After the Supreme Court’s decision in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), whether a government action “substantially advances a legitimate state interest” — for a long time assumed to be a takings question under Agins — found a new home in the the Due Process Clause.
Here’s the recently-filed cert petition, asking the Court to review a ruling by the Washington Court of Appeals
Questions Presented:
A Jefferson County, Washington, ordinance requires that all shoreline property owners dedicate, as a condition on any new development permit, a 150-foot conservation buffer purported to protect the marine environment from impacts like storm water runoff. The legislative record, however, contains findings that the government could not determine the need for, or the effectiveness of, a buffer without first considering site-specific factors and the specific development proposal.
The questions presented are:
1. Whether property rights are fundamental rights, such that a land-use regulation must substantially advance a government interest to satisfy due process, per Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), Nectow v. Cambridge, 277 U.S. 183 (1928), and Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); and
2. Whether an exaction that is mandated by legislation is subject to a facial challenge alleging that the permit condition violates the unconstitutional conditions doctrine as set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994).
Stay tuned.