The National Academies

NCHRP 20-06/Topic 21-03 [Final]

Takings and Mitigation
[ NCHRP 20-06 (Legal Problems Arising out of Highway Programs) ]

  Project Data
Funds: $40,000
Research Agency: Conner Gwyn Schenck, PLLC
Principal Investigator: James B. McDaniel
Effective Date: 7/16/2014
Completion Date: 7/16/2015
Comments: Completed. Published as NCHRP Legal Research Digest 70

State transportation departments encounter the mitigation process in two ways.  The first occurs when they negotiate with natural resource agencies for mitigation of impacts to wetlands and/or protected species. The other occurs when land developers approach the transportation department for permission to build access to a State highway.  In the latter situation, the transportation department often requires the donation of land for an acceleration/deceleration lane or for other improvements.

 In Koontz v. St. Johns River Water Management District (2013), the U.S. Supreme Court applied the Nollan and Dolan standards (rational nexus and “rough proportionality”) for the latter scenario.   The Court held that a taking can occur when a permit is denied because the permit applicant refused to abide by the mitigation obligations imposed by the permitting agency.  The River Water District conditioned approval of the owners building permit on the owner granting the District a conservation easement on the remainder of his property. In such case, the Court held that the test is whether the permit conditions should be governed by the rational nexus and rough proportionality standards. 

Research was necessary on the impact of the Koontz decision, particularly on the extent to which permitting agencies (natural resource agencies and transportation departments) are able to advance public policy goals (e.g., environmental mitigation, public safety, traffic flow management, and access control, etc.) in the land use permitting process and project development or at what point are they considered “   This digest provides updated legal research regarding the legal standard for exactions, including the impact of the 2013 Koontz decision on the ability of state transportation agencies and other permitting agencies to advance public policy goals (e.g., traffic flow management, public safety, and environmental mitigation) in the land use permitting and project development processes.  The digest is also intended to clarify for state transportation agencies and other permitting agencies, to the extent possible, the point at which such exactions become unconstitutional takings and the application of the essential nexus test to both onsite and offsite exactions, to address impacts to the highway system and environmental systems impacts. 

This digest should be useful to attorneys, agency officials, real estate developers and others who are interested in determining that all parties are treated fairly and consistent with constitutional requirements.

STATUS: Completed. Published as  NCHRP Legal Research Digest 70 .

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