Superior Court of California, No. Civ 482448, June 18, 2010: Trial court finds an unconstitutional taking in Commission’s requirement that plaintiff grant a perpetual agricultural easement for “active agricultural use” of 140 acres as a condition for a permit to build a house. The requirement failed the “essential nexus” test of Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (requiring a “relationship between the permit condition and the public impact of the proposed development”) because the public purpose of denying the permit — leaving the land in its current state with only the future potential for, but little actual, agricultural use – is different than the purpose of the required easement – imposing active agricultural use. The easement requirement also failed the “rough proportionality” test of Dolan v. City of Tigard, 512 U.S. 374 (1994) because it “imposes demands that go beyond addressing the only arguable impact of the [plaintiff’s] home — taking away a small area of idle land that could be potentially used for agriculture.” The judge also found the acreage of the easement disproportional to the area of the house.
Decision may be found at http://www.inversecondemnation.com/files/ct-stmnt-of-dcsn.pdf
This decision came to my attention in a 6/24/10 post by Jesse J. Richardson, Jr., Associate Professor, Urban Affairs and Planning, Virginia Tech, on the Landtrust-L listserv.