2C — August 30 - September 12, 2013 — Shopping Centers — Mid Atlantic Real Estate Journal
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n June 25, 2013, in a 5-4 decision, the United States Supreme Court By Timothy Dietrich and Daniel Frey, Barley Snyder Land use permit applicants receive more takings protection O
past, courts afforded some deference to state and local officials acting in a legislative capacity with respect to their determination of the impact on the public of development, now the burden will be on the gov- ernment to justify conditioning approval or denial of land use applications and or zoning applications upon either dedi- cating land or payment of fees in lieu of dedication of land in accordance with the prior Nol- lan/Dolan standard. Closer scrutiny should be given by property owners and developers to regulatory schemes aimed at protecting environmental values, such as typical provisions protect- ing open space, steep slopes, woodlands, wetlands and other important natural features, transportation fees laws that exact fees which will be uti- lized for roadways or public transportation far removed from the development site, and recreational fees required in the absence of dedicated recreational space. All may, in certain circumstances, be sub- ject to challenge under the Nol- lan/Dolan/Koontz standards. Timothy Dietrich is the firm’s managing partner. He is a Business attorney in the firm’s Reading, Penn- sylvania office. Daniel Frey is a Business and Real Estate attorney in the firm’s Hanover, Penn- sylvania office. n now operate 600+ locations in 35 states and Puerto Rico. Firehouse will join new ten- ants Wal-Mart Neighborhood Market and European Wax who have joined other ten- ants including Mandee and Ulta. n
decided Koontz v. St. John’s River Water Management Dis- trict, 133 S. Ct. 2586 (U.S. 2013). The Koontz decision is an extension of the Court’s pri- or decisions under the Takings Clause in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). In Nollan and Dolan, the Court held that a government demand that an applicant dedi- cate property to the govern- ment as a condition of permit approval must be related both in nature and extent to the im- pact of the proposed land use or permitted activity, failingwhich just compensationmust be paid under the Takings Clause. The property owner in Koontz offered to offset the effects of development by granting the Water Management District a conservation easement on the remainder of the property in question preventing future development. The District proposed, as a counteroffer, either reduction of the size of the proposed development to one acre and the granting of a conservation easement on the remaining fourteen acres or a requirement that the owner grant the original, proposed conservation easement, but also make wetlands-related im- provements to District owned land located miles away from LEVITTOWN, NY — Bre- slin Realty announced the recent lease transaction with Firehouse Subs at Levittown Mews. Robert Delavale of the Breslin Organization negotiated the transaction for the landlord and Charles
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the Koontz property. Prior to Koontz, courts were split on the issue of whether a demand for money, rather than dedica- tion of land, could give rise to the constitutional violation de- scribed in Nolan and Dolan. In Koontz, the Court resolved this conflict and rejected the theory advanced by some courts in the past that, since no property was actually transferred to the government, no taking occurred even though the permit was denied. The Court held that failing to provide the Nollan/ Dolan protections in the context presented by Koontz would simply overrule Nollan and Dolan and expose developers to government cash demands in return for either the approval or avoidance of the denial of a permit application. Koontz, together with the holdings in Nollan and Dolan, afford property owners and developers tools to challenge what they may view as un- reasonable or unwarranted demands for dedication of land or monetary payments in the land use and zoning permit- ting processes. While in the Navarro represented the tenant. Firehouse Subs was started in 1995 and is driven by a mission of offering hearty and flavorful food, heartfelt service and public safety sup- port. Eighteen years later they
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