HomeMy WebLinkAboutMiscellaneous Miscellaneous 11/20/2008
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BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
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ROBERT McCLURE and SHARON McCLURE,
Petitioners,
vs.
CITY OF SPRINGFIELD,
Respondent.
r~ '"
LUBA No. 99-]2] .'\
FINAL OPIN]ON
AND ORDER
Appeal from City of Springfield.
David B. Smith, Tigard, filed the petition for review and argued on behalf of
petitioners.
Meg E. Kieran, Springfield, and Joseph J. Leahy, Springfield, filed the response brief.
With them on the brief was Harold, Leahy, Trudeau and Kieran. Meg E. Kieran argued on
behalf of respondent.'
BRIGGS, Board Member; BASSHAM, Board Chair; HOLSTUN, Board Member,
participated in the decision.
REMANDED
03/1 0/2000
You are entitled to judicial review of this Order. Judicial review is governed by the
provisions ofORS ]97.850.
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] Opinion by Briggs.
2 NATURE OF THE DECISION
3 Petitioners challenge certain conditions that the city imposed in its "limited land use
4 decision approving a partition.
5 FACTS
6 The subject property is a 25,700-square foot parcel located in the city's Low Density
7 Residential (LDR) zone. A single-family dwelling is sited on the eastern portion of the
8 property. The subject property is bordered on the east by 8th Street, a local street with a 45-
9 foot right-of-way. It is bordered on the south by a ] O-footright-of-way for M Street. M Street
] 0 is improved with an asphalt bicycle/pedestrian path. The area surrounding the subject
]] 'property is fully developed with dwellings.
] 2 Petitioners, the applicants below, propose to partition the subject property into three
] 3 parcels. Parcel ] fronts 8th Street, includes approximately] 0,300 square feet, and contains
]4 the existing dwelling.,Parcel 2 is a 7,700 square-foot parcel, with access to 8th Street via a
] 5 20-foot panhandle north of Parcel I. Parcel 3 is a 7,700 square-foot parcel, with access to 8th
16 Street via a 20-foot panhandle south of ParceI' I. The property could not be further divided
17 under existing zoning.
]8 The city's planning director approved the proposed partition with conditions. I One
] 9 condition requires that petitioners dedicate 20 feet of right-of-way on the south portion of the
20 . subject property to allow for the future development of M Street for both vehicular and
21. bicycle travel. Another condition requires that petitioners dedicate a ]O-foot by lO-foot area
22 at the southeast corner of the subject property to ensure adequate sight visibility and turning
23 radius for the M ,Street/8th Street intersection. The third condition requires that petitioners
24 dedicate a 5-foot strip along the 8th Street frontage of the subject parcel to widen the 8th
lThe city adopted more than four conditions of approval. We only describe those conditions challenged by
'petitioners.
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Street right-of-way to allow for the construction of a curbside sidewalk and. street lighting.
2 Finally, petitioners are required to improve the 8th Street frontage with sidewalks and street
3 lighting.
4 Petitioners challenged the conditions of approval to the city planning commission,
5 arguing that the proposed conditions were excessive, unconstitutional exactions. The
6 planning commission affirmed the planning director's decision imposing the dedication and
7 improvement requirements. However, the planning commission modified the fourth
8 condition of approval to require that petitioners sign a development agreement to ensure
9 future sidewalk and street lighting improvements, rather than requiring the' immediate
] 0 construction of the sidewalks and street lighting. The planning commission adopted
]] supplemental [mdings to support its decision.
]2 This appeal followed.
13 ASSIGNMENT OF ERROR
] 4 Petitioners contend that the challenged conditions of approval are unconstitutional
] 5 and prohibited as a matter of law. Accordil]g to petitioners, the city's findings fail to
] 6 demonstrate how the impact of the partition is such that dedication of almost one-fifth of the
] 7 subject parcel to public use is justified.
]8
A.
Exactions Required as Part of a Partition
]9 ' Petitioners argue that the Oregon Court of Appeals' holding in Schultz v. City of
20 Grants Pass, 131 Or App 220, 884 P2d 569 (1994) makes it clear that the city may not
2] impose exactions based on future development impacts when it approves a partition, if the
22 future development is not approved by the partition. According to petitioners: it is not the
23 land division itself that causes the impacts the city seeks to ameliorate through the imposition
24 of conditions, but rather the impacts resulting from the development of dwellings, if any, on
25 the new parcels. Petitioners explain that the city's development code does not regulate the
26 siting of dwellings once the partition is approved. Petitioners argue that the city's imposition
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] of exactions at this step of the development process is because the city "knows of no
2 constitutional way. to demand the dedications when development occurs that will have
3 quantifiable impacts." Petition for Review ]2.
4 ]n Schultz, the city approved a partition of 3.85 acres ofland into two parcels. As part
5 of the partition approval, the city required that the applicant dedicate a 20-foot wide strip
6 along one side of the property and a ]O-foot strip along another side of the property, plus
7 "enough area to round the intersection." 13] Or App at 222. The city justified the exaction by
8 arguing that the impact of development upon potential full build-out of the property should
9 be considered when determining what exactions are "roughly proportional" as required by
10 Dolan v. City of Tigard, 5]2 US 374, ]]4 S Ct 2309, ]29 LEd 2d 304 (1994). Under that
] I city's zoning c'ode, the acreage ,could be further divided to allow up to 20 residential lots on
]2 the property. The Court of Appeals determined that the city's consideration of full build-out
13 in Schultz was speculative, and that the city should only have considered the impact as
14 proposed in the application before it~the creation of two parcels. The court reasoned that
] 5 the city
] 6 "imagined a worst-case scenario--assuming that petitioners would, at some
] 7 undefined point in the future, attempt to develop their land to its full
18 development potential of as many as 20 subdivided residential lots, further
19 assuming that petitioners would obtain all the necessary permits and
20 approvals-and on the basis of that scenario, it calculated the impacts of the
2] development and tailored conditions to address them." Schultz, 13] Or App at
22 228.
23 The city responds that Schultz is distinguishable. ]n Schultz, the city erred in basing
24 the dedication requirements on the impact the property would have on full build-out, rather
25 than on the impact a two-parcel partition would have.on the transportation system. Here, the
26 city contends that its supposition that the proposed partition would result in the siting of two
27 new dwellings is a reasonable expectation, because the partition approval apparently is the
28 last land use decision needed, to approve the siting of dwellings on the property. Once the
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final partition plat is approved, the city argiles, there is nothing to prevent the applicants from
2 immediately obtaining building permits to construct two dwellings.
3 We read Schultz to stand for the principle that only those impacts that reasonably
4 flow from the approval granted may be considered when imposing exactions to ameliorate
5 the impacts of tha,t approval. In this case, the partition approval is apparently the last city
6 land use decision necessary to establish dwellings 'oil the resulting parcels. Therefore, the city
7 could impose exactions that are roughly proportional to the impacts of two dwellings that
8 may be sited on the two new lots by virtue of the challenged partition decision.
9 This subassignment of error is denied.
10
B.
Rough Proportionality
I I Petitioners' remaining' subassignments of error require some discussion of the
12 analysis in Dolan, and the Oregon cases that have interpreted it, to determine whether; in this
13 case, the city has demonstrated that the exactions are constitutionally permissible. In'Dolan,
14 the owner of a hardware store sought to expand its facility and paved parking on ~ two"acre
15 site located next to a creek. The city approved the proposal, provided the owner dedicate
16 approximately 15 percent of the site to the public to allow for protection of a floodplain and
] 7 the development of a creekside bikeway, The U.S. Supreme Court determined the city failed
18 to demonstrate that the exactions were "roughly proportional" to the impact the, hardware
19 store expansion would have on public facilities. The Court explained that in order for the city
20 to require the dedications it sought, the city had to make "some sort of individualized
2 I determination that the required dedication is related both in nature and extent to the impact of
22 the proposed development." Dolan, 512 US at 391. The Court stated that "no precise
23 mathematical calculation is required, but the city must make some effort to quantifY its
24 findings in support ofthe dedication * * *." Id. at 395-96.
