Restricting Development Impact Fees to Actual Impact
“Exactions” are demands made on property developers by local permitting authorities in exchange for permission to develop. Prior Supreme Court regulatory taking jurisprudence has restricted “exactions” to demands that are “roughly proportional” to the allegedly adverse impact of the proposed development on a legitimate public purpose. Impact fees are a common type of exaction. A number of local governments assert that impact fees do not need to be “roughly proportional” to the adverse impact of the development so long as the fees are “neutrally” applied by statute or regulation.
Rogers Machinery previously housed its national and regional offices in one building on its property in Tigard, Oregon. It then sought permission for a new building for its regional offices. The administrative hearing officer found that the new building would have no impact on traffic (because no new personnel would be hired for the regional office). The county and municipality charged a “traffic impact fee” based solely on the square footage of the new regional office. The Oregon Court of Appeals upheld the impact fee because it was “neutral” and statutory in nature. Rogers Machinery filed a petition for certiorari in the United States Supreme Court. NELF filed a supportive amicus brief arguing that non-proportional impact fees are a common barrier to development throughout the United States, illustrated by Boston’s “linkage fees.”
Agencia La Esperanza requested to build a self-storage facility in Orange County, California. Orange County assessed an impact fee based solely on the square footage of the proposed building. Agencia produced evidence that self-storage facilities generate significantly fewer vehicle trips per square foot on a daily basis than retail offices and other uses permitted in the area. Nevertheless, the California Court of Appeal upheld the non-proportional traffic impact fee because of the county applied the fees “neutrally.” Agencia then filed a petition for certiorari in the United States Supreme Court. NELF filed a supportive amicus brief similar to its filing in Rogers Machinery, emphasizing the split in state and federal courts that have addressed “neutral” non-proportional impact fees.
On March 10, 2003 the Supreme Court denied certiorari in both cases.
“Exactions” are demands made on property developers by local permitting authorities in exchange for permission to develop. Prior Supreme Court regulatory taking jurisprudence has restricted “exactions” to demands that are “roughly proportional” to the allegedly adverse impact of the proposed development on a legitimate public purpose. Impact fees are a common type of exaction. A number of local governments assert that impact fees do not need to be “roughly proportional” to the adverse impact of the development so long as the fees are “neutrally” applied by statute or regulation.
Rogers Machinery previously housed its national and regional offices in one building on its property in Tigard, Oregon. It then sought permission for a new building for its regional offices. The administrative hearing officer found that the new building would have no impact on traffic (because no new personnel would be hired for the regional office). The county and municipality charged a “traffic impact fee” based solely on the square footage of the new regional office. The Oregon Court of Appeals upheld the impact fee because it was “neutral” and statutory in nature. Rogers Machinery filed a petition for certiorari in the United States Supreme Court. NELF filed a supportive amicus brief arguing that non-proportional impact fees are a common barrier to development throughout the United States, illustrated by Boston’s “linkage fees.”
Agencia La Esperanza requested to build a self-storage facility in Orange County, California. Orange County assessed an impact fee based solely on the square footage of the proposed building. Agencia produced evidence that self-storage facilities generate significantly fewer vehicle trips per square foot on a daily basis than retail offices and other uses permitted in the area. Nevertheless, the California Court of Appeal upheld the non-proportional traffic impact fee because of the county applied the fees “neutrally.” Agencia then filed a petition for certiorari in the United States Supreme Court. NELF filed a supportive amicus brief similar to its filing in Rogers Machinery, emphasizing the split in state and federal courts that have addressed “neutral” non-proportional impact fees.
On March 10, 2003 the Supreme Court denied certiorari in both cases.
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