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Legal Research Digest 70 NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM April 2016 TAKINGS AND MITIGATION This report was prepared under NCHRP Project 20-06, Topic 21-03, âLegal Problems Arising Out of Highway Programs,â for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Timothy R. Wyatt, Conner Gwyn Schenck PLLC, Greensboro, North Carolina. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. The Problem and Its Solution State highway departments and transportation agencies have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. This report continues NCHRPâs practice of keeping departments up-to-date on laws that will affect their operations. Applications 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 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 or deceleration lane or for other improvements. In Koontz v. St. Johnâs River Water Management District (2013), the U.S. Supreme Court applied the Nollan and Dolan standards (rational nexus and ârough propor- tionalityâ) for the latter scenario. The Court held that a tak- ing 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 ownerâs 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 permit conditions are governed by the rational nexus and rough proportionality standards. Research was needed on the impact of the Koontz deci- sion, particularly on the extent to which permitting agencies are able to advance public policy goals in the land-use permitting and project development processes, or at what point they are considered unconstitutional exactions. 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 on-site and off-site exactions, to address impacts to the highway system and environmental system impacts. This digest should be useful to attorneys, agency offi- cials, real estate developers, and others who are interested in determining that all parties are treated fairly and con- sistent with constitutional requirements. Responsible Senior Program Officer: Gwen Chisholm Smith