Land Use Exactions and the U.S Supreme Court Decision in
Koontz v. St. Johns River Water Management District – A Toolkit
June 2014
.
This information is provided as a free service to you as a member of the National Association of
Home Builders. The information represents legal research only, and in no way constitutes an
opinion of law. This legal information does not represent an interpretation or opinion as to
regulatory compliance, or as to land use law compliance. The materials provided herein are solely
intended to familiarize you with the law in this subject area, but should not be regarded as an
exhaustive presentation of legal information on this particular subject. An attorney must review this
legal information to determine how it applies to your particular situation.
LAND USE EXACTIONS AND KOONTZ V. ST. JOHNS RIVER WATER
MANAGEMENT DISTRICT – A TOOLKIT
TABLE OF CONTENTS
TAB
About the NAHB Koontz Toolkit .................................................................................................................. 1
Introduction to Exactions ............................................................................................................................. 3
The Broader Picture – Fifth Amendment Takings ....................................................................................... 3
Constitutional Treatment of Exactions ........................................................................................................ 5
Nollan v. California Coastal Comm’n – The “Essential Nexus” ................................................................... 7
Dolan v. City of Tigard – Exactions Must Be Roughly Proportional............................................................ 8
After Nollan/Dolan But Before Koontz – Open Questions ......................................................................... 9
Koontz v. St. Johns River Water Management District – The Facts and Decision.................................... 11
What is the Legal Remedy for a Koontz Violation? ................................................................................... 13
So What’s the Bottom Line and How Will Governments Respond to Koontz ......................................... 14
How Builders Can Take Advantage of Koontz ........................................................................................... 15
NAHB Assistance ........................................................................................................................................ 17
Appendix I – Types of Exactions ................................................................................................................... I
Appendix II – Legislative Exaction Cases by Lower Courts ........................................................................ VII
Appendix III – Survey of State Remedial Laws That Should be Amended to Reflect Koontz .................... X
Appendix IV – Text of Koontz Legislation Recently Enrolled by Virginia ........................... LXVII (last page)
About the NAHB Koontz Toolkit
In return for the opportunity to build (i.e., receiving a building permit), the
government often asks developers for something in return to offset the impact of the
new development. This “something” is called an “exaction” and can come in a number
of forms, such as a dedication of real property, constructing infrastructure or other
improvements, and as confirmed with the Koontz case, a monetary payment.
The law in each state, whether through the state constitution or state statute,
provides the legal permission that allows for local governments to ask developers to
give up their property in return for a permit. The U.S. Constitution, on the other hand,
acts as a set of brakes, and dictates when government action has impermissibly gone
too far. The recent Supreme Court decision in Koontz v. St. Johns River Water
Management District, is just the third Supreme Court case to address exactions and
helps our courts to determine when government action has exceeded its authority.
This toolkit contains a number of helpful items that will help builders understand
and utilize Koontz in their business practices:
1) An online video, presented by two of the premier land use authorities in the
United States, Kenneth Bley and Timothy Hollister. This video gives the overview
of exactions and the Koontz case, and is an excellent starting point for builders
seeking to understand exactions;
2) A copy of the presentation slides assembled for the online video;
3) A two-page executive summary;
4) This detailed paper about exactions and the three Supreme Court cases
dealing with exactions, along with tips on how builders should utilize Koontz to
their advantage;
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5) A description of various types of exactions (Appendix I);
6) A survey of the legal state of legislative exactions by jurisdiction (Appendix II);
7) A survey of existing state laws that are potential candidates for legislative
amendment efforts in order to best reflect the benefits of the Koontz case
(Appendix III); and
8) A copy of a recent Virginia legislative effort that represents the type of
legislative language that will benefit builders (Appendix IV).
As you go through this Toolkit, remember that NAHB staff are available to assist
the membership. If you have any questions or comments about the toolkit or
with a specific exaction situation, please email Devala Janardan at
[email protected].
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INTRODUCTION TO EXACTIONS
Every new development project whether residential, office, or commercial,
places added demands for infrastructure and other public facilities (such as schools and
parks). For much of the 20th century, the burden of paying for the additional
infrastructure fell on the public sector, funded by state and local tax collections. Today’s
development environment is different, as governments increasingly shift the burdens of
new infrastructure costs to the private sector. This is the result of a number of factors,
including: 1) declining federal/state aid to local governments; 2) increased burden on
localities in the form of federal/state unfunded mandates; 3) rising service demands; 4)
political ease 5) increased costs of construction and raw materials for new infrastructure;
and 6) taxpayer revolt laws, such as California Proposition 13.i ii As a result, states and
local governments have expanded alternative means, such as exactions, to fund capital
improvements.
As discussed below, exactions have unique characteristics so the Supreme Court
has carved out a set of legal principles to be used only for exactions. The Supreme
Court’s decision in Koontz v. St. Johns Water Management District iii, sent a strong
message that governments often employ extortion-like pressure upon private property
owners when these owners want to improve their property. As discussed below, the
Koontz case confirmed certain legal principles and added certain categories of
government action to be closely scrutinized by our courts.
THE BROADER PICTURE – FIFTH AMENDMENT
Before discussing the specific topic of exactions, it helps to have a quick overview
of the broader context. The Fifth Amendment to the U.S. Constitution provides in part
that “private property shall not be taken for public use, without just compensation.” A
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court can find that the government has committed an unconstitutional taking under a
few different scenarios. First, if the government permanently and physically invades
your land without compensation then this is considered a physical taking, requiring the
government to pay just compensation. Loretto v. Teleprompter Manhattan CATV Corp.iv
One such example would be if the government built a road that encroached your
property, but didn’t initiate condemnation proceedings to constitutionally take the land
by providing just compensation. Along the same plane, if the government doesn’t
physically invade your land, but passes a law that removes all economic value from your
property, (ex. when a landowner owns a piece of coastal property and the government
passes a law prohibiting all further development on the coast), then this too would be
taking. In this case, government is not physically occupying your land but rather passing
a regulation that essentially acts in the same manner by preventing the landowner from
any use of the property. Lucas v. South Carolina Coastal Council.v
In the case where not all economic value has been lost, then courts can still find a
regulatory taking, but the taking is not automatic and courts must first balance a
number of factors to determine whether the government regulation has gone too far as
to constitute a taking requiring just compensation. This test, referred to as the Penn
Central test, is named after the famous Supreme Court case of Penn Central Trans. Co. v.
New York City.vi Unfortunately for private property owners, Penn Central has been
applied by courts to strongly favor government. In one recent case, a private property
owner had his land devalued by 80%, yet a court ruled that there was no regulatory
taking and the owner was not due any just compensation.vii
As discussed below, exactions provide developers with a level of constitutional
comfort somewhere above the protection provided by Penn Central and below that of a
physical taking.
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CONSTITUTIONAL TREATMENT OF EXACTIONS
Exactions are land, money, goods, or services which a government requires that a
developer provide as a condition of the grant of a land use approval. For example, if a
landowner has 10 acres of land and applies for a permit, the government may come
back and say that you can build on 9 acres and then preserve the remaining acre as a
public park. At this point, the landowner has two primary choices. The landowner can
agree preserve the acre as a public park. Arguably, there is no taking because the
landowner and government have reached a deal, similar to any contractual negotiation
between two parties. On the other hand, if the landowner does not agree to the
government’s counteroffer to set one acre aside for a park, then the landowner is left
with the exact same piece of property he/she started with. Once again, arguably there is
no taking under traditional takings analysis because the government has not altered the
status quo of the land. Yet, clearly the government action has the potential to be unfair.
Exactions create a unique problem in land use law because of the unequal
bargaining power between the government and the property owner. In short, the
government holds most of the cards and “can pressure an owner into voluntarily giving
up property for which the Fifth Amendment would otherwise require just
compensation.” Most builders are very familiar with this, and will accept government
exactions so that the project doesn’t stall, or to prevent litigation.
To ensure that private property rights are preserved, the Supreme Court has
created a legal test for courts to use that is specific to the exaction context. Otherwise
the government could ask for the moon and still not be legally responsible for any
damage caused due to the landowner’s inability to develop. This test is called the
Nollan/Dolan test, and is named after two U.S. Supreme Court cases: Nollan v. California
Coastal Commission,viii and Dolan v. City of Tigard.ix In short, the Nollan/Dolan test does
two main things that help builders in the courtroom: 1) it provides more constitutional
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protection than the Penn Central analysis (called “heightened scrutiny”); and 2) it forces
government to provide sufficient evidence showing why the exaction is constitutional
(called “burden shifting”).
EFFECT OF HEIGHTENED SCRUTINY
without Nollan/Dolan
Exaction
Constitutional
with Nollan/Dolan
Exaction
Constitutional
Exaction
Unconstitutional
Exaction
Unconstitutional
BURDEN SHIFTING
* Without Nollan/Dolan, the property owner must bring forth
the evidence to prove that the government exaction is unconstitutional.
* With Nollan/Dolan, the government is responsible for bringing
forth the evidence to prove that government exaction is constitutional.
Removing the legal jargon from the discussion, the bottom line is that courts are
must more likely to rule that a particular government action is unconstitutional if
subject to Nollan/Dolan. Next, let’s look at the Nollan/Dolan test itself by examining the
cases involved.
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NOLLAN V. CALIFORNIA COASTAL COMMISSION – THE “ESSENTIAL NEXUS”
In Nollan, owners of coastal property submitted an application to the
government to demolish a small bungalow that had fallen into disrepair, and in its place,
build a larger 3-bedroom home. The California Coastal Commission granted the
development permit, but placed a condition on the permit approval. The government
conditioned the permit approval on a grant of an easement by Nollan to the public along
the seawall on the beach-side of the property. The Commission explained that the
easement was needed because the renovated and taller Nollan property would
“psychologically prevent the public from realizing that a stretch of coastline exists
nearby that they have every right to access.”
Outside of the permit context, if the government had simply come to Nollan and
taken an easement to the public along the seawall, then this would have undoubtedly
been a taking. However, the government didn’t do that in Nollan. Rather, it conditioned
the permit approval on the Nollan’s granting an easement. This shows why exactions
need to be treated differently than other takings-type actions.
In ruling against the government’s action, the Court created the first test for
exactions, stating that there must be an “essential nexus” between the exaction and
the government’s legitimate purpose. In this case, the government had claimed that
the purpose was to remove the psychological barrier to beach access from the street.
However, as the Court rightly noted, an easement behind the house and along the
beach did not connect with the government’s claimed purpose of removing
psychological barriers from those trying to access the beach from the front of the
property.
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DOLAN V CITY OF TIGARD – EXACTIONS MUST BE ROUGHLY PROPORTIONAL
In this case, Dolan owned a 10,000 sq/ft store with a parking lot in City of Tigard,
Oregon. A creek existed on one side of Mrs. Dolan’s property, so some of Mrs. Dolan’s
property extended into the floodplain. Mrs. Dolan applied for a permit to expand her
store and to create a paved parking lot to accommodate her growing clientele. The City
granted the permit, but just like in Nollan, the government conditioned the permit
approval on the following conditions: 1) Mrs. Dolan had to dedicate the 10% of her land
that was located in floodplain to be used by the City to improve drainage into the creek.
2) Mrs. Dolan had to dedicate an additional 15-foot strip for a pedestrian/bicycle
pathway that would follow alongside the creek.
Mrs. Dolan sued, claiming that the city was forcing her to choose between
receiving a building permit and her right to receive just compensation for the public
easements. The Supreme Court agreed with Mrs. Dolan, relying on the legal doctrine of
unconstitutional conditions, which states that “the government may not require a
person to give up a constitutional right in exchange for a discretionary benefit conferred
by the government” – in this case that would be the right to receive just compensation
when property is taken for a public use.
The Court first looked at the legal test set out in Nollan. As discussed above, this
is whether or not there is an “essential nexus” between the exaction and a legitimate
governmental purpose. In Mrs. Dolan’s case, the Court found that the government’s
action met the Nollan test. The prevention of flooding and reduction of traffic
congestion were both legitimate public purposes, and the exactions that the
government demanded had this nexus to the public purposes.
Fortunately, the Court didn’t stop there. Instead, it created an additional step,
stating that in addition to Nollan’s nexus requirement, there must also be a relationship
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between the exaction and the projected impact that the new development will have. In
the Court’s words, there must be a “rough proportionality” between the exaction and
the projected impacts of the proposed development.
Additionally, the Court clarified that “rough proportionality” was not a term with
mathematical precision, but it does require the government to perform an
individualized determination that the specific exaction requested is related to the
project impacts. In this case, the City of Tigard had never made an individualized
determination as to why granting a public easement was required in the interest of
flood control. Further, with regards to the bike path, the City had never showed how
additional number of vehicle and bicycle trips generated by the proposed development
related to the City’s requirement for Mrs. Dolan to dedicate property for the bicycle
pathway.
In summary, courts are now apply the Nollan/Dolan test to exactions:
1) There must be an essential nexus between the exaction and a legitimate
government purpose; and
2) There must be a rough proportionality between the exaction demanded and the
impact of the proposed development.
AFTER NOLLAN/DOLAN BUT BEFORE KOONTZ – OPEN QUESTIONS
The Nollan and Dollan cases are undoubtedly two of most favorable cases for
private property owners; however, despite the rulings there remained a number of
unanswered questions that the two cases did not address.
QUESTION 1: Does Nollan/Dolan apply to ad-hoc exactions only, or does it also apply
to legislative exactions?
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Exactions fall under two broad categories: ad-hoc and legislative. Ad-hoc
exactions are the exactions that are uniquely negotiated for each property. One
example is when a developer wants to build a multi-story building, and the government
asks the developer to widen the street directly adjacent to the development, or
requests the developer to donate land to be used to build a school for the children that
will live in development. While there may be a law that enables to government to
negotiate exactions, the parameters of each exaction are not specified by the law; the
law simply gives government the discretion to do so. Some other general examples of
ad-hoc exactions include dedications of on-site property, on-site improvements and offsite improvements. Nollan, Dolan, and Koontz all specifically addressed exactions in
the ad-hoc context. Unfortunately, the picture is less clear as to what legal test
legislative exactions are subject to because the Supreme Court has not directly decided
a case dealing with whether legislative exactions are subject to Nollan/Dolan scrutiny.
Legislative exactions are not uniquely negotiated for between the developer and
government. Rather, these exactions are mandated by law. The most common example
of a legislative exaction is an impact/development fee. Many lower courts have refused
to apply Nollan/Dolan to legislative exactions, treating them more like any generallyapplicable law that is subject only to the government’s authority under the police power.
Courts provide great leeway to laws enacted under the police power. Some courts, on
the other hand, apply Nollan/Dolan to legislative exactions. See Appendix II to this
toolkit for a case survey on how courts around the country treat legislative exactions.
QUESTION 2: Does Nollan/Dolan apply only to real property exactions (such as land
dedications) or does it also apply to monetary exactions (such as in-lieu fees)?
Another undecided question was whether Nollan/Dolan were limited to
exactions that deal only with real property. Nollan and Dolan both involved exactions
that forced the property owner to dedicate a real property easement in exchange for
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the permit. Since the Supreme Court had not decided a case dealing with non-real
property exactions (until Koontz), the lower courts were split on whether or not
monetary exactions were treated the same as real property exactions. Of course, private
property owners argued that if real property exactions were subject to the Nollan/Dolan
test and monetary exactions were not, then governments would simply stop asking for
real property exactions and switch completely over to exacting money from builders.
QUESTION 3: Does Nollan/Dolan only apply when the government approves a permit
with conditions, or does it also apply when the government denies a permit
application?
Nollan and Dolan addressed cases where the government approved a permit,
but put conditions on the approval. As a way to avoid Nollan/Dolan, many municipalities
simply denied the permits, and many courts accepted this tactic and subjected the
denial of the permit to a lower legal standard.
The Koontz case answers questions 2 & 3 above.
KOONTZ V. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT – THE FACTS AND DECISION
In 1972, Koontz purchased 14.9 acres just east of Orlando. The same year that
Koontz bought the property, Florida enacted the Water Resources Act. This Act
partitioned the State into five separate water management districts, which in part,
regulated construction that were connected to the waters in the state. The Koontz
property was largely designated as wetlands, so Koontz was required to obtain a permit
from the water management district in his jurisdiction and show that the construction
would not be contrary to the public interest.
Koontz desired to develop on 3.7 acres of the 14.9 acres and in 1994 he applied
to the District for the requisite permits. He proposed that in return, a conservation
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easement would be deeded to the District that precluded any future development on
the remaining 11.2 acres. The District refused Koontz’s offer, and countered with two
options: 1) he could reduce the size of his development to one acre and conserve the
remainder; or 2) he could proceed with his original proposal but additionally pay for
contractors to
perform wetlands mitigation on 50 acres of District-owned offsite
wetlands. Part of the District’s policy required permit applicants wishing to build on
wetlands to perform offsite mitigation of wetlands. Koontz didn’t like his options, and
refused the alternatives provided by the District. The District then denied his application
because he didn’t agree to the conditions.
Koontz then sued in state court. The case made its way through the lower courts until it
got to the Supreme Court of Florida. Here, Koontz lost. The court said that Nollan/Dolan
analysis did not apply because the permit was never approved like it was in
Nollan/Dolan. The court reasoned that the denial of the permit did not change the
property in any way; Koontz still had the exact same piece of property he had before the
permit application. Hence, the court reasoned there could be no taking. Secondly, the
court said that Nollan/Dolan didn’t apply because Nollan/Dolan only applied to
exactions that dealt with real property, not monetary property.
Koontz appealed to the Supreme Court on these two issues: 1) Whether
Nollan/Dolan applies to situations where the government denies a permit because of
Koontz’s refusal to accept the government’s proposal and 2) whether monetary
exactions (paying for the offsite mitigation) are subject to Nollan/Dolan analysis.
In June 2013, the Supreme Court released its opinion in this case. As it mentioned
in Dolan, the Court focused on the doctrine of unconstitutional conditions, which states
that the government must not place a condition or make an individual do something
which forces one to give up rights under the Constitution. The Supreme Court
recognized that land use cases are particularly apt to extortion-like pressure from the
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government. The government has broad discretion to deny a permit, and in cases where
the value of receiving the permit is worth more than the land itself, a developer will
likely give up the land so that he can capitalize on the development itself. In response
the Court stated, “[e]xtortionate demands for property in the land user permitting
context run afoul of the Takings Clause not because they take property but because they
burden the right not to have property taken without being compensated for it.” The
Court rejected the notion that “if the government need not confer a benefit at all, it can
withhold the benefit because someone refuses to give up constitutional rights.” Because
of this, it makes no difference if the government denies a permit, or conditionally
approves a permit: both scenarios must meet Nollan/Dolan analysis.