25 In the cases since Dolan, Oregon courts have examined the types of particularized
26 findings needed to support an exaction. In Clark v. City of Albany, 137 Or App 293, 904 P2d
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] 85 (1995), the Court of Appeals determined that the city's requirement that a property
2 owner improve street frontage and an intersection before he could expand his fast-food
3 franchise was impermissible. The court decided that the city failed to demonstrate with
4 particularity that the increase in traffic generated by the expanded business was roughly
5 proportional to the required improvements.
6 In Art Piculell Group v, Clackamas County, ]42 Or App 327, 922 P2d ]227 (]996),
7 the Court of Appeals considered a county's requirements for a dedication of land and the
8 improvements to streets fronting a proposed subdivision. ]n that case, the frontage road, once
9 constructed, would serve regional transportation needs by connecting a majority of the
10 vehicular traffic generated by existing nearby developments with major arterial streets, The
] ] court explained that, in making the determination that the exactions are roughly proportional
] 2 to the impacts of development, the decision maker has the burden to
13 "articulate and substantiate the requisite facts and legal conclusion when, as
] 4 here, findings are used as the device for the governmental demonstration and
]5 determination of rough proportionality." Art Piculell Group, ]42 Or App at
] 6 331.
] 7 The court also stated that Dolan requires "considerable particularity in local government
18 findings that are aimed at showing the relationship between a developmental condition and
19 the impacts of development." ld., quotingJ.C. Reeves Corp. v, Clackamas County, 131 Or
20 App 6]5, 6]8, 887 P2d 360 (1994).
2] In circumstances where the proposed development derives a benefit from the required
22 dedications and improvements, the court said
23 "[C]ertain approval conditions, -although they involve dedications or are
24 otherwise of a kind to which Do/an applies, can have the principal or
25 overlapping effect of serving the needs of the development itself rather than,
26 or as well as, offsetting impacts that the development will cause
27 elsewhere, * * *
28 "It is probably impossible to formulate a universal rule concerning how
29 'benefits' of that kind are to be factored into the rough proportionality
30 calculus. Nonetheless, it is clear that, insofar as the facts of particular cases
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I may, indicate, conditions that in whole or in part serve the needs of the
2 development 'itself should be weighed differently that pure 'exactions' of the
, 3 kind rhat serve only to mitigate an impact of the development on the public or
4 public facilities. It also seems clear that the mix of 'beneficial' and other
5 conditions, as well as the mix of 'beneficial' and other effects that may be
6 attributable to a particular condition, can vary enormously from case to case.
7 Given that, the absolute rule * * * that beneficial effects may only be
8 considered if they are the only effects present, is not logically
9 supportable. * * * [W]e conclude that the * * * consideration of 'benefits'
] 0 [conferred upon the development as a result of the exaction is] not erroneous
] ] as an analytical approach. We emphasize, however, that that approach can be
] 2 an appropriate consideration in applying the Dolan test, where the facts for it
] 3 are present, but it should not be misunderstood as being the test." Art Piculell
]4 Group, ]42 Or App at 336-37 (emphasis in original).
] 5 Under the analysis the court provided in Art Piculell Group, it is appropriate to
] 6 include some considt;ration of benefits to the parcels created by the partition, as well as
17 impacts from the new parcels, in the rough proportionality analysis required by Dolan.
]8
1.
Findings Supporting Exactions
] 9 We now turn to the findings the city adopted to justifY its exactions.
20 The city's findings identify eight bases to support its requirements for street
21 dedications and sidewalk improvements:
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1.
The code requires the dedication of needed right-of-way "whenever an
existing street of inadequate width is abutting or within a development
area requiring Development Approval." Springfield Development
Code (SDC) 32.020(lO)(a). Record 67.
2.
The proposed development will significantly 'mcrease vehicular,
bicycle and pedestrian traffic. Record 68.
3.
The property will benefit from the M' Street improvements, sidewalks
and the 10-foot by lO-foot clipped corner. A duplex may be sited on
property located on a corner of,two city streets. Thus, the property
owner of Parcel 1 will benefit from the required street dedications by
being able to place a duplex on that parcel. The owner of Parcel 3 will
benefit from having a ,street fronting the parcel, rather than having to
maintain the flag driveway to the main portion of the parcel. The
owner of Parcel 3 will also have better access for emergency vehicles,
and immediate access to a public street. Record 68.
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4.
The increased traffic caused by the panhandle driveway for Parcel 3
presents a safety hazard. Record 69.
5.
The conditions of approval will have no significant impact on the
owners' use of the property. Record 69.
6.
The proposed development is located in an "infill" area and is the last
development ofthe property. Record 70.
The appellants purchased the property subject to and with knowledge
of the public dedications and the improvements the city would require
prior to development of the property. Record 7].
The area of the city where the subject property is 'located '''lacks
sufficient east-west connectivity." Acquiring the needed right-of-way
for M Street will allow for the eventual vehicular connection between
the segment of M Street that currently terminates on the west side of
7th Street, and the segment of M Street that currently terminates on the
east side of 8th Street. ]n doing so, the residents of the area will have
better connections to local schools and emergency services. Record
80-81.
7.
] 8 ]n reviewing the findings, we first determine which identified impacts or benefits are
] 9 not relevant for purposes of the Dolan test. We then look at whether the remaining findings
20 adequately quantifY the benefits to the development or the impacts of the development on
21 puolic facilities, and whether those findings suffice to demonstrate that the city's exactions
22 are "roughly proportional" to those benefits or impacts.
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2.
Improper Considerations under Dolan
a.
Legislative vs. Quasi-judicial Dedication Requirements
25 Petitioners contend that having the dedication requirements codified, in the city's
26 ordinance does not relieve the' city of the obligation to make particularized findings
27 determining that this development generates enough vehicular, bicycle and pedestrian traffic
28 to ,justifY the exactions imposed. The city agrees with petitioners that Dolan imposes an
29 obligation on the city to adopt findings to show that exactions required under the city's
30 ordinances are roughly proportional to the impact of the proposed partition. However, the
3] city also argues that it has done so here. We agree with both parties that the fact that an
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exaction is required by city ordinance is irrelevant to whether an exaction imposed pursuant
2 to that ordinance is in fact roughly proportional to the impacts of development.
3
b.
Use of Property
4 Petitioners argue that the city impermissibly justified the M Street right-of-way
5 exaction, in part, on the basis that petitioners' use of Parcel 3's panhandle for access is
6 similar whether the property remains in private ownership or is dedicated as right-of-way.
7 According to petitioners, the "right to exclude others [is]' 'one of the most essential sticks in
8 the bundle of rights that are commonly characterized as property.'" Dolan, 512 US at 393,
9 citing Kaisef Aetna v, United States, 444 US ] 64, ] 76, ] 00 S Ct 383, 67 L Ed 2d 303 (1979).
10 Petitioners argue that it is the loss of this right that requires that the city make the
I ] individualized findings required by Dolan and, any similarity between the proposed public
] 2 and private uses is irrelevant.
13 We agree with petitioners that the f~ct that the disputed area will be used for
] 4 transportation access whether it is a privately owned panhandle or a publicly owned right-of-
] 5 way is not relevant under Dolan. because that consideration is neither a benefit to the
] 6 property nor an impact of the development on the public infrastructure. Therefore, the
17 finding justifYing the right-of-way exaction in part because of perceived similarities in use
18 between the public right-of-way and a privately owned driveway is not a proper
19 consideration under Dolan.
20
c.
"Infill" Development
21 According to the city, the property is one of the last parcels in the area to be fully
22 developed. There may be some circumstances where the fact that the proposed ,development
23 is infill may pose an identifiable impact on the city's infrastructure beyond that of non-infiIl
24 development. 2 However, in this case, the city has not established that the fact that this
'But see, Art Picu/ell Group, 142 Or App 339-40 ("[t]he concern under Do/an is not with the [fair share]
'apportionment of costs for a general improvement over the general body of benefitted property owners, but
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particular development is in fill has any impacts that would justifY any of the exactions
2 imposed.
