A recent about-face by New York's highest court provides the
final nail in the coffin of the so-called the Nollan "revolution"
of heightened scrutiny for land use restrictions under the Takings
Clause of the Fifth Amendment. To understand the obituary, some
background is necessary.
In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the Court held
that the Takings Clause requires special scrutiny of land-use permit conditions that
require the landowner to dedicate property to the public. In addition to its specific
holding, Nollan suggested in dicta that the Takings Clause might require heightened
scrutiny of all land use controls to determine whether they adequately advance a
legitimate government interest. Id. at 834 n.3. Some commentators hailed Nollan
as signaling a new era in takings jurisprudence. The plaintiffs' bar welcomed the
news since challenges to the rationality of land use controls typically fail under the
deferential standard used under the Due Process Clause. Other observers argued,
however, that Nollan should not be expanded beyond government-compelled
dedications.
The hoped-for revolution suffered a serious setback in Dolan v. City of
Tigard, 512 U.S. 374 (1994), which added meat to Nollan 's bones by holding
that dedication requirements must be "roughly proportional" to the harm expected
from the proposed development. Dolan limited Nollan and the rough-proportionality
test to dedication cases by heavily relying on the landowner's right to exclude
others from the property and by distinguishing general land use regulations from
the dedication requirements at issue in Dolan and Nollan
Any remaining uncertainty regarding the scope of Nollan and Dolan was snuffed
out in City of Monterrey v. Del Monte Dunes at Monterey, Ltd.., 119 S.Ct. 1624, 1635
(1999), where the Court confirmed that Dolan's rough proportionality test does not
apply "beyond the special context of exactions - land-use decisions conditioning
approval of development on the dedication of property to public use."
Even before Del Monte Dunes , most lower courts had declined the invitation to
apply Nollan to zoning and other workaday land use controls. New York's highest
court was one of the few to apply Nollan more broadly, using what it called a "close
causal nexus" test under Nollan to invalidate municipal laws intended to alleviate
homelessness and other land-use controls. See Manocherian v. Lenox Hill Hosp., 84
N.Y.2d 385 (1994); Seawall Assocs. v. City of New York, 74 N.Y.2d 92 (1989). The
Manocherian Court emphasized that Nollan "promulgated a principle [of heightened
scrutiny] for all property and land use regulation matters," regardless of whether or
not they involve physical dedications of property. 84 N.Y.2d at 861.
In good news for New York municipalities, the New York high court has now reversed
course. In Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck , No. 176, 1999 N.Y.
LEXIS 3739 (N.Y. Nov. 23, 1999), the New York Court of Appeals effectively abandoned
Seawall and Manocherian and limited Nollan and Dolan to compelled dedications of
property.
Bonnie Briar involved a 1994 ordinance enacted by the Town of Mamaroneck, N.Y.,
which changed the zoning of about 430 acres from residential to recreational use.
The new zoning protects open space, reduces flood risks, and enhances recreational
opportunities. Bonnie Briar Syndicate, the owner of about 150 acres of the property,
challenged the rezoning even though it may continue to use the property to operate
a profitable golf course, the historic use of the property for more than 70 years. Both
lower courts upheld the rezoning.
On appeal to the New York high court, the Syndicate argued that the rezoning failed to
meet the "close causal nexus" test derived from Nollan in Manocherian and Seawall .
In so arguing, the Syndicate contended that the Town could have achieved its
objectives through less restrictive land use controls.
The New York Court of Appeals rejected the challenge. After noting that various courts
and commentators initially disagreed about the scope of Nollan, the court concluded
that the issue was definitively resolved in Del Monte Dunes. Although the Syndicate
argued that Del Monte Dunes addressed only Dolan and not Nollan, the Bonnie Briar
court rejected this argument for two reasons. First, the court reasoned that Dolan 's
rough-proportionality test is simply an explication of the nexus required by Nollan.
According to Bonnie Briar, by explicitly limiting Dolan to dedication cases, Del Monte
Dunes "necessarily rejected the applicability of the Nollan 'essential nexus' inquiry to
general zoning regulations as well." Second, the New York court observed that the jury
instructions in Del Monte Dunes made no reference to the Nollan nexus test, but instead
merely asked the jury to determine whether the permit denial at issue substantially
advanced a legitimate state interest.
Should municipalities be concerned that courts will import heightened scrutiny
through the "substantially advance" test? In a word, no. The Bonnie Briar court held
that the rezoning at issue "easily qualifies as a valid regulatory denial of development"
because it bears a "reasonable relationship" to the goals of protecting open space,
enhancing flood control, and preserving recreational opportunities . The availability
of less restrictive alternatives was "irrelevant," the court concluded, because "it is not
this Court's place to substitute its own judgment for that of the Zoning Board." This
significant deference to the city is entirely fitting bec ause the "substantially advance"
test was derived from a due process case, and courts thus should apply the test with
the same deference afforded to cities under the Due Process Clause. See Agins v.
City of Tiburon , 447 U.S. 255, 260 (1980) (deriving the "substantially advance" test
from a due process case, Nectow v. City of Cambridge, 277 U.S. 183 (1928)).
Moreover, the "substantially advance" test appears to be on its way out the door
as a standard of takings liability. In Eastern Enterprises v. Apfel, 118 S. Ct. 2131
(1998), five Justices questioned whether any such means-end inquiry has an
appropriate role in takings jurisprudence. See id. at 2157 (Kennedy, J., concurring
in the judgment and dissenting in part) (a means-end inquiry "is in basic tensio n
with our understanding of the Takings Clause, which has not been understood to
be a substantive or absolute limit on the Government's power to act."); id. at 2161
(Breyer, Stevens, Souter, and Ginsberg, JJ., dissenting) ("at the heart of the [Takings]
Clause lies a concern, not with preventing arbitrary or unfair government action, but
with providing compensation for legitimate government action that takes 'private
property' to serve the 'public' good.").
Because the Del Monte Dunes Court refused to reconsider whether any means-end
inquiry is appropriate under the Takings Clause, the Bonnie Briar Court likewise declined
to revisit the issue. But this should make little difference to New York municipalities, given
the deferential standard of review used by the Bonnie Briar court.
Bonnie Briar is an important victory for local communities across New York. The
Court of Appeals affirmed the importance of local planning and repudiated two
decisions that stood as obstacles to sprawl control and other community protections.
But more than that, the ruling has nationwide implications because the court that had
been the most aggressive tribunal in the Nation in applying Nollan has now done a
180-degree turn. The so-called Nollan revolution is clearly over. |
