We thought there was a chance in a case out of San Jose, California, that the U.S. Supreme Court might take up the long-standing issue of whether legislatively-imposed exactions meet the nexus and proportionality unconstitutional conditions tests from Nollan, Dolan, and Koontz. Do those tests require an individualized determination, or is it enough that the conditions are imposed on everyone?
But the Court declined to review that case. There was a question in whether San Jose's affordable housing requirements were "exactions," because the California Supreme Court disposed of the case by concluding that the regulations were mere run-of-the-mill zoning ordinances, and thus not subject at all to N-D-K. Thus, the heightened scrutiny required by N-D-K didn't apply.
This cert petition, recently filed, however, presents the legislatively-imposed question very clearly. In Common Sense Alliance v. Growth Management Hearings Bd., No. 72235-2-1 (Wash. App. Aug. 10, 2015), the Washington Court of Appeals held that the buffer requirements imposed via ordinance (applicable to everyone who sought a permit) were supported by the "best available science," and thus met the N-D-K standards, even though there was no individualized determination. See slip op. at 11 ("We reject ... the argument that a comprehensive study cannot support the imposition of development regulations unless it looks at a specific development proposed.").
Here are the Questions Presented by the petition:
A San Juan County, Washington, ordinance requires that every shoreline property owner applying for a development permit agree to permanently dedicate a portion of the property as a conservation area to filter pollutants from stormwater that flows from other properties and crosses the shoreline lot. This condition is based on a collection of reports that argue for a broad public need for stormwater filtration, but include no site specific analysis of the area necessary to filter water originating only on the permitted shoreline parcel.The questions presented are:1. Whether such a permit condition, imposed legislatively, is subject to scrutiny under the unconstitutional conditions doctrine as set out in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013); Dolan v. City of Tigard, 512 U.S. 374 (1994); and Nollan v. California Coastal Commission, 483 U.S. 825 (1987); and2. Whether a generalized scientific study, which concludes that preserving shorelines may protect the environment but makes no individualized determination, satisfies the constitutional requirement that the government demonstrate that the permitted use will impact the shoreline before exacting property in exchange for permit approvals, pursuant to the “essential nexus” and “rough proportionality” tests as set out in Koontz, Dolan, and Nollan.
Stay tuned, of course. Follow along with the case on the Court's docket here.