3
d.
Knowledge of the Exactions the City Would Impose
4 Petitioners argue that the city erred in justifYing the exactions, in part, on the basis
5 that the subject property was subject to a prior approval for a partition plat. The first approval
6 subjected the applicants to exactions similar to those imposed as a result of the city's
7 decision in this case. Petitioners purchased the property while that approval was in force;
8 however, petitioners let the time period for fulfilling all conditions pass, and' no final
9 partition plat was ever filed within that time period.
] 0 The city argues that petitioners purchased the subject property with knowledge of the
] ] prior conditions of approval and, therefore, they cannot object to the imposition of those
12 same conditions in the instant case,
13' The difficulty we have with the city's argument is that the city has not demonstrated
] 4 that petitioners are bound in any way to the first partition plat approval or are otherwise
] 5 estopped from contesting the conditions of approval. The 'city concedes that the first approval
16 has lapsed, and that petitioners have filed a completely new partition application in order to
,] 7 divide the property. The fact that petitioners may have been aware of the conditions of
] 8 approval in the first case does not provide a basis for concluding that petitioners agreed to
19 the imposition of the exactions, or that the exactions imposed here are roughly proportional
20 to the impact of the proposed development.
21
e.
City Transportation Needs
22 ' The city justified its decision in part because the area in which the proposed partition
23 is ,located "lacks sufficient east-west connectivity." Record 80. The city found that the
with the extent to which particular property may be burdened because of impacts that are attributable to its
development") and Dep/' of Transportat/on v, Alt/mus, 137 Or App 606, 611, 905 P2d 258 (1995) (in
detennining the "JIlount of land that may be exacted as a condition of approval, the local government must look
at the impact of the proposed development, and not the amount of land the local government needs to
accomplish its transportation goals.)
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residents of the area would benefit from the M Street dedication by improved access to
2 schools and emergency services, in addition to better access to other areas of the community,
3 As we discuss below, the benefits that the proposed development derives from a
4 proposed exaction may be included in the rough proportionality analysis, as well as the
S impact the development may have on the city's infrastructure. However, we agree with
6 petitioners that benefits to the larger community are not appropriate considerations under
7 Dolan. To the extent the city justifies exactions based on benefits to the community as
8 opposed to specific benefits to the subject property, the city erred. 3
9
3.
Dolan Considerations
]0
a.
Impacts on Transportation Facilities
] ] Petitioners argue that, even if the additional traffic attributable to two dwellings is
] 2 considered, the city has not quantified the total amount of traffic likely to use the adjacent
'13 segments of M Street and 8th Street. Absent such quantification, petitioners contend the
14 city's determination that two dwellings will generate ]9 vehicular trips per day, is
IS meaningless. ln addition, petitioners contend that the city's findings do not establish that the
16 dedications are roughly proportional to the impact on those segments caused by vehicular
] 7 traffic originating from petitioners' development. Petitioners further argue that the findings
] 8 quantifY the impact of two dwellings on vehicular traffic, but do not quantifY the number of
19 bicycle and pedestrian trips likely to be generateo by the proposed development. 4
20 The city responds that when it determined the necessary amount of land to be
2] dedicated, it was conservative in using only the traffic likely to be generated by two '
3It may be that improved east-west connectivity provides some specific benefits to the property o~ners
in the proposed partition based on better access for emergency vehicles; however, as we discuss below, the
decision does not quantify those. benefits in any meaningful manner.
'The city's findings with regard to additional bicycle and pedestrian trips indicate that the increase in such
trips generated by the proposed development' will be proportional to vehicle trips generated. Record 68. The
findings do not quantiry existing bicycle and pedestrian trips on either the M Street bicycle path or on 8th
Street.
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additional single-family dwellings. According to the city, the residential zone allows
2 numerous intensive uses outright, and any of those uses would generate considerably more
3 than the, ] 9 vehicular trips estimated to be generated by the single-family dwellings.5 The
4 city contends that the additional parcels with the resulting potential for more intensive uses
5 justifY the dedication.
6 The difficulty we have with the city's response is that nowhere in the decision itself
7 does' the city rely upon potential traffic generated by other uses allowed in the zone to
8 support its finding that the dedications are justified. That problem aside, the city's findings
9 are not adequate to demonstrate that impacts on transportation facilities justifY the exactions.
] O. It may be that in some cases the number of vehicular trips a proposed development is
] I expected to generate may be so large and the exactions that are imposed so small that it will
12 be readily apparent, without additional explanation, that the exactions are roughly
13 proportional to the expected traffic impact. However, in this case, it is not self-evident that
14 the additional vehicular traffic that is expected from the two additional lots warrants the
15 required 20-foot right_of-way dedication for future improvement ofM Street.
16 In most cases, it will not be sufficient to "simply posit the relationship between
17 subdivision-generated traffic and the need for the improvements." J.c. Reeves Corp" 131 Or
] 8 App at 622. In such cases, some additional findings to quantifY the relationship between the
19 expected additional traffic and the impact of that traffic on the affected transportation system
20 will be required. The nebulous nature of the Dolan rough proportionality test means the
21 findings could approach this additional quantification effort in a variety of different ways in
22 different contexts. However, Dolan will often require such additional quantification. The
'SDC 16.020 provides that, in low density residential zones, allowed uses include: day care homes for up
to 12 children; adult day care facilities for up to 12 adults; residential facilities housing up to 15 persons and
"low impact" public utility facilities,
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required quantification is missing here, with regard to the city's reliance on the expected
2 additional vehicular traffic as a basis for imposing the disputed exaction. .
3 The findings regarding additional bicycle and pedestrian trips are even more basically
4 flawed in that they fail to adequately identifY and quantifY the number of trips generated by
5 the dwellings. In addition, they make no attempt to establish a relationship between the
6 number of nonvehicular trips from the proposed development, whatever that number may be,
7 and its effect on the transportation system. In summary, the city has not adequately explained
8 why the increased vehicular, pedestrian, and bicycle traffic that may be expected from the
9 additional lots approved by the disputed partition constitute impacts that are roughly
] 0 proportional to the required dedications and improvements along M Street and 8th Street.
II
b.
Benefits Accruing to the Subject Property
] 2 Petitioners concede that there rnay be some benefits that accrue to the property owner
13 as a result of improvements to the streets and sidewalks. However, they argue that in this
]4 case the city cannot rely on any supposed benefits attributable to the right-of-way dedications
] 5 and sidewalk improvements because those benefits have not been quantified.
16 The city responds that it is not necessary to put a numerical or dollar value on the
17 benefits that the property owner receives as a result of the exactions. The city argues that in
] 8 some cases, it is impossible to do SO.6 The city contends that it identified specific benefits
19 that the owners of the resulting parcels will enjoy as a result of the approval of the partition
20 and the exactions, and that identification of the benefits is sufficient to justifY the exactions,
2] The city's findings state:
22 "The property will benefit in the following manner:
23
".
,Parcel 3 will have improved access and full frontage onto a City street.
6 At oral argument, the city used as an example the impossibility of measuring the benefit to the owners
resulting from the installation of sidewalks and lighting on city streets. According to the city, it is impossible to
place a dollar value on lives saved as a result of providing safe pedestrian access, and thai it is equally
impossible to allocate that value between ,the owners of the partitioned property and the community overall.
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". All three parcels will have safer and better transportation connectivity.
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The transportation safety of the future residents of all three parcels
will be improved.
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Fire and Life Safety vehicles will be able to reach the' property
fasterJ7]
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Public services such as storm drainage, water and electricity can be
provided in a more efficient manner.
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Parcel I will have enhanced value because it may be developed with a
duplex." Record 68.
