This morning I presented a seminar on the case of West Linn Corporate Park v. City of West Linn.  The outline of my talk at the Land Use Research Foundatiaon of Hawaii is below:

Personal Property Exactions for Discretionary Permits:
Supreme Court Considers West Linn Corporate Park v. City of West Linn

• Question:  Do the “essential nexus” and “rough proportionality” tests from Nollan and Dolan apply to exactions of personal property – in this case, cash – for discretionary land use permits?
 
• Parties:  Developer vs. City Government in Oregon

• Issue:  Municipalities seek to exact improvements, on and off-site, from developers to include infrastructure and in some instances, cash.  Does the Fifth Amendment protect personal property, i.e. cash, like it does real property, i.e. easements/access?

• Relevant background facts

-Developer owns property zoned commercial.  Developer sought to develop a corporate office park.  It applied for discretionary permits for such development and the City of West Linn required exactions, including on and off-site improvements and cash.

• Decision Below

-The Ninth Circuit found that the Fifth Amendment did not protect property owners from exactions of personal property, i.e. cash, only real property exactions.
o Note also the procedural hurdles the landowner was forced to go through; this case has been to the federal and state courts in Oregon.

• Short summary of arguments

-Developer argues that Nollan/Dolan should apply equally to exactions of personal property.  Fifth Amendment text supports this.  Supreme Court of California and Texas agree.
o City (and Ninth Circuit) say that unconstitutional conditions should only be compensable when they involve dedications of real property.

• Status of the case – Reply brief filed.  Pending SCOTUS decision to grant cert.

• Why You Should Care?

-Kamaole Point anyone?  Affordable housing requirement = personal property exaction?  If so, what is proof of nexus and proportionality?

-Impact Fees/Fair Shares?