The Court also ruled that monetary exactions are subject to Nollan/Dolan. The
Court relied on the fact that there is a “direct link” between the government’s demand
and a specific piece of real property. Further, the Court mentioned that there was a risk
that the government would simply stop using non-monetary exactions if there was a
lesser standard of court review for monetary exactions.
WHAT IS THE LEGAL REMEDY FOR A KOONTZ VIOLATION?
As discussed above, the Supreme Court ruled in favor of Koontz not because the
government committed a taking under the Fifth Amendment, but rather because the
government violated the doctrine of unconstitutional conditions. As the Court stated,
“[w]here the permit is denied and the condition is never imposed, nothing has been
taken.” To add to this, when Koontz brought his case, his claim was brought under state
law, not under the Fifth Amendment. Because of this, the Court stated that the remedy
for a Koontz violation is what is available under state law. Since this case originated in
Florida, Koontz relied on a Florida law that allows property owners to sue for damages
whenever a state agency’s action is “an unreasonable exercise of the state’s police
power constituting a taking without just compensation.” Fla. Stat. Ann. Sec 373.617. The
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Court declined to decide whether an unconstitutional condition applied to this statute,
leaving the issue for lower courts to decide.
It is crucial that home-building and developer advocates in their respective
jurisdiction examine the existing case law, and take proactive legislative efforts to
ensure that each jurisdiction allows for flexible remedies for builders, including
compensatory damages, injunctive relief for the locality to issue the permits without the
unconstitutional condition, reasonable attorney fees and court costs. See Appendix III
for a survey of state laws that builder advocates might be able to use and amend
these laws to reflect the benefits of Koontz case. Additionally, the toolkit provides the
results of a recent legislative effort in Virginia that successfully provides developers
access to a broad range of remedies (Appendix IV). It should be a goal to incorporate
the types of remedies provided in Appendix IV with those that currently exist under
Appendix III.
SO WHAT’S THE BOTTOM LINE AND HOW WILL GOVERNMENTS RESPOND TO KOONTZ
With the Koontz case, the Supreme Court made it clear that governments do not
have free-reign to demand whatever they want from developers. Concessions requested
by the government must meet Nollan/Dolan heightened scrutiny, and it is up to the
government to show that it has met this burden. Through Koontz, Nollan/Dolan scrutiny
applies to a wider variety of exactions, including exactions for money, in-lieu fees, open
space dedications, utility upgrades, road improvements, exactions on government land,
and excessive application fees.
At this point it is uncertain as to how government will respond to the Koontz case.
Because Koontz negates any legal difference between permit approval and a permit
denial, it is possible the government will avoid making any final decisions on permit
applications and instead alter the decision-making process itself. This could come in the
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form of lengthy negotiations and/or legal language inserted by government designed to
prevent the property owner into thinking that there has been a final decision. Relatedly,
this could also mean that the government will be unwilling to even start informal
negotiations until conducting internal individualized determinations on whether an
exaction meets Nollan/Dolan scrutiny. To have local governments hesitate from making
deals would be an unfortunate result from the Koontz decision.
Another possible reaction by government is to shift from away from
individualized and negotiated-for (ad-hoc) permit conditions. This could come in
multiple forms, like legislative exactions. As discussed earlier Nollan, Dolan, and Koontz
all deal with the context of ad-hoc permit conditions, so the Supreme Court still has not
decided whether legislative exactions are subject to Nollan/Dolan scrutiny.
Governments may move towards this “one-size-fits-all” standard that would be
enforced by a statute, ordinance and/or regulation.
HOW BUILDERS CAN TAKE ADVANTAGE OF KOONTZ
As mentioned above, one possible tactic by governments to minimize the impact
of Koontz is to hesitate on a final permit decision and stretch the negotiation process.
While it has always been important for property owners to keep track of negotiations
with government, with Koontz it is critical to create a paper trail of these dealings prior
to a permit denial since a denial itself is now subject to Nollan/Dolan analysis.
Second, builders/developers should perform their own analysis under
Nollan/Dolan/Koontz. As an example, let’s say that a builder applies for a permit to build
2 single-family units alongside a well-developed public two-lane road. In response, the
government responds by requesting that the builder widen the public road to 4 lanes for
2 miles before and after the proposed development. In the alternative, the government
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also says the developer can pay a fee of $50,000 to mitigate the traffic impact of the
new development.
As the builder you should be performing the legal analysis, asking 1) Has the
government claimed a legitimate interest and is there an essential nexus between
requiring the builder to expand the public road and the claimed governmental interest;
and 2) Is there a rough proportionality between widening the road to 4 lanes and the
projected impact that building 2 single family homes will have?
In most instances, including this one, government will meet the first step. In this
case, the government is not asking the builder to build a park in order to mitigate traffic.
Here, the government is asking the builder to widen a road in order to ensure the public
safety and welfare of having sufficient capacity for traffic. As in most cases, a builder’s
focus should be on step 2; that is, is there the requisite proportionality? It is easy to see
with this simple example that requiring a builder to double the infrastructure in a welldeveloped area is not roughly proportional to the traffic impact that will result from 2
new single-family homes. In addition, the Koontz case now confirms that Nollan/Dolan
analysis also applies to the $50,000 alternative provided by the government.
Third, at the same time that the builder is conducting their own analysis,
Nollan/Dolan/Koontz requires the government to perform the its own individualized
determination as to why the exaction is constitutional. It is wholly appropriate that
builders ask and scrutinize this individualized determination.
Finally, if dealing with a legislatively-enacted exaction, have an attorney provide
guidance as to the law in your jurisdiction. As mentioned, the Supreme Court has not
provided an opinion as to whether these exactions are subject to Nollan/Dolan/Koontz
or a lower legal standard. But as mentioned above and in Appendix II, some lower
courts have extended Nollan/Dolan/Koontz legislative exactions. Additionally, see
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Appendix I for an additional legal analysis that developers should apply to impact fees,
to ensure that governments are not trying to utilize impact fees for something that is
truly a tax.
NAHB ASSISTANCE
Exactions can involve complicated issues, but rest assured, NAHB can help builders to
consider the legal issues related to development and implementation of local land use
ordinances. Contact NAHB staff Devala Janardan at [email protected] if you would
like a review of a proposed or existing ordinance or a demand by government and
whether or not the government demand raises the potential of a Nollan/Dolan/Koontz
violation. If you are already involved in litigation, consider financial and/or amicus
assistance
by
NAHB
through
the
Legal
Action
Fund.
Go
to
http://www.nahb.org/generic.aspx?sectionID=699&genericContentID=10518 to find out
more about the Legal Action Fund.
i
Arthur C. Nelson, Development Impact Fees: The Next Generation, 26 URB. LAW. 541 (1994).
Alan A. Altshuler & Jose A. Gomez-Ibanez, Regulation for Revenue: The Political Economic of Land Use Exactions
25-26 (1993). See also Alan C. Weinstein, The Ohio Supreme Court’s Perverse Stance on Development Impact Fees
and What to Do About It, 60 Clev. St. L. Rev. 655 (2012).
iii
570 U.S. _____ (2013), 133. S.Ct. 2586.
iv
458 U.S. 419 (1982).
v
505 U.S. 1003 (1992).
vi
438 U.S. 104 (1978).
vii
th
MHC Financing Ltd. v. City of San Rafael, 714 P.3d 1118 (9 Cir. 2013).
viii
483 U.S. 825 (1987).
ix
512 U.S. 374 (1994).
ii
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APPENDIX I – TYPES OF EXACTIONS
Types of Exactions
There are various types of exactions, including: dedication of on-site property, onsite improvements, off-site improvements, fees in-lieu of dedication, impact fees, linkage
fees, and development excise taxes. It is important to remember that some courts treat
ad-hoc exactions differently than legislative exactions. See the main Toolkit paper and
Appendix II for further discussion.
Dedication Requirements, On-site Improvements, Off-site Improvements
Developers are often required to agree to construct on-site improvements
and/or dedicate land for public use before receiving approval of a subdivision plat. They
do not receive compensation for these improvements or for the cost of the land
dedicated. In some circumstances, a developer may be asked to make off-site
improvements, such as improvement/widening of roads, and traffic lights that surround
the proposed development.1
Fees In-Lieu of Dedication
In cases where land proposed for development is not suitable or large enough for
the preservation of space for public facilities such as schools, libraries, police and fire
stations or parks, land dedication is not an effective exaction for local governments. In
these instances, some municipalities have implemented fee in-lieu programs. Fees in-
See Upton v. Town of Hopkinton, 945 A.2d 670 (N.H. 2008)(sustaining the condition of approval that developer
must pay portion of the costs of improving a road upon which the proposed subdivision would be located);
But see Benchmark Land Co. v. City of Battle Ground, 49 P.3d 860 (Wash. 2002)(holding that the city had not
presented sufficient evidence to show that road improvements would have a positive impact on traffic, safety
and other operations); See also, James A. Kushner, Subdivision Law & Growth Management §6:24 (2d ed.
2012).
1
I
lieu are also used where the municipality would rather place the public facility in a
nearby location.2
The most significant feature of the fee in-lieu is that a municipality may collect the fees
from multiple neighboring developments and use the money to construct facilities that
are not for the exclusive benefit of one subdivision, but for several. Id. Although initially
controversial, fee in-lieu of dedication has become widespread. Their popularity
increased due to the fact that they are more flexible cost-shifting too.3
Despite the use of fees in-lieu, municipalities still struggled to finance the construction
of new schools, parks, libraries and sewer and water mains. In the search for
alternatives to raising property taxes, the "development impact fee" evolved as an
alternative method of shifting the costs of growth to new development.
Impact Fees – They Are Exactions, But Courts Rule Differently As to Whether they Are
Subject to Nollan/Dolan Scrutiny.
Impact fees are often mislabeled, but the bottom line is that impact fees are a type of
development exaction, but with unique characteristics. Impact fees are charges levied
by local governments against new development in order to generate revenue for capital
funding necessitated by the new development. 4 Impact fees by definition are
legislatively-enacted, uniformly applied, and involve a monetary sum (not real property
dedication) paid by the developer per a fee schedule. The income generated by these
fees is used to fund sewers, roads and bridges, and many other public facilities. These
See generally, John J. Delaney et al., Handling the Land Use Case: Land Use Law, Practice & Forms §27:4 (3d
ed. 2012). See also Theodore C. Taub, Exaction’s, Linkages & Regulatory Takings: The Developer’s Perspective, 20 The
Urban Lawyer 515, 521 (1988).
3 . See Donald G. Hagman & Julian C. Juergensmeyer, Urban Planning and Land Development Control Law
277 (2d ed. 1986).
4 Hagman, supra note 6 at 277. See also, Home Builder v. Bld. Of Palm Beach Cty. Comm’rs., 446 So. 2d 140, 143
(Fla. App. 4 Dist. 1983) (holding that an impact fee ordinance requiring new development to pay a "fair
share" of the reasonably anticipated cost of expansion of new roads attributable to the new development was
valid).
2
II
fees can also be used to accommodate social impacts of development such as the need
for schools and libraries.5 Impact fees, more so than physical land exactions, resemble
taxes and therefore have an additional layer of legal analysis to determine whether it is
a valid fee or an impermissible tax.
Impact fees are different from other forms of exactions in other distinctive ways. 6
First, the impact fee is usually imposed when a building permit is issued rather than as a
condition of plat approval. As a result, the money generated by the impact fees
becomes available to the municipality closer to the time when the additional services
will be needed.7 Second, the impact fee is levied against new development in general,
rather than on an ad hoc basis. This flexibility allows municipalities to charge impact fees
for the construction of all types of residential and commercial or industrial
developments. Third, rather than solely assessing the fee based on the acreage of the
development (as is the case with dedications and fees-in-lieu), the impact fee may be
assessed based on other aspects of a development such as square footage, the number
of the living units or number of trips generated by the new development on a particular
road. These methods of assessment theoretically allow for a more accurate relationship
between the fees paid by the developer and the development’s impact on the
surrounding area.8 Finally, impact fees may be used to fund a wider variety of services
and facilities since they have been used to finance the off-site construction of facilities
and capital improvements.9
But see, St. Johns Cty. V. Northeast Florida Builders Association, Inc., 583 So.2d 635 (Fla. 1991)(rejecting the use of
impact fees to fund new schools); See also 53A-20-100.5 Utah Code Annotated 1953, imposing a moratorium
on the imposition of impacts fees for the purpose of constructing new schools; Sweeney, supra note 7 at 52.
6 See generally, Taub, supra note 4 at 520-524 (discussing the differences between impact fees and earlier forms
of exactions).
7
John J. Delaney, Larry A. Gordon & Kathryn J. Hess, The Needs-Nexus Analysis: A Unified Test for
Validating Subdivision Exactions, User Impact Fees and Linkage, 50 Law & Contemp. Probs. 139, 142
(Winter 1987).
5
8
R. Marlin Smith, From Subdivision Improvement Requirements, to Community Benefit Assessments: A Brief
History of Land Development Exactions, 50 Law & Contemp. Probs. 5, 15 (Winter 1987).
9
Hagman, supra note 6 at 277.
III
Linkage Fees
As development impact fee programs become more common, a few cities have taken
them a step further and have created what is referred to as a "linkage fee program." The
term linkage refers to the practice of requiring developers to contribute, either in-kind
or by payment, to the off-site construction of low or moderate income housing or other
"needs" of the community. Linkage fees have been used to accommodate the loss of
low income housing, 10 increased public transportation ridership, 11 job training
programs,12 and childcare facilities.13 When used to help fund the construction of lowincome housing, "the purpose of linkage programs is too impose an obligation on
developers of office buildings to build affordable housing in the community or
contribute an in-lieu fee to a fund designed to support the construction of such
housing."14 Generally, linkage fee programs determine the demand for housing based
on the square footage of the office space. In short, the right to develop has been
conditioned upon the requirement of constructing or financing new housing, on the
theory that new office buildings generate a need for housing.15
Development Excise Taxes
Finally, developers should be aware of another type of revenue-raising mechanism used
by local governments. Described as "an exercised in cleverness and imagination,"16
development excise taxes are the most recent trend in the financing of public facilities.
10
See generally, Jane E. Schukoske, Housing Linkage: Regulating Development Impact on Housing Costs, 76 Iowa
L. Rev. 1011 (1991)(discussing linkage programs in California, Massachusetts, New Jersey, Connecticut and
Florida.)
11
12
13
14
In New Jersey Builders Association v. Mayor and Twp. Comm. Of Bernards, 528 A.2d 555 (N.J. 1987).
Boston Zoning Code, art. 26B (1986).
San Francisco Planning Code § 314 (1986).
Denbo, supra note 2 at 25-26, citing Jerold S. Kayden & Robert Pollard, Linkage Ordinances and Traditional
Exactions Analysis; The Connection Between Office Development and Housing, 50 Law & Contemporary Problems
127, 128 (Winter 1987).
15
Smith, supra note 13 at 25.
16
William H. Either & Howard J. Weiss, Development Excise Taxes: An Exercise in Cleverness and Imagination,
Land Use Law (Feb. 1990).
IV
Although development excise taxes appear regulatory in nature and have the same
effect as an impact fee, they are slightly different from impact and linkage fees in that
they are not derived from the state’s police powers. The development excise tax is a
"municipal excise tax on the business of subdividing land or developing property" used
to raise revenue.17 The most distinctive feature of the development excise tax is that it is
not a regulatory fee based on the police power of the state. Rather, the authority to
impose a development excise tax must be based on the power to levy taxes, which must
be specifically granted to the municipality by the state legislature. Also, unlike the
revenue raised from impact fees, revenue generated from development excise taxes is
not required to be earmarked for particular uses. 18 Instead, it is deposited into a general
fund. [Id] Although this type of revenue generating mechanism is expressly labeled as a
tax, it may often be challenged on the same theories as an impact or linkage fee based
on the argument that it is regulatory in nature.19
In general, the authority to impose exactions on developers stems from the state’s
"police power" which allows state and local governments to enact legislation with the
purpose of protecting the health, safety or general welfare of its citizens. 20 Impact fees,
dedication requirements, fees in-lieu of dedication and linkage fees are examples of the
ways in which the state can use its "police power" to fund the construction of
infrastructure and public facilities necessitated by increasing development. The
development excise tax is an exception to the general rule. The authority to impose a
development excise tax is based on the power to levy taxes, rather than the police
power. In many cases, the authority to impose impact fees and exactions must be
granted to local government units through specific enabling legislation.
17
Strauss & Leitner, Financing Public Facilities With Development Excise Taxes: An Alternative to Exactions and
Impact Fees, 11 Zoning & Plan. L. Rep. 17, 19 (March 1988).
18
Sarah Hughes Sigel & Brett Diggs, Discerning the Differences Between Impact Fees and Construction Excise
Taxes, State & Local Perspective, March 1992.
19
Either, supra note 21 at 3.
20
See, Susan Denbo, Development Exaction’s: A New Way to Fund State and Local Government Infrastructure
Improvements and Affordable Housing? 23 Real Estate Law Journal 7, 8 (1994).
V
VI
APPENDIX II – COURT TREATMENT OF LEGISLATIVE EXACTIONS
All three exaction cases heard by the Supreme Court existed in the context of an ad-hoc
exaction between the permit applicant and the government. Unfortunately, the
Supreme Court has not decided a case where the exaction is legislative in nature; that is,
an exaction which is generally applicable. For example, an impact fee, would generally
be considered as a legislative exaction. Below is a sample of cases by lower courts that
have addressed the issue of the type of legal review that should be applied to legislative
exactions.
Alabama
St. Clair Cnty. Home Builders Ass'n v. City of Pell City - Dolan does not apply to generally
applicable
legislative
enactments.
61
So.
3d
992,
1007
(Ala.
2010).
California
San Remo Hotel L.P. v. City & County of San Francisco – Legislatively imposed
development exactions must, as “a matter of both statutory and constitutional law, . . .
bear a reasonable relationship, in both intended use and amount, to the deleterious
public impact of the development. 27 Cal. 4th 643, 671 (2002).
However, the California Supreme Court has recently agreed to hear whether mandatory
inclusionary housing ordinances are subject to the San Remo standard. California Bldg.
Indus. Assn. v. City of San Jose, 307 P.3d 878 (Cal. 2013)(petition for review granted).
