Chapter 19 - § 19.6 • EXACTIONS, DEDICATIONS, TAXES, AND FEES

• Jurisdiction: Colorado

§ 19.6 • EXACTIONS, DEDICATIONS, TAXES, AND FEES

Exactions, dedications, taxes, and fees can amount to takings if they lack an "essential nexus" to an appropriate governmental goal or are unreasonably oppressive.

§ 19.6.1—Exactions And Dedications

These cases occur when the government requires an exaction, such as an easement, or a dedication of land, as a condition to the grant of a permit. The general rule, established in Nollan v. California Coastal Commission,²²² is that there must be an "essential nexus" between the exaction or dedication required and the goal sought by the government in order to defend against a takings claim.²²³ In that case, the plaintiffs wanted to build a larger house on their beachfront property.²²⁴ The State of California demanded an easement for public access across their property as a condition for granting the building permit, with a stated goal of preserving the public view of the beaches.²²⁵ Writing for the majority, Justice Scalia stated that a taking had occurred: "It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans' property reduces any obstacle to viewing the beach created by the new house."²²⁶

The case of Dolan v. City of Tigard²²⁷ applied a two-part test, where the Nollan "essential nexus" test was simply the first part. In Dolan, the City demanded that the landowner dedicate some of her property for flood plain and traffic control reasons.²²⁸ The Court found that the "essential nexus" found lacking in Nollan was present.²²⁹ However, the Court applied a second test as an antecedent inquiry: "[w]hether the degree of the exactions demanded by the city's permit conditions bears the required relationship to the projected impact of petitioner's proposed development."²³⁰ The Court found that the required relationship was not there, and announced the test that there must be a "rough proportionality" between the required dedication and the proposed impact, in order to successfully defend against a takings claim.²³¹ The U.S. Supreme Court extended the land-dedication exaction takings tests from Dolan and Nollan in Koontz v. St. Johns River Water Management District, holding that "monetary exactions" as a condition of a land use permit must satisfy requirements that the government's mitigation demand have an essential nexus and rough proportionality to the impacts of a proposed development.²³²

Colorado has codified the "essential nexus" and "rough proportionality" tests from Nollan and Dolan in C.R.S. § 29-20-203(1). It provides, in relevant part:

In imposing conditions upon the granting of land-use approvals, no local government shall require an owner of private

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