Land Use Prof Blog

Supreme Court of North Carolina eliminates legislative/adjudicative distinction for applying Nollan/Dolan/Koontz

In what I believe is a first since the U.S. Supreme Court denied cert in the CBIA v. San Jose case, a court has held that the Nollan/Dolan/Koontz exactions tests apply to legislative as well as adjudicative actions.  In its August 19, 2022 decision, the Supreme Court of North Carolina wrote in Anderson Creek Partners, L.P. v. Cnty. of Harnett, 2022-NCSC-93, ¶¶ 50-51:

In addition, we are not persuaded that the applicability of the test enunciated in Nollan and Dolan depends upon whether the challenged condition was imposed administratively or legislatively. As at least one member of the Supreme Court has recognized, the lower courts have reached differing conclusions with respect to this issue, which the Supreme Court has yet to address. See Cal. Bldg. Indus. Ass'n v. City of San Jose, 577 U.S. 1179, 136 S.Ct. 928, 194 L.Ed.2d 239 (2016) (Thomas, J., concurring in the denial of certiorari).¹³ After carefully reviewing the relevant decisions, we agree with plaintiffs that nothing in Nollan, Dolan, or Koontz supports a view that those decisions only apply in the context of “administrative” decisions,¹⁴ with the Supreme Court having consistently described the “unconstitutional conditions” doctrine as “preventing the government from coercing people into giving up” a constitutional right rather than preventing a particular branch of government from acting in a particular manner. Koontz, 570 U.S. at 604, 133 S.Ct. 2586 (emphasis added); see also Dolan, 512 U.S. at 385, 114 S.Ct. 2309 (noting that “the government may not require a person to give up a constitutional right—here the right to receive just compensation when property is taken for a public use—in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property”) (emphasis added).

*19 12¶ 51 Admittedly, the fact that the challenged “capacity use” fees were imposed as the result of a legislative, rather than an administrative, process, may tend to suggest that those fees “more likely represent[ ] a carefully crafted determination of need tempered by the political and legislative process rather than a ‘plan of extortion’ directed at a particular landowner.” Curtis, 1998 Me. 63, ¶ 7, 708 A.2d 657 (citing Dolan, 512 U.S. at 387, 114 S.Ct. 2309). In light of that logic, the General Assembly's recent decision to enact the Public Water and Sewer System Development Act, S.L. 2017-138, 2017 N.C. Sess. Laws 996, which provides uniform guidelines for the implementation of water and sewer system development fees on a prospective basis, suggests that, in the future, such fees are likely to satisfy the “essential nexus” and “rough proportionality” requirement enunciated in Nollan and Dolan. Even so, as a constitutional matter, we believe that a decision to limit the applicability of the test set out in Nollan and Dolan to administratively determined land-use exactions would undermine the purpose and function of the “unconstitutional conditions” doctrine. See James Burling & Graham Owen, The Implications of Lingle on Inclusionary Zoning and other Legislative and Monetary Exactions, 28 Stan. Envtl. L. J., 397, 438 (2009) (observing that “[g]iving greater leeway to conditions imposed by the legislative branch is inconsistent with the theoretical justifications for the doctrine because those justifications are concerned with questions of the exercise [of] government power and not the specific source of that power”); David L. Callies, Regulatory Takings and the Supreme Court: How Perspectives on Property Rights Have Changed from Penn Central to Dolan, and What State and Federal Courts Are Doing About It, 28 Stetson L. Rev. 523, 567–68 (1999) (finding “little doctrinal basis beyond blind deference to legislative decisions to limit [the application of the test enunciated in Nollan and Dolan] only to administrative or quasi-judicial acts of government regulators”); see also Town of Flower Mound v. Stafford Ests. Ltd. P'ship, 135 S.W.3d 620, 641 (Tex. 2004) (expressing skepticism that “a workable distinction can always be drawn between actions denominated adjudicative and legislative” and noting that the conditions under consideration in both Nollan and Dolan were imposed pursuant to authority granted by state law). At the end of the day, we conclude that the applicability of the test enunciated in Nollan and Dolan hinges upon the fact that the government has demanded property from a land-use permit applicant, either through a dedication of land or the payment of money, as a pre-condition for permit approval rather than the identity of the governmental actor that imposed the challenged condition. See Koontz, 570 U.S. at 619, 133 S.Ct. 2586.

If anyone knows of another post-CBIA v San Jose case where a court reached the same holding as in North Carolina, I'd love the cite!

 

 

Idaho Law hiring for a tenure-track Housing Clinic position

Hi,

The University of Idaho College of Law is hiring for a tenure-track Housing Law Clinic professor, which would be located in Boise.  I am happy to discuss with folks, in addition to the search committee director.  The announcement is below.