Georgia
Greater Atlanta Homebuilders Ass'n v. DeKalb Cnty. – Dolan analysis rejected because
case “involve[d] a facial challenge to a generally applicable land-use regulation.” 277 Ga.
VII
295, 298, 588 S.E.2d 694, 697 (2003).
Illinois
Northern Illinois Homebuilders v. County of DuPage – Legislative impact fee ordinance
invalidated for failure to meet Dolan standards. 649 N.E.2d 384.
Kansas
McCarthy v. City of Leawood – Court failed to apply Nollan/Dolan analysis to impact fee
ordinance.
894
P.2d
836
(Kan.
1995).
Maryland
City of Annapolis v. Mareen Waterman – Exactions can be both legislative and ad hoc,
but Nollan/Dolan doesn’t apply to “regulations”. 745 A.2d 1000 (Md. 2000).
Ohio
Home Builder Ass’n of Dayton v. City of Beavercreek, 729 N.E.2d 349 (Ohio 2000) –
Impact Fee ordinance upheld as complying with Nollan/Dolan.
However, in 2012, the Ohio Supreme Court ruled that a development impact fee
enacted by an Ohio township with “limited home rule” was an unconstitutional tax.
Drees
Co.
v.
Hamilton
Twp.,
970
N.E.2d
916
(Ohio
2012).
Texas
Town of Flower Mound v. Stafford Estates Ltd. Partnership - the Texas Supreme Court
suggested that “[w]hile we recognize that an ad hoc decision is more likely to constitute
a taking than general legislation, we think it entirely possible that the government could
‘gang up’ on particular groups to force extractions that a majority of constituents would
not only tolerate but applaud, so long as burdens they would otherwise bear were
VIII
shifted
to
others.”
135
S.W.3d
620,
640-641
(Tex.
2004).
Washington
Isla Verde Int'l Holdings, Inc. v. City of Camas – Applied Dolan to open space set aside
ordinance. 990 P.2d 429, 435 (1999).
Ninth Circuit Court of Appeals
McClung v. City of Sumner - Since a storm pipe requirement was an across-the-board
requirement, and not an “individual, adjudicative decision”, that Nollan/Dolan analysis
did not apply. 548 F.3d 1219, 1227-1228 (9th Cir. 2008)
.
IX
APPENDIX III - EXISTING STATE LAWS THAT ARE CANDIDATES FOR LEGISLATIVE EFFORTS
TO REFLECT KOONTZ DECISION
NOTE: This document gives a sample of the various laws in each jurisdiction that are potential
candidates for a legislative effort to insert Koontz remedial language. This document will not
contain each and every relevant law in your state. This document will be amended and
changed frequently.
While the Koontz decision provides answers for some questions dealing with exactions, it also
opened up new questions that will now have to be decided by the lower courts. One of the
primary new questions concerns the remedy for a Koontz violation. The Fifth Amendment
provides just compensation in takings cases; but, as the Supreme Court clarified in Koontz,
exactions deal with the doctrine of unconstitutional conditions, so the remedy may or may not
be the same as the remedy in a takings case. As the Court clarified, if the case is brought
through a state law provision, then state law must also provide the remedy. Appendix IV
provides a recent legislative effort in Virginia that provides builders a favorable state remedy
for Koontz violations. The survey below lists examples of the current status of state law. Since
Koontz is a new case, most of these laws will likely not provide strong remedial relief for
builders who win a Koontz violation. Rather, most of the laws below are limited to inverse
condemnation relief. It is up to legislative efforts to ensure that language like the one used by
Virginia in Appendix IV is added to the current status as listed below.
For example, Alabama below has nothing specific related to Koontz violations, but it does have
remedial relief for inverse condemnation actions. The lower courts have not had the
opportunity to decide whether or not the inverse condemnation provides the relief for a Koontz
violation, so it would be wise for Alabama builders consider an effort to amend the law to
provide for the protections as in Appendix IV.
Alabama
Code of Alabama §18-1A-32. Condemnation action required; inverse condemnation.
(a) If property is to be acquired by a condemnor through the exercise of its power of eminent
domain, the condemnor shall commence a condemnation action for that purpose. A
condemnor shall not intentionally make it necessary for an owner of property to commence an
action, including an action in inverse condemnation, to prove the fact of the taking of his
property.
X
(b) The judgment and any settlement in an inverse condemnation action awarding or allowing
compensation to the plaintiff for the taking or damaging of property by a condemnor shall
include the plaintiff's litigation expenses.
Alaska
Alaska has “long recognized that where a taking has occurred and the issue is the awarding of
just compensation, “such compensation may be determined [in an inverse condemnation
action] utilizing so far as is practicable the statutory requirements and procedural steps” set out
for eminent domain proceedings. City of Kenai v. Burnett, 860 P.2d 1233 (Alaska 1993).
Alaska Statutes Annotated §09.55.310. Hearing
(a) The jury or master shall hear the allegations and evidence of persons interested and shall
ascertain and assess the following:
(1) the value of the property sought to be condemned, and all improvements on it pertaining to
the realty, and of each separate estate or interest in it; if it consists of different parcels, the
value of each parcel and each estate or interest in each parcel shall be separately assessed;
(2) if the property sought to be condemned constitutes only a part of a larger parcel, the
damages that will accrue to the portion not sought to be condemned by reason of its severance
from the portion sought to be condemned, and the construction of the improvements in the
manner proposed by the plaintiff;
(3) separately, how much the portion not sought to be condemned and each estate or interest
in it will be benefited, if at all, by the construction of the improvements proposed by the
plaintiff; and, if the benefit is equal to the damages assessed under (2) of this section, the
owner of the parcel shall be allowed no damages except the value of the portion taken; but if
the benefits are less than the damages so assessed, the former shall be deducted from the
latter and the remainder shall be the only damages allowed in addition to the value;
(4) if the property sought to be condemned is for a railroad, the cost of good and sufficient
fences along the line of the railroad, and the cost of cattle guards where fences may cross the
line of the railroad.
(b) As far as practicable, compensation shall be assessed for each source of damages separately.
Arizona
XI
Arizona Revised Statutes Annotated - § 11-832. Appeals of county actions; dedication or
exaction; excessive reduction in property value; burden of proof; attorney fees; compliance
with court decisions
A. Notwithstanding any other provision of this chapter, a property owner may appeal the
following actions relating to the owner's property by a county, or an administrative agency or
official of a county, in the manner prescribed by this section:
1. The requirement by a county of a dedication or exaction as a condition of granting approval
for the use, improvement or development of real property. This section does not apply to a
dedication or exaction that is required in a legislative act of the board of supervisors and that
does not give discretion to an administrative agency or official to determine the nature or
extent of the dedication or exaction.
2. The adoption or amendment of a zoning regulation by a county that creates a taking in
violation of subsection I.
B. The county shall notify the property owner that the property owner has the right to appeal
the county's action pursuant to this section and shall provide a description of the appeal
procedure. The county shall not request the property owner to waive the right of appeal or trial
de novo at any time during the consideration of the property owner's request.
C. The appeal shall be in writing and filed with or mailed to a hearing officer designated by the
board of supervisors within thirty days after the final action is taken. The county shall submit a
takings impact report to the hearing officer. A fee shall not be charged for filing the appeal.
D. After receipt of an appeal, the hearing officer shall schedule a time for the appeal to be
heard not later than thirty days after receipt. The property owner shall be given at least ten
days' notice of the time when the appeal will be heard unless the property owner agrees to a
shorter time period.
E. In all proceedings under this section the county has the burden to establish that there is an
essential nexus between the dedication or exaction and a legitimate governmental interest and
that the proposed dedication, exaction or zoning regulation is roughly proportional to the
impact of the proposed use, improvement or development or, in the case of a zoning regulation,
that the zoning regulation does not create a taking of property in violation of subsection I. If
more than a single parcel is involved, this requirement applies to the entire property.
F. The hearing officer shall decide the appeal within five working days after the appeal is heard.
If the county does not meet its burden under subsection E, the hearing officer shall:
XII
1. Modify or delete the requirement of the dedication or exaction appealed under subsection A,
paragraph 1.
2. In the case of a zoning regulation appealed under subsection A, paragraph 2, the hearing
officer shall transmit a recommendation to the board of supervisors.
G. If the hearing officer modifies or affirms the requirement of the dedication, exaction or
zoning regulation, a property owner aggrieved by a decision of the hearing officer, at any time
within thirty days after the hearing officer has rendered a decision, may file a complaint for a
trial de novo in the superior court on the facts and the law regarding the issues of the condition
or requirement of the dedication, exaction or zoning regulation. Pursuant to the standards for
granting preliminary injunctions, the court may exercise any legal or equitable interim remedies
that will permit the property owner to proceed with the use, enjoyment and development of
the real property but that will not render moot any decision upholding the dedication, exaction
or zoning regulation.
H. All matters presented to the superior court pursuant to this section have preference on the
court calendar on the same basis as condemnation matters, and the court may award
reasonable attorney fees incurred in the appeal and trial pursuant to this section to the
prevailing party. The court may further award damages that are deemed appropriate to
compensate the property owner for direct and actual delay damages on a finding that the
county acted in bad faith.
I. A county or an agency or instrumentality of a county shall comply with the United States
Supreme Court cases of Dolan v. City of Tigard, 512 U.S. 374 (1994), Nollan v. California Coastal
Commission, 483 U.S. 825 (1987), Lucas v. South Carolina Coastal Council, 505 U.S. 1003
(1992), First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304
(1987), Palazzolo v. Rhode Island, 533 U.S. 606 (2001), Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Regional Planning Agency , 535 U.S. 320 (2002) and Arizona and federal appellate court
decisions that are binding on Arizona counties interpreting or applying those cases.
§ 9-500-.12. Appeals of municipal actions; dedication or exaction; excessive reduction in
property value; burden of proof; attorney fees.
A. Notwithstanding any other provision of this chapter, a property owner may appeal the
following actions relating to the owner's property by a city or town, or an administrative agency
or official of a city or town, in the manner prescribed by this section:
1. The requirement by a city or town of a dedication or exaction as a condition of granting
approval for the use, improvement or development of real property. This section does not
apply to a dedication or exaction required in a legislative act by the governing body of a city or
XIII
town that does not give discretion to the administrative agency or official to determine the
nature or extent of the dedication or exaction.
2. The adoption or amendment of a zoning regulation by a city or town that creates a taking of
property in violation of § 9-500.13.
B. The city or town shall notify the property owner that the property owner has the right to
appeal the city's or town's action pursuant to this section and shall provide a description of the
appeal procedure. The city or town shall not request the property owner to waive the right of
appeal or trial de novo at any time during the consideration of the property owner's request.
C. The appeal shall be in writing and filed with or mailed to a hearing officer designated by the
city or town within thirty days after the final action is taken. The municipality shall submit a
takings impact report to the hearing officer. No fee shall be charged for filing the appeal.
D. After receipt of an appeal, the hearing officer shall schedule a time for the appeal to be
heard not later than thirty days after receipt. The property owner shall be given at least ten
days' notice of the time when the appeal will be heard unless the property owner agrees to a
shorter time period.
E. In all proceedings under this section the city or town has the burden to establish that there is
an essential nexus between the dedication or exaction and a legitimate governmental interest
and that the proposed dedication, exaction or zoning regulation is roughly proportional to the
impact of the proposed use, improvement or development or, in the case of a zoning regulation,
that the zoning regulation does not create a taking of property in violation of § 9-500.13. If
more than a single parcel is involved this requirement applies to the entire property.
F. The hearing officer shall decide the appeal within five working days after the appeal is heard.
If the city or town does not meet its burden under subsection E of this section, the hearing
officer shall:
1. Modify or delete the requirement of the dedication or exaction appealed under subsection A,
paragraph 1 of this section.
2. In the case of a zoning regulation appealed under subsection A, paragraph 2 of this section,
the hearing officer shall transmit a recommendation to the governing body of the city or town.
G. If the hearing officer modifies or affirms the requirement of the dedication, exaction or
zoning regulation, a property owner aggrieved by a decision of the hearing officer may file, at
any time within thirty days after the hearing officer has rendered a decision, a complaint for a
trial de novo in the superior court on the facts and the law regarding the issues of the condition
or requirement of the dedication, exaction or zoning regulation. In accordance with the
XIV
standards for granting preliminary injunctions, the court may exercise any legal or equitable
interim remedies that will permit the property owner to proceed with the use, enjoyment and
development of the real property but that will not render moot any decision upholding the
dedication, exaction or zoning regulation.
H. All matters presented to the superior court pursuant to this section have preference on the
court calendar on the same basis as condemnation matters, and the court shall further have the
authority to award reasonable attorney fees incurred in the appeal and trial pursuant to this
section to the prevailing party. The court may further award damages that are deemed
appropriate to compensate the property owner for direct and actual delay damages on a
finding that the city or town acted in bad faith.
Arkansas
Ark. Const. art. II, § 22 - The right of property is before and higher than any constitutional
sanction; and private property shall not be taken, appropriated or damaged for public use,
without just compensation therefor.
No inverse condemnation or other related statutory provisions found, but see caselaw. See, e.g,
City of Fayetteville v. Stanberry, 807 S.W.2d 26 (Ark. 1991).
California
Cal. Gov't Code § 66020 (West)
(a) Any party may protest the imposition of any fees, dedications, reservations, or other
exactions imposed on a development project, as defined in Section 66000, by a local agency by
meeting both of the following requirements:
(1) Tendering any required payment in full or providing satisfactory evidence of arrangements
to pay the fee when due or ensure performance of the conditions necessary to meet the
requirements of the imposition.
(2) Serving written notice on the governing body of the entity, which notice shall contain all of
the following information:
(A) A statement that the required payment is tendered or will be tendered when due, or that
any conditions which have been imposed are provided for or satisfied, under protest.
XV
(B) A statement informing the governing body of the factual elements of the dispute and the
legal theory forming the basis for the protest.
(b) Compliance by any party with subdivision (a) shall not be the basis for a local agency to
withhold approval of any map, plan, permit, zone change, license, or other form of permission,
or concurrence, whether discretionary, ministerial, or otherwise, incident to, or necessary for,
the development project. This section does not limit the ability of a local agency to ensure
compliance with all applicable provisions of law in determining whether or not to approve or
disapprove a development project.
(c) Where a reviewing local agency makes proper and valid findings that the construction of
certain public improvements or facilities, the need for which is directly attributable to the
proposed development, is required for reasons related to the public health, safety, and welfare,
and elects to impose a requirement for construction of those improvements or facilities as a
condition of approval of the proposed development, then in the event a protest is lodged
pursuant to this section, that approval shall be suspended pending withdrawal of the protest,
the expiration of the limitation period of subdivision (d) without the filing of an action, or
resolution of any action filed. This subdivision confers no new or independent authority for
imposing fees, dedications, reservations, or other exactions not presently governed by other
law.
(d)(1) A protest filed pursuant to subdivision (a) shall be filed at the time of approval or
conditional approval of the development or within 90 days after the date of the imposition of
the fees, dedications, reservations, or other exactions to be imposed on a development project.
Each local agency shall provide to the project applicant a notice in writing at the time of the
approval of the project or at the time of the imposition of the fees, dedications, reservations, or
other exactions, a statement of the amount of the fees or a description of the dedications,
reservations, or other exactions, and notification that the 90-day approval period in which the
applicant may protest has begun.
(2) Any party who files a protest pursuant to subdivision (a) may file an action to attack, review,
set aside, void, or annul the imposition of the fees, dedications, reservations, or other exactions
imposed on a development project by a local agency within 180 days after the delivery of the
notice. Thereafter, notwithstanding any other law to the contrary, all persons are barred from
any action or proceeding or any defense of invalidity or unreasonableness of the imposition.
Any proceeding brought pursuant to this subdivision shall take precedence over all matters of
the calendar of the court except criminal, probate, eminent domain, forcible entry, and
unlawful detainer proceedings.
XVI
(e) If the court finds in favor of the plaintiff in any action or proceeding brought pursuant to
subdivision (d), the court shall direct the local agency to refund the unlawful portion of the
payment, with interest at the rate of 8 percent per annum, or return the unlawful portion of
the exaction imposed.
(f)(1) If the court grants a judgment to a plaintiff invalidating, as enacted, all or a portion of an
ordinance or resolution enacting a fee, dedication, reservation, or other exaction, the court
shall direct the local agency to refund the unlawful portion of the payment, plus interest at an
annual rate equal to the average rate accrued by the Pooled Money Investment Account during
the time elapsed since the payment occurred, or to return the unlawful portion of the exaction
imposed.
(2) If an action is filed within 120 days of the date at which an ordinance or resolution to
establish or modify a fee, dedication, reservation, or other exactions to be imposed on a
development project takes effect, the portion of the payment or exaction invalidated shall also
be returned to any other person who, under protest pursuant to this section and under that
invalid portion of that same ordinance or resolution as enacted, tendered the payment or
provided for or satisfied the exaction during the period from 90 days prior to the date of the
filing of the action which invalidates the payment or exaction to the date of the entry of the
judgment referenced in paragraph (1).
(g) Approval or conditional approval of a development occurs, for the purposes of this section,
when the tentative map, tentative parcel map, or parcel map is approved or conditionally
approved or when the parcel map is recorded if a tentative map or tentative parcel map is not
required.
(h) The imposition of fees, dedications, reservations, or other exactions occurs, for the purposes
of this section, when they are imposed or levied on a specific development.
See also, 11 Cal. Real Est. § 30:30 (3d ed.)
The Mitigation Fee Act provides procedures for protesting the imposition of fees and other
monetary, nonpossessory exactions imposed on development approvals by local agencies. The
act requires the agency to determine: (1) whether there is a reasonable relationship between
the proposed use of an exaction, the type of development project, the need for the public
facility, and the type of development; and (2) whether there is a reasonable relationship
between the amount of the fee and the cost of the public facility or portion of the facility
XVII
attributable to the development. The requirements of the Act apply to all protests to a
development fee under any legal theory, including a challenge to the fee on constitutional
grounds. The "reasonable relationship" language of the Act has been deemed to refer to the
constitutional standards of a required "nexus" and "rough proportionality" imposed by the
Nollan/Dolan analysis to the extent that it applies to development fees.
Colorado
Colo. Rev. Stat. Ann. § 29-20-203 (West)
(1) In imposing conditions upon the granting of land-use approvals, no local government shall
require an owner of private property to dedicate real property to the public, or pay money or
provide services to a public entity in an amount that is determined on an individual and
discretionary basis, unless there is an essential nexus between the dedication or payment and a
legitimate local government interest, and the dedication or payment is roughly proportional
both in nature and extent to the impact of the proposed use or development of such property.
