This just in: on November 10, 2011, the U.S. Supreme Court will consider whether it has found the vehicle to resolve an issue the lower courts have vehemently disagreed upon, whether the Nollan/Dolan nexus/rough proportionality analysis is limited to exactions of real property. See West Linn Corporate Park, LLC v. City of West Linn, No. 11-299.
The Ninth Circuit concluded it does not, disagreeing with the California and Texas Supreme Courts, which have held that Nollan/Dolan is applicable to all exactions, not just demands for land. Yesterday, the Florida Supreme Court weighed in, holding in St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011):
Accordingly, we hold that under the takings clauses of the United States and Florida Constitutions, the Nollan/Dolan rule with regard to "essential nexus" and "rough proportionality" is applicable only where the condition/exaction sought by the government involves a dedication of or over the owner's interest in real property in exchange for permit approval; and only when the regulatory agency actually issues the permit sought, thereby rendering the owner's interest in the real property subject to the dedication imposed.
Slip op. at 19. The court acknowleged the lower court split, and the West Linn petition:
Our holding today is consistent with the 2011 decisions of two federal appellate courts, both of which held that Nollan and Dolan are inapplicable to cases that do not involve the dedication of real property for a public use. See Iowa Assurance Corp. v. City of Indianola, 650 F.3d 1094, 1096-97 (8th Cir. 2011) (ordinance which required an enclosed fence to surround areas where two or more race cars are present not subject to a Nollan/Dolan exactions analysis); West Linn Corporate Park, LLC v. City of West Linn, 428 F. App'x 700, 702 (9th Cir. 2011) (refusing to extend Nollan/Dolan where city required developer to construct several off-site public improvements but did not require dedication of developer‟s interest in real property), petition for cert. filed, 80 U.S.L.W. 3135 (U.S. Sept. 6, 2011) (No. 11-299).
Slip op. at 19 n.3. More details to follow after we've had a chance to make a deeper reading of the opinion, but the larger question remains: will this influence the Supreme Court when it is deciding whether to grant the West Linn petition? Stay tuned.
St Johns River Water Mgmt Dist v Koontz, No. SC09-713 (Nov. 3, 2011)
