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St. Thomas Law Review

First Page

351

Document Type

Note

Abstract

On June 24, 1994, the United States Supreme Court issued a land development decision that balances the strained relationship between eager land developers and overreaching municipalities. Regulatory takings have long been justified as an integral part of the states' police power These methods are incorporated into state, regional and city comprehensive land development plans, established to protect the environment and facilitate growth and development in an area. The United States Supreme Court decided Dolan v. City of Tigard in an attempt to reconcile past decisions on land use and development. Dolan limits the government's traditionally superior bargaining power and affects a governmental entity's ability to regulate land use by requiring the entity to prove that a regulatory taking of land, by means of exaction, does not violate the State or Federal Constitutions. Dolan shifts the burden of proof from the private land-owner to the governmental entity attempting to take land for public use without compensation. This deviation in the law benefits private landowners, but detracts from a land-use regulator's ability to take land for public use without paying just compensation. Furthermore, Dolan will likely resurrect the proposition that compensation for harm-preventing land-use regulations unfairly provides a windfall to the private property owner at the public's expense! Traditionally, governmental entities, such as land-use boards and municipalities, possessed superior bargaining power over land developers regarding land use planning, exactions of land and impact fees. In Dolan, the property owner could not choose the party with which she bargained because it was the City of Tigard that had sole authority to grant or deny her building permit based on whether the City believed the development was within the comprehensive land development plan. The standard prior to Dolan required municipalities to establish a "nexus" between the condition imposed on a private landowner and the effect of the development on the community, in order to justify the taking." Now, in addition to the showing of a required close relationship and the government's unwillingness to provide just compensation for a taking, a "rough proportionality" test must also be satisfied to maintain constitutionality." This test requires not only a logical relationship between the effects of the development and the property being taken, but the city must also "make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." This note examines the effect of Dolan on Florida land development law and provides a glimpse of the underlying issues that are a necessary ingredient of taking determinations. Additionally, potential legislative solutions for this type of constitutional issue are explored. More importantly, this note points out the advantages of judicial taking determinations and the role the legislature may play in reducing the countervailing interests of developers and land-use regulators.

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