] 0 We agree with petitioners that, in this case, the city's findings are insufficient to
] ] quantifY those benefits and relate them to the amount of land required to be dedicated or
12 improv~d. We tend to agree with the city that some of these benefits may be difficult to
13 quantifY. However, unless the city makes some effort'to quantifY these potential benefits,
] 4 they will be of limited assistance to the city in applying the rough proportionality analysis
]5 required by Dolan.
]6
c.
Safety Concerns
] 7 Table 32-4 of the SDC requires that in the residential zone "minimum separations
18 between a standard driveway and the nearest [local street] intersection curb return on the
]9 same side of the street" must be 30 feet. SDC 32.080(4)(a) provides that "intersections
20 involving curb-return driveways and streets, whether public or private, shall be directly
2] opposed * * *." The city determined that these particular standards were applicable to the
22 ' subject application and found that the standard could be satisfied by imposing the 20-foot
23 dedication requirement for M Street. The city's rationale for doing so was that the standards
24 would be satisfied by eliminating the driveway at the time M Street is improved for vehicular
'The city's findings indicate that if M Street is fully improved, better access for fire and other emergency
vehicles would be available to the parcels approved as a result of the challenged decision,
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] access. The city cited general policies that discouraged the establishment of panhandle lots as
2 further support for its exaction.
3 Petitioners argue that the conditions of approval requiring the dedication of 20 feet of
4 right-of-way on M Street are not justified by the city's stated safety concerns regarding the
5 interface between bicyclists using the M Street bike path and the creation of a driveway in
6 the panhandle of Parcel 3. According to petitioners, there may be some safety issues involved
7 with bicycles crossing 8th Street on M Street. However, petitioners argue that at the
8 intersection between the panhandle of Parcel 3 and 8th Street, only south~ound turns from
9 the driveway could pose a conflict between bicyclists and drivers exiting from Parcel 3.
] 0 Petitioners contend that all trips generated from a driveway from Parcel 3 directly onto the
] ] extension of M Street would interfere with bicycle traffic on that street. Thus, petitioners
] 2 argue that the dedication requirement would exacerbate, rather than mitigate, the safety
, ] 3 situation. According to petitioners, the vehicular traffic turning onto the improved connection
] 4 to M Street from 8th Street will create a new risk to bicyclists crossing from one segment of
15 M Street to another.
16 In addition, petitioners argue that the SDC Table 32-4 standards do not even apply,
] 7 because the 20-foot wide bikeway does not constitute a "street" with a "curb return" as those
] 8 terms are used in the code. To the extent they are applicable, petitioners contend the
] 9 driveway with curb cuts onto 8th Street does comply with the standard, because the driveway,
20 is "directly opposed" to the existing intersection of the improved segment of M Street and
21 8th Street.
22 The city responds that the planning commission determined that.the purpose of SDC
23 Table 32-4 is "to provide ample distance between a public transportation facility and a
24 private driveway to allow for safe turning movements," and therefore, the requirement for the
25 dedication of 20 feet of right-of way was necessary to eliminate the safety hazard caused by
26 the establishment ofa panhandle driveway on Parcel 3. Respondent's Brief ]5.
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The planning commission's findings state:
2 "As proposed, the panhandle driveway will create safety problems due to the
3 proximity of the bicycle path and the existing 8th and M Street intersection.
4 The bicycle path provides bicycle and pedestrian connectivity between the
5 residential areas east of the appellants' property and Mofitt Elementary and
6 Hamlin Middle School, both located approximately 4 blocks west of the site.
7 Establishing the panhandle driveway directly to the north of the bike path will
8 create a dangerous interface between the path users, existing vehicular traffic
9 at the intersection and the residents of Parcel 3. Cars pulling out of the
10 driveway would have to contend with automobiles coming from three
] ] directions and bicycles and pedestrians coming from or proceeding towards
]2 the bicycle path. Vehicles backing out rather than pulling front-ways out of
] 3 the panhandle driveway will exacerbate this safety problem. There are no
] 4 provisions in the SDC that give the City the regulatory authority to prevent
]5 automobiles from backing out of a driveway. SDC Table 32-4 regulates
]6 situations such as this by requiring a 30-foot separation between single-family
] 7 and duplex driveways and the nearest intersection curb return on the same
18 side of the street. Although the bicycle path is an asphalt mat and does not
19 have a curb return, the intent of the requirement is to provide ample distance
20 between a public transportation facility and a private driveway to allow for
21 safe turning movements. To allow the panhandle driveway to be located less
22 than 30 feet from the bicycle path is a clear violation of the [SDC] and will
23 perpetuate a hazardous situation." Record 69.
24 The city found that the policy underlying the SDC Table 32-4 standards justified, at
25 least in part, the right-of-way exactions. If the extent of the identified safety concern justifies
26 some or all of the right-of-way dedication requirements, and any other improyements that
27 may ameliorate the impact, the city may impose those conditions that are roughly
28 proportional to the impact caused by approval of this partition. However, it is not clear that
29 SDC Table 32-4 standards apply to the partition application before us. If they or some other
30 land use standards do apply, they may provide a basis for the city to deny the proposed
3] partition unless the perceived safety problems associated with the panhandle are corrected.
32 However, it does not necessarily follow that the exaction imposed by the city is the only
33 solution to that perceived safety problem or that it is roughly proportional to those safety
34 impacts.
35 The assignment of error is sustained, in part.
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CONCLUSION
2 Looking at the findings and the evidence the city relied upon to support its [mdings, it
3 is clear that they are inadequate to justifY the exactions imposed. The findings concerning
4 impacts and benefits, even when read together, do not satisfy the Dolan rough
5 proportionality requirement. Art Piculell Group, ]42 Or App at 335 (LUBA must determine
6 whether, cumulatively, the county's findings satisfY the rough proportionality test).
7 OAR 661-0] 0-0073 provides, in relevant part:
8
"(I) The Board shall reverse a limited land use decision when:
9
"* * * * *
]0
"(b) The decision is unconstitutional; * * *
]1
]2
"(2) The Board shall remand a land use decision for further proceedings
when:
13
]4
"(a) The findings are insufficient to support the decision, except as
provided in ORS ]97.835(1 ])(b);
]5
]6
"(b) The decision is not supported by substantial evidence in the
record. * * *" ,
17 Petitioners argue that the city's decision is unconstitutional, and therefore the
18 decision should be reversed. The city argues that if we sustain any assignments of error, we
19 should remand the decision for further proceedings consistent with our opinion,
20 The city's findings fail to quantifY the impacts of the proposed development with
21 sufficient particularity to justifY the exactions it imposed. However, this does not mean that
22 petitioners are entitled to the reversal they seek. As our above discussion indicates, the city
23 may be able to adopt findings that justifY some or all of the exactions imposed. Accordingly,
24 remand is appropriate. OAR 661-0]0-0073(2)(a) and (b).
25 The city's decision is remanded.
Page 17
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('~ ..
BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
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ROBERT McCLURE and SHARON McCLURE,
Petitioners,
vs.
CITY OF SPRINGFIELD,
Respondent.
LUBANo. 2000-115'-
'----- - .
FINAL OPIN]ON
AND ORDER
Appeal from City of Springfield.
David J. Hunnicutt, Tigard, filed the petition for review and argued on behalf of
petitioners.
Meg E.' Kieran, Springfield, field the response brief and argued on behalf of
respondent. With her on the brief were Joseph J. Leahy and Harold, Leahy and Kieran.
BRIGGS, Board Member; BASSHAM, Board Chair, participated in the decision.
HOLSTUN, Board Member, concurring.
REMANDED
0]/19/2001
You are entitled to judicial review of this Order. Judicial review is governed by the
provisions of ORS ] 97.850.
Page]
Dat€'l Heceived: /}~40,r
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] Opinion by Briggs.
2 NATURE OF THE DECISION
3 Petitioners challenge certain conditions that the city imposed in its limited land use
4 decision ilPproving a partition.
