In Alliance for Responsible Planning v. Taylor, the Third District Court of Appeal recently struck down a voter initiative requiring a developer to fund all cumulative traffic mitigation as a condition precedent to project approval as an unconstitutional taking. More specifically, the Court found that El Dorado County’s Measure E, which was adopted in 2016 and amended the County of El Dorado general plan (General Plan) to require developers to fund traffic improvements prior to the issuance of discretionary approvals needed to develop the remainder of the project, would require a development pay more than its fair share.
Due to the decision, local governments may face larger hurdles in establishing specific requirements outside of the traditional fair share development impact fee for the mitigation of cumulative impacts. As for impacts to the electorate in a time many jurisdictions are experiencing development restrictions via the ballot box, this decision highlights the importance of careful drafting of ballot measures designed to limit development.
Measure E was intended to eliminate “paper roads” – or roads that appear on a map but do not physically exist. Such phenomena can occur when a subdivider dedicates land for roads that are then never built. The El Dorado County electorate sought to eliminate this issue by replacing the standard requirement that developers pay traffic mitigation fees for future construction as a condition of approval with the requirement that developers actually construct traffic improvements before receiving the remaining necessary approvals.
In nullifying the new requirement, the Court had to first establish that the claim against Measure E was ripe. Despite the fact the County never implemented the amendment to its General Plan, the Court ruled that the controversy was ripe because it had reached the point where the issues raised were “sufficiently congealed to permit an intelligent and useful decision to be made.” Since the challenge turned on whether Measure E and its amendments were susceptible to a constitutional interpretation, the controversy did not depend on the application of the policies to a specific project or on a specific County interpretation.
Then, the Court decided that Measure E was not a permissible land use control. Because it required the giving up of a property interest – completing or constructing road improvements – instead of merely restricting the use of property, Measure E qualified as an exaction. Therefore, the Court ruled that the ballot measure unconstitutionally violated Nollan-Dolan takings jurisprudence by imposing an exaction without a “rough proportionality” to the impact of a project. A developer, the Court opined, cannot be required to implement traffic mitigating measures that address impacts beyond its own project.
In reaching this decision, the Court considered two interpretations of Measure E’s requirements –either a developer would need to provide “all necessary road capacity improvements” to prevent peak hour gridlock, or a developer would need to mitigate the project’s impacts plus the “cumulative traffic impacts from new development.” In deciding that both interpretations were unconstitutional, the Court held that neither interpretation provided a nexus to any impact created. Put alternatively, the Court found that no matter how Measure E is to be construed, the requirements inherent in the ballot initiative were too onerous in comparison to the impacts a project itself would have on traffic.
The Court refuted arguments made by the appellant, stating that the County cannot rely on the possibility that a developer be reimbursed for improvements beyond those required for one’s own project, nor can the County rely on merely letting the developer wait until others complete the improvements. An initiative, the Court described, cannot be valid if its constitutionality depends on some future, abstract act. To the Court, claiming a future policy will make Measure E constitutional was not sufficient to uphold it.
Interestingly, the Court did not appear to rule on the requirement that traffic improvements actually be built in advance of project approval. Instead, the decision was limited to only whether the quantity of the required improvements was permissible. The Court did mention, however, that it would be difficult to condition approval on the completion of a specific mitigation project, since “one can hardly condition approval on building half an interchange.”
 Nollan v. California Coastal Com. (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374: (1) an “essential nexus” between a permit condition and a legitimate state interest; and (2) a “rough proportionality” between the property demanded by the government and the social cost of the applicant’s proposal.
*Jacob Basinger is a law clerk in the firm’s Los Angeles office.