Also known as: rough commensurate · approximately proportional · roughly proportional
Written by attorneys — see sources below.
A constitutional standard requiring that government exactions demanding dedication of land or payment of money as conditions of development permits match in nature and extent the projected impacts of the proposed development. The government bears the burden of making an individualized showing of this fit.
Ravi Reddy seeks a permit to expand his hardware store by 5,000 square feet. The city conditions approval on Reddy dedicating a 30-foot strip along the entire frontage for a public greenway and bike path. The city's traffic study shows the expansion will add only twelve vehicle trips per day. A court invalidates the condition because the city failed to demonstrate that the scale of the demanded land matches the modest traffic impact created by the project.
Elena Vargas seeks a permit to build a 40-unit apartment complex. The city conditions approval on Vargas paying a $400,000 fee for off-site road widening. The city's traffic study shows the project will generate only 18 additional peak-hour trips. A court invalidates the fee because the city failed to demonstrate that the amount demanded is roughly commensurate with the modest traffic impact created by the project.
The Occupational Safety and Health Act of 1970 directed the Secretary of Labor to develop standards ensuring safe and healthful working conditions for every working man and woman. Benzene, a colorless aromatic liquid produced in quantities of approximately 11 billion pounds in 1976, was used in motor fuels, solvents, detergents, and other organic chemicals. Over one million workers faced additional low-level exposures through employment in petroleum refining, petrochemical processing, rubber manufacturing, and gasoline service stations. In 1971 the Secretary adopted a national consensus standard limiting airborne benzene to 10 parts per million as an eight-hour time-weighted average with a 25 ppm ceiling for ten-minute periods. Between 1974 and 1977 additional epidemiological studies linked benzene to leukemia. NIOSH conducted an interim study of two Pliofilm plants in Ohio that reported at least a fivefold increase in expected leukemia incidence among workers exposed from 1940 to 1949. Other studies, including one by Dow Chemical, identified leukemia deaths among workers whose exposures had not exceeded 2 to 9 ppm. In October 1976 NIOSH recommended an emergency temporary standard of 1 ppm. The Fifth Circuit temporarily restrained the emergency standard. OSHA then proposed and, after hearings that began in July 1977, promulgated a permanent standard in February 1978. The permanent standard reduced the permissible exposure limit to 1 ppm, imposed a 5 ppm ceiling for any fifteen-minute period, required initial monitoring and semiannual medical examinations when exposures exceeded 0.5 ppm, mandated engineering controls rather than respirators where feasible, and prohibited skin or eye contact with liquids containing more than 0.5 percent benzene after a three-year phase-in. The standard exempted storage, transportation, distribution, sale, or use of gasoline after discharge from bulk terminals. OSHA estimated capital costs of approximately $266 million, first-year operating costs of $187 million to $205 million, and recurring annual costs of $34 million, with the largest per-employee expenditures falling on the petroleum refining and petrochemical segments. On pre-enforcement review under 29 U.S.C. § 655(f), the United States Court of Appeals for the Fifth Circuit held the regulation invalid in 1978. The Supreme Court reviewed the Fifth Circuit judgment.
View caseThe government must make an individualized determination showing that the nature and extent of the exaction are roughly proportional to the projected impact of the development. Conclusory assertions or reliance on pre-existing plans are insufficient.
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No. The test also governs monetary exactions imposed as conditions of permit approval. When an applicant refuses a monetary demand and the permit is denied, the denial itself triggers takings scrutiny under the same framework.
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Essential nexus asks whether the condition bears a logical relationship to a legitimate public interest affected by the project. Rough proportionality asks whether the magnitude of the exaction matches the scale of the project's specific impacts.
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Evidence that the demanded dedication advances a pre-existing municipal plan, exceeds the city's own impact studies, or imposes costs several times larger than the project's documented effects demonstrates a failure of rough proportionality.
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…of § 6 (b) (5), requires the Agency to quantify both the costs and the benefits of a proposed rule and to conclude that they are roughly commensurate. In our view, it is not necessary to decide whether either the Government or industry is entirely correct. For we think it is clear that § 3 (8) does apply to all permanent standards…