Last month, I attended NAHB’s midyear meeting in Miami and had the pleasure of sitting in on a presentation by Daniel Swift, president and CEO of Des Moines-based architecture group BSB Design.
The Legal Trail to Del Monte Dunes
Builders and developers have been winning arguments before the Supreme Court for several years now, each time building on the legal ground of their previous victory.
Builders and developers have been winning arguments before the Supreme Court for several years now, each time building on the legal ground of their previous victory. Gus Bauman has been involved in nearly every one, and here he relates the key substantive legal principles of these key cases.
Penn Central Transportation Co. v. New York City (1978) As a precursor to the concept of rough proportionality, the Supreme Court ruled that the economic impact of exactions and/or regulations on the property owner must be balanced, with the public interest being advanced by the government.
Agins v. City of Tiburon (1980) The Court stated in this case that in order for a developer to bring a regulatory takings claim to court, he must have first submitted a formal development proposal that was denied.
MacDonald, Sommer & Frates v. Yolo County (1986) The Court ruled here that just because a development proposal plan is denied (especially if it is a grandiose plan), then it is not necessarily a takings case. The landowner must attempt to scale down the plan.
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) Bauman refers to this as the "true landmark case" for builders and developers because of three points. First, if land-use regulations go too far, then the case may be a takings case for which (second main point) the remedy is just compensation. Third, the taking does not have to be permanent to be considered a regulatory taking-it may only be for a short period of time.
Nollan v. California Coastal Commission (1987) Another very important case, decided two weeks after the First English case. The Court ruled here that exactions that bear no relationship to the public good can be considered a taking.
Lucas v. South Carolina Coastal Council (1992) In this decision, the Court ruled that a 100% economic wipeout for the landowner due to regulations is automatically a per se taking.
Dolan v. City of Tigard (1994) Here the Court ruled that the burden of proving that exactions placed on the landowner are proportional to the impact on the public (rough proportionality) rests with the government.