The U.S. Supreme Court has a taking case before it, so it’s time for the New York Times to come down on the side of the greedy government, and against the constitutional rights of the property owner who wants no more than to build on his land in accordance with zoning and land-use regulation law, but without being subjected to what the U.S. Supreme Court aptly called an outright act of extortion. Constitutional law has been settled since the 1980s that when private development imposes burdens on public resources, it is permissible for the local land-use regulators to require a dedication of land whose transfer to the government will tend to undo or mitigate those burdens. But under the Nollan and Dolan cases, such a “dedication”* must (a) have a nexus or connection to the harm sought to be mitigated by the government, and (b) the government demand must be proportional to the anticipated public burden it seeks to mitigate.
As it happened, both Nollan and Dolan cases involved demands for dedications of land, leaving open the question of whether the law was the same in cases where the government demanded something other than land (e.g. money). This remained an open question until Koontz v. St. Johns River Water Management District case landed before the Supreme Court.
In Koontz the District demanded that as a condition of the District granting a development permit, Koontz had to pay for government improvements that had nothing to do with his project, and indeed would be located some distance away from it, so that they lacked the required nexus and proportionality. So why should Koontz have to pay for something that had nothing to do with him, his property, and his development? To the extent Koontz’s project would require filling of 3 acres of wetland, he offered to dedicate 11 acres of existing wetlands to the government as an act of mitigation. Eleven acres in exchange for three sounds like a good deal to us, but the District was greedy and demanded more.
In other words, what happened in Koontz was no request for a dedication, but an act of extortion: Give us money to pay for construction of government improvements that have nothing to do with you or your land, and are located miles offsite, or we won’t permit you to build on your land in a perfectly legal manner. This is an example of what lawyers call the doctrine of “unconstitutional conditions” — give us what we want, or we will deprive you of your constituionalm right. It’s sort of as if the govenment were to say to the New York Times: Pay us the cost of constructing a public school in Brooklyn, or we won’t let you put up your new building on 43rd Street in Manhattan. You think the Times would go for that? No? We don’t think so either. Why? Because after all the lawyer-talk is done with with, a situation like that beaars no resemblance to mitigation of any supposed harm done by the owner’s improvements. It is simply a case of baksheesh – an insitutionalized bribe, or if you prefer, since the District is saying “give or else,” it is an act of extortion — which is what the Supreme Court aptly called it in the Nollan case in 1987. So why change now?
* Why quotation marks, you ask? Because in the context of land regulation law the word “dedication” means a gift of land to the government. But when the government demands a ”dedication” before it will issue a permit for construction of a lawful private improvement, it’s no gift that it asks for — the donative intent is lacking, and such a transaction has all the attributes of a “gift” that took place when in the third grade you acceded to the request of the school bully who inquired if you would be good enough to give him your lunch money as a condition of him letting you go home in one piece.