PRSR INFORMATION 03-09-2005 - Laserfiche WebLink

Home Browse Search

M,erican Planing Asenuavion 29 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 Mendon. Three of the judges on the seven-member court dissented sharply, however, arguing chat 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 consticutional- ir -onditions imposed on permit applica- tic :hat fall short of a landowner's forced dedication of property to a municipality or some ocher emiry. 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 i[s semi-rural character, using tools such as environmemal protection overlay districts (EPODs). The EPODs restrict construction on steep slopes, sensitive lands bordering a major creek, estab- lished wooded areas, and kloodplains. 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 ahernative to the activity. Some of the Smiths' lot is subject to the EPODs, but they had planned to build on the non-EPOD portion. Aker 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 cor~ ~-vation restriction on any development wi the EPOD areas. The restriction would also legally bind subsequem owners. The Smiths sued, claiming the restriction was an unconstitutional taking. The trial court dismissed the case, but the intermediate ap- pellatecourt affirmed [hat there was no taking 30 PlvnninG March 2005 because the restticricrn was reasonably related to the rowels goal of preserving environmen- tally sensitive land. 5 lDe- ~~l rl ,a .. .a .t. C, t ~_ The Court of Appeals rejected the Smiths' argument that the conserva[ion restriction was an exaction according [o the standards set in 1987 by rbe Supreme Court in Nollan v. California CoartaL Commission and in Dolan v. City ofTigard, a 1994 Oregon case. Exac- tions, the New York court said, are land-use decisions that condition development approval velopment restrictions, and give the town an effective means of enforcing its EPOD regulations. , 1;. !' e. t)96I1 44 .d4 :e4IIi There were two dissenting opinions. Judge Susan Read, joined b}' 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 New York's environmental conserva- [ionlaw, Read stated. "Themajoriry isthetefore simply wrong when it asserts chat the town is not requiring a dedication ofproperty m pub- ~5~~` a"ap'~~ a €66M~~GC`i:~~.'f~ l~~€~$ a~lf'~`E° ~a'i~.!~s J~cf~ ~.eJd@~e~J,~'l ~~~+4'~ fe~p~q°~° s~p~yC" °.'I;°> ~~`€t;',y~p$k6F/N~ hYG~i^.d' Laf b:~SA i~k 1,.~ S£t 'P. r~G ~~ ~iY~Y~~P~ ~' s,`~~1~~'lG ~D S.} x .. 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 grained 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 srorm drainage s}'stem and a bicycle path. Both anions were ruled takings. In contrast, the Smith case dealt with no actual dedication of land [o public use, the court said. Under the town's restriction, the Smiths could still exclude others loom their land. The court said it saw no reason co 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 Aginr v. Cit)~ of Tiburon. First, contrary to the Aginr standards, the resu~iaion did not reduce the value of the Smiths' property very much, let almte deny them economically viable use of it. Given the resu'ictions the EPOD ordi- nance already imposed, the parts of the prop- erty covered by the new restriction had little development value an}nvay. Second, the restriction substantially ad- vanced a legitimate government interest: It would preserve sensitive areas in perpem- iry, put future buyers on notice of the de- lit 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 co exclude others or man- dates public access. in Smith, Judge Read said, the site plan ap- proval was conditioned on giving the rown a conservation easement, and that amounted to an exaction. In takings jurisprudence, "public use" is synonymous with public purpose or public bene5t. The easemen[ was in fact a dedication of property to a public use-its entire justification was to confer an environ- mental benefc[ on [he public. The restriction would serve a legitimate rown interest, Judge Read conrinued~ Rut, 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 m a taking even under the Agins standard because the restriction failed to advance the town's interest further than did the existing EPOD regulations. "Ad hoc imposition of a conserva[ion restriction as a condition m site plan approval does not fur- ther additional legitimaceenvironmental con- cerns in a meaningful v~ay and is simply over- kill," she declared.