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33. The court hearing the appeal should hold that the requirement imposed by the city on the issuance of this building permit is
In a suit filed in state court against appropriate officials of the city, the company challenged this child care center requirement solely on constitutional grounds. The lower court upheld the requirement even though the city officials presented no evidence and made no findings to justify it other than a general assertion that there was a shortage of child care facilities in the city. The company appealed.
City officials refused to grant a required building permit for the coffeehouse addition unless the company established in its store a child care center that would take up space at least equal to the size of the proposed coffeehouse addition, which was to be 20% of the existing building. This action of the city officials was authorized by provisions of the applicable zoning ordinance.
A company wanted to expand the size of the building it owned that housed the company's supermarket by adding space for a coffeehouse. The company's building was located in the center of five acres of land owned by the company and devoted wholly to parking for its supermarket customers.
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Municipalities often attempt to condition building or development permits on a landowner's: (i) conveying title to part, or all, of the property to the government; or (ii) granting the public access to the property. Such exactions constitute an uncompensated taking unless: (i) the government can show that the condition relates to a legitimate government interest (nexus); and (ii) there is a «rough proportionality» between the size of the give-back demanded by the city and the burden on the public caused by the proposed development. Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987).
D is correct. In order to justify the condition on the building permit that the company creates a child care center, there must be a nexus between a legitimate state interest (the need for more childcare facilities) and this condition. The city also bears the burden of showing that there is a rough proportionality between the burden of the give-back on the company and the burden on the community by the company's proposed development. However, the city failed to demonstrate this rough proportionality; the city's requirement would be a very large burden on the supermarket because it would at least double the cost of the entire addition and would doubly reduce the amount of parking available. Moreover, the addition of a single daycare center would have a smaller impact on the overall community, which has a general lack of child care facilities. Because the city failed to meet its burden, the condition constitutes an unconstitutional taking.
A is incorrect. This is a misstatement of the law. The burden is not on the company, as the plaintiff, to show the lack of a rational relationship between the requirement and the government's interest. The correct standard requires the city to carry the burden of establishing that the burden on the public from the new development of the coffeehouse would be roughly proportional to the burden on the company by having to build the child care center.
B is incorrect. This answer choice describes the strict scrutiny level of review, which is not the correct test to apply to these types of conditions on land use permits. The correct standard is the «rough proportionality» test, as explained above, which places the burden on the city, not the company, to prove proportionality between the burden to the public of the development and the burden to the company by the give-back.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. While the burden is on the city, it is not required to demonstrate that the requirement was necessary to vindicate a compelling interest. As stated above, the burden is on the city to show a «rough proportionality» between the burden on the public without the condition and the company with the condition.