If a Permit Condition Is Not a Compensable Taking, It Is Constitutional

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It is a natural assumption that if a municipality is going to impose conditions on the granting of a building permit that the conditions must be reasonably related to the permit or else the conditions are not constitutional. But, a California court has held that if the condition that is being imposed does not unconstitutionally take something from the landowner, then it does not matter if the condition is reasonably related to the permit or not.

In Powell v. County of Humboldt, 222 Cal.App.4th 1424, 166 Cal.Rptr.3d 747 (Cal. App. 1 Dist., 2014), the Powells applied for a building permit to make some minor renovations to their residence. Humboldt County (CA) had a general land use plan that required the Powells provide an aircraft overflight easement as a condition of obtaining the building permit. The Powells asked the permit be issued without this condition, and the County declined to do so. The Powells’ building permit was not denied, nor was it granted. Rather, the building permit application expired.

The Powells then filed a lawsuit against the County on a number of bases, but generally claiming the requirement to grant the aircraft overflight easement was unconstitutional because it amounted to a taking of their property without just compensation. Both the California trial court and the court of appeals disagreed.

In support of their position, the Powells referred to the essential nexus and rough proportionality tests of Nollan v. California Coastal Commission (1987) 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (“Nollan”) and Dolan v. City of Tigard (1994) 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (“Dolan”) (tests that are explained in more detail in previous posts). The Powells claim the tests stand alone, and they determine by themselves when permit conditions, if imposed, would be unconstitutional.

However, the courts disagreed. They concluded that, before any Nollan review of the permit approval condition is undertaken, the court first must decide whether or not the permit approval condition would be a compensable taking if it were outside of the permitting process. If the condition would not be a compensable taking, then the municipality is not demanding a constitutional right be traded for the permit. In that case, a Nollan review is not necessary, as the review is needed only when the landowner is being asked to waive a constitutionally protected right.

In this case the court determined no evidence was presented to show the overflight easement condition was a compensable taking. The court decided the overflight easement would not constitute an actual physical occupation of the Powells’ property (a per se physical occupation). In addition, the court held the overflight easement did not completely deprive the Powells of any beneficial use of their property.

In making these decisions, the courts looked at the language of the easement, the evidence presented by the Powells, the rights the Powells actually had in the airspace above their property, and the statements made by the County. Therefore, we cannot conclude the acquisition of an overflight easement is not a compensable taking in all circumstances. However, this case highlights the fact that there are conditions of permits that do not amount to takings and, as such, they may be imposed regardless of whether or not an essential nexus to the permit exists.

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