This section shall not apply to any legislatively formulated assessment, fee, or charge that is
imposed on a broad class of property owners by a local government.
(2) No local government shall impose any discretionary condition upon a land-use approval
unless the condition is based upon duly adopted standards that are sufficiently specific to
ensure that the condition is imposed in a rational and consistent manner.
Colo. Rev. Stat. Ann. § 29-20-204 (West)
(1)(a) Within thirty days after the date of a decision or action of a local government imposing a
condition in granting a land-use approval, the owner of such property may notify the local
government in writing of an alleged violation of section 29-20-203.
(b) Upon the filing of such written notice, the local government shall inform each member of
the governing body in writing that the notice has been filed. The local government shall
respond to such notice within thirty days after the date of such notice by informing the
property owner whether such application or enforcement will proceed as proposed, will be
modified, or will be discontinued. The filing of such notice shall be a condition precedent to the
owner's right to proceed under subsection (2) of this section.
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(2)(a) Within sixty days after the date the local government is required to respond under
paragraph (b) of subsection (1) of this section, the property owner may file a petition in the
district court for the judicial district in which the subject property is located seeking relief from
the enforcement or application of the local law, regulation, policy, or requirement on the basis
of an alleged violation of section 29-20-203. Failure to file such a petition within said sixty-day
period shall bar relief under this section.
(b)(I) Within thirty days after service on the local government of a petition pursuant to
paragraph (a) of this subsection (2), the local government shall assemble and file with the clerk
of the district court all documents in its possession concerning the enforcement or application
of the local law, regulation, policy, or requirement, including the record of any hearing or
proceeding concerning such enforcement or application. If there are no contested factual issues
and if the court determines that the facts as reflected by the documents and record filed are
sufficient to determine the case, the court shall proceed to determine the case in the most
expeditious manner and shall issue appropriate procedural orders to facilitate such
determination.
(II) If there are contested issues of fact, or if the court determines that additional evidence is
necessary to determine the case, the court may order the parties to provide such additional
facts and information as the court may deem appropriate. The court shall order a hearing as
soon as its docket permits to resolve such issues of fact or hear such additional evidence.
(c) When it has been established that a required dedication of real property or payment of
money as described in section 29-20-203(1) has been or will be imposed, the burden shall be
upon the local government to establish, based upon substantial evidence appearing in the
record, that such dedication or payment is roughly proportional to the impact of the proposed
use of the subject property.
(d) In determining whether the property owner should be granted relief from the local
government's enforcement or application of the local law, regulation, policy, or requirement,
the court shall include the following considerations:
(I) Whether such enforcement or application has been accomplished pursuant to a duly
adopted law, regulation, policy, or requirement;
(II) Whether such enforcement or application advances a legitimate local government interest;
XIX
(III) Whether any required dedication of real property or payment of money as described in
section 29-20-203(1) required by such enforcement or application is roughly proportional to the
impact of the proposed use of the subject property;
(IV) Whether there are adequate legislative standards and criteria to ensure that the local law,
regulation, policy, or requirement is rationally and consistently applied.
(e)(I) If the court determines that local government enforcement or application of the local law,
regulation, policy, or requirement to a specific parcel does not comply with section 29-20-203,
the court shall grant appropriate relief to the property owner under the facts presented. Such
relief may include, but shall not be limited to, ordering the local government to modify any
required dedication of real property or payment of money as described in section 29-20-203(1)
to make it roughly proportional to the impact of the proposed use of the subject property in a
manner consistent with the court's order.
(II) If the court determines that such enforcement or application is not based on a duly adopted
law, regulation, policy, or requirement or that there are not adequate standards and criteria to
ensure that such enforcement or application is rational and consistent, the court shall
invalidate the enforcement or application of the law, regulation, policy, or requirement as
applied to the subject property.
(f) In any proceeding under this subsection (2), the court may in its discretion award the
prevailing party its costs and reasonable attorney fees.
(3) Nothing in this section shall affect:
(a) The ability to bring an action under any state statute relating to eminent domain or the
exercise of eminent domain powers by the state or any local governmental entity in
furtherance of section 15 of article II of the state constitution, nor shall these provisions limit
any claim for compensation or other relief under any other provision of law prohibiting the
taking or damaging of private property for public or private use.
(b) The right of an owner of private property to file an action for judicial review under rule
106(a)(4) of the Colorado rules of civil procedure; except that, if a claim under this section is not
included in such rule 106(a)(4) action, it may be brought, if at all, only by amendment to the
complaint in the rule 106(a)(4) action. If the local government has answered the rule 106(a)(4)
complaint, the court may not deny amendment of the complaint to add a claim under this
section unless the time requirements of paragraph (a) of subsection (2) of this section have not
been met.
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(4) An owner may proceed with development without prejudice to that owner's right to pursue
the remedy provided by this section.
Connecticut
Conn. Gen. Stat. Ann. § 48-17b (West)
The state court rendering a judgment for the plaintiff in an inverse condemnation proceeding
brought against the state by the owner of real property, or the Attorney General effecting a
settlement of any such proceeding, shall determine and award or allow to such plaintiff, as a
part of such judgment or settlement, such sum as will in the opinion of the court or the
Attorney General reimburse such plaintiff for his reasonable costs, disbursements and expenses,
including reasonable attorney, appraisal and engineering fees, actually incurred because of
such proceeding.
Delaware
Del. Code Ann. tit. 29, § 9504 (West)
Where an inverse condemnation proceeding is instituted by the owner of any right, title or
interest in real property because of use of the owner's property in any program or project, the
court, rendering a judgment for the plaintiff in such proceeding and awarding compensation for
the taking of property, or the Department of Justice effecting a settlement of any such
proceeding, shall determine and award or allow to such plaintiff, as a part of such judgment or
settlement, such sum as will, in the opinion of the court or the Department of Justice,
reimburse such plaintiff for reasonable costs, disbursements and expenses, including
reasonable attorney, appraisal and engineering fees, actually incurred because of such
proceedings.
Florida
373.617. Judicial review relating to permits and licenses
(1) As used in this section, unless the context otherwise requires:
(a) “Agency” means any official, officer, commission, authority, council, committee, department,
division, bureau, board, section, or other unit or entity of state government.
(b) “Permit” means any permit or license required by this chapter.
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(2) Any person substantially affected by a final action of any agency with respect to a permit
may seek review within 90 days of the rendering of such decision and request monetary
damages and other relief in the circuit court in the judicial circuit in which the affected property
is located; however, circuit court review shall be confined solely to determining whether final
agency action is an unreasonable exercise of the state's police power constituting a taking
without just compensation. Review of final agency action for the purpose of determining
whether the action is in accordance with existing statutes or rules and based on competent
substantial evidence shall proceed in accordance with chapter 120.
(3) If the court determines the decision reviewed is an unreasonable exercise of the state's
police power constituting a taking without just compensation, the court shall remand the
matter to the agency which shall, within a reasonable time:
(a) Agree to issue the permit;
(b) Agree to pay appropriate monetary damages; however, in determining the amount of
compensation to be paid, consideration shall be given by the court to any enhancement to the
value of the land attributable to governmental action; or
(c) Agree to modify its decision to avoid an unreasonable exercise of police power.
(4) The agency shall submit a statement of its agreed-upon action to the court in the form of a
proposed order. If the action is a reasonable exercise of police power, the court shall enter its
final order approving the proposed order. If the agency fails to submit a proposed order within
a reasonable time not to exceed 90 days which specifies an action that is a reasonable exercise
of police power, the court may order the agency to perform any of the alternatives specified in
subsection (3).
(5) The court shall award reasonable attorney's fees and court costs to the agency or
substantially affected person, whichever prevails.
(6) The provisions of this section are cumulative and shall not be deemed to abrogate any other
remedies provided by law.
Georgia
Columbia Cnty. v. Doolittle, 270 Ga. 490, 491-92, 512 S.E.2d 236, 237-38 (1999) - The eminent
domain paragraph of the Georgia Constitution states that “private property shall not be taken
or damaged for public purposes without just and adequate compensation being first paid.” We
have interpreted this provision as waiving sovereign immunity in an inverse condemnation
XXII
action and permitting the county to be sued for damages and enjoined for creating or
maintaining a continuing nuisance. To state a claim for inverse condemnation, the property
owner does not have to show a physical invasion that damages the property, but only an
unlawful interference with the owner's right to enjoy the land.
Ga. Const. art. I, § 3, ¶ I
Paragraph I. Eminent domain
(a) Except as otherwise provided in this Paragraph, private property shall not be taken or
damaged for public purposes without just and adequate compensation being first paid.
(b) When private property is taken or damaged by the state or the counties or municipalities of
the state for public road or street purposes, or for public transportation purposes, or for any
other public purposes as determined by the General Assembly, just and adequate
compensation therefor need not be paid until the same has been finally fixed and determined
as provided by law; but such just and adequate compensation shall then be paid in preference
to all other obligations except bonded indebtedness.
(c) The General Assembly may by law require the condemnor to make prepayment against
adequate compensation as a condition precedent to the exercise of the right of eminent
domain and provide for the disbursement of the same to the end that the rights and equities of
the property owner, lien holders, and the state and its subdivisions may be protected.
(d) The General Assembly may provide by law for the payment by the condemnor of reasonable
expenses, including attorney's fees, incurred by the condemnee in determining just and
adequate compensation.
(e) Notwithstanding any other provision of the Constitution, the General Assembly may provide
by law for relocation assistance and payments to persons displaced through the exercise of the
power of eminent domain or because of public projects or programs; and the powers of
taxation may be exercised and public funds expended in furtherance thereof.
Hawaii
Leone v. Cnty. of Maui, 128 Haw. 183, 189, 284 P.3d 956, 962 (Haw. Ct. App. 2012). Although
not specifically provided by statute, an “inverse condemnation” proceeding is the means by
which a property owner can seek to recover the value of property that has been taken by the
government for public use without exercising the power of eminent domain.
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Haw. Const. art. I, § 20 - Private property shall not be taken or damaged for public use without
just compensation.
State v. Davis, 53 Haw. 582, 585, 499 P.2d 663, 666 (1972).
The eminent domain law, HRS ch. 101, is devoid of any grant of authority to require payment of
attorneys' fees or costs except under HRS s 101-27, which provides that defendants in
condemnation actions shall be entitled to recover litigation costs and attorneys' fees in the
event that eminent domain proceedings are abandoned or discontinued or the property not
finally taken for public use.
Haw. Rev. Stat. § 101-27 (West)
Defendant allowed damages upon abandonment or dismissal of proceedings
Whenever any proceedings instituted under this part are abandoned or discontinued before
reaching a final judgment, or if, for any cause, the property concerned is not finally taken for
public use, a defendant who would have been entitled to compensation or damages had the
property been finally taken, shall be entitled, in such proceedings, to recover from the plaintiff
all such damage as may have been sustained by the defendant by reason of the bringing of the
proceedings and the possession by the plaintiff of the property concerned if the possession has
been awarded including the defendant's costs of court, a reasonable amount to cover
attorney's fees paid by the defendant in connection therewith, and other reasonable expenses;
and the possession of the property concerned shall be restored to the defendant entitled
thereto. Issues of fact arising in connection with any claim for such damage shall be tried by the
court without a jury unless a trial by jury is demanded by either party, pursuant to the rules of
court, within ten days from the date of the entry of an order or judgment allowing the
discontinuance of the proceedings, or dismissing the proceedings or denying the right of the
plaintiff to take the property concerned for public use. In the event judgment is entered in
favor of the defendant and against the plaintiff, any moneys which have been paid, and any
additional security which has been furnished, by the plaintiff to the clerk of the court under
sections 101-28 and 101-29, shall be applied or enforced toward the satisfaction of the
judgment. In the case of the State or a county, if the moneys so paid to the clerk of the court
are insufficient, then the balance of such judgment shall be paid from any moneys available or
appropriated for the acquisition of the property concerned, or if that is insufficient then the
same shall be paid from the general fund of the State or county, as the case may be.
XXIV
Idaho
KMST, LLC v. Cnty. of Ada, 138 Idaho 577, 581, 67 P.3d 56, 60 (2003).The property owner
cannot maintain an inverse condemnation action unless there has actually been a taking of his
or her property.
Idaho Const. art. I, § 14
The necessary use of lands for the construction of reservoirs or storage basins, for the purpose
of irrigation, or for rights of way for the construction of canals, ditches, flumes or pipes, to
convey water to the place of use for any useful, beneficial or necessary purpose, or for drainage;
or for the drainage of mines, or the working thereof, by means of roads, railroads, tramways,
cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete
development, or any other use necessary to the complete development of the material
resources of the state, or the preservation of the health of its inhabitants, is hereby declared to
be a public use, and subject to the regulation and control of the state.
Private property may be taken for public use, but not until a just compensation, to be
ascertained in the manner prescribed by law, shall be paid therefor.
Johnston v. Boise City, 87 Idaho 44, 52, 390 P.2d 291, 295 (1964). In the instances where
exercise of the authority transgresses the bounds of reasonableness, or is arbitrary in result, to
the point where there is an actual taking of private property for public use, (Idaho Const. Art. 1,
§ 14) or to the point where there is a deprivation of property without due process of law (Idaho
Const. Art. 1, § 13), an action would lie for damages by way of inverse condemnation or for
injunctive relief.
Illinois – incomplete
Ill. Const. art. I, § 15
§ 15. Right of Eminent Domain
Private property shall not be taken or damaged for public use without just compensation as
provided by law. Such compensation shall be determined by a jury as provided by law.
Indiana
Ind. Code Ann. § 32-24-1-16 (West) - Prior appropriation of land
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A person having an interest in property that has been or may be acquired for a public use
without the procedures of this article or any prior law followed is entitled to have the person's
damages assessed under this article substantially in the manner provided in this article.
Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010). If the government takes
property but fails to initiate proceedings, Section 32–24–1–16 explicitly allows an owner of
property acquired for public use to bring a suit for inverse condemnation to recover money
damages. In Indiana Department of Transportation v. Southern Bells, Inc., 723 N.E.2d 432
(Ind.Ct.App.1999), business owners sought to enjoin the construction of a median that would
prevent traffic from reaching access roads leading to their businesses. The court concluded that
“[a]lthough injunctive relief may be necessary to remedy interference with landowner rights for
a private purpose, where an alleged taking occurs for what is clearly a public purpose, equitable
relief is generally unavailable as a matter of law where an action for compensation can be
brought subsequent to the taking.” Id. at 434 (citing Dible, 713 N.E.2d at 273). These decisions
make clear that injunctive relief is not available to prevent a taking for a public purpose. They
proceed from the premise that inverse condemnation provides a remedy at law that adequately
compensates for a taking and precludes equitable relief. Carl W. Grow, Note, Inverse
Condemnation and the Right of Access of Abutting Property Owners, 9 Ind. L.Rev. 859, 860 & n.
6 (1976). Although we find little direct authority on this point, we think the same reasoning
applies to attempts to reverse a completed taking. Eminent domain proceedings include
provisions designed to compensate the landowner but also to permit the public need to be
satisfied relatively quickly and at no more than a fair price. Id. at 861 & n. 9 (citing Roger
Arnebergh, Recent Developments in the Law of Inverse Condemnation, in 1974 Proceedings of
the Institute on Planning, Zoning, and Eminent Domain 319, 322 (1974)). To allow alternative
remedies would circumvent these provisions.
Iowa
Iowa Const. art. I, § 18
Private property shall not be taken for public use without just compensation first being made,
or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury,
who shall not take into consideration any advantages that may result to said owner on account
of the improvement for which it is taken.
The general assembly, however, may pass laws permitting the owners of lands to construct
drains, ditches, and levees for agricultural, sanitary or mining purposes across the lands of
others, and provide for the organization of drainage districts, vest the proper authorities with
power to construct and maintain levees, drains and ditches and to keep in repair all drains,
ditches, and levees heretofore constructed under the laws of the state, by special assessments
XXVI
upon the property benefited thereby. The general assembly may provide by law for the
condemnation of such real estate as shall be necessary for the construction and maintenance of
such drains, ditches and levees, and prescribe the method of making such condemnation.
Kingsway Cathedral v. Iowa Dep't Of Transp., 711 N.W.2d 6, 9 (Iowa 2006). Inverse
condemnation is “ ‘a generic description applicable to all actions in which a property owner, in
the absence of a formal condemnation proceeding, seeks to recover from a governmental
entity for the appropriation of his property interest.’ ”
Kansas
Kan. Stat. Ann. § 26-513 (West)
Same; compensation required for taking and damage; determination
(a) Necessity. Private property shall not be taken or damaged for public use without just
compensation.
(b) Taking entire tract. If the entire tract of land or interest in such land is taken, the measure of
compensation is the fair market value of the property or interest at the time of the taking.
(c) Partial taking. If only a part of a tract of land or interest is taken, the compensation and
measure of damages is the difference between the fair market value of the entire property or
interest immediately before the taking, and the value of that portion of the tract or interest
remaining immediately after the taking.
(d) Factors to be considered. In ascertaining the amount of compensation and damages, the
following nonexclusive list of factors shall be considered if such factors are shown to exist. Such
factors are not to be considered as separate items of damages, but are to be considered only as
they affect the total compensation and damage under the provisions of subsections (b) and (c)
of this section. Such factors are:
(1) The most advantageous use to which the property is reasonably adaptable.
(2) Access to the property remaining.
(3) Appearance of the property remaining, if appearance is an element of value in connection
with any use for which the property is reasonably adaptable.
(4) Productivity, convenience, use to be made of the property taken, or use of the property
remaining.
XXVII
(5) View, ventilation and light, to the extent that they are beneficial attributes to the use of
which the remaining property is devoted or to which it is reasonably adaptable.
(6) Severance or division of a tract, whether the severance is initial or is in aggravation of a
previous severance; changes of grade and loss or impairment of access by means of underpass
or overpass incidental to changing the character or design of an existing improvement being
considered as in aggravation of a previous severance, if in connection with the taking of
additional land and needed to make the change in the improvement.
(7) Loss of trees and shrubbery to the extent that they affect the value of the land taken, and to
the extent that their loss impairs the value of the land remaining.
(8) Cost of new fences or loss of fences and the cost of replacing them with fences of like
quality, to the extent that such loss affects the value of the property remaining.
(9) Destruction of a legal nonconforming use.
(10) Damage to property abutting on a right-of-way due to change of grade where
accompanied by a taking of land.
(11) Proximity of new improvement to improvements remaining on condemnee's land.
