We've been meaning to post up the California Court of Appeal's (now published) opinion in Alliance for Responsible Planning v. Taylor, No. C085712 (May 4, 2021) for a bit, and while we were distracted by lawyer work last week, our friend and colleague Bryan Wenter beat us to it with "County’s Initiative-Enacted General Plan Traffic Mitigation Policies Are Unconstitutional Exactions."
So rather than do our own summary, we're just going to recommend you read his analysis. Some high points of that and the opinion:
- The court called the Nollan/Dolan/Koontz doctrine the "unconstitutional conditions doctrine." Slip op. at 6. We like that. In our view, N/D/K really isn't a takings doctrine so much as it is one that says the government can't force you to choose among your rights (in these cases, one of those rights being your right to just compensation).
- The N/D/K problem was that the ordinance required the completion of "all necessary road capacity improvements" as a condition of development approval, and to the court this meant the permit applicant pay for everything, not just those improvements brought about by the proposed project. As Bryan writes, "The court reasoned that a developer seeking approval of a single project is solely responsible to pay for construction of all road improvements necessary to bring the traffic volume on the roads affected by the project to a specified level. This would require developers to pay for not only the their own project’s incremental impact to traffic congestion, but also be responsible to pay for improvements that arise from the cumulative effect of other projects, and in some instances to pay for projected future increases in traffic."
- The court also rejected the city's attempt to paint the measure as a land use regulation, and get it from N/D/K-land into CBIA v. San Jose territory. As Bryan writes, "the Third District Court of Appeal explained that under Measure E a developer must give up a property interest as a condition of approval: the developer must complete or construct road improvements."
- Alliance for Responsible Planning appears to be the first time a court has invalidated a California ballot initiative as an unconstitutional exaction under Nollan and Dolan. It also appears to be the first time a traffic mitigation requirement has been invalidated as an unconstitutional exaction. And while the case does not shed much helpful light on the thinly reasoned California Building Industry Assn. v. City of San Jose case, it does make clear that mitigation measures requiring construction of improvements implicates constitutionally-protected property interests."
Check both the opinion and Bryan's analysis out. Worth it.
Alliance for Responsible Planning v. Taylor, No. C085712 (Cal. Ct. App. May 4, 2021)
