PCSR AGENDA 03-08-2005 - Laserfiche WebLink

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American Planning Associacion 29 conservation restnctlon on a portion of a property as a condition of approving the con- struction of a house. New York's Court of Appeals ruled in the town's favor in Decem- ber in Smith v. Town of Mend on. Three of the judges on the seven-member court dissented sharply, however, arguing that the restriction was a taking under established U.S. Supreme Court precedents. The judges' discussion of those precedents is significant because the Supreme Court has not yet squarely addressed the constitutional- ity .onditions imposed on permit applica- ti~at fall short of aJandowner's forced dedication of property to a municipality or some other entity. Paul and Janet Smith applied for site plan approval to build a house on their 9.7-acre parcel in Mendon (pop. 8,370), 12 miles south of Rochester. In the past 20 years, the town has made a concerted effort to retain its semi-rural character, using tools such as environmental protection overlay districts (EPODs). The EPODs restrict construction on steep slopes, sensitive lands bordering a major creek, estab- lished wooded areas, and floodplains. They bar any land disturbance in these districts, unless it is shown that the activity would not harm the protected land and that there is no reasonable alternative to the activity. Some of the Smiths' lot is subject to the EPODs, but they had planned to build on the non-EPOD portion. After reviewing the plan, the Mendon planning board concluded that the construction was not likely to result in any adverse environmental impacts. Nevertheless, the board required that the Smiths file a cOlation restriction on any development wi he EPOD areas. The restriction would also egally bind subsequent owners. The Smiths sued, claiming the restriction was an unconstitutional taking. The trial court dismissed the case, but the intermediate ap- pellate court affirmed that there was no taking 30 Planning March 2005 INFORMATION because the restriction was reasonably related to the town's goal of preserving environmen- tally sensitive land. The Court of Appeals rejected the Smiths' argument that the conservation restriction was an exaction according to the standards set in 1987 by the Supreme Court in Nollan v. Cal~fornia Coastal Commission and in Dolan v. City ofTigard, a 1994 Oregon case. Exac- tions, the N ew York court said, are land-use decisions that condition development approval ~~ -tivel on the dedication of property to public use. Such conditions may be unconstitutional in a narrow class of cases. In Nollan, the commission refused to permit construction unless the landowner granted an easement for a public pathway. In Dolan, the city conditioned a permit on the owner's dedication of part of her prop- erty for improvements to a storm drainage system and a bicycle path. Both actions were ruled takings. In contrast, the Smith case dealt with no actual dedication of land to public use, the court said. Under the town's restriction, the Smiths could still exclude others from their land. The court said it saw no reason to extend the concept of exactions in a case where the restriction merely put conditions on development. Therefore, the court said, it would examine the development condition under the stan- dard the Supreme Court laid down in 1980 in Agins v. City ofTiburon. First, contraty to the Agins standards, the restriction did not reduce the value of the Smiths' property very much, let alone deny them economically viable use of it. Given the restrictions the EPOD ordi- nance already imposed, the parts of the prop- erty covered by the new restriction had little development value anyway. Second, the restriction substantially ad- vanced a legitimate government interest: It would preserve sensitive areas in perperu- ity, put future buyers on notice of the de- velopment restrictions, and give the town an effective means of enforcing its EPOD regulations. ~.:)~~~~~~.nt~ \\-:a~ PXt:~,~~~,i~.)n There were two dissenting opinions. Judge Susan Read, joined by Judge Robert Smith, contended that the case fell squarely within the Nollan/Dolan takings analysis. The re- striction was a conservation easement as de- fined by N ew York's environmental conserva- tion law, Read stated. "The majority is therefore simply wrong when it asserts that the town is not requiring a dedication of property to pub- ~ lic use," when it requires such an easement, she said. Judge Read also disagreed with the majority's view that a permit condition does not amount to an exaction unless it infringes on the prop- erty owner's right to exclude others or man- dates public access. Nn ",,!.;('niia! IH'X us In Smith, Judge Read said, the site plan ap- proval was conditioned on giving the town a conservation easement, and that amounted to an exaction. In takings jurisprudence, "public use" is synonymous with public purpose or public benefit. The easement was in fact a dedication of property to a public use-its entire justification was to confer an environ- mental benefit on the public. The restriction would serve a legitimate town interest, Judge Read continued. But, as in Nollan, there was no "essential nexus" be- tween the exaction and the harm, if any, the proposed construction might cause. In the other dissenting opinion, Judge Victoria Graffeo argued that the town's ac- tion amounted to a taking even under the Agins standard because the restriction failed to advance the town's interest further than did the existing EPdD regulations. "Ad hoc imposition of a conservation restriction as a condition to site plan approval does not fur- ther additional legitimate environmental con- cerns in a meaningful way and is simply over- kill," she declared.