5 FACTS
6 This matter is before us for the second time. In our previous decision, McClure v,
7 City of Springfield, 37 Or LUBA 759 (2000) (McClure /), we set out the facts as follows:
8 "The subject property is a 25,700-square foot parcel located in the city's Low
9 Density Residential (LDR) zone. A single-family dwelling is sited on the
10 eastern portion of the property. The subject property is bordered on the east by
] ] 8th Street, a local street with a 45-foot right-of-way. It is bordered on the
]2 south by a IO-foot right-of-way for M Street. M Street is improved with an
13 asphalt bicycle/pedestrian path. The area surrounding the subject property is
]4 fully developed with dwellings.
] 5 "Petitioners, the applicants below, propose to partition the subject property
16 into three parcels. Parcel ] fronts 8th Street, includes approximately 10,300
17 square feet, and contains the existing dwelling. Parcel 2 is a 7,700 square-foot
] 8 parcel, with access to 8th Street via a 20- foot panhandle north of Parcel I.
]9 Parcel 3 is a 7,700 square-foot parcel, with access to 8th Street via a 20-foot
20 panhandle south of Parcel I. The property could not be further divided under
2] existing zoning.
22 "The city's 'planning director approved the proposed partition with conditions.
23 One condition requires that petitioners dedicate 20 feet of right-of-way on the
24 south portion of the subject property to allow for the future development of M
25 Street for both vehicular and bicycle travel. Another condition requires that
26 petitioners dedicate a ] O-foot by IO-foot area at the southeast corner of the
27 subject property to ensure adequate sight visibility and turning radius for the
28 M Street/8th Street intersection. The third condition requires that petitioners
29 dedicate a 5-foot strip along the 8th Street frontage of the subject parcel to
30 widen the 8th Street right -of-way to allow for the construction of a curbside
31 sidewalk and street lighting, Finally, petitioners [ were] required to improve
32 the 8th Street frontage with sidewalks and street lighting.
33 "Petitioners challenged the conditions ,of approval to the city planning
34 commission, arguing that the proposed conditions were excessive,
35 unconstitutional exactions. The planning commission affirmed the planning
36 director's decision imposing the dedication and improvement requirements.
37 However, the planning commission modified the'fourth condition of approval
38 to require that petitioners sign a development agreement to ensure future
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I sidewalk and street lighting improvements, rather than requlrlng the
2 immediate construction of the sidewalks and street lighting. The planning ,
3 commission adopted supplemental findings to support its decision." 37 Or
4 . LUBA at 762-63 (footnote omitted).
5 For ease of reference, below is a diagram of the proposed partition and the
, 6 dedications ,required by the city. This diagram is provided for illustrative purposes only and
l
m
II
P~cell ii ~
P~ce13 II, ~
, .,::::",:::>/<<>J
Parcel 2
MStred
~y TO DEDICATIONS:
o Right-of-way fOf future M Street development
~ 10 foot x 10 foot "clipped comer,"
[] Right-of-way for sidewalkllighting.
7 is not to scale.
8
A.
The McClure I Decision
9 In McClure I, we summarized the findings adopted by the planning commission to
10 support its decision as follows:
]]
]2
13
]4
"1.
The code requires the dedication of needed right-of-way 'whenever an
existing street of inadequate width is abutting or within a development
area requiring Development Approval.' Springfield Development
Code (SDC) 32.020(lO)(a). [McClure 1] Record 67,
]5
]6
"2.
The proposed development will significantly increase vehicular,
bicycle and pedestrian traffic. [McClure 1] Record 68. '
]7
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19
"3.
The property will benefit from the M Street improvements, sidewalks
and the ]O-foot by 10-foot clipped corner. A duplex may be sited on
property located on a comer of two city streets. Thus, the property
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owner of Parcel I will benefit from the required street dedications by
being able to place a duplex on that parcel. The owner of Parcel 3 will
benefit from having a street fronting the parcel, rather than having to
maintain the flag driveway to the main portion of the parcel. The
owner of Parcel 3 will also have better access for emergency vehicles,
and immediate access to a public street. [McClure 1] Record 68.
The increased traffic caused by the panhandle driveway for Parcel 3
presents a safety hazard. [McClure 1] Record 69.
The conditions of approval will have no significant impact on the
owners' use of the property. [McClure 1] Record 69.'
The proposed development.is located in an 'infill' area and is the last
development of the property. [McClure 1] Record 70.
The appellants purchased the property subject to and with knowledge
of the public dedications and the improvements the city would require
prior to development of the property. [McClure 1] Record 71.,
The area of the city where the subject property is located 'lacks
sufficient east-west connectivity.' Acquiring the needed right-of-way
for M Street will allow for the eventual vehicular connection between
the segment of M Street that currently terminates on the west side of
7th Street, and the segment ofM Street that currently terminates on the
east side of 8th Street. In doing so, the residents of the area will have
better connections to local schools and emergency services, [McClure
1] Record 80-8]." 37 Or LUBA at 767-68.
24 In McClure I, we reviewed the city's findings pursuant to our understanding of Dolan
)
25 v, City of Tigard, 5]2 US 374, ]]4 S Ct 2309, ]29 L Ed 2d 304 (1994) (Dolan) and the
26 Oregon appellate cases interpreting it to determine whether the city improperly included
27 certain factors in its findings justifying its exactions, We concluded that the city could not
28 use exaction formulas contained in the city's zoning code as a substitute for particularized
29 findings to establish that the impact of the proposed development on identified public
30 interests is roughly proportional to the exactions the city imposed. We also concluded that"
31 the city's determination that the burden of the exaction for the M Street right-of-way was
32 inconsequential because the area required to be dedicated for road right-of-way would
33 otherwise be used as a private access was not a proper consideration under Dolan. In
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addition, we concluded that the mere fact that the proposed partition would result in infill
2 development was, i!1 itself, insufficient to justify any exaction. Finally, we stated that neither
3 knowledge on the part of the applicants as to the exactions the city would require nor the
4 generalized community benefit realized by the exactions could be included in a Dolan rough
5 proportionality analysis.
6 We held that the city could consider the specific transportation impacts caused by the
7 proposed partition, and that those impacts could include impacts resulting from development
8 that could occur without further city approvals. We also held that benefits accruing to the
9 subject property as a result of th~ exactions and safety concerns that arose from approving
10 the development as proposed could also be considered in the rough proportionality analysis.
] ] After setting out those factors that could be included in the city's rough
12 proportionality analysis, we ultimately concluded that. the findings the city adopted were
13 insufficient to support the exactions the city demanded. We then remanded the city's
] 4 decision for further proceedings consistent with our analysis.
]5
B.
Remand Proceedings Before the City
] 6 On remand, the city planning director again approved the partition application,
] 7 subject to the same conditions of approval, readopting the original findings and adopting
18 supplemental findings to support the decision. Petitioners appealed that decision to the city
19 planning commission, which again modified the condition of approval requiring the sidewalk
20 improvement. Instead, the planning commission required that petitioners sign an
2] improvement agreement/waiver of remonstrance for those irnprovements. The planning
22 commission adopted all of the planning director's findings, and also adopted supplemental
23 findings to support its decision. 1
lThe planning commission's decision lists the condition~ of approval as follows:
"7. Dedicate 20 feet of right-of, way along the southern "W"~"i line of the developmeni
area for the eventual extension ofM Street.
Page 5
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This appeal followed.
2
c.
Planning Commission Supplemental Findings
3 In its remand proceedings, the plarining commission adopted the following
4 supplemental findings:
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6
7
8
The assumption that the [nJew development will produce 19 vehicle
trips per day is a valid measure of impacts because] 9 trips per day is
one of the lowest volumes of traffic generated by two permitted uses
in the [LDR zone] (SDC ] 6.020). ' .
"1.
