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Will a Supreme Court decision end Oregon land use?

The 2013 Supreme Court decision in Koontz v. St. Johns River Water Management District  offers clues to what might happen when a case challenging Oregon’s land use system appears before the court.

The Koontz decision was overshadowed by other announced decisions at the time, but land use and development impacts have been extensively covered by the media, including National Public Radio and The Atlantic Cities. In essence, the court restricted a government agency’s ability to prohibit or cost burden development to achieve generalized societal benefits. It imposed nexus and proportionality standards similar to classic land takings cases. The court minority argued unsuccessfully that there was no actual taking when the government agency imposed a mitigation fee in return for permission to develop. The landowner had sued instead of paying a mitigation fee in addition to the agreed conservation easements on the bulk of his site.

According to a posting on CityLab, the ruling brings into question a number of common land development conditions. “Now, all of those sorts of exactions may be subject to a pair of legal tests established by earlier takings Supreme Court cases. Together, the “nexus limitation” and “proportionality test” require that a government can’t demand some concession from a property owner that is either unrelated to the harm caused, or disproportionate to it. Previously, that test has applied to land-use agencies demanding property, or property easements, in exchange for a development permit. Now the definition includes asking for money, too.”

The American Planning Association says the ruling will instill fear into local government planning efforts. “The Court’s decision today has jeopardized local governments’ ability to ensure that the costs of new development are fairly born by its developers and users. The decision will instill fear in local agencies to even begin mitigation discussions with landowners and discourages them from seeking ways to allow development to actually proceed. The four dissenting justices suggest one course of action: ‘Deny the permits.’ The majority decision leaves no one certain of which discussions – or required payments – may be subject to heightened scrutiny.”

Fast forward to future cases challenging the Oregon land use system in Federal Court. What will happen when a Washington County land owner challenges development limitations based on the arbitrary and politically concocted Metro UGB and land reserves so-called grand bargain? Property owners whose property was pulled out of development status and placed into rural reserves might make a Federal claim after their development proposal is denied. Or a property owner in Newberg whose property rights are negatively impacted by a proposed mediation settlement may decide Federal court is the next step.

The classic takings case also comes out of Oregon: Dolan v. City of Tigard. The current court has shown itself more friendly to corporate interests than to government do-gooder programs. An adventurous local government could zone and permit development outside established UGBs. Will the court require the state land use program to demonstrate nexus and proportionality when overriding a local decision, and will that strike down the whole Oregon land use planning system?

Is this a court known for surprises?

Originally published July 4, 2014. Justice Scalia’s death and a Hillary Clinton administration seemed to make this outcome less likely. Now that Trump has been elected it is more likely than ever. – ed.