John C. Cushman's "CRA's Fee Bodes Ill for Healthy Downtown" (Oct. 15) cogent criticism of CRA's greed and overreaching in piling multiple exactions on downtown development is marred by his reluctance to face the fact that CRA's behavior ". . . may possibly be illegal." Possibly?
In 1987, in Nollan v. California Coastal Commission, the U.S. Supreme Court clearly held that in order for a land-use exaction to pass constitutional muster, it must bear a reasonable, substantial relationship to the new burdens that private development imposes on public resources.
In other words, it is not the creation of a benefit by the government that justifies the exaction. It is rather the demonstrable need for mitigation of the development's privately created public burdens--and even that presupposes that the government has the discretion to grant or deny the permit to begin with.
Where no such discretion exists, the exaction is wholly impermissible. The fact that a developer needs a city permit to build, does not in itself justify the exaction; to demand it in all cases would, in Justice Scalia's apt words, be outright extortion.
That being the case, how in the world is the CRA's "public art fee" related to the replacement of an old office building with a new one?
Moreover, when a builder only replaces an existing commercial use with a new commercial use, what does that have to do with housing? How does it justify any "affordable housing linkage" exaction? The CRA's demand is then irresponsible.
It is a subterfuge that merely evades the economic and political burdens of a sound municipal housing policy, and tries to shift its cost onto more or less randomly selected individuals.
Of course, as Cushman correctly points out, they in turn are certain to pass through those added costs to their customers. There is no such thing as a free lunch! And so, in the end, we will be stuck with a less competitive business climate, and its predictably adverse economic impact--something that New York and, increasingly, San Francisco are learning to their dismay.
Apart from its dubious economics, all of this sadly illustrates the CRA's contemptuous attitude toward the Constitution, which all public officials swear to uphold upon taking office. It also emphasizes the lapse in the performance of our courts, which have thus far failed to implement Nollan's holding in a meaningful manner. The Constitution, it seems to me, protects all citizens, not just those accused of criminally anti-social conduct. Those who forget that do so at their--and our--peril.
Kanner is professor of law at Loyola Law School.