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Conditions of approval #7, #8, #9 and #] 0 are directly proportional to
the impacts, of the subject development on the local street system of
creating two new parcels as proposed by [petitioners]. This is because
the minimum 19 new trips per day the development will generate will
<eomprise 1.86 percent of the 1020 trips that directly and daily impact
the sections of local street serving the development area before
connecting to a minor arterial street. The 4,37] square feet ofright-of-
way that is required to be dedicated comprises only 1.59 percent of the
276,700 square feet of planned right-of-way that the proposed
development will impact. Since the ] .59 percent right-of-way
dedication is a smaller fraction than the [1.86] percent of the vehicle
impacts that the new development will produce, the required
dedication is roughly proportional to the impacts of the development
and is, in fact, less thai n] what the city could exact if a direct pro rata
dedication were required.
"2.
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, "3.
The required 4,37] square foot right-of-way dedication is roughly
proportional to the impacts of creating two new developable lots in the
"8, Dedicate 5 feet of right-of-way along the full frontage of 8th Street to allow
sufficient right~of-way for the construction ofa curbside sidewalk. .
"9: Dedicate a 10 foot by 10 foot 'clipped corner' at the intersection of the M Street
dedication and the 8th Street right-of-way,
"10, Install a 5-foot curbside sidewalk, ADA-accessible driveway approaches for all 3
lots and street lighting.
"*****
"* * * Condition #10 will be fulfilled by the recording of an Improvement Agreement for the
construction of curbside sidewalks on 8th Street. * * *" Record 3.
Both the planning commission's decision and petitioners' brief refer to these conditions by their numerical
listing, and for ease of reference, we do so as well.
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[LDR zone] because the city has determined that in order to provide
adequate service to one LDR lot a minimum of 3,206 square feet of
right-of-way is necessary. Since two lots are being created, the city
could require up to 6,4]2 square feet. Because 4,371 square feet is less
than 6,4] 2 square feet, the required dedication is less than what could
be required if an exact pro rata dedication were required.
The creation of the panhandle driveway, as proposed by [petitioners],
will impact the safety at the intersection of M Street and 8th Street by
adding an additional 9 conflict points to the existing 32 conflict points
and additional conflict points will occur with the school children using
the most direct route to their appropriate public schools. It is difficult
to assign a quantifiable value to decreased traffic safety in order to
establish proportionality. Therefore, the proper method to mitigate the
degraded traffic safety is to restore the level of safety to its state prior
to the impact. In order to mitigate the safety impacts specific to this
proposed development, [petitioners] shall dedicate sufficient right of
way to facilitate the extension of M street and thereby reduce the
number of conflict points to the number in existence prior to the
development. In this case that required dedication is 20 feet along the
southern property line.
The Planning Commission finds that the property will benefit [from
the e"actions] in the following manner:
"a. Parcel 3 will have improved access and full frontage onto a city
street. This will result in intangible safety improvements such
as providing secondary emergency access for residents when
other internal accessways are blocked (such as a car parked in
the panhandle driveway). The on-street parking available with
the extension of M Street will benefit the property by providing
four parking spaces in front of the lot. This is particularly
beneficial to Parcel 3 because it is encumbered with over 1,000
square feet of easements that will make the lot difficult to
develop with both a dwelling and adequate parking/turn-
around areas.
"b. All three parcels will have safer and better transportation
connectivity. All trips to the north (towards the closest grocery
store/commercial center) will be 0.25 miles shorter. If one
quarter of all 29 trips generated by the three lots travel north,
each day there will be ] .875 miles of out-of-direction travel.
Over the course of one year, this out-of-direction travel will
equal 662 miles.
"c. The transportation s,afety of future residents of all three parcels
will be improved because there will be nine fewer traffic
Date, Received' 100/ .:;.ood'
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conflict points directly adjacent to the site. While the true value
of this increased safety is difficult to quantifY, reducing the
number of points where a potential accident may occur is a
benefit to the site. This is particularly important to this
particular site because at a minimum the nine additional
conflict points will involve drivers entering and exiting the
proposed panhandle driveway for Parcel 3.
"d. Fire and Life Safety vehicles will be able to reach the property
faster. Springfield's 5th Street fire station is located 300 feet
north' of M Street, west of the site. When M Street is extended,
emergency vehicles will travel 0.25 miles to reach the
development area and make one left hand turning movement.
Without the M Street extension, emergency vehicles must
travel 0.51 miles and make two left hand turns, one of which is
at the signalized intersection of Centennial and 5th Street. It is
difficult to assign a value to swifter emergency response;
however, emergency response that takes half the time, as
would be the result with the M Street extension, is a benefit to
the subject property.
,
"e. Public Services, such as storm drainage, water and electricity
can be provided in a more efficient manner. With the
panhandle driveway, private utilities such as pipes for
conveying stormwater, water supply lines, electrical service
lines and telephone service lines must be extended 83 feet
down the panhandle driveway to reach the public lines in the
right-of-way. Because these utility services will all be within a
private driveway, the city will not take maintenance
responsibility and the property oWner will be responsible for
their maintenance in perpetuity. If they are within the public
right-of-way of the extended M Street, the services will be
public and maintained by the city.
"f. The development potent,ial of Parcel 1 will be enhanced
because a duplex will be a permitted use for the lot upon
dedication of the right of way for M Street. Increasing the
highest and best use potentia] for the site is beneficia] to the
property .
The findings adopted at the July 7, 1999 public hearing in support of
the Director's decision, while perhaps individually insufficient to
establish rough proportionality, are nonetheless valid. When evaluated
cumulatively with the additional new findings they assist iri providing
the evidence that fulfills the rough proportionality test required by the
Dolan decision. The Planning Commission hereby readopts the July 9,
] 999 findings into the record of these proceedings." Record 4-5.
Date Received: ) 0~/.)o/>J"
Planner: AL
INTRODUCTION
2 This appeal requires that we again review the city's decision to determine whether it
3 complies with the Supreme Court's strictures in Dolan. Before we proceed to that analysis,
4 however, some preliminary discussion of the Court's and Oregon's Fifth Amendment takings
5 jurisprudence is appropriate.
6
A.
Nollan v. California Coastal Commission
7 In Nollan v. California Coastal Commission, 483 US 825, ] 07 S Ct 3] 41, 97 L Ed 2d
8 677 (1987), the Court struck down a decision by the commission that required the
9 conveyance of an oceanfront access easement to ameliorate the loss of public views of the
10 ocean across an upland property. In doing so, the Court held that there was undoubtedly a
] ] legitimate governmental interest in retaining public oceanfront views, but that the exaction
]2 lacked an "essential nexus" with that governmental interest. 483 US at 837. In reaching its
] 3 conclusion, the Court stated that if the commission had required the property owners to
] 4 provide an upland viewing area as a condition of permit approval, that would not constitute a
] 5 taking, because, the commission could, presumably, deny the permit because the proposal
] 6 would otherwise block the desired views. However, absent some nexus between the
IT legitimate governmental interest and the exaction, to require the grant of access rights along
18 the beach in exchange for the permit converted a process where the commission protected its
J 9, legitimate governmental interests'to an "out-and,out plan of extortion." Id.
,
20
B.,
Dolan v. City of Tigard
21 In Dolan, the Court held that a' local government seeking to obtain land for public
22 purposes through an exaction must demonstrate that the exaction is in, "rough
23' proportionality" to the impacts of the proposed development. 512 US at 391. To do this, the
24 local government must show that the exaction is "re'lat,ed both in nature and extent to the
25 impact of the proposed development." Id. According to the Court, the local government's
26 demonstration of that relationship does not require a "precise mathematical calculation" but
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does require some quantification. Id. at 39S-96. Dolan elaborates on the necessary degree of
2 relatedness or nexus between the development's impacts on the local government's
3 legitimate governmental interests and the exactions imposed to mitigate those impacts.
