Legal Foundations 1

Abstract

The legal implications of enacting a program such as this were unknown at the time. Fearing that the fees would be seen as an unconstitutional tax, many impact fees to pay for governmental services were initially set very low. In terms of police power, most local governments have great discretion to regulate in order to protect the public's health, safety, and welfare. In contrast, local governments have almost no discretion in the exercise of their power to tax. It was natural, then, that local governments would turn to police power, where they had discretion, in order to finance infrastructure needs. Required dedication was the earliest significant land-use regulation developed to shift a portion of the capital expense burden to developers. The practice of local governments conditioning their approval of a subdivision plat upon the developer's agreement to provide and dedicate certain improvements is now a well-accepted part of subdivision regulation and generally approved by the courts.