Michael Nadler '11 was awarded first prize in the American Planning Association's annual Smith-Babcock-Williams Student Writing Competition. Nadler will receive a $2,500 prize and his paper, “The Constitutionality of Community Benefits Agreements: Addressing the Exactions Problem,” will be published in the Spring 2010 issue of the Urban Lawyer.
The paper addresses the constitutionality of community benefits agreements (CBAs), contractual agreements between developers and coalitions claiming to represent the community in which they wish to build, in which the developers promise a wide array of benefits to the community in exchange for the community agreeing to either support, or at least refrain from opposing, the development project. Through an examination of the State Action Doctrine, which allows for facially private agreements to be imputed to the state when government actors play a role in their negotiation, Nadler questions whether CBAs should be considered unconstitutional takings under the Supreme Court's decisions in Nollan v. California Coastal Commission and Dolan v. City of Tigard, which imposed restrictions on what requirements governments may impose on landowners in exchange for the right to develop their land. After exploring three case studies of CBA negotiations in New York City, Nadler concludes that in practice government actors are sufficiently involved in negotiating some CBAs that, under Nollan and Dolan, the CBAs should be considered uncompensated takings.
The award is named in memory of R. Marlin Smith, Richard Babcock, and Norman Williams, all leading figures in American city planning law. The competition is open to both law and planning students writing about planning, planning law, land use law, local government law, or environmental law.
Posted September 28, 2010