(12) Loss of or damage to growing crops.
(13) That the property could be or had been adapted to a use which was profitably carried on.
(14) Cost of new drains or loss of drains and the cost of replacing them with drains of like
quality, to the extent that such loss affects the value of the property remaining.
(15) Cost of new private roads or passageways or loss of private roads or passageways and the
cost of replacing them with private roads or passageways of like quality, to the extent that such
loss affects the value of the property remaining.
(e) Fair market value. “Fair market value” means the amount in terms of money that a well
informed buyer is justified in paying and a well informed seller is justified in accepting for
property in an open and competitive market, assuming that the parties are acting without
undue compulsion. The fair market value shall be determined by use of the comparable sales,
cost or capitalization of income appraisal methods or any combination of such methods.
Kentucky
Ky. Const. § 242
Municipal and other corporations, and individuals invested with the privilege of taking private
property for public use, shall make just compensation for property taken, injured or destroyed
by them; which compensation shall be paid before such taking, or paid or secured, at the
election of such corporation or individual, before such injury or destruction. The General
Assembly shall not deprive any person of an appeal from any preliminary assessment of
damages against any such corporation or individual made by Commissioners or otherwise; and
XXVIII
upon appeal from such preliminary assessment, the amount of such damages shall, in all cases,
be determined by a jury, according to the course of the common law.
Louisiana
La. Const. art. I, § 4
(A) Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of
private property. This right is subject to reasonable statutory restrictions and the reasonable
exercise of the police power.
(B)(1) Property shall not be taken or damaged by the state or its political subdivisions except for
public purposes and with just compensation paid to the owner or into court for his benefit.
Except as specifically authorized by Article VI, Section 21 of this Constitution property shall not
be taken or damaged by the state or its political subdivisions: (a) for predominant use by any
private person or entity; or (b) for transfer of ownership to any private person or entity.
(2) As used in Subparagraph (1) of this Paragraph and in Article VI, Section 23 of this
Constitution, “public purpose” shall be limited to the following:
(a) A general public right to a definite use of the property.
(b) Continuous public ownership of property dedicated to one or more of the following
objectives and uses:
(i) Public buildings in which publicly funded services are administered, rendered, or provided.
(ii) Roads, bridges, waterways, access to public waters and lands, and other public
transportation, access, and navigational systems available to the general public.
(iii) Drainage, flood control, levees, coastal and navigational protection and reclamation for the
benefit of the public generally.
(iv) Parks, convention centers, museums, historical buildings and recreational facilities generally
open to the public.
(v) Public utilities for the benefit of the public generally.
(vi) Public ports and public airports to facilitate the transport of goods or persons in domestic or
international commerce.
(c) The removal of a threat to public health or safety caused by the existing use or disuse of the
property.
(3) Neither economic development, enhancement of tax revenue, or any incidental benefit to
the public shall be considered in determining whether the taking or damaging of property is for
XXIX
a public purpose pursuant to Subparagraph (1) of this Paragraph or Article VI, Section 23 of this
Constitution.
(4) Property shall not be taken or damaged by any private entity authorized by law to
expropriate, except for a public and necessary purpose and with just compensation paid to the
owner; in such proceedings, whether the purpose is public and necessary shall be a judicial
question.
(5) In every expropriation or action to take property pursuant to the provisions of this Section, a
party has the right to trial by jury to determine whether the compensation is just, and the
owner shall be compensated to the full extent of his loss. Except as otherwise provided in this
Constitution, the full extent of loss shall include, but not be limited to, the appraised value of
the property and all costs of relocation, inconvenience, and any other damages actually
incurred by the owner because of the expropriation.
(6) No business enterprise or any of its assets shall be taken for the purpose of operating that
enterprise or halting competition with a government enterprise. However, a municipality may
expropriate a utility within its jurisdiction.
(C) Personal effects, other than contraband, shall never be taken.
(D) The following property may be forfeited and disposed of in a civil proceeding, as provided
by law: contraband drugs; property derived in whole or in part from contraband drugs;
property used in the distribution, transfer, sale, felony possession, manufacture, or
transportation of contraband drugs; property furnished or intended to be furnished in
exchange for contraband drugs; property used or intended to be used to facilitate any of the
above conduct; or other property because the above-described property has been rendered
unavailable.
(E) This Section shall not apply to appropriation of property necessary for levee and levee
drainage purposes.
(F) Further, the legislature may place limitations on the extent of recovery for the taking of, or
loss or damage to, property rights affected by coastal wetlands conservation, management,
preservation, enhancement, creation, or restoration activities.
(G) Compensation paid for the taking of, or loss or damage to, property rights for the
construction, enlargement, improvement, or modification of federal or non-federal hurricane
XXX
protection projects, including mitigation related thereto, shall not exceed the compensation
required by the Fifth Amendment of the Constitution of the United States of America. However,
this Paragraph shall not apply to compensation paid for a building or structure that was
destroyed or damaged by an event for which a presidential declaration of major disaster or
emergency was issued, if the taking occurs within three years of such event. The legislature by
law may provide procedures and definitions for the provisions of this Paragraph.
(H)(1) Except for the removal of a threat to public health or safety caused by the existing use or
disuse of the property, and except for leases or operation agreements for port facilities,
highways, qualified transportation facilities or airports, the state or its political subdivisions
shall not sell or lease property which has been expropriated and held for not more than thirty
years without first offering the property to the original owner or his heir, or, if there is no heir,
to the successor in title to the owner at the time of expropriation at the current fair market
value, after which the property can be transferred only by competitive bid open to the general
public. After thirty years have passed from the date the property was expropriated, the state or
political subdivision may sell or otherwise transfer the property as provided by law.
(2) Within one year after the completion of the project for which the property was expropriated,
the state or its political subdivision which expropriated the property shall identify all property
which is not necessary for the public purpose of the project and declare the property as surplus
property.
(3) All expropriated property identified as surplus property shall be offered for sale to the
original owner or his heir, or, if there is no heir, to the successor in title to the owner at the
time of expropriation at the current fair market value, within two years after completion of the
project. If the original owner, heir, or other successor in title refuses or fails to purchase the
surplus property within three years from completion of the project, then the surplus property
may be offered for sale to the general public by competitive bid.
(4) After one year from the completion of the project for which property was expropriated, the
original owner or his heir, or, if there is no heir, the successor in title to the owner at the time
of expropriation may petition the state or its political subdivision which expropriated the
property to have all or any portion of his property declared surplus. If the state or its political
subdivision refuses or fails to identify all or any portion of the expropriated property as surplus,
the original owner or the successor in title may petition any court of competent jurisdiction to
have the property declared surplus.
XXXI
Maine – nothing exaction-related found
Curtis v. Town of S. Thomaston, 1998 ME 63, 708 A.2d 657, 659.
The Supreme Court, in its decisions of Nollan v. California Coastal Comm'n and Dolan v. City of
Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), developed a two-part procedure
to determine when a land dedication requirement is logically related in substance and scope to
legitimate regulatory objectives and thus a lawful exercise of the police power.
Me. Const. art. I, § 21
§ 21. Private property, when to be taken. Private property shall not be taken for public uses
without just compensation; nor unless the public exigencies require it.
Larrabee v. Town of Knox, 2000 ME 15, 744 A.2d 544.
Possessor of life estate could properly bring an action for inverse condemnation.
Maryland – could not find remedy information
Howard Cnty. v. JJM, Inc., 301 Md. 256, 282, 482 A.2d 908, 921 (1984).
We hold that in order to exact from a developer a setting aside of land for highway purposes
there must be a reasonable nexus between the exaction and the proposed subdivision. No such
nexus has been shown here. In this case the landowner has been deprived of all use of his land.
City of Annapolis v. Mareen Waterman, 745 A.2d 1000 (Md. 2000). Court defines “exactions”
as including a variety of fees, construction of public facilities, as well as dedications and
easements.
Massachusetts
Mass. Gen. Laws Ann. ch. 41, § 81Q .
No rule or regulation shall require, and no planning board shall impose, as a condition for the
approval of a plan of a subdivision, that any of the land within said subdivision be dedicated to
the public use, or conveyed or released to the commonwealth or to the county, city or town in
which the subdivision is located, for use as a public way, public park or playground, or for any
other public purpose, without just compensation to the owner thereof.
Michigan
Mich. Comp. Laws Ann. § 125.3504.
Regulations and standards governing consideration and approval of special land uses and
planned unit developments
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(1) If the zoning ordinance authorizes the consideration and approval of special land uses or
planned unit developments under section 502 or 5031 or otherwise provides for discretionary
decisions, the regulations and standards upon which those decisions are made shall be
specified in the zoning ordinance.
(2) The standards shall be consistent with and promote the intent and purpose of the zoning
ordinance and shall insure that the land use or activity authorized shall be compatible with
adjacent uses of land, the natural environment, and the capacities of public services and
facilities affected by the land use. The standards shall also insure that the land use or activity is
consistent with the public health, safety, and welfare of the local unit of government.
(3) A request for approval of a land use or activity shall be approved if the request is in
compliance with the standards stated in the zoning ordinance, the conditions imposed under
the zoning ordinance, other applicable ordinances, and state and federal statutes.
(4) Reasonable conditions may be required with the approval of a special land use, planned unit
development, or other land uses or activities permitted by discretionary decision. The
conditions may include conditions necessary to insure that public services and facilities affected
by a proposed land use or activity will be capable of accommodating increased service and
facility loads caused by the land use or activity, to protect the natural environment and
conserve natural resources and energy, to insure compatibility with adjacent uses of land, and
to promote the use of land in a socially and economically desirable manner. Conditions
imposed shall meet all of the following requirements:
(a) Be designed to protect natural resources, the health, safety, and welfare, as well as the
social and economic wellbeing, of those who will use the land use or activity under
consideration, residents and landowners immediately adjacent to the proposed land use or
activity, and the community as a whole.
(b) Be related to the valid exercise of the police power and purposes which are affected by the
proposed use or activity.
(c) Be necessary to meet the intent and purpose of the zoning requirements, be related to the
standards established in the zoning ordinance for the land use or activity under consideration,
and be necessary to insure compliance with those standards.
(5) The conditions imposed with respect to the approval of a land use or activity shall be
recorded in the record of the approval action and remain unchanged except upon the mutual
consent of the approving authority and the landowner. The approving authority shall maintain a
record of conditions which are changed.
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Minnesota
Minn. Stat. Ann. § 117.195
Eminent domain Interest; award, when payable; dismissal; costs
Subdivision 1. Award; interest. All damages allowed under this chapter, whether by the
commissioners or upon appeal, shall bear interest from the time of the filing of the
commissioner's report or from the date of the petitioner's possession whichever occurs first.
The rate of interest shall be determined according to section 549.09. If the award is not paid
within 70 days after the filing, or, in case of an appeal within 45 days after final judgment, or
within 45 days after a stipulation of settlement, the court, on motion of the owner of the land,
shall vacate the award and dismiss the proceedings against the land.
Subd. 2. Costs. When the proceeding is dismissed for nonpayment or discontinued by the
petitioner, the owner may recover from the petitioner reasonable costs and expenses including
attorneys' fees. In the discretion of the court, the owner may also recover from the petitioner
reasonable costs and expenses, including attorneys' fees, if a condemnation proceeding is
dismissed because a court has held that condemnation shall not lie based on a challenge made
under the Minnesota Environmental Rights Act.1 If the court awards costs and expenses,
including attorneys' fees, and if the condemnation proceeding is part of a project or proposal
which has received an environmental review pursuant to the Minnesota Environmental Policy
Act,2 or siting or routing selection pursuant to chapter 216E, the costs and expenses, including
attorney fees, shall be paid by the governmental unit responsible for the review or selection.
Nolan & Nolan v. City of Eagan, 673 N.W.2d 487, 492 (Minn. Ct. App. 2003).
The Minnesota Constitution requires the government to compensate a property owner when it
takes the owner's property. Minn. Const. art. 1, § 13. A “taking” is any interference “with the
possession, enjoyment, or value of private property.” Minn.Stat. § 117.025, subd. 2 (2002).
When the government has taken property without formally using its eminent domain powers,
the property owner has a cause of action for inverse condemnation. Alevizos v. Metro. Airports
Comm'n of Minneapolis & St. Paul, 298 Minn. 471, 477, 216 N.W.2d 651, 657 (1974).
567 Actions for inverse condemnation must be brought to the court through an action in
mandamus. Thomsen v. State, 284 Minn. 468, 474, 170 N.W.2d 575, 580 (1969). A district court
reviewing a petition for a writ of mandamus must decide whether a taking of property has
occurred in the constitutional sense. Gibson v. Comm'r of Highways, 287 Minn. 495, 498-99,
178 N.W.2d 727, 730 (1970). While either party may request a jury trial on the issues of fact,
the court ultimately decides whether a taking has occurred. Alevizos v. Metro. Airports Comm'n,
317 N.W.2d 352, 359-60 (Minn.1982).
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Mississippi
Miss. Code. Ann. § 43-37-9
Reimbursement, inverse condemnation proceedings
Where an inverse condemnation proceeding is instituted by the owner of any right, title or
interest in real property because of use of his property in any program or project in which
federal and/or federal-aid funds are used, the court, rendering a judgment for the plaintiff in
such proceeding and awarding compensation for the taking of property, or the state's attorney
effecting a settlement of any such proceeding, shall determine and award or allow to such
plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court
or the state's attorney, reimburse such plaintiff for his reasonable costs, disbursements and
expenses, including reasonable attorney, appraisal and engineering fees, actually incurred
because of such proceeding.
Miss. Const. art. III, § 17
Taking property for public use; due compensation
Private property shall not be taken or damaged for public use, except on due compensation
being first made to the owner or owners thereof, in a manner to be prescribed by law; and
whenever an attempt is made to take private property for a use alleged to be public, the
question whether the contemplated use be public shall be a judicial question, and, as such,
determined without regard to legislative assertion that the use is public.
Missouri
Heuer v. City of Cape Girardeau, 370 S.W.3d 903, 913-14 (Mo. Ct. App. 2012), reh'g and/or
transfer denied (July 3, 2012), transfer denied (Aug. 14, 2012).
Inverse condemnation under Missouri law arises from article I, section 26 of the Missouri
Constitution, which provides, “private property shall not be taken or damaged for public use
without just compensation.” In an inverse condemnation action, a plaintiff may recover
compensation even when his or her property has not been formally taken by a governmental
entity. See Schnuck Markets, Inc. v. City of Bridgeton, 895 S.W.2d 163, 167 (Mo.App. E.D.1995).
A plaintiff seeking this relief “must plead and prove an invasion or appropriation of some
valuable property right which the landowner has to the legal and proper use of his property,
which invasion or appropriation directly and specially affects the landowner to his injury.” Id.
(internal quotations omitted).
Randolph v. Missouri Highways and Trans. Com’n, 224 S.W.3d 615 (Mo.Ct.App. 2007). For
inverse condemnation, attorneys fees are not authorized.
XXXV
Montana
United States v. 191.07 Acres of Land, 482 F.3d 1132, 1136 (9th Cir. 2007).
Where the United States does not acquire privately owned land statutorily but instead
physically enters into possession or institutes regulations that restrict the land's use, the owner
has a right to bring an “inverse condemnation” action to recover the value of the land. Kirby
Forest, 467 U.S. at 4–5, 104 S.Ct. 2187. “Such a suit is ‘inverse’ because it is brought by the
affected owner, not by the condemnor. The owner's right to bring such a suit derives from the
self-executing character of the constitutional provision with respect to condemnation.”
Rauser v. Toston Irr. Dist., 172 Mont. 530, 565 P.2d 632 (1977).
Attorney fees are permissible in inverse condemnation cases.
Nebraska
Uhing v. City of Oakland, 236 Neb. 58, 60–61, 459 N.W.2d 187, 189 (1990).
When private property has been damaged for public use, the property owner may seek
compensation “in an action for tort, in a statutory action for inverse condemnation, or in a
constitutional action for inverse condemnation.” Dishman v. Neb. Pub. Power Dist., 240 Neb.
452, 454, 482 N.W.2d 580, 582 (1992). Accord, e.g., Slusarski v. County of Platte, 226 Neb. 889,
894, 416 N.W.2d 213, 216 (1987) (quoted in relevant part below).
Additionally, a landowner is not precluded from bringing an action for a mandatory injunction
against public authorities to prevent damage to the owner's land caused by a public
improvement when the public authorities have declined to exercise their right of eminent
domain. Also, the plaintiff had the right to join with his action for equitable relief his claim for
temporary damages.
Neb. Const. art. I, § 21
Sec. 21. Private property compensated for
The property of no person shall be taken or damaged for public use without just compensation
therefor.
Neb. Rev. Stat. § 76-705
76-705. Acquisition of property; damages; petition of condemnee
If any condemner shall have taken or damaged property for public use without instituting
condemnation proceedings, the condemnee, in addition to any other available remedy, may file
a petition with the county judge of the county where the property or some part thereof is
situated to have the damages ascertained and determined.
XXXVI
Nevada
Nev. Const. art. I, § 8
6. Private property shall not be taken for public use without just compensation having been first
made, or secured, except in cases of war, riot, fire, or great public peril, in which case
compensation shall be afterward made.
Clark Cnty. v. Alper, 100 Nev. 382, 386-87, 685 P.2d 943, 946 (1984).
The term “just compensation” requires that the market value of the property should be
determined by reference to the highest and best use for which the land is available *387 and
for which it is plainly adaptable. Skyland Water v. Tahoe Douglas Dist., 95 Nev. 289, 593 P.2d
1066 (1979); Sorenson v. State ex rel. Dep't of Hwys., 92 Nev. 445, 552 P.2d 487 (1976). Every
factor which affects the value of the property and which would influence a prudent purchaser
should be considered. Tacchino v. State ex rel. Department of Highways, 89 Nev. 150, 152, 508
P.2d 1212 (1973). As a restriction on land use, an existing zoning ordinance is generally
regarded as a proper matter for the jury's consideration. United States v. Eden Memorial Park
Asso., 350 F.2d 933 (9th Cir.1965).
New Hampshire
N.H. Const. pt. 1, art. 12
[Art.] 12th. [Protection and Taxation Reciprocal.]
Every member of the community has a right to be protected by it, in the enjoyment of his life,
liberty, and property; he is therefore bound to contribute his share in the expense of such
protection, and to yield his personal service when necessary. But no part of a man's property
shall be taken from him, or applied to public uses, without his own consent, or that of the
representative body of the people. Nor are the inhabitants of this state controllable by any
other laws than those to which they, or their representative body, have given their consent.
