LOS ANGELES—SCOTUS may weigh in on a California land-use case that argues that the government isn't providing rigorous scrutiny as required by the Constitution. In 616 Croft Ave. LLC v. City of West Hollywood, the government claims that it is exempt from imposing scrutiny—as required by a previous case in the late 1980s—by forcing a developer to allot a portion of its project to affordable housing. Property rights advocates Citizens' Alliance for Property Rights Legal Fund have filled a brief for the Supreme Court to review the case and decide if the city should be required to scrutinize projects regardless of the government agency permitting the change. To find out more about this case and why it is so important, we sat down with Paul Beard, a counsel in Alston & Bird's Environmental, Land Use & Natural Resources Practice Group, for an exclusive interview.
GlobeSt.com: How should the government be handling exactions? What is the precedent?
Beard: When you get a land use permit, the public agency that issues that land use permit will often ask for exactions, which is usually money or a piece of your property. That is based on the premise that your project is causing certain public impacts, and you have to mitigate those impacts by paying the government money or by giving it a piece of your property, maybe for an easement or some other public good. In 1987, the Supreme Court came down with an important decision in Nollan v the California Coastal Commission. The Court held that any time the government exacts something of value in the permitting process, that public agency has to prove that what it is asking for is closely related to the impact of your project. The Supreme Court wanted to make sure that the government was really asking for mitigation and wasn't trying to take money from the applicant. The Constitution requires the government to pay compensation any time it takes property from someone, and the Court wanted to make sure the government wasn't using the permitting process as a way around that requirement. The Supreme Court's decision was an important one.
GlobeSt.com: How has the government been handling exactions, and what case are you bringing to the Supreme Court to review?
Beard: In recent years, public agencies began to pass laws to require all applicants in the process to give up money or a piece of their property as mitigation. The government's argument was that if they pass an ordinance or a statute, then they shouldn't have to make the showing required in the Nollan Case, because there are open public comments and the applicant is adequately protected by the process. In those instances, the government is arguing that they shouldn't be required to make an additional showing. They are basically trying to get around the Nollan Rule by passing these exactions through ordinances and statutes. In many cases, these exactions are imposed behind the counter by a planning official, sort of arbitrarily. The argument that the government is making, and the one that has won out in California, is that if you are a property owner going for a land use permit and you are faced with an exaction that is imposed with a planning commission behind the scenes, then you do have additional protection and the government does have to show explicitly that it has mitigated for impacts caused by your client. The government says that the same concerns aren't present when the exaction is part of law. That is the distinction that this case is about. We say that it doesn't make a difference the body of government that is imposing the exaction. The property owner is entitled to a showing of what the government is trying to take from him or her.
GlobeSt.com: How long have you been looking for a case to present to the court.
Beard: The property rights movement has been trying to get this in front of the Supreme Court for many, many years, and it is one of the last open issues in the area of exactions. The facts of this case are a perfect vehicle for deciding the issue. This issue has been bubbling for 30 years. Every time a ruling comes down on an issue like this, public agencies try to find a way to adjust and get out from under the strict scrutiny that the case requires.
GlobeSt.com: Why do you think the Supreme Court will take the case now?
Beard: The Supreme Court typically takes cases where there is a clear court split on the issue. They are also looking for the ideal case on the facts and the procedural posture. There are a lot of factors that go into why the Supreme Court may agree to review a case.
LOS ANGELES—SCOTUS may weigh in on a California land-use case that argues that the government isn't providing rigorous scrutiny as required by the Constitution. In 616 Croft Ave. LLC v. City of West Hollywood, the government claims that it is exempt from imposing scrutiny—as required by a previous case in the late 1980s—by forcing a developer to allot a portion of its project to affordable housing. Property rights advocates Citizens' Alliance for Property Rights Legal Fund have filled a brief for the Supreme Court to review the case and decide if the city should be required to scrutinize projects regardless of the government agency permitting the change. To find out more about this case and why it is so important, we sat down with Paul Beard, a counsel in
GlobeSt.com: How should the government be handling exactions? What is the precedent?
Beard: When you get a land use permit, the public agency that issues that land use permit will often ask for exactions, which is usually money or a piece of your property. That is based on the premise that your project is causing certain public impacts, and you have to mitigate those impacts by paying the government money or by giving it a piece of your property, maybe for an easement or some other public good. In 1987, the Supreme Court came down with an important decision in Nollan v the California Coastal Commission. The Court held that any time the government exacts something of value in the permitting process, that public agency has to prove that what it is asking for is closely related to the impact of your project. The Supreme Court wanted to make sure that the government was really asking for mitigation and wasn't trying to take money from the applicant. The Constitution requires the government to pay compensation any time it takes property from someone, and the Court wanted to make sure the government wasn't using the permitting process as a way around that requirement. The Supreme Court's decision was an important one.
GlobeSt.com: How has the government been handling exactions, and what case are you bringing to the Supreme Court to review?
Beard: In recent years, public agencies began to pass laws to require all applicants in the process to give up money or a piece of their property as mitigation. The government's argument was that if they pass an ordinance or a statute, then they shouldn't have to make the showing required in the Nollan Case, because there are open public comments and the applicant is adequately protected by the process. In those instances, the government is arguing that they shouldn't be required to make an additional showing. They are basically trying to get around the Nollan Rule by passing these exactions through ordinances and statutes. In many cases, these exactions are imposed behind the counter by a planning official, sort of arbitrarily. The argument that the government is making, and the one that has won out in California, is that if you are a property owner going for a land use permit and you are faced with an exaction that is imposed with a planning commission behind the scenes, then you do have additional protection and the government does have to show explicitly that it has mitigated for impacts caused by your client. The government says that the same concerns aren't present when the exaction is part of law. That is the distinction that this case is about. We say that it doesn't make a difference the body of government that is imposing the exaction. The property owner is entitled to a showing of what the government is trying to take from him or her.
GlobeSt.com: How long have you been looking for a case to present to the court.
Beard: The property rights movement has been trying to get this in front of the Supreme Court for many, many years, and it is one of the last open issues in the area of exactions. The facts of this case are a perfect vehicle for deciding the issue. This issue has been bubbling for 30 years. Every time a ruling comes down on an issue like this, public agencies try to find a way to adjust and get out from under the strict scrutiny that the case requires.
GlobeSt.com: Why do you think the Supreme Court will take the case now?
Beard: The Supreme Court typically takes cases where there is a clear court split on the issue. They are also looking for the ideal case on the facts and the procedural posture. There are a lot of factors that go into why the Supreme Court may agree to review a case.
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