Land Use Proffers: Developers, Counsel Need to Be Aware of Legal Boundaries
The imposition of community proffers creates challenges for a zoning applicant. It is important for developers and their lawyers to understand the law on this subject so they are prepared to respond intelligently when a proffer is required in connection with a major project.
March 20, 2023 at 09:39 AM
6 minute read
Board of ContributorsIt is common for municipalities to request that a zoning applicant provide community benefits or proffers as a condition of a major site plan or other land use approval. Despite the frequency of this practice in the zoning arena, the law imposes serious limits on the legality of requiring such proffers. A recent decision by the U.S. District Court for the Southern District of Florida in Megladon v. Village of Pinecrest, reinforces the limits on proffers established by the holding in the 2013 U.S. Supreme Court decision in Koontz vs. St. Johns River Water Management District. Koontz established the principle that a municipality is not allowed to require financial or similar community proffers as a condition of granting a zoning or other land use application, unless those proffers have a sufficient "nexus and rough proportionality" to the anticipated impact of the project on the community. If a proffer does not meet the "nexus and rough proportionality" test, it may violate the "unconstitutional conditions doctrine" of the Fifth Amendment to the U.S. Constitution, which prohibits the taking of property without just compensation. Given the frequency of requested proffers by local governments and the amount of such proffers, which can be in the hundreds of thousands of dollars, it is important for developers and land use counsel to be aware of the legal boundaries of required proffers.
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