New Jersey
N.J. Stat. Ann. § 40:55D-42
40:55D-42. Contribution for off-tract water, sewer, drainage, and street improvements
Contribution for off-tract water, sewer, drainage, and street improvements. The governing
body may by ordinance adopt regulations requiring a developer, as a condition for approval of a
subdivision or site plan, to pay the pro-rata share of the cost of providing only reasonable and
necessary street improvements and water, sewerage and drainage facilities, and easements
therefor, located off-tract but necessitated or required by construction or improvements within
XXXVII
such subdivision or development. Such regulations shall be based on circulation and
comprehensive utility service plans pursuant to subsections 19b.(4) and 19b.(5) of this act,
respectively, and shall establish fair and reasonable standards to determine the proportionate
or pro-rata amount of the cost of such facilities that shall be borne by each developer or owner
within a related and common area, which standards shall not be altered subsequent to
preliminary approval. Where a developer pays the amount determined as his pro-rata share
under protest he shall institute legal action within one year of such payment in order to
preserve the right to a judicial determination as to the fairness and reasonableness of such
amount.
Swanson v. Planning Board of the Township of Hopewell 692 A.2d 966 (N.J. 1997) (Off-site
sewer improvement charges imposed as a condition of rezoning rejected as lacking a rational
nexus to the needs created by or benefits conferred upon the subdivision.) (Note: No citation
to Nollan or Dolan.)
New Mexico
N.M. Stat. Ann. § 42A-1-29 (West)
§ 42A-1-29. Property taken or damaged without compensation or condemnation proceedings;
right of action by condemnee
A. A person authorized to exercise the right of eminent domain who has taken or damaged or
who may take or damage any property for public use without making just compensation or
without instituting and prosecuting to final judgment in a court of competent jurisdiction any
proceeding for condemnation is liable to the condemnee, or any subsequent grantee thereof,
for the value thereof or the damage thereto at the time the property is or was taken or
damaged, with ten percent per year interest, to the date such just compensation is made, in an
action to be brought under and governed by the Rules of Civil Procedure for the District Courts
of this state. Actions under this section shall be brought in the county where the land or any
portion thereof is located.
B. Notwithstanding the provisions of Subsection A of this section or any other provision of law
regarding compensation for damage in the situation described in that subsection:
(1) if the person authorized had taken or been granted for public use, pursuant to a final
judgment, an order of immediate possession or private agreement, any property;
(2) the property subsequently taken or damaged was contiguous to the property taken or
granted; and
(3) the person takes or damages property contiguous to property previously taken or granted
from the condemnee or grantor without making just compensation or without instituting and
XXXVIII
prosecuting to final judgment in a court of competent jurisdiction any proceeding for
condemnation; the condemnee or grantor shall receive compensation for the land taken or
damaged at the greater of fair market value or a unit rate of five times that of the
compensation or consideration he received for the land taken; provided that if the width of the
property taken or damaged is not equal to the width originally taken or damaged,
compensation required pursuant to this subsection shall be increased or reduced ratably in
accordance with the relationship of the respective widths.
C. Any amounts paid under Subsection B of this section shall be deemed just compensation.
New York
N.Y. C.P.L.R. 7801 (McKinney)
§ 7801. Nature of proceeding
Relief previously obtained by writs of certiorari to review, mandamus or prohibition shall be
obtained in a proceeding under this article. Wherever in any statute reference is made to a writ
or order of certiorari, mandamus or prohibition, such reference shall, so far as applicable, be
deemed to refer to the proceeding authorized by this article. Except where otherwise provided
by law, a proceeding under this article shall not be used to challenge a determination:
1. which is not final or can be adequately reviewed by appeal to a court or to some other body
or officer or where the body or officer making the determination is expressly authorized by
statute to rehear the matter upon the petitioner's application unless the determination to be
reviewed was made upon a rehearing, or a rehearing has been denied, or the time within which
the petitioner can procure a rehearing has elapsed; or
2. which was made in a civil action or criminal matter unless it is an order summarily punishing
a contempt committed in the presence of the court.
N.Y. C.P.L.R. 7806 (McKinney)
§ 7806. Judgment
The judgment may grant the petitioner the relief to which he is entitled, or may dismiss the
proceeding either on the merits or with leave to renew. If the proceeding was brought to
review a determination, the judgment may annul or confirm the determination in whole or in
part, or modify it, and may direct or prohibit specified action by the respondent. Any restitution
or damages granted to the petitioner must be incidental to the primary relief sought by the
petitioner, and must be such as he might otherwise recover on the same set of facts in a
XXXIX
separate action or proceeding suable in the supreme court against the same body or officer in
its or his official capacity.
North Carolina
N.C. Gen. Stat. Ann. § 160A-372 (West)
(a) A subdivision control ordinance may provide for the orderly growth and development of the
city; for the coordination of transportation networks and utilities within proposed subdivisions
with existing or planned streets and highways and with other public facilities; for the dedication
or reservation of recreation areas serving residents of the immediate neighborhood within the
subdivision or, alternatively, for provision of funds to be used to acquire recreation areas
serving residents of the development or subdivision or more than one subdivision or
development within the immediate area, and rights-of-way or easements for street and utility
purposes including the dedication of rights-of-way pursuant to G.S. 136-66.10 or G.S. 136-66.11;
and for the distribution of population and traffic in a manner that will avoid congestion and
overcrowding and will create conditions that substantially promote public health, safety, and
the general welfare.
(b) The ordinance may require a plat be prepared, approved, and recorded pursuant to the
provisions of the ordinance whenever any subdivision of land takes place. The ordinance may
include requirements that plats show sufficient data to determine readily and reproduce
accurately on the ground the location, bearing, and length of every street and alley line, lot line,
easement boundary line, and other property boundaries, including the radius and other data
for curved property lines, to an appropriate accuracy and in conformance with good surveying
practice.
(c) The ordinance may provide for the more orderly development of subdivisions by requiring
the construction of community service facilities in accordance with municipal plans, policies,
and standards. To assure compliance with these and other ordinance requirements, the
ordinance may provide for performance guarantees to assure successful completion of required
improvements. If a performance guarantee is required, the city shall provide a range of options
of types of performance guarantees, including, but not limited to, surety bonds or letters of
credit, from which the developer may choose. For any specific development, the type of
performance guarantee from the range specified by the city shall be at the election of the
developer.
XL
The ordinance may provide for the reservation of school sites in accordance with
comprehensive land use plans approved by the council or the planning board. In order for this
authorization to become effective, before approving such plans the council or planning board
and the board of education with jurisdiction over the area shall jointly determine the specific
location and size of any school sites to be reserved, which information shall appear in the
comprehensive land use plan. Whenever a subdivision is submitted for approval which includes
part or all of a school site to be reserved under the plan, the council or planning board shall
immediately notify the board of education and the board of education shall promptly decide
whether it still wishes the site to be reserved. If the board of education does not wish to
reserve the site, it shall so notify the council or planning board and no site shall be reserved. If
the board of education does wish to reserve the site, the subdivision shall not be approved
without such reservation. The board of education shall then have 18 months beginning on the
date of final approval of the subdivision within which to acquire the site by purchase or by
initiating condemnation proceedings. If the board of education has not purchased or begun
proceedings to condemn the site within 18 months, the subdivider may treat the land as freed
of the reservation.
The ordinance may provide that a developer may provide funds to the city whereby the city
may acquire recreational land or areas to serve the development or subdivision, including the
purchase of land that may be used to serve more than one subdivision or development within
the immediate area. All funds received by the city pursuant to this paragraph shall be used only
for the acquisition or development of recreation, park, or open space sites. Any formula
enacted to determine the amount of funds that are to be provided under this paragraph shall
be based on the value of the development or subdivision for property tax purposes. The
ordinance may allow a combination or partial payment of funds and partial dedication of land
when the governing body of the city determines that this combination is in the best interests of
the citizens of the area to be served.
The ordinance may provide that in lieu of required street construction, a developer may be
required to provide funds that the city may use for the construction of roads to serve the
occupants, residents, or invitees of the subdivision or development and these funds may be
used for roads which serve more than one subdivision or development within the area. All
funds received by the city pursuant to this paragraph shall be used only for development of
roads, including design, land acquisition, and construction. However, a city may undertake
these activities in conjunction with the Department of Transportation under an agreement
between the city and the Department of Transportation. Any formula adopted to determine the
amount of funds the developer is to pay in lieu of required street construction shall be based on
the trips generated from the subdivision or development. The ordinance may require a
combination of partial payment of funds and partial dedication of constructed streets when the
XLI
governing body of the city determines that a combination is in the best interests of the citizens
of the area to be served.
N.C. Gen. Stat. Ann. § 40A-51 (West)
(a) If property has been taken by an act or omission of a condemnor listed in G.S. 40A-3(b) or (c)
and no complaint containing a declaration of taking has been filed the owner of the property,
may initiate an action to seek compensation for the taking. The action may be initiated within
24 months of the date of the taking of the affected property or the completion of the project
involving the taking, whichever shall occur later. The complaint shall be filed in the superior
court and shall contain the following: the names and places of residence of all persons who are,
or claim to be, owners of the property, so far as the same can by reasonable diligence be
ascertained; if any persons are under a legal disability, it must be so stated; a statement as to
any encumbrances on the property; the particular facts which constitute the taking together
with the dates that they allegedly occurred, and; a description of the property taken. Upon the
filing of said complaint summons shall issue and together with a copy of the complaint be
served on the condemnor. The allegations of said complaint shall be deemed denied; however,
the condemnor within 60 days of service summons and complaint may file answer thereto. If
the taking is admitted by the condemnor, it shall, at the time of filing the answer, deposit with
the court the estimated amount of compensation for the taking. Notice of the deposit shall be
given to the owner. The owner may apply for disbursement of the deposit and disbursement
shall be made in accordance with the applicable provisions of G.S. 40A-44. If a taking is
admitted, the condemnor shall, within 90 days of the filing of the answer to the complaint, file
a map or plat of the property taken. The procedure hereinbefore set out in this Article and in
Article 4 shall be followed for the purpose of determining all matters raised by the pleadings
and the determination of just compensation.
(b) The owner at the time of filing of the complaint shall record a memorandum of action with
the register of deeds in all counties in which the property involved is located. The
memorandum is to be recorded among the land records of the county. The memorandum of
action shall contain:
(1) The names of those persons who the owner is informed and believes to be or claim to be
owners of the property;
(2) A description of the entire tract or tracts affected by the alleged taking sufficient for the
identification thereof;
(3) A statement of the property allegedly taken; and
(4) The date on which owner alleges the taking occurred, the date on which said action was
instituted, the county in which it was instituted, and such other reference thereto as may be
necessary for the identification of said action.
XLII
(c) Nothing in this section shall in any manner affect an owner's common-law right to bring an
action in tort for damage to his property.
North Dakota
N.D. Cent. Code Ann. § 32-15-32 (West)
§ 32-15-32. Costs
The court may in its discretion award to the defendant reasonable actual or statutory costs or
both, which may include interest from the time of taking except interest on the amount of a
deposit which is available for withdrawal without prejudice to right of appeal, costs on appeal,
and reasonable attorney's fees for all judicial proceedings. If the defendant appeals and does
not prevail, the costs on appeal may be taxed against the defendant. In all cases when a new
trial has been granted upon the application of the defendant and the defendant has failed upon
such trial to obtain greater compensation than was allowed the defendant upon the first trial,
the costs of such new trial shall be taxed against the defendant.
Ohio
Home Builders Ass'n of Dayton & the Miami Valley v. Beavercreek, 2000-Ohio-115, 89 Ohio St.
3d 121, 124, 729 N.E.2d 349, 353.
This court has consistently held that Section 3 of Article XVIII, or the Home–Rule Amendment,
gives municipalities the authority to impose exactions, provided that the municipality is not
statutorily forbidden from doing so, and the exactions meet constitutional standards.
Oklahoma
Okla. Stat. Ann. tit. 27, § 12 (West)
§ 12. Inverse condemnation proceedings--Reimbursement of expenses
Where an inverse condemnation proceeding is instituted by the owner of any right, title or
interest in real property because of use of his property in any public program or project
described in Section 1 of this act,1 the court, rendering a judgment for the plaintiff in such
proceeding and awarding compensation for the taking of property, or the state's attorney
effecting a settlement of any such proceeding, shall determine an award or allow to such
plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court
or the acquiring entity's attorney, respectively, reimburse such plaintiff for his reasonable costs,
disbursements and expenses, including reasonable attorney, appraisal and engineering fees,
XLIII
actually incurred because of such proceeding. A determination by the court shall be appealable
to the Supreme Court in the same manner as any other final order.
Okla. Stat. Ann. tit. 27, § 16 (West)
§ 16. Just compensation defined
A. In every case wherein private property is taken or damaged for public use, the person whose
property is taken or damaged shall be entitled to just compensation.
B. “Just compensation”, as used in subsection A of this section, shall mean the value of the
property taken, and in addition, any injury to any part of the property not taken. Any special
and direct benefits to the part of the property not taken may be offset only against any injury
to the property not taken. If only a part of a tract is taken, just compensation shall be
ascertained by determining the difference between the fair market value of the whole tract
immediately before the taking and the fair market value of that portion left remaining
immediately after the taking.
Oregon
O.R.S. § 197.796
197.796. Land use applications; appeals; conditions
(1) An applicant for a land use decision, limited land use decision or expedited land division or
for a permit under ORS 215.427 or 227.178 may accept a condition of approval imposed under
ORS 215.416 or 227.175 and file a challenge to the condition under this section. Acceptance by
an applicant for a land use decision, limited land use decision, expedited land division or permit
under ORS 215.427 or 227.178 of a condition of approval imposed under ORS 215.416 or
227.175 does not constitute a waiver of the right to challenge the condition of approval.
Acceptance of a condition may include but is not limited to paying a fee, performing an act or
providing satisfactory evidence of arrangements to pay the fee or to ensure compliance with
the condition.
(2) Any action for damages under this section shall be filed in the circuit court of the county in
which the application was submitted within 180 days of the date of the decision.
(3)(a) A challenge filed pursuant to this section may not be dismissed on the basis that the
applicant did not request a variance to the condition of approval or any other available form of
reconsideration of the challenged condition. However, an applicant shall comply with ORS
197.763 (1) prior to appealing to the Land Use Board of Appeals or bringing an action for
damages in circuit court and must exhaust all local appeals provided in the local comprehensive
plan and land use regulations before proceeding under this section.
XLIV
(b) In addition to the requirements of ORS 197.763 (5), at the commencement of the initial
public hearing, a statement shall be made to the applicant that the failure of the applicant to
raise constitutional or other issues relating to proposed conditions of approval with sufficient
specificity to allow the local government or its designee to respond to the issue precludes an
action for damages in circuit court.
(c) An applicant is not required to raise an issue under this subsection unless the condition of
approval is stated with sufficient specificity to enable the applicant to respond to the condition
prior to the close of the final local hearing.
(4) In any challenge to a condition of approval that is subject to the Takings Clause of the Fifth
Amendment to the United States Constitution, the local government shall have the burden of
demonstrating compliance with the constitutional requirements for imposing the condition.
(5) In a proceeding in circuit court under this section, the court shall award costs and
reasonable attorney fees to a prevailing party. Notwithstanding ORS 197.830 (15), in a
proceeding before the Land Use Board of Appeals under this section, the board shall award
costs and reasonable attorney fees to a prevailing party.
(6) This section applies to appeals by the applicant of a condition of approval and claims filed in
state court seeking damages for the unlawful imposition of conditions of approval in a land use
decision, limited land use decision, expedited land division or permit under ORS 215.427 or
227.178.
Pennsylvania
In re Condemnation by Municipality of Penn Hills, 870 A.2d 400, 404 (Pa. Commw. Ct. 2005).
A de facto taking occurs when an entity clothed with the power of eminent domain
substantially deprives an owner of the use and enjoyment of his property.
26 Pa. Cons. Stat. Ann. § 502 (West)
§ 502. Petition for appointment of viewers
(a) Contents of petition.--A condemnor, condemnee or displaced person may file a petition
requesting the appointment of viewers, setting forth:
XLV
(1) A caption designating the condemnee or displaced person as the plaintiff and the
condemnor as the defendant.
(2) The date of the filing of the declaration of taking and whether any preliminary objections
have been filed and remain undisposed of.
(3) In the case of a petition of a condemnee or displaced person, the name of the condemnor.
(4) The names and addresses of all condemnees, displaced persons and mortgagees known to
the petitioner to have an interest in the property acquired and the nature of their interest.
(5) A brief description of the property acquired.
(6) A request for the appointment of viewers to ascertain just compensation.
(b) Property included in condemnor's petition.--The condemnor may include in its petition any
or all of the property included in the declaration of taking.
(c) Condemnation where no declaration of taking has been filed.-(1) An owner of a property interest who asserts that the owner's property interest has been
condemned without the filing of a declaration of taking may file a petition for the appointment
of viewers substantially in the form provided for in subsection (a) setting forth the factual basis
of the petition.
(2) The court shall determine whether a condemnation has occurred, and, if the court
determines that a condemnation has occurred, the court shall determine the condemnation
date and the extent and nature of any property interest condemned.
(3) The court shall enter an order specifying any property interest which has been condemned
and the date of the condemnation.
(4) A copy of the order and any modification shall be filed by the condemnor in the office of the
recorder of deeds of the county in which the property is located and shall be indexed in the
deed indices showing the condemnee as grantor and the condemnor as grantee.
(d) Separate proceedings.--The court, in furtherance of convenience or to avoid prejudice, may,
on its own motion or on motion of any party, order separate viewers' proceedings or trial when
more than one property has been included in the petition.
Rhode Island
R.I. Const. art. I, § 16
§ 16. Compensation for taking of private property for public use--Regulation of fishery rights
and shore privileges not public taking
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Private property shall not be taken for public uses, without just compensation. The powers of
the state and of its municipalities to regulate and control the use of land and waters in the
furtherance of the preservation, regeneration, and restoration of the natural environment, and
in furtherance of the protection of the rights of the people to enjoy and freely exercise the
rights of fishery and the privileges of the shore, as those rights and duties are set forth in
Section 17, shall be an exercise of the police powers of the state, shall be liberally construed,
and shall not be deemed to be a public use of private property.
South Carolina
S.C. Code Ann. § 28-2-510
§ 28-2-510. Award of costs and litigation expenses; procedures; prevailing landowner defined.
