Here's the latest in the lengthy West Linn Corporate Park tale from Oregon. After having bounced from federal court, to the Oregon state courts, then back to federal court, the case is now in the hands of the U.S. Supreme Court.
The issue in the case is whether the Ninth Circuit was correct when it held in an unpublished memorandum opinion that "[t]he Supreme Court has not extended Nollan and Dolan beyond situations in which the government requires a dedication of private real property. See Lingle v. Chevron USA, Inc., 844 U.S. 528, 547 (2005). We decline to do so here." Slip op. at 4-5.
Weak, Ninth Circuit, weak. Is the issue of whether Nollan and Dolan's nexus and rough proportionality requirements apply only to exactions of land -- but do not govern exactions of other types of property such as money -- so settled that you blow it off with a one-liner in an unpublished decision? We think not, since this issue was hardly settled by Lingle, and has been bouncing around in the lower courts for quite a while, several of which, including courts that are not exactly property owner-friendly such as California's Supreme Court (does Ehrlich v City of Culver City, 911 P.2d 429 (Cal. 1996) ring a bell?), have decided that the law is exactly opposite.
And what does page 547 of the Lingle opinion, the case cited by the Ninth Circuit in support of its conclusion, say? Well, it does not limit the nexus and proportionality rationales to exactions of land as concluded by the opinion, but rather addressed the question of whether either Nollan or Dolan supported the "substantially advance" rationale from Agins. The Court concluded they did not, and removed any doubt that the substantially advance test was one of under takings law. Yes, Nollan and Dolan involved exactions of land, but Lingle sure didn't hold that the exaction requirements only applied to those type of cases.
The unpublished opinion format appears to us to be a feeble attempt by the Ninth Circuit panel to make the case as uninviting as possible to the Supreme Court's cert pool clerk. But despite the effort to minimize the import of the opinion, it has resulted in a cert petition. Which in our humble opinion has a good shot of a grant, since the Ninth Circuit's opinion directly conflicts with both Ehrlich and the Texas Supreme Court's opinion in City of Flower Mound v. Stafford Est. Ltd. P'ships, 135 S.W.3d 620 (Tex. 2004), both of which held that the nexus and proportionality requirements apply to an attempt to exact property other than real property (in those cases, fees and the requirement that a property owner rebuild a public road). Here's the Question Presented:
Local governments frequently require property owners to dedicate private property to public use as a condition for governmental approval of discretionary property development permits. In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), this Court held that such adjudicative property exactions violate the Fifth Amendment to the United States Constitution as uncompensated takings unless an "essential nexus" exists between the property exaction and a legitimate state interest, and the property exaction is "roughly proportional" to the projected impact of the development. In this case, a local governmental entity required petitioner to construct and dedicate numerous off-site physical improvements on public property as a condition for governmental approval of discretionary permits to develop petitioner’s property notwithstanding the absence of proportionality between the property exacted and the projected impact of the development. The two questions presented are:
1. Do the "essential nexus" and "rough proportionality" requirements of Nollan and Dolan apply equally to exactions of personal property as they do to exactions of real property?
2. Did the court below misconstrue this Court’s decision in Lingle v. Chevron USA Inc., 544 U.S. 528 (2005), when it refused to apply the protection of the Fifth Amendment to an exaction of personal property?
Amici have filed briefs supporting the petition, and we will post those and the BIO shortly.
The Court's docket entry is here.
Petition for a Writ of Certiorari, West Linn Corporate Park LLC v. City of West Linn (filed 9-6-2011)
