A government agency offers you a permit, but only if you agree to give up land, waive a right, or pay a fee that appears unrelated to the permit’s purpose. A regulator conditions approval of a development project on the owner’s agreement to provide public access across private property. A city demands a dedication of land in exchange for allowing a minor modification to an existing use.
These situations raise a constitutional question: can a government agency use its approval power to extract concessions that would be unconstitutional if demanded directly?
The Unconstitutional Conditions Doctrine
The unconstitutional conditions doctrine holds that the government cannot condition the grant of a benefit on the relinquishment of a constitutionally protected right, at least where the condition is not sufficiently related to the government’s legitimate purpose. The doctrine applies broadly to free speech, property rights, and other constitutional protections.
In the land use context, the doctrine has been developed through a series of U.S. Supreme Court decisions that specifically address when permit conditions can require property owners to give up land or pay fees as a condition of development approval.
The Nollan and Dolan Framework
Nollan v. California Coastal Commission, 483 U.S. 825 (1987), addressed whether the California Coastal Commission could condition a coastal development permit on the property owner’s agreement to grant a public easement across their beachfront property. The Supreme Court held that a permit condition requiring the dedication of property must have an essential nexus to the government’s stated justification for the condition.
Dolan v. City of Tigard, 512 U.S. 374 (1994), built on Nollan by adding a second requirement: the condition must be roughly proportional to the burden the development imposes. The city conditioned a permit on the owner’s agreement to dedicate a greenway and bicycle path. The Court held that the government must show the dedication requirement is roughly proportional to the impact of the development it is conditioning.
Together, Nollan and Dolan create a two-part test for permit conditions requiring property dedications: (1) an essential nexus between the condition and the government’s stated purpose, and (2) rough proportionality between the condition and the development’s impact.
Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013), extended the Nollan/Dolan framework to monetary exactions. The government cannot evade the constitutional requirement by demanding money instead of land. A permit condition requiring payment of a fee must also satisfy the nexus and proportionality requirements when the fee is imposed as an alternative to a property dedication.
Sheetz v. County of El Dorado: Legislative Exactions
Sheetz v. County of El Dorado, 601 U.S. 267 (2024), addressed whether the Nollan/Dolan framework applies to fees imposed by legislative act rather than by administrative discretion. The Supreme Court held that the nexus and proportionality requirements apply regardless of whether the exaction is imposed through a generally applicable legislative scheme or through an individualized adjudicative decision. California counties cannot avoid constitutional scrutiny by enacting a permit fee schedule through ordinance rather than applying it case by case.
Coercion Beyond the Permit Context
The unconstitutional conditions doctrine is not limited to permit conditions. Courts have applied it to situations where the government uses its regulatory power to extract waivers of constitutional rights in other contexts.
In California property rights disputes, coercion claims can arise when a government agency conditions approval of a subdivision, a conditional use permit, or a certificate of occupancy on the owner’s agreement to waive compensation claims, grant public access, or relinquish development rights that the government could not constitutionally take without compensation.
Section 1983 Claims for Government Coercion
When a California government agency imposes a permit condition that violates the Nollan/Dolan requirements, or otherwise uses its regulatory power to coerce a constitutional concession, the property owner may have a civil rights claim under 42 U.S.C. section 1983. Section 1983 provides a remedy for persons deprived of federal constitutional rights under color of state law. After Knick v. Township of Scott, 588 U.S. 180 (2019), property owners can bring federal takings and related constitutional claims directly in federal court without first exhausting state remedies.
What a Property Owner Should Document
When a government agency conditions approval on a concession, document the following:
- The specific condition imposed and the government’s stated justification for it.
- The nature of the right or property interest being demanded.
- Whether the condition was imposed administratively or through a generally applicable fee schedule or ordinance.
- The relationship, if any, between the condition and the development’s impact.
- The economic value of what is being demanded relative to the permit being sought.
- All written communications with the agency about the condition.
Frequently Asked Questions
Can a city require me to give up property as a condition of a permit?
A permit condition requiring a property dedication must satisfy the Nollan/Dolan test: it must have an essential nexus to a legitimate government purpose, and the dedication must be roughly proportional to the development’s impact. A condition that fails either part of this test is unconstitutional under the Fifth and Fourteenth Amendments.
Does Nollan/Dolan apply to permit fees?
Yes, following Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013). The nexus and proportionality requirements apply whether the government demands land or money as a permit condition. And following Sheetz v. County of El Dorado, 601 U.S. 267 (2024), these requirements apply even when the fee is set by a generally applicable legislative ordinance rather than by administrative discretion.
What is the unconstitutional conditions doctrine?
The unconstitutional conditions doctrine holds that the government cannot condition a benefit on the waiver of a constitutional right when the condition lacks a sufficient relationship to a legitimate government interest. In the land use context, it means a government agency cannot require a property owner to give up constitutional protections as the price of a permit, unless the condition satisfies the nexus and proportionality requirements.