4 In reaching its decision, the Court resolved conflicts between different circuits as to
S the required degree of connection under the, Fifth Amendment between impacts and
6 exactions. It rejected the "specifi[c] and uniquely attributable test," which requires (I)
7 exacting scrutiny and (2) a nearly exact match between the exaction and the impact. Id. at
8 389c90. The Court also rejected the idea that the exaction could be supported 'by "very
9 generalized statements as to the necessary connection" between the exaction and the
] 0 development. Id. at 389. The Court indicated that the appropriate standard under the U.S.
I I Constitution was closer to the intermediate "reasonable relationship" test that had been
]2 adopted in many jurisdictions, including Oregon. Id. at 391. However, the Court'did not
13 adopt the reasonable relationship test as such and instead described the appropriate test as
14 "rough proportionality." Id. 2
IS
c
Art Piculell Group v. Clackamas County
16 In Art Piculell Group v. Clackamas County, 142 Or App 327, 922 P2d ]227 (1996),
'17 the Court of Appeals elaborated on the articulati<,m obligation imposed by Dolan. Where
18 findings are used to establish rough proportionality, the public body must "articulate and
]9 substantiate the requisite, facts and legal conclusion" that support the exa<;tion. Id.. at 331.
20 Further, those findings must show with particularity the "relationship between a
2The reason given by the Court for not adopting the reasqnable relationship test, as such, was to avoid
confusion with the "term 'rational basis,' which describes the minimal level of scrutiny under the Equal
Protection Clause of,the Fourteenth Amendment." 512 US at 391. We believe the Supreme Court in Do/an
intended to recognize that reasonable persons might disagree about whether any given exaction has the requisite
degree of connection with the. impacts that are relied upon to justify the exaction. In that sense, the Court
accepted the reasonable relationship test. However, the reason given by the Court for adopting the "rough
proportionality" test makes it clear that a relatively high level of scrutiny is to be applied on appellate review of
local government decisions that impose exactions. In addition, and perhaps consequently, the Court shifted the
burden to the local government to justify the exaction and imposed a specific requirement that the local
government "make some effort to quantify its findings in support of the dedication," Jd at 395-96.
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] developmental condition and the impacts of development." Id., quoting Jc. Reeves Corp, v,
2 Clackamas County, 13] Or App 6]5, 618, 887 P2d 360 (1994). The court also,stated that
3 benefits that accrue to the development may be relevant factors in that,
4 "the Dolan analysis allows consideration and appropriate weighing of whether
5 and to what extent a condition serves needs ofthe development upon which it
6 is imposed, as distinct from serving only general public needs in response to
7 the public impacts of the development." 142 Or App at 337 n 4 (emphasis in
8 original).
9
D.
LUBA's Review
] 0 In" this case, we must weigh the identified impacts and benefits against the required
]] dedications to determine whether the city has dell)onstrated that they are roughly
]2 proportional. No party questions that the stated governmental interests are legitimate. In this
] 3, appeal, petitioners raise issues concerning the nexus between the legitimate governmental
] 4 interests and the exactions (Nollan) and the relationship between the nature and extent of the
]5 exactions and the impacts of the proposed development (Dolan). For the following reasons,
] 6 we conclude that two of the exactions imposed by the city 0':1 petitioners' development have
] 7 not been adequately justified.
]8 INCREMENTAL IMPACTS
19 Petitioners argue that the city cannot demonstrate that the impacts from the proposed,
20 development result in any impact on the city's services, because the city has not
2] demonstrated that the additional vehicular trips that may be generated from the property will
22 cause a breakdown in city services. Petitioners contend that the city must demonstrate that
23 there is insufficient road capacity to absorb an additional] 9 vehicle trips per day that may be
24 generated from the partition before it can require dedication of right-of-way to alleviate that
25 impact. Petitioners concede that this approach may result in one relatively minor
26 development being required to bear the full cost of improving an entire road segment because
27 it is the development that generates the final increment of traffic that causes the traffic to
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exceed road capacity . However, petitioners contend that is the only means by which the city
2 can demonstrate that its exactions are roughly proportional.
3 We reject that argument. To the extent a local government identifies an impact and
4 demonstrates that the exaction is roughly proportional to that impact, incremental impacts
5 attributable to a development may give rise to an exaction, even if the impacts will not cause
6 a facility to fail or drop to a lower level of service,
7 The second assignment of error is denied, in part. 3
8 "NEXUS" AND "NATURE AND EXTENT"
9 We now turn to the individual exactions to determine whether they satisfY Nollan's
] 0 nexus requirement and the requirement in Dolan that the local government demonstrate that
] I the exaction is roughly proportional to the impacts of development. We first establish what
12 we understand the city's legitimate governmental interests are in requiring the particular
13 exaction. We then decide whether there is a sufficient nexus between the governmental
14 interests and the exaction, i,e., does the exaction further the stated governmental interest. If
] 5 there is a sufficient nexus between the governmental interests and the exaction, we look to
] 6 see if the city has sufficiently articulated and substantiated the relationship between the
17 exaction and the impacts of development, i.e., that they are related in nature and extent and
18 are roughly 'proportional: In doing so, we review the stated benefits to the property that are '
19 obtained as a result of the exactions to determine the extent to which those benefits support
20 the exactions.
3We address the remainder of the s~cond assignment of error in our discussion of the' city's quantification
of impacts to justif'y the M Street exaction, below,
,
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I
A. M Street Right-of-Way Exaction
2
3
1.
Essential Nexus Between the Legitimate Governmental Interest
and the Right-of-Way Exaction
4 The city's decision provides four main justifications for the M Street right-of-way
5 dedication. According to the city, the proposed dedication will (I) promote traffic safety by
6 limiting intersection conflicts between the driveway access to Parcel 3 and 8th Street; (2)
7 increase connectivity within the vicinity by providing an alternative access to collector
8 streets; (3) improve emergency response times by providing a shorter and more efficient
9 route for fire and other emergency vehicles to reach the subject property and its immediate
]0 ,vicinity; and (4) mitigate an increase in traffic congestion caused by petitioners'
II development.
]2 Petitioners contend in their fourth assignment of error that even if the city's stated
13 purposes for requiring right-of-way are plausible, those purposes will not be served by the M
] 4 Street exaction. According to petitioners, one of the reasons the city gives for requiring the
]5 right-of-way for M Street is to avoid additional "conflict points" between vehicles
] 6 originating from petitioners' development and other vehicles, bicyclists and pedestrians.
] 7 Petitioners argue that a flag driveway from Parcel 3 to 8th Street will have fewer conflicts
18 than access from Parcel 3 onto M Street because only southbound turns from 8th Street will
] 9 interfere with traffic traveling on M Street. Petitioners argue that if Parcel 3' s access is onto
20 M Street, all vehicles originating from Parcel 3 will conflict with pedestrian and bicycle
2] traffic westbound on M Street. Petitioners also argue that it is unlikely that M Street will be
22 developed within the foreseeable future and so the city's conclusions that the proposed
23 exactions will improve connectivity and shorten emergency response times are too
24 speculative to be included in a Dolan analysis.
25 The city responds that the proposed development will mcrease conflicts between
26 different modes of transportation by adding an access that is too close to the 8th Street and M
27 Street intersection. As for the likelihood of M Street being developed, the city argues that
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with petitioners' dedication, there is only one more segment that must be acquired to obtain
2 the necessary right-of-way to begin road improvements. According to the city, staff has had
3 conversations with the owner of that property, and believes that the right-of-way will be
4 obtained relatively shortly. The city also argues thatdeve]opment on the subject property is
S equally speculative, and that it is possible that the road will be improved prior to residential
6 development of the parcels. Therefore, the city contends that there is a nexus between the
7 city's legitimate governmental interests and the exactions:4
8 We agree with the city that there is a substantial nexus between the city's legitimate
9 governmental interests and the M Street dedication. The fourth assignment of error is denied,
] 0 in part.
]]
2.
