Also known as: essential-nexus · nexus requirement
Written by attorneys — see sources below.
A connection between a government-imposed condition on a land-use permit and a legitimate governmental interest that would justify denying the permit outright. The connection must directly address impacts caused by the proposed development rather than advance an independent public objective.
View Construct LLC sought a permit to build a fifty-unit subdivision on coastal bluff property. The state conditioned approval on granting the public a lateral easement for beach access. The subdivision created no increased demand for beach access or related harms that the easement would mitigate. Without the required connection the condition effects a taking.
Harborview Capital LLC obtained approval for a six-story office tower only after agreeing to record a perpetual public riverfront promenade easement. The tower generated no impacts on river access that the promenade would offset. The absence of the required connection rendered the condition an unconstitutional exaction.
Petitioner Florence Dolan owns a plumbing and electric supply store located on a 1.67-acre parcel of land in the business district of the city of Tigard, Oregon. The store is on a parcel that includes a 9,700-square-foot building, and Fanno Creek flows through the southwestern corner of the lot within the 100-year floodplain. In the early 1970's, the city developed a comprehensive plan for managing surface water drainage in the Fanno Basin serving the area where the property is located. The comprehensive plan also contained provisions for a pedestrian and bicycle pathway system throughout the city, one of which was to follow along Fanno Creek. In 1988, petitioner applied for a permit to expand her store and pave the parking lot. The city planning commission granted the permit but required petitioner to dedicate a portion of her property for the construction of a public greenway along Fanno Creek and an additional 15-foot strip of land adjacent to the greenway for a pedestrian and bicycle pathway. The dedication required encompasses approximately 7,000 square feet, or roughly 10% of the property. Petitioner requested a variance from the city's dedication requirements. The planning commission denied the variance, and the city council affirmed the denial. Petitioner then filed suit in Oregon state court claiming an uncompensated taking. The Oregon trial court upheld the city's requirements. The Oregon Court of Appeals affirmed, as did the Oregon Supreme Court. The United States Supreme Court granted certiorari. The question presented was what standard of review applies to a claim that a city's exaction of a dedication of private property as a condition of a building permit constitutes an uncompensated taking of property in violation of the Fifth Amendment.
View caseNova Commerce applied for a permit to construct a big-box store with a large parking lot. The city conditioned approval on an easement for a bus rapid transit lane across the lot. City records showed the lane had been planned years earlier without reference to this project. The missing connection between the easement and any store-specific impact made the condition invalid.
CoastalRx sought permits for a secure coastal research campus. The council conditioned approval on a public bluff-top trail easement around the fenced site. The campus produced no recreational-access deficit that the trail would remedy. Lacking the necessary link the condition amounted to an uncompensated taking.
In 1972, Coy A. Koontz, Sr. purchased an undeveloped 14.9-acre tract of land on the south side of Florida State Road 50 east of Orlando that lies entirely within the jurisdiction of the St. Johns River Water Management District. The property contains wetlands as defined by Florida statute. A drainage ditch runs along the property's western edge, and high-voltage power lines bisect it into northern and southern sections. The northern 3.7-acre section drains well despite its classification. The southern section includes a small creek, forested uplands, and wetlands that sometimes have water as much as a foot deep. In 1984 the District adopted a rule requiring permit applicants whose projects would adversely impact wetlands to offset that loss by creating, enhancing, or preserving wetlands elsewhere. That requirement could be satisfied by purchasing credits from a mitigation bank. In 1994 Koontz applied to the District for Management and Storage of Surface Water and Wetlands Resource Management permits to develop the northern 3.7 acres. He proposed to raise the elevation of the building site, install a dry-bed pond, and grant a conservation easement over the remaining 11 acres. The District found the mitigation inadequate. It stated it would approve the permits only if Koontz reduced the development to one acre and deeded the remaining 13.9 acres to the District. In the alternative, Koontz could pay contractors to replace culverts or fill ditches on District-owned land several miles away to enhance approximately 50 acres of wetlands. Koontz found both alternatives unacceptable and filed suit in Florida circuit court under Fla. Stat. § 373.617(2) alleging that the demands constituted an unreasonable exercise of the state's police power. After a two-day bench trial at which experts testified that the northern section had already been seriously degraded by surrounding construction, the trial court found the demands lacked the required nexus and rough proportionality and awarded damages. The Florida District Court of Appeal affirmed, but the Florida Supreme Court reversed on the grounds that the permit denial was not a taking and that the District had not actually demanded any property from Koontz. The United States Supreme Court granted certiorari to resolve a conflict among state courts of last resort on whether the Nollan and Dolan standards apply to a land-use agency's demand for money.
View caseDuke Power proposed a new generating facility near a residential area. Regulators conditioned the permit on dedicating a wide buffer strip for public recreation. The plant created no recreational shortage the buffer would address. The condition failed for want of the required connection to project impacts.
Stone Creative LLC sought permits to expand its historic gallery. The city conditioned approval on an easement allowing public pedestrian access across the planned sculpture garden. The expansion produced no connectivity deficit the easement would mitigate. The missing connection rendered the condition an unconstitutional exaction.
The condition constitutes a taking under the Fifth Amendment. The government may not leverage its permitting power to obtain property interests unrelated to the burdens the development would impose.
Supporting sources
Yes. The doctrine governs exactions that require conveyance of a property interest such as an easement. Ordinary land-use regulations that do not extract property interests are evaluated under different standards.
Supporting sources
The nexus inquiry is the threshold step. If a connection exists, courts then ask whether the exaction is roughly proportional in nature and extent to the projected impact of the development.
Supporting sources
No. When the demanded interest advances an independent municipal objective rather than mitigating impacts caused by the proposed development, the required connection is absent.
Supporting sources
…The Commission’s condition is a valid exercise of its authority to regulate land use in the coastal zone. II. The Court’s new “essential nexus” test is not supported by precedent. The cases cited by the Court do not establish such a rigid requirement. III. Even under the Court’s test, the easement condition should be upheld. The…