Real Estate & Property Law

New Cert Petition - Dolan Proportionality And Individualized Determination Applies To In-Lieu Fees

By Robert Thomas (inversecondemnation.com)

A cert petition has been filed seeking review of Joy Builders, Inc. v. Town of Clarkstown, 11 N.Y.3d 863 (2008).  That decision was summarized by Professor Patty Salkin on the Law of the Land blog here. The New York Court of Appeals refused to hear the case, ordering "Appeal dismissed without costs, by the Court sua sponte, upon the ground that no substantial constitutional question is directly involved."

The cert petition was filed on February 27, 2009 and is available here.

The Question Presented:

A government violates the doctrine of unconstitutional conditions when it grants a development permit conditioned upon the compelled dedication of land for municipal purposes if: i) it has not made an "individualized determination" that an exaction is required because of the project's impacts, and ii) the quantity of land compelled is not roughly proportional to those impacts.¹  More and more governments have been conditioning development permits upon the payment of a fee in lieu of the dedication of land. Nationwide there is a split as to whether monetary payments are to be judged by the same constitutional standards. The following questions are thus presented.

1. Is a monetary fee imposed in lieu of a dedication of land held to Dolan's standard?

2. If so, does a fee imposed in lieu of the dedication of recreation land, based on a generic needs study not focusing on the project at hand and deliberately
disregarding an array of available public and private recreational facilities because they are not controlled by the imposing government, meet this test?

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1.  Dolan v. City of Tigard, 512 U.S. 374, 391 (1994) explained in Lingle v.
Chevron U.S.A., 544 U.S. 528, 546-548 (2005).

The petition points out the disarray in the lower state and federal courts on the issues, always a good indicator of certworthiness. The Court's docket report is here. The town's brief in opposition is due April 3, 2009.

Full post as published by inversecondemnation on March 24, 2009 (boomark / email).