Nature ofImpacts/Exaction
] 2 The city contends that, unlike a road, where almost all traffic is moving forward, the
13 driveway for Parcel 3 allows for cars to exit by moving in reverse, thus creating conflicts
] 4 with those persons who may be entering the intersection by way of M Street. The city argues
IS that these additional conflict points justifY an exaction that will, in essence, eliminate them.
16 As explained above, petitioners contest the factual determination that the partition, as
] 7 proposed, will result in additional conflicts within the M Street and 8th Street intersection.
] 8 However, we believe that there is substantial evidence in the record to demonstrate that the
] 9 proposed access to Parcel 3 will result in additional intersection conflicts that require
20 amelioration, and that the planning commission could reach the conclusion that the proposed
21 exaction will rectifY the safety concern.
22
3.
Extent of 1m pacts/Exaction
23 In their second and third assignments of error, petitioners contend that the methods
24 the city used to quantifY the impacts caused by the development on the city's transpoitation
'We address the weight that should be given to those future benefits later in our decision,
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] sy'stem do not demonstrate the requisite rough proportionality. See Supplemental Findings 2
2 and 3, supra, According to petitioners, the focus of the inquiry necessarily has to be on the
3 development itself and its impacts on the city's infrastructure, and not on the generalized
4 impacts any development would have on city services. Petitioners contend that, by
5 comparing the average square feet of right-of-way per lot in a particular study area, or by
6 examining the relative number of vehicle trips that may be generated by the proposed
7 development as a ratio of the number of vehicles accessing nearby arterials, the city merely
8 quantifies the general public benefit, and does nothing to quantifY the particular impacts the
9 addition of two parcels in this location will have on the city's transportation system.
] 0 According to petitioners, the fact that the city has, through one means or another, acquired a
] ] certain amount of right-of-way to support the city transportation system does not mean that it
] 2 can exact from petitioners an across-the-board proportional amount.
13 ]n Supplemental Finding 2, the city calculated the number of daily trips generated
] 4 from the proposed partition, expressed as a percentage of the total number of daily trips
] 5 generated from dwellings located on the two local roads used to access nearby arterials (1.86
16 percent). Then the city calculated that the percentage ofright-of-way exacted (4,37] square
17 feet) expressed asa percentage of the total right-of-way occupied by those two local roads is
J 8 1.59 percent. The city then compared the two calculations and concluded that, because tlie
19 percentage .of property exacted was less than the percentage of vehicular trips generated by
20 the subject property, the exaction was roughly proportional to the impacts:
21 Contrary to petitioners' argument, we believe Supplemental Finding 2 does establish
22 ,a relationship between impacts generated by the subjeCt property and the exacted right-of~
23 way. Supplemental Finding 2 essentially quantifies the increased traffic congestion
24 attributable to petitioners' development and attempts to relate the nature and extent of those
25 impacts to the proposed exactions. However, we agree with petitioners that the quantification
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] of impacts does not, in and of itself, establish that the extent of the proposed exaction is,
2 roughly proportional to the extent of the proposed impacts.
3 With regard to Supplemental Finding 3, we agree with petitioners that it fails entirely
4 to quantifY the impacts of this development so as to justify the exaction. In our view, the city
5 crafted Supplemental Finding 3 from the perspective of exacting the amount of right-of-way
6 the city needs to accomplish its general transportation goals rather than determining the
7 extent to which petitioners' development frustrates them. Art Piculell Group and J C. Reeves,
8 Corp, explain that a local government must consider the impacts related to the proposed
9 development, not merely establish a broad relationship between .the development and the
] 0 city's programs for public improvement and assess a gross pro rata share to the development.
]]
4. '
Benefits
]2 In their fourth and fifth assignments of error, petitioners argue that the city's decision
13 either considers benefits to the development that are not properly viewed as benefits, or gives
14 those, benefits more weight than they deserve. Petitioners concede that if M Street is
] 5 developed contemporaneously with the development of petitioners' property, there may be
]6 some benefit, e.g., an increase in property value, resulting from being' located on a fully
] 7 developed street. However, petitioners argue that the city has yet to acquire all of the right-
18 of-way it needs to improve M Street, and has no plans to initiate public improvements until
] 9 all of the right-of-way is acquired. Petitioners contend that until the city can demonstrate that
20 there will be some benefit accruing to the property as a result of the dedication, those
21 benefits listed by the city that are based on improved ,access are illusory., In addition,
22 petitioners argue that the benefits that the property may receive by improving traffic safety
23 are no different from those benefits that are enjoyed by the community as a whole, and to the
24 extent those benefits exist, they have not been sufficiently quantified to satisfY Dolan.
25 For its part, the city concedes that some of the benefits the city has included in its
26 findings are, not quantified. However, the city argues that the benefits that accrue to the
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property in terms of increased connectivity, safer travel on local streets and arterials, reduced
2 out-of-direction travel, and off-site parking are benefits that are specific to the subject
3 property, and can only be obtained through the maintenance of the community's standards, as
4 established by Supplemental Findings 2, 3 and 4. The city contends that these benefits are
5 tangible enough to be considered in the Dolan analysis. In addition, the city contends that the
6 benefit of greater dev~lopment flexibility is immediately available to petitioners, including
7 the ability to site utilities within the public right"of-way, and the ability to develop Parcel]
8 with a duplex.
9 Finally? the city argues that the timing of the development of M Street is irrelevant to
10 the determination of whether an exaction is roughly proportional to the impact caused by a
] ] development. The city contends that even if it is relevant, petitioners' argument about the
,12 foreseeability of the M Street improvements is without merit because petitioners have not
] 3 established when their property is going to be developed, or if it is going to be developed as
14 assumed. The city states that it has acquired 'right-of-way at 7th Street and M Street and that
] 5 it is possible that development on the right-of-way will precede the development of
] 6 petitioners' property.
17 It is clear that petitioners will derive some benefits from the exactions, and that those
] 8 benefits may be considered in the Dolan analysis. Development flexibility is a benefit, as is
] 9 safer and more varied ,access. We also believe that there is a benefit to the property by siting
20 utilities within a public right-of-way and by having the city maintain those utilities.5 It is true
21 that, unless there is,some evidence in the record to, show that development of street access is
22 reasonably foreseeable, the benefits attributable to that street access may be illusory. In this
23 case, we believe there is sufficient evidence in the' record to show that'the benefits that the
24 city has described, while difficult to quantifY, do exist and should be considered' in
'Petitioners argue that they already have the right to site utilities within the public right-of-way. However,
they have not cited us to evidence in the record to show that this is indeed the case.
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determining whether the city's exaction of 20 feet, of right'of-way for M Street is
2 constitutional. The city did not err by considering the benefits it attributes to the M Street
3 improvements in its Dolan analysis.
4
5.
Conclusion
5 The city's principal problem with respect to the M' Sti'eet right-of-way is not
6 relatedness in nature but relatedness in extent. Simply put, the city's proposed M Street
7 exaction may take too much, compared to the identified impacts, safety issues and benefits to
8 the property.
9 Reported cases provide little or no guidance in reviewing challenges to exactions
10 based on an impermissible extent. The only Oregon case we are aware of that touches on that
11 issue is Schultz v, City of Grants Pass, -131 Or App 220, 884 P2d 569 (1994). Schultz
]2 involved a partition of a 3.85-acre parcel with an existing house into two parcels. The city
13 assumed that the new parcels would ultimately be subdivided into ]5 or more new home
, ,
14 sites,' and imposed right-of-way exactions, amounting to 20,000 square feet, intended to
15 offset the impacts of those potential new homes. The Court of Appeals rejected that
16 approach, because no ,such proposal for subdivision was before the city. The court found
] 7 nothing in the record to connect the exactions with the proposal that was before the city: a
] 8 partition into two parcels. The partition by its~lf would presumably yield only one new
] 9 house. The court commented:
20 "Even taking into account the city's data reflecting the number of vehicle trips
2] per day that the city assumes each new household will generate, the fact that
22 there is an increase of eight vehicle trips on Beacon Drive and Savage Street
23 each