Christison v. Board of County Comm’rs: County’s Fee Unconstitutional Taking

A Montana has considered whether a county’s imposition of fee on a developer for its impact on a county road without connecting the fee to a public benefit was constitutional.

Jerry and Genevieve Christison (collectively, “Developer”) sought to build a twelve-lot subdivision in Lewis and Clark County, Montana (“County”). The Developer submitted a variance request to the Board of County Commissioners of Lewis and Clark County (“Board”). After considering the variance request, the Board denied the variance request and required the Developer to improve and pave a County road.

The original design of the road was for 400 vehicle trips per day, but the road had approximately twice that daily traffic and the traffic usage would further increase with the proposed development. The cost for improving the road was $2 million.

The Developer filed a lawsuit challenging the Board’s determinations. The Developer challenged the Board’s decision on a number of grounds, including that the Board’s actions constituted an unconstitutional taking. The trial court ruled that the Board’s actions were an unconstitutional taking in violation of the Fifth Amendment, and sent the case back to the trial court for further proceedings, including the fee amount that the County could impose upon the Developer for its impact on the road.

Following the remand, the County instituted new proceedings to evaluate the road’s impact. The County found that the development would cause an increase of 7.39% in north road traffic and a 6.61% in south road traffic. The County required the Developer to prepare a report analyzing the costs this additional impact would cause on the road, and then pay a fee for this impact as well as other additional costs. The Developer appealed the county’s new requirements to the trial court.

The Montana First Judicial District Court for Lewis and Clark County ruled in favor of the Developer and declared the Board’s actions unconstitutional. The court looked at whether the process used by the County amounted to a taking.

The Takings Clause of the Fifth Amendment provides that the government "(nor) Shall private property be taken for public use, without compensation", and the Montana constitution contains a similar requirement. This case did not involve the County’s physical taking of land; instead, the court considered whether the County’s requirement that the Developer pay an assessment in exchange for permit approval constituted a taking from the Developer. The court examined whether there was a nexus between the County’s requirements and the public safety concern advanced by the County, which is how the Supreme Court of the United States for takings cases like this.

The court found there was no nexus between the assessment imposed on the Developer and the development impact on the County’s road. The County has no plan to improve the road, nor did the County have any plans to dedicate the proposed fees imposed on the Developer towards improvement of the road. There is also no method for refunding the amounts paid by the Developer if the road improvements are never made. While the court stated that the development would have an impact on the road and the County could require the developer to address the impact, the proposed assessment by the County failed to address the impact in any way.

Since the County did not demonstrate the nexus between the assessment and the impact on the road, the court declared the County’s new plan unconstitutional. The court also ruled that the County must approve the proposed development without imposing any further assessments on the Developer for the potential impact on the road. The court remanded the case back to the County for further proceedings to determine the compensation owed to the Developer for the takings claims as well as their other costs, such as attorney’s fees.

Christison v. Board of County Comm’rs, No. BDV-2006-348 (Mont. Dist. Ct. Jan. 11, 2011). [Note: This opinion was not published in an official reporter and therefore should not be cited as authority. Please consult counsel before relying on this opinion.]

Editor's Note: NAR provided legal support to the Developer, per the recommendation of NAR's Legal Action Committee.


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