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Monday, November 7, 2011

Will the Supreme Court Resolve the Takings Issue?

The U.S. Supreme Court is expected to decide soon whether it will consider the appeal of the Ninth Circuit’s decision in West Linn Corporate Park, LLC v. City of West Linn that refused to extend Nollan/Dolan’s nexus and rough proportionality test to a municipality’s requirement that a developer construct off-site public improvements.

Since Nollan/Dolan, lower courts have struggled with the following question -- is the nexus and rough proportionality test limited to physical exactions of real property?  Some lower courts have decided that the test applies to all exactions, including impact fees and exactions that do not involve the dedication of land.  Other courts have disagreed, finding that the test only applies to a demand for dedication of land, most recently in the Florida Supreme Court’s decision in St. Johns River Water Management Dist v. Koontz. 

Thanks to Robert Thomas and his blog, Inverse Condemnation, for his summary of an issue of importance to land use attorneys, developers, and local governments across the country.

UPDATE 11/14/11 - Petition for cert. was denied.


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