Uncertainty in the Empire State: A Reevaluation of New York’s Takings Jurisprudence After Dolan v. City of Tigard

Authors

Clifford B. Olshaker, Benjamin N. Cardozo School of Law

Abstract

A hallmark of American property law is the acknowledgment of the government's ability to regulate the use of private parcels of land through the zoning laws. One of the chief goals of zoning law is to prevent overdevelopment and the accompanying strain on municipal resources. A landowner seeking to make significant changes to his property must obtain a permit from the local governing body. Denial of a building permit or certificate of occupancy is the chief means for enforcing zoning regulations. If a potential developer wishes to alter his property in a way that conflicts with applicable zoning laws, he may be required to make a concession to the municipality in exchange for permission to develop. This concession, acting as a condition precedent for permission to develop, is known as a development exaction. Exactions can include dedications of land, cash, or services in return for permission to develop. Exaction schemes are, of course, subject to constitutional limits, derived from the Takings Clause of the Fifth and Fourteenth Amendments of the Constitution. In 1987, the Supreme Court decided Nollan v. California Coastal Commission. This case established that in order for a proposed exaction to survive constitutional challenge there must be a "rational nexus" between the requirement imposed upon the landowner and the need created by the new development. Nollan's rational nexus test insures that the exaction will serve to remedy only those problems that otherwise would justify the prohibition of the development altogether. While Nollan set the tone for judicial review of a challenged exaction scheme, the case did not spell out the degree to which the exaction had to offset the additional needs occasioned by the new development. In Dolan v. City of Tigard, the Supreme Court shed substantial light on this murky area. This Note examines the law governing exactions in New York State in light of the constitutional standards set forth in Nollan and Dolan.

Part I of this Note provides a background discussion of the different types of exactions and presents the Supreme Court's standards for determining the constitutionality of these deals between developers and municipalities. Part II reviews the varying state standards, as promulgated by individual state courts, including the law in New York State. Part III evaluates the status of the law in New York in light of the newly established constitutional standards set out by Dolan. It concludes that many of the longstanding cases in New York do not meet the more demanding requirements established by Nollan and Dolan. Finally, this Note offers local governments direction for constitutionally balancing a proposed exaction with the need created by a contemplated new development.

Keywords

Jurisprudence, Takings, Property--Personal and Real, Zoning, Land Use, Municipalities, Local Government, State and Local Government Law

Disciplines

Jurisprudence | Land Use Law | Law | State and Local Government Law

Recommended Citation

Clifford B. Olshaker, Uncertainty in the Empire State: A Reevaluation of New York’s Takings Jurisprudence After Dolan v. City of Tigard, 16 Cardozo L. Rev. 1849 (1995).
Available at: https://larc.cardozo.yu.edu/clr/vol16/iss5/15