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99. Is the permit condition constitutional?
A multi-building apartment complex in a city residential neighborhood has a swimming pool, the use of which is restricted to tenants of the complex. The owner of the complex has applied to the city for a permit to construct an additional apartment building on the site. The city has told the owner that it will approve the permit only if the owner makes the swimming pool available to all residents of the neighborhood. The purpose of the condition is to compensate neighborhood residents for the increased street traffic that will result from the tenants of the new building.
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A is incorrect. Requiring the pool to be open to all neighborhood residents does not violate the current tenants' freedom of association. It does not violate their freedom of expressive association because their association with one another is not for the advancement of free expression. Nor does the requirement violate freedom of intimate association, because their association is not small and intimate.
C is incorrect. Whether the condition undermines the owner's reasonable investment-backed expectations is not the proper standard. Because the government is demanding public access to the property in exchange for a permit to build, the test for determining whether the condition constitutes a taking is whether it is rationally related to preventing harms caused by the new development.
D is incorrect. Whether or not the condition substantially advances a legitimate interest of the city is not the proper standard. The proper test for determining whether the condition constitutes a taking is whether it is rationally related to preventing harms caused by the new development.