(A) If, in the action challenging the condemnor's right to take, the court determines that the
condemnor has no right to take all or part of any landowner's property, the landowner's
reasonable costs and litigation expenses incurred therein must be awarded to the landowner. If
the court determines the right to take issue was not raised and litigated in good faith by the
landowner, the court must award the condemnor the reasonable costs and litigation expenses
incurred therein.
(B)(1) A landowner who prevails in the trial of a condemnation action, in addition to his
compensation for the property, may recover his reasonable litigation expenses by serving on
the condemnor and filing with the clerk of court an application therefor within fifteen days
after the entry of the judgment. The application shall show that the landowner has prevailed,
state the amount sought, and include an itemized statement from an attorney or expert
witness representing or appearing at trial in behalf of the landowner stating the fee charged,
the basis therefor, the actual time expended, and all actual expenses for which recovery is
sought. If requested by any party or on its own motion, the court shall hear the parties with
respect to the matters raised by the application and shall determine the amount of litigation
expenses to be awarded, which must be set forth in a written order to be filed with the clerk of
court which becomes part of the judgment. The court, in its discretion, may reduce the amount
to be awarded pursuant to this section, or deny an award, to the extent that the landowner,
during the course of the action, engaged in conduct which unduly and unreasonably protracted
the final resolution of the action or to the extent the court finds that the position of the
condemnor was substantially justified or that special circumstances make an award unjust.
(2) For the purpose of this section, “prevails” means that the compensation awarded (other
than by settlement) for the property, exclusive of interest, is at least as close to the highest
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valuation of the property that is attested to at trial on behalf of the landowner as it is to the
highest valuation of the property that is attested to at trial on behalf of the condemnor.
(C) If the condemnor abandons or withdraws the condemnation action in the manner
authorized by this chapter, the condemnee is entitled to reasonable attorney fees, litigation
expenses, and costs as determined by the court.
S.C. Code Ann. § 28-11-30
§ 28-11-30. Reimbursement of property owners for certain expenses.
To the extent that Title III of the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (Public Law 91-646) makes certain requirements pertaining to the
acquisition of real property by states prerequisites to federal aid to such states in programs or
projects involving the acquisition of real property for public uses, state agencies and
instrumentalities and political subdivisions and local government agencies and instrumentalities
involved in these programs or projects may expend available public funds as provided in this
section, whether or not the program or project is federally aided.
(1) A person, agency, or other entity acquiring real property for public use in a project or
program shall, as soon as practicable after the date of payment of the purchase price or the
date of deposit into court of funds to satisfy the award of compensation in a condemnation
proceeding to acquire real property, whichever is the earlier, reimburse the owner, to the
extent the State deems fair and reasonable, for expenses he necessarily incurred for:
(a) recording fees, transfer taxes, and similar expenses incidental to conveying such real
property to the State;
(b) penalty costs for prepayment for preexisting recorded mortgage entered into in good faith
encumbering such real property; and
(c) the pro rata portion of real property taxes paid which are allocable to a period subsequent
to the date of vesting title in the agency concerned, or the effective date of possession of such
real property by such agency, whichever is the earlier.
(2) Where a condemnation proceeding is instituted by the agency to acquire real property for
such use and:
(a) the final judgment is that the real property cannot be acquired by condemnation; or
(b) the proceeding is abandoned, the owner of any right, title, or interest in such real property
shall be paid such sum as will, in the opinion of the agency, reimburse such owner for his
reasonable attorney, appraisal, and engineering fees actually incurred because of the
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condemnation proceedings. The award of these sums will be paid by the person, agency, or
other entity which sought to condemn the property.
(3) Where an inverse condemnation proceeding is instituted by the owner of a right, title, or
interest in real property because of use of his property in a program or project, the court,
rendering a judgment for the plaintiff in the proceeding and awarding compensation for the
taking of property, or the attorney effecting a settlement of a proceeding, shall determine and
award or allow to the plaintiff, as a part of the judgment or settlement, a sum that will, in the
opinion of the court or the agency's attorney, reimburse the plaintiff for his reasonable costs,
disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees
actually incurred because of the proceeding.
(4) Reestablishment expenses related to the moving of a small business, farm, or nonprofit
organization payable for transportation projects pursuant to federal guidelines and regulations
may be paid in an amount up to fifty thousand dollars, notwithstanding a lower limitation
imposed by federal regulations.
Hawkins v. City of Greenville, 358 S.C. 280, 290, 594 S.E.2d 557, 562 (Ct. App. 2004).
An inverse condemnation occurs when a government agency commits a taking of private
property without exercising its formal powers of eminent domain. To establish an inverse
condemnation, a plaintiff must show: “(1) an affirmative, positive, aggressive act on the part of
the governmental agency; (2) a taking; (3) the taking is for a public use; and (4) the taking has
some degree of permanence.”
South Dakota
S.D. Const. art. VI, § 13
§ 13. Private property not taken without just compensation--Benefit to owner--Fee in
highways
Private property shall not be taken for public use, or damaged, without just compensation,
which will be determined according to legal procedure established by the Legislature and
according to § 6 of this article. No benefit which may accrue to the owner as the result of an
improvement made by any private corporation shall be considered in fixing the compensation
for property taken or damaged. The fee of land taken for railroad tracks or other highways shall
remain in such owners, subject to the use for which it is taken.
Krier v. Dell Rapids Twp., 2006 S.D. 10, 709 N.W.2d 841, 846-47.
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Our case law provides that the “damage” clause in our State Constitution affords more rights to
our citizens than the Fifth Amendment to the Federal Constitution. Searle v. City of Lead
examined the history of the damage clause: The constitutional provision is unquestionably a
wise and just one, and well calculated to protect property owners from injustice and wrong on
the part of municipal or other corporations or individuals invested with the privilege of taking
private property for public use, and should be given a liberal construction by the courts, in
order to make it effectual in the protection of the rights of the citizen. The words “or damaged”
were, without doubt, added to the usual provisions contained in earlier constitutions for the
purpose of extending the remedy to incidental or consequential injuries to property, not
actually taken for public use, in the ordinary acceptation of that term[.] 10 S.D. 312, 317-18, 73
N.W. 101, 103 (1897). Thus, the South Dakota Constitution provides an additional theory by
which a plaintiff may bring a claim for damages against the state.
In State Highway Commission v. Bloom, we noted that: Under the taking and damaging clause
of our constitution ... it is a basic rule of this jurisdiction governing compensation for
consequential damages that where no part of an owner's land is taken but because of the
taking and use of other property so located as to cause damage to an owner's land, such
damage is compensable if the consequential injury is peculiar to the owner's land and not of a
kind suffered by the public as a whole. 77 S.D. 452, 461, 93 N.W.2d 572, 577 (1958). We further
noted that “[t]his rule has been applied in a number of South Dakota cases involving a change
of street grade to the damage of abutting property not physically invaded.” Id. (citing Searle, 10
S.D. 312, 73 N.W. 101; Whittaker v. City of Deadwood, 12 S.D. 608, 82 N.W. 202 (1900)).
Tennessee
Tenn. Const. art. I, § 21
§ 21. Taking of property; eminent domain
That no man's particular services shall be demanded, or property taken, or applied to public use,
without the consent of his representatives, or without just compensation being made therefor.
Tenn. Code Ann. § 29-16-123.
§ 29-16-123. Actions by owners
(a) If, however, such person or company has actually taken possession of such land, occupying
it for the purposes of internal improvement, the owner of such land may petition for a jury of
inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore
provided; or the owner may sue for damages in the ordinary way, in which case the jury shall
lay off the land by metes and bounds and assess the damages, as upon the trial of an appeal
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from the return of a jury of inquest.(b) Additionally, the court rendering a judgment for the
plaintiff in a proceeding brought under subsection (a), arising out of a cause of action identical
to a cause of action that can be brought against the United States under 28 U.S.C. § 1346(a)(2)
or § 1491, or the attorney general or chief legal officer of a political subdivision of the state
effecting a settlement of any such proceeding, shall determine and award or allow to such
plaintiff, as a part of such judgment or settlement such sum as will in the opinion of the court,
or the attorney general or chief legal officer of a political subdivision of the state reimburse
such plaintiff for reasonable costs, disbursements and expenses, including reasonable attorney,
appraisal, and engineering fees, actually incurred because of such proceeding.
B & B Enterprises of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 845-46 (Tenn. 2010).
Currently, we have recognized only two types of takings claims—physical occupation takings
claims and nuisance-type takings claims. Edwards v. Hallsdale–Powell Util. Dist., 115 S.W.3d 461,
465 (Tenn.2003); Jackson v. Metro. Knoxville Airport Auth., 922 S.W.2d 860, 862 (Tenn.1996).
Regulatory takings do not fall into either of these categories. *846 Consol. Waste Sys., LLC v.
Metro. Gov't of Nashville & Davidson Cnty., No. M2002–02582–COA–R3–CV, 2005 WL 1541860,
at *12 (Tenn.Ct.App. June 30, 2005) (No Tenn. R.App. P. 11 application filed). 6 Because of its
procedural posture, this case is not the proper vehicle for deciding the existence or scope of a
regulatory takings claim under Article I, Section 21. For the purpose of this opinion, it will be
sufficient to presume that Article I, Section 21 is broad enough to include regulatory takings
claims.
Tenn. Code Ann. § 4-5-322 (West)
(h) The court may affirm the decision of the agency or remand the case for further proceedings.
The court may reverse or modify the decision if the rights of the petitioner have been
prejudiced because the administrative findings, inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion; or
(5)(A) Unsupported by evidence that is both substantial and material in the light of the entire
record.
(B) In determining the substantiality of evidence, the court shall take into account whatever in
the record fairly detracts from its weight, but the court shall not substitute its judgment for that
of the agency as to the weight of the evidence on questions of fact.
(i) No agency decision pursuant to a hearing in a contested case shall be reversed, remanded or
modified by the reviewing court unless for errors that affect the merits of such decision.
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(j) The reviewing court shall reduce its findings of fact and conclusions of law to writing and
make them parts of the record.
Tenn. Code Ann. § 29-16-127 (West).
§ 29-16-127. Damages; value of property
Notwithstanding law to the contrary, in any case where a governmental entity accidentally or
negligently causes substantial property damage, the appraised value recorded by the assessor
of property for the year in which the damage occurred, divided by the state approved appraisal
ratio for the county, shall be admissible into evidence as to the value of such property if such
property owner:
(1) Had no prior notice or knowledge that such damages would occur; and
(2) Did not have a reasonably current appraisal preexisting the date of the property damage.
Texas
Tex. Gov't Code Ann. § 2007.002 (West)
§ 2007.002. Definitions
In this chapter:
(1) “Governmental entity” means:
(A) a board, commission, council, department, or other agency in the executive branch of state
government that is created by constitution or statute, including an institution of higher
education as defined by Section 61.003, Education Code; or
(B) a political subdivision of this state.
(2) “Owner” means a person with legal or equitable title to affected private real property at the
time a taking occurs.
(3) “Market value” means the price a willing buyer would pay a willing seller after considering
all factors in the marketplace that influence the price of private real property.
(4) “Private real property” means an interest in real property recognized by common law,
including a groundwater or surface water right of any kind, that is not owned by the federal
government, this state, or a political subdivision of this state.
(5) “Taking” means:
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(A) a governmental action that affects private real property, in whole or in part or temporarily
or permanently, in a manner that requires the governmental entity to compensate the private
real property owner as provided by the Fifth and Fourteenth Amendments to the United States
Constitution or Section 17 or 19, Article I, Texas Constitution; or
(B) a governmental action that:
(i) affects an owner's private real property that is the subject of the governmental action, in
whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's
right to the property that would otherwise exist in the absence of the governmental action; and
(ii) is the producing cause of a reduction of at least 25 percent in the market value of the
affected private real property, determined by comparing the market value of the property as if
the governmental action is not in effect and the market value of the property determined as if
the governmental action is in effect.
Tex. Const. art. I, § 17
§ 17. Taking, damaging or destroying property for public use; special privileges and
immunities; control of privileges and franchises
Sec. 17. (a) No person's property shall be taken, damaged, or destroyed for or applied to public
use without adequate compensation being made, unless by the consent of such person, and
only if the taking, damage, or destruction is for:
(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:
(A) the State, a political subdivision of the State, or the public at large; or
(B) an entity granted the power of eminent domain under law; or
(2) the elimination of urban blight on a particular parcel of property.
(b) In this section, “public use” does not include the taking of property under Subsection (a) of
this section for transfer to a private entity for the primary purpose of economic development or
enhancement of tax revenues.
(c) On or after January 1, 2010, the legislature may enact a general, local, or special law
granting the power of eminent domain to an entity only on a two-thirds vote of all the
members elected to each house.
(d) When a person's property is taken under Subsection (a) of this section, except for the use of
the State, compensation as described by Subsection (a) shall be first made, or secured by a
deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities
shall be made; but all privileges and franchises granted by the Legislature, or created under its
authority, shall be subject to the control thereof.
LIII
Town of Flower Mound v. Stafford Estates Ltd. P'ship, 135 S.W.3d 620, 645-46 (Tex. 2004).
The Fifth Amendment prohibits the taking of property without just compensation but does not
require payment before the taking occurs. As the United States Supreme Court has held:
all that is required is that a “ ‘reasonable, certain and adequate provision for obtaining
compensation’ ” exist at the time of the taking. If the government has provided an adequate
process for obtaining compensation, and if resort to that process “[yields] just compensation,”
then the property owner “has no claim against the Government” for a taking.... Similarly, if a
State provides an adequate procedure for seeking just compensation, the property owner
cannot claim a violation of the Just Compensation Clause until it has used the procedure and
been denied just compensation.
For a regulatory taking like Stafford claims, Texas provides an inverse condemnation action for
violation of article I, section 17 of the Texas Constitution. This is “an adequate procedure for
seeking just compensation”. Stafford has made use of the procedure and now obtained
compensation. Consequently, Stafford “cannot claim a violation of the Just Compensation
Clause” and therefore cannot prevail on its section 1983 action.
Amicus curiae, Pacific Legal Foundation, argues that this is tantamount to saying that state and
federal takings claims cannot be brought in the same lawsuit, but it is not. The fact that the
federal constitutional guaranty is not violated if state law affords just compensation does not
preclude both claims from being asserted in the same action. Recovery denied on the state
takings claim may yet be granted on the federal claim, in the same action.
Stafford argues that it is entitled to attorney fees under section 1988 even if its federal claims
are not reached because of the relief awarded on his state claim, as long as the claims arise out
of a common nucleus of operative facts. Stafford would have a strong argument if its federal
claims were simply “not reached”. But because Stafford has obtained adequate compensation
through state procedures, it has no federal claims to be reached. Stafford's rights under the
United States Constitution simply were never violated.
Utah
Utah Code Ann. § 10-9a-508 (West)
§ 10-9a-508. Exactions--Exaction for water interest--Requirement to offer to original owner
property acquired by exaction
(1) A municipality may impose an exaction or exactions on development proposed in a land use
application, including, subject to Subsection (3), an exaction for a water interest, if:
(a) an essential link exists between a legitimate governmental interest and each exaction; and
LIV
(b) each exaction is roughly proportionate, both in nature and extent, to the impact of the
proposed development.
(2) If a land use authority imposes an exaction for another governmental entity:
(a) the governmental entity shall request the exaction; and
(b) the land use authority shall transfer the exaction to the governmental entity for which it was
exacted.
(3)(a)(i) A municipality shall base any exaction for a water interest on the culinary water
authority's established calculations of projected water interest requirements.
(ii) Upon an applicant's request, the culinary water authority shall provide the applicant with
the basis for the culinary water authority's calculations under Subsection (3)(a)(i) on which an
exaction for a water interest is based.
(b) A municipality may not impose an exaction for a water interest if the culinary water
authority's existing available water interests exceed the water interests needed to meet the
reasonable future water requirement of the public, as determined under Subsection 73-14(2)(f).
(4)(a) If a municipality plans to dispose of surplus real property that was acquired under this
section and has been owned by the municipality for less than 15 years, the municipality shall
first offer to reconvey the property, without receiving additional consideration, to the person
who granted the property to the municipality.
(b) A person to whom a municipality offers to reconvey property under Subsection (4)(a) has 90
days to accept or reject the municipality's offer.
(c) If a person to whom a municipality offers to reconvey property declines the offer, the
municipality may offer the property for sale.
(d) Subsection (4)(a) does not apply to the disposal of property acquired by exaction by a
community development and renewal agency.
Utah Code Ann. § 63L-4-102 (West)
As used in this chapter:
(1) “Constitutional taking issues” means actions involving the physical taking or exaction of
private real property by a political subdivision that might require compensation to a private real
property owner because of:
(a) the Fifth or Fourteenth Amendment of the Constitution of the United States;
(b) Article I, Section 22 of the Utah Constitution; or
(c) any recent court rulings governing the physical taking or exaction of private real property by
a government entity.
(2) “Political subdivision” means a county, municipality, local district, special service district,
school district, or other local government entity.
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Utah Code Ann. § 63L-3-202 (West)
(1) Using the guidelines prepared under Section 63L-3-201, each state agency shall:
(a) determine whether an action has constitutional taking implications; and
(b) prepare an assessment of constitutional taking implications that includes an analysis of the
following:
(i) the likelihood that the action may result in a constitutional taking, including a description of
how the taking affects the use or value of private property;
(ii) alternatives to the proposed action that may:
(A) fulfill the government's legal obligations of the state agency;
(B) reduce the impact on the private property owner; and
(C) reduce the risk of a constitutional taking; and
(iii) an estimate of financial cost to the state for compensation and the source of payment
within the agency's budget if a constitutional taking is determined.
(2) In addition to the guidelines prepared under Section 63L-3-201, each state agency shall
adhere, to the extent permitted by law, to the following criteria if implementing or enforcing
actions that have constitutional taking implications:
(a) If an agency requires a person to obtain a permit for a specific use of private property, any
conditions imposed on issuing the permit shall directly relate to the purpose for which the
permit is issued and shall substantially advance that purpose.
(b) Any restriction imposed on the use of private property shall be proportionate to the extent
the use contributes to the overall problem that the restriction is to redress.
(c) If an action involves a permitting process or any other decision-making process that will
interfere with, or otherwise prohibit, the use of private property pending the completion of the
process, the duration of the process shall be kept to the minimum necessary.
(d) Before taking an action restricting private property use for the protection of public health or
safety, the state agency, in internal deliberative documents, shall:
(i) clearly identify, with as much specificity as possible, the public health or safety risk created
by the private property use;
(ii) establish that the action substantially advances the purpose of protecting public health and
safety against the specifically identified risk;
(iii) establish, to the extent possible, that the restrictions imposed on the private property are
proportionate to the extent the use contributes to the overall risk; and
(iv) estimate, to the extent possible, the potential cost to the government if a court determines
that the action constitutes a constitutional taking.
