same thing as paying impact fees to a fund for wetland restoration.  The municipality just eliminates the middleman by ordering payment directly to the contractors.  But it is a monetary exaction because Koontz is just spending money on behalf of the government in order to get his permit.

 

But you still do not understand what an exaction is.  An exaction is not any regulation that creates an additional expense.    Building codes, performance/Euclidian zoning, setbacks, height restrictions, density restriction, signage restrictions, and historic preservation ordinances may require a land owner to incur an additional expense to comply with the regulation, but they are not exactions.  You do not get under Nollan/Dolan because you have to hire an structural engineer in order to get a building permit.  You do not get under Nollan/Dolan because you have to hire an environmental engineer to get a permit.  These are all costs that are directly related to making sure what you do complies with the regulations.  Exactions are traditionally a requirement that the property owner dedicate land to mitigate an impact of the development.  Monetary exactions are payments required for mitigation of impacts.  The key distinction is that exactions have nothing to do with the actual work of developing the property.  The exaction goes to other interests (park development, wetland mitigation, public access etc.) and do not touch the actual development. 

 

And even if you get a Nollan/Dolan test, what in the world is the argument that would cause historic preservation to fail that test?  The Nollans won because the court found that there was no essential nexus between beach access and a "psychological barrier" presented by the Nollans' planned house.  The evidence was that people could still get to the beach by other access points and were not really restricted by what the Nollans were doing.  The policy of requiring an easement to reduce a merely psychological impact on access had no nexus to the goal of beach access. 

 

In Dolan, the requirement of the dedication of a public greenway and bike path was justified to prevent flooding and traffic congestion.  The court found there was no reasonable relationship between the requirement and the impact of the development.  Basically, they could not show that the development would cause any additional flooding or traffic congestion.

 

The goal of historic preservation is to maintain the original structures and to ensure that all architecture is historically appropriate for the neighborhood.  Prohibiting demolitions and requiring approval of architectural alterations and additions is about as close a nexus between the state interest and the permit condition as you can get.  And there is nothing more proportional to the impact of non-conforming architecture than a permit condition that prohibits it.  You beef with historic preservation has never been about the Nollan/Dolan test.  Your problem is that you do not believe that historic preservation is a legitimate exercise of the police power/legitimate state interest.  That has been decided under Penn Central and is not changed one bit by Koontz.

[Subdude]

 

Edit: Moderator, can we move this legal discussion to a separate thread?

 

 

Done.