Dig this: property owners assert that the County’s right of way dedication ordinance is an unlawful exaction. You know the drill – logical nexus, rough proportionality, etc. Nollan, Dolan, Koontz. Here’s the short story: the owners sought subdivision plat approval without the dedication for public roads required by the ordinance. No deal. The County’s process allows for consideration of variances based on extraordinary hardship. The owners assert that the variance procedures violate their right to procedural due process. The District Court granted the County summary judgment.
In Pietsch v. Ward County, No. 20-1728 (Mar. 16, 2021), the Eighth Circuit affirmed. This is a Nollan/Dolan/Koontz claim. The property owners disavow that they are raising a takings claim. But you can’t fool us, property owners, we know a takings claim when we see one. “Plaintiffs’ due process and unconstitutional conditions claims are an impermissible attempt to recast a Takings claim.” Slip op. at 3.
Plaintiffs claim the County’s dedication rules could result in an exaction, which would require consideration of nexus and proportionality. But this conflates takings and due process law. “Under Nollan and Dolan the government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts.” Koontz, 570 U.S. at 606. Koontz authorizes a Takings claim, not a due process claim: “Nollan and Dolan ‘involve a special application’ of [unconstitutional conditions] doctrine that protects the Fifth Amendment right to just compensation for property the government takes when owners apply for land-use permits.” Id. at 604. Plaintiffs thus have a remedy for unconstitutional exactions under the Takings clause. See id. at 605; Pietsch, 446 F. Supp. 3d at 520, 522, 538 (discussing alternative remedies). They cannot claim a redundant remedy under the due process clause. Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 855 (9th Cir. 2007) (“[T]he Fifth Amendment would preclude a due process challenge only if the alleged conduct is actually covered by the Takings Clause.”).
Slip op. at 4.
Now hold on there, boss. We always thought that the N/D/K line of cases were due process cases, even though they plainly have a takings “vibe.” The underlying right is the right to just compensation, but that’s not what a plaintiff in a N/D/K claim is seeking or claiming is the wrong, is it? Isn’t the wrong an illegitimate “ask” by the government to choose between two fundamental constitutional rights (the right to make use of your property on one hand, and the right to be provided just compensation if you are prevented from doing so on the other)? Thus, the remedy you’re after isn’t compensation, but some kind of judicial recognition that asking you to choose one or the other is not a legitimate exercise of government power?
The brief opinion by the Eighth Circuit and not having the record in front of us limits our deeper thoughts on the court’s rationale, since we’re not quite connecting the dots on how this leads to the County’s variance procedures running afoul of procedural due process. What we are reading between the lines is that the ordinance violates due process because it imposes dedications without first considering the N/D/K requirements. But still, even if the Eighth Circuit is ultimately right on the substance of the procedural due process arguments, the way we look at this the court went about it the wrong way.
Rather than backing into it by recasting the plaintiffs’ claims as takings claims (which in our opinion they are plainly not) and then dismissing because the only remedy is just compensation and not the injunction the plaintiffs desire, maybe the court should have just taken on the claims head-on and concluded that because the variance process provides fair notice and opportunity to be heard, end of story (as the opinion does in the final two pages – see slip op. at 4-5).
Pietsch v. Ward County, No. 20-1728 (8th Cir. Mar. 16, 2021)