(3) If there is an immediate threat to health and safety that constitutes an emergency and
requires an immediate response, the analysis required by Subsection (2)(b) may be made when
the response is completed.
LVI
(4) Before the state agency implements an action that has constitutional taking implications,
the state agency shall submit a copy of the assessment of constitutional taking implications to
the governor and the Legislative Management Committee.
Am. Tierra Corp. v. City of W. Jordan, 840 P.2d 757, 760 (Utah 1992).
Furthermore, this court already has recognized that an action to recover unlawful charges for
city services is equitable in nature.
Vermont
Virginia
2014 SESSION ENROLLED
VIRGINIA ACTS OF ASSEMBLY –– CHAPTER
An Act to amend the Code of Virginia by adding a section numbered 15.2-2208.1, relating to
unconstitutional grant or denial by localities of certain permits and approvals; damages,
attorney fees and costs.
Be it enacted by the General Assembly of Virginia:
That the Code of Virginia is amended by adding a section numbered 15.2-2208.1 as follows:
§ 15.2-2208.1. Damages for unconstitutional grant or denial by locality of certain permits and
approvals.
A. Notwithstanding any other provision of law, general or special, any applicant aggrieved by
the grant or denial by a locality of any approval or permit, however described or delineated,
including a special exception, special use permit, conditional use permit, rezoning, site plan, plan
of development, and subdivision plan, where such grant included, or denial was based upon, an
unconstitutional condition pursuant to the United States Constitution or the Constitution of
Virginia, shall be entitled to an award of compensatory damages and to an order remanding the
matter to the locality with a direction to grant or issue such permits or approvals without the
unconstitutional condition and may be entitled to reasonable attorney fees and court costs.
B. In any proceeding, once an unconstitutional condition has been proven by the aggrieved
applicant to have been a factor in the grant or denial of the approval or permit, the court shall
presume, absent clear and convincing evidence to the contrary, that such applicant's acceptance
of or refusal to accept the unconstitutional condition was the controlling basis for such
impermissible grant or denial provided only that the applicant objected to the condition in
writing prior to such grant or denial.
C. Any action brought pursuant to this section shall be filed with the circuit court having
jurisdiction of the land affected or the greater part thereof, and the court shall hear and
determine the case as soon as practical, provided that such action is filed within the time limit
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set forth in subsection C or D of § 15.2-2259, subsection D or E of § 15.2-2260, or subsection F of
§ 15.2-2285, as may be applicable.
2. That the provisions of this act shall apply only to approvals or permits that are granted or
29 denied on or after July 1, 2014.
Washington
Go to information about Washington’s Land Use Petition Act (LUPA) http://apps.leg.wa.gov/rcw/default.aspx?cite=36.70C&full=true
West Virginia
W. Va. Const. art. III, § 9
Private property, how taken.
Private property shall not be taken or damaged for public use, without just compensation;
nor shall the same be taken by any company, incorporated for the purposes of internal
improvement, until just compensation shall have been paid, or secured to be paid, to the
owner; and when private property shall be taken, or damaged for public use, or for the use of
such corporation, the compensation to the owner shall be ascertained in such manner as may
be prescribed by general law: Provided, That when required by either of the parties, such
compensation shall be ascertained by an impartial jury of twelve freeholders.
Wisconsin
Wis. Stat. Ann. § 32.10 (West)
32.10. Condemnation proceedings instituted by property owner
If any property has been occupied by a person possessing the power of condemnation and if
the person has not exercised the power, the owner, to institute condemnation proceedings,
shall present a verified petition to the circuit judge of the county wherein the land is situated
asking that such proceedings be commenced. The petition shall describe the land, state the
person against which the condemnation proceedings are instituted and the use to which it has
been put or is designed to have been put by the person against which the proceedings are
instituted. A copy of the petition shall be served upon the person who has occupied petitioner's
land, or interest in land. The petition shall be filed in the office of the clerk of the circuit court
and thereupon the matter shall be deemed an action at law and at issue, with petitioner as
plaintiff and the occupying person as defendant. The court shall make a finding of whether the
defendant is occupying property of the plaintiff without having the right to do so. If the court
determines that the defendant is occupying such property of the plaintiff without having the
right to do so, it shall treat the matter in accordance with the provisions of this subchapter
assuming the plaintiff has received from the defendant a jurisdictional offer and has failed to
LVIII
accept the same and assuming the plaintiff is not questioning the right of the defendant to
condemn the property so occupied.
Wis. Stat. Ann. § 32.09 (West)
32.09. Rules governing determination of just compensation
In all matters involving the determination of just compensation in eminent domain proceedings,
the following rules shall be followed:
(1) The compensation so determined and the status of the property under condemnation for
the purpose of determining whether severance damages exist shall be as of the date of
evaluation as fixed by s. 32.05(7)(c) or 32.06(7).
(1m) As a basis for determining value, a commission in condemnation or a court may consider
the price and other terms and circumstances of any good faith sale or contract to sell and
purchase comparable property. A sale or contract is comparable within the meaning of this
subsection if it was made within a reasonable time before or after the date of evaluation and
the property is sufficiently similar in the relevant market, with respect to situation, usability,
improvements and other characteristics, to warrant a reasonable belief that it is comparable to
the property being valued.
(2) In determining just compensation the property sought to be condemned shall be considered
on the basis of its most advantageous use but only such use as actually affects the present
market value.
(2m) In determining just compensation for property sought to be condemned in connection
with the construction of facilities, as defined under s. 196.491 (1)(e), any increase in the market
value of such property occurring after the date of evaluation but before the date upon which
the lis pendens is filed under s. 32.06 (7) shall be considered and allowed to the extent it is
caused by factors other than the planned facility.
(3) Special benefits accruing to the property and affecting its market value because of the
planned public improvement shall be considered and used to offset the value of property taken
or damages under sub. (6), but in no event shall such benefits be allowed in excess of damages
described under sub. (6).
(4) If a depreciation in value of property results from an exercise of the police power, even
though in conjunction with the taking by eminent domain, no compensation may be paid for
such depreciation except as expressly allowed in subs. (5)(b) and (6) and s. 32.19.
(5)(a) In the case of a total taking the condemnor shall pay the fair market value of the property
taken and shall be liable for the items in s. 32.19 if shown to exist.
(b) Any increase or decrease in the fair market value of real property prior to the date of
evaluation caused by the public improvement for which such property is acquired, or by the
likelihood that the property would be acquired for such improvement, other than that due to
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physical deterioration within the reasonable control of the owner, may not be taken into
account in determining the just compensation for the property.
(6) In the case of a partial taking of property other than an easement, the compensation to be
paid by the condemnor shall be the greater of either the fair market value of the property taken
as of the date of evaluation or the sum determined by deducting from the fair market value of
the whole property immediately before the date of evaluation, the fair market value of the
remainder immediately after the date of evaluation, assuming the completion of the public
improvement and giving effect, without allowance of offset for general benefits, and without
restriction because of enumeration but without duplication, to the following items of loss or
damage to the property where shown to exist:
(a) Loss of land including improvements and fixtures actually taken.
(b) Deprivation or restriction of existing right of access to highway from abutting land, provided
that nothing herein shall operate to restrict the power of the state or any of its subdivisions or
any municipality to deprive or restrict such access without compensation under any duly
authorized exercise of the police power.
(c) Loss of air rights.
(d) Loss of a legal nonconforming use.
(e) Damages resulting from actual severance of land including damages resulting from
severance of improvements or fixtures and proximity damage to improvements remaining on
condemnee's land. In determining severance damages under this paragraph, the condemnor
may consider damages which may arise during construction of the public improvement,
including damages from noise, dirt, temporary interference with vehicular or pedestrian access
to the property and limitations on use of the property. The condemnor may also consider costs
of extra travel made necessary by the public improvement based on the increased distance
after construction of the public improvement necessary to reach any point on the property
from any other point on the property.
(f) Damages to property abutting on a highway right-of-way due to change of grade where
accompanied by a taking of land.
(g) Cost of fencing reasonably necessary to separate land taken from remainder of
condemnee's land, less the amount allowed for fencing taken under par. (a), but no such
damage shall be allowed where the public improvement includes fencing of right-of-way
without cost to abutting lands.
(6g) In the case of the taking of an easement, the compensation to be paid by the condemnor
shall be determined by deducting from the fair market value of the whole property immediately
before the date of evaluation, the fair market value of the remainder immediately after the
date of evaluation, assuming the completion of the public improvement and giving effect,
without allowance of offset for general benefits, and without restriction because of
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enumeration but without duplication, to the items of loss or damage to the property
enumerated in sub. (6)(a) to (g) where shown to exist.
(6r)(a) In the case of a taking of an easement in lands zoned or used for agricultural purposes,
for the purpose of constructing or operating a high-voltage transmission line, as defined in s.
196.491(1)(f), or any petroleum or fuel pipeline, the offer under s. 32.05(2a) or 32.06(2a), the
jurisdictional offer under s. 32.05(3) or 32.06(3), the award of damages under s. 32.05(7), the
award of the condemnation commissioners under s. 32.05(9) or 32.06(8) or the assessment
under s. 32.57(5), and the jury verdict as approved by the court under s. 32.05(10) or (11) or
32.06(10) or the judgment under s. 32.61(3) shall specify, in addition to a lump sum
representing just compensation under sub. (6) for outright acquisition of the easement, an
amount payable annually on the date therein set forth to the condemnee, which amount
represents just compensation under sub. (6) for the taking of the easement for one year.
(b) The condemnee shall choose between the lump sum and the annual payment method of
compensation at such time as the condemnee accepts the offer, award or verdict, or the
proceedings relative to the issue of compensation are otherwise terminated. Selection of the
lump sum method of payment shall irrevocably bind the condemnee and successors in interest.
(c)1. Except as provided under subd. 2, if the condemnee selects the annual payment method
of compensation, the fact of such selection and the amount of the annual payment shall be
stated in the conveyance or an appendix thereto which shall be recorded with the register of
deeds. The first annual payment shall be in addition to payment of any items payable under s.
32.19. Succeeding annual payments shall be determined by multiplying the amount of the first
annual payment by the quotient of the state assessment under s. 70.575 for the year in
question divided by the state assessment for the year in which the first annual payment for that
easement was made, if the quotient exceeds one. A condemnee who selects the annual
payment method of compensation, or any successor in interest, may at any time, by agreement
with the condemnor or otherwise, waive in writing his or her right, or the right of his or her
successors in interest, to receive such payments. Any successor in interest shall be deemed to
have waived such right until the date on which written notice of his or her right to receive
annual payments is received by the condemnor or its successor in interest.
2. If lands which are zoned or used for agricultural purposes and which are condemned and
compensated by the annual payment method of compensation under this paragraph are no
longer zoned or used for agricultural purposes, the right to receive the annual payment method
of compensation for a high-voltage transmission line easement shall cease and the condemnor
or its successor in interest shall pay to the condemnee or any successor in interest who has
given notice as required under subd. 1 a single payment equal to the difference between the
lump sum representing just compensation under sub. (6) and the total of annual payments
previously received by the condemnee and any successor in interest.
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(7) In addition to the amount of compensation paid pursuant to sub. (6), the owner shall be
paid for the items provided for in s. 32.19, if shown to exist, and in the manner described in s.
32.20.
(8) A commission in condemnation or a court may in their respective discretion require that
both condemnor and owner submit to the commission or court at a specified time in advance
of the commission hearing or court trial, a statement covering the respective contentions of the
parties on the following points:
(a) Highest and best use of the property.
(b) Applicable zoning.
(c) Designation of claimed comparable lands, sale of which will be used in appraisal opinion
evidence.
(d) Severance damage, if any.
(e) Maps and pictures to be used.
(f) Costs of reproduction less depreciation and rate of depreciation used.
(g) Statements of capitalization of income where used as a factor in valuation, with supporting
data.
(h) Separate opinion as to fair market value, including before and after value where applicable
by not to exceed 3 appraisers.
(i) A recitation of all damages claimed by owner.
(j) Qualifications and experience of witnesses offered as experts.
(9) A condemnation commission or a court may make regulations for the exchange of the
statements referred to in sub. (8) by the parties, but only where both owner and condemnor
furnish same, and for the holding of prehearing or pretrial conference between parties for the
purpose of simplifying the issues at the commission hearing or court trial.
Wisconsin Builders Ass'n v. Wisconsin Dep't of Transp., 2005 WI App 160, 285 Wis. 2d 472, 504,
702 N.W.2d 433, 448.
We also observe that the rough proportionality standard of Dolan requires that, in an
adjudicative context, the government make “an individualized determination that the required
dedication is related both in nature and extent to the impact of the proposed development.”
512 U.S. at 391, 114 S.Ct. 2309. This standard does not, by its very terms, appear to apply to the
facial challenge to a regulation, where there are no facts regarding any individual landowner.
Wisconsin Builders does not present an argument that resolves this incompatibility.
We conclude that the Nollan/Dolan standard does not apply to Wisconsin Builders' facial
challenge to the setback restrictions. We therefore do not take up DOT's argument that the
special exception condition is permissible under that standard.
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Wis. Stat. Ann. § 32.28
(1) In this section, “litigation expenses” means the sum of the costs, disbursements and
expenses, including reasonable attorney, appraisal and engineering fees necessary to prepare
for or participate in actual or anticipated proceedings before the condemnation commissioners,
board of assessment or any court under this chapter.
(2) Except as provided in sub. (3), costs shall be allowed under ch. 814 in any action brought
under this chapter. If the amount of just compensation found by the court or commissioners of
condemnation exceeds the jurisdictional offer or the highest written offer prior to the
jurisdictional offer, the condemnee shall be deemed the successful party under s. 814.02(2).
(3) In lieu of costs under ch. 814, litigation expenses shall be awarded to the condemnee if:
(a) The proceeding is abandoned by the condemnor;
(b) The court determines that the condemnor does not have the right to condemn part or all of
the property described in the jurisdictional offer or there is no necessity for its taking;
(c) The judgment is for the plaintiff in an action under s. 32.10;
(d) The award of the condemnation commission under s. 32.05(9) or 32.06(8) exceeds the
jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700
and at least 15% and neither party appeals the award to the circuit court;
(e) The jury verdict as approved by the court under s. 32.05(11) exceeds the jurisdictional offer
or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15%;
(f) The condemnee appeals an award of the condemnation commission which exceeds the
jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700
and at least 15%, if the jury verdict as approved by the court under s. 32.05(10) or 32.06(10)
exceeds the award of the condemnation commission by at least $700 and at least 15%;
(g) The condemnor appeals the award of the condemnation commission, if the jury verdict as
approved by the court under s. 32.05(10) or 32.06(10) exceeds the jurisdictional offer or the
highest written offer prior to the jurisdictional offer by at least $700 and at least 15%;
(h) The condemnee appeals an award of the condemnation commission which does not exceed
the jurisdictional offer or the highest written offer prior to the jurisdictional offer by 15%, if the
jury verdict as approved by the court under s. 32.05(10) or 32.06(10) exceeds the jurisdictional
offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least
15%; or
(i) The condemnee appeals an assessment of damages and benefits under s. 32.61(3), if the
judgment is at least $700 and at least 15% greater than the award made by the city.
Wyoming
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Wyo. Stat. Ann. § 9-5-303. Guidelines and checklist for assessment of takings
(a) The attorney general shall develop guidelines and a checklist by October 1, 1995, to assist
government agencies in the identification and evaluation of actions that have constitutional
implications that may result in a taking. The attorney general shall review and update the
checklist and guidelines to maintain consistency with changes in the law.
(b) In formulating the guidelines and checklist, the attorney general shall consider the following:
(i) A description of how the action or regulation affects private property;
(ii) The likelihood that the action or regulation may constitute a taking;
(iii) The statutory purpose to be served by the action or regulation;
(iv) Whether the action or regulation advances that purpose;
(v) Whether the restriction imposed is proportionate to the overall problem;
(vi) An estimate of the agency's financial liability should the action or regulation be held to
constitute a taking of private property;
(vii) Alternatives considered by the agency, or proposed by the public, which would reduce the
impact of the regulation upon private property;
(viii) Any other relevant criteria as may be determined by the attorney general.
Wyo. Stat. Ann. § 9-5-305 (West)
The purpose of this act is to establish an orderly, consistent process that better enables
governmental bodies to evaluate whether proposed regulatory or administrative actions may
result in a taking of private property or violation of due process. It is not the purpose of this act
to expand or reduce the scope of private property protections provided in the state and federal
constitutions.
Wyo. Stat. Ann. § 9-5-302 (West)
(a) As used in this act:
(i) “Constitutional implications” means the unconstitutional taking of private property as
determined by the attorney general in light of current case law;
(ii) “Government agency” means the state of Wyoming and any officer, agency, board,
commission, department or similar body of the executive branch of state government;
(iii) “Governmental action” or “action”:
(A) Means:
(I) Proposed rules by a state agency that if adopted and enforced may limit the use of private
property;
(II) Required dedications or exactions from owners of private property by a state agency.
(B) Does not include:
(I) Activity in which the power of eminent domain is exercised formally;
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(II) Repealing rules discontinuing governmental programs or amending rules in a manner that
lessens interference with the use of private property;
(III) Law enforcement activity involving seizure or forfeiture of private property for violations of
law or as evidence in criminal proceedings;
(IV) Orders that are authorized by statute, that are issued by a state agency or a court of law
and that were the result of a violation of state law;
(V) Actions necessary to maintain or protect public health and safety.
(iv) “Private property” means property protected by amendments V and XIV of the constitution
of the United States or article 1, section 33 of the constitution of the state of Wyoming;
(v) “Taking” means an uncompensated taking of private property in violation of the state or
federal constitution;
(vi) “This act” means W.S. 9-5-301 through 9-5-305.
Wyo. Stat. Ann. § 1-26-516
§ 1-26-516. Action for inverse condemnation
When a person possessing the power of condemnation takes possession of or damages land in
which he has no interest, or substantially diminishes the use or value of land, due to activities
on adjoining land without the authorization of the owner of the land or before filing an action
of condemnation, the owner of the land may file an action in district court seeking damages for
the taking or damage and shall be granted litigation expenses if damages are awarded to the
owner.
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APPENDIX IV – RECENT LEGISLATIVE EFFORT IN VIRGINIA REFLECTING KOONTZ
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