Housing Clinic

The University of Idaho College of Law seeks to hire a tenure-track faculty member to direct a Housing-Related Law Clinic. The successful candidate could be an entry-level Assistant Professor rank on a tenure track, or an Associate or Full Professor rank with tenure, depending on the candidate's qualifications. This position involves directing a housing-related clinic, which could include landlord-tenant, reentry, veterans, or benefits issues. The faculty member must supervise the clinic, teach one additional course on a related subject, mentor and advise students, produce scholarship, and conduct community outreach. Applicants must have a J.D. from an accredited school or the equivalent; a distinguished academic record; five years of post-J.D. practice or clerking experience; active membership in at least one state bar and ability to obtain Idaho State Bar admission as a supervising attorney by November 1, 2023; a record or the promise of teaching and scholarly excellence. Preferred qualifications include more than two years of post-J.D. practice or full-time teaching experience in the law clinic setting and/or serving clients in housing-related matters. This position is located in Boise. Interested candidates should submit an application, including a statement of demonstrated commitment to fostering an inclusive community, at https://www.uidaho.edu/human-resources. Please direct questions to Samuel Newton, the search committee chair, at [email protected]. Priority will be given to applications received by September 15, 2022.

Job Posting - Fellow in Urban Design and Housing - Yale Urban Design Workshop

JOB ANNOUNCEMENT
Fellow in Urban Design and Housing
Yale Urban Design Workshop
Note: For immediate hire
Posted July 29, 2022

Yale School of Architecture seeks applications for a Fellow in Urban Design and Housing at the Yale Urban Design Workshop, to begin immediately. Intended for an early- to mid-career urban planner, urban designer, architect, lawyer, or real estate developer interested in new, synthetic approaches to affordable housing and neighborhood development in an interdisciplinary, academic, clinical setting, the 2022 Fellow will help design, support, and coordinate the clinical activities of the Yale Urban Design Workshop (YUDW), the School of Architecture's community design center. Central to this fellowship will be support of the UDW's new affordable housing clinic, entitled Housing Connecticut: Developing Healthy and Sustainable Neighborhoods. Offered in collaboration with the School of Management, School of Law, and the Connecticut Department of Housing (DOH), this clinic will pair interdisciplinary groups of graduate students with local non-profit housing developers in Connecticut, asking them to develop novel but practical solutions to the affordable housing crisis, while also addressing other pressing neighborhood challenges, such as community health, air quality, environmental equity, or resilience. Working under the supervision of the Yale Urban Design Workshop's faculty directors and affiliates, the fellow will develop supporting research, mapping, supervise student clinical projects, engage with community members, politicians, policy makers, and local non-profits, and provide ongoing logistical and administrative support both during and after the clinic ends. It is expected that the fellow will assist in the development of one or more academic white papers on the clinic and assist in the publication of results. Clinical projects will have the opportunity for fast-track funding from DOH, and the fellow will provide ongoing implementation support to the local non-profit partners as projects progress. This may include supervising student independent studies during the spring 2023 semester. The fellow will also collaborate with UDW faculty and affiliates on independent research and writing in the areas of affordable housing, urban and neighborhood history, neighborhood development, and social and environmental equity, and will develop research on architectural clinical models in support of the development of additional UDW clinical courses and projects. In addition, there may be opportunities for the Fellow to be involved in other ongoing community-based UDW projects.

The ideal candidate will have the following qualifications: * Advanced professional degree in planning, law, management, urban design, or architecture from an outstanding program. * Minimum 3 year's professional experience in community design and/or development, neighborhood or urban planning, affordable housing, or related fields, working in particular with underserved communities. * Experience in urban research and description, including geography, history, demographics, culture and economics; publication preferred * Interest in working in an intensive academic environment with graduate students; some prior teaching experience preferred * Strong research, organizational, and interpersonal skills * Collaborative and team-oriented, while also independent and self-motivating * Strong written and communication skills in English * Experience developing maps and research using Geographic Information Systems (GIS) preferred but not required * Fluency in Spanish preferred but not required

This is a full-time position, and physical presence in New Haven is required. Evening and weekend hours may be required to attend community meetings and events. The salary for this position is $63,000, plus full Yale benefits. The fellow will be appointed at Yale at the faculty rank of Instructor with an initial appointment of one year, renewable for one additional year. The fellow will be located at the off-campus offices of the Yale Urban Design Workshop, and will be part of the larger Yale community. Letters of interest, along with resume or CV, and portfolio if applicable, should be sent to Andrei Harwell, [email protected]<mailto:[email protected]>. Review of applications will begin immediately and will continue until the position has been filled.

Anika Singh Lemar
Clinical Professor of Law | Yale Law School
P.O. Box 209090
New Haven, CT 06520-9090
T: (203) 432-4022 | F: (203) 432-1426
E: [email protected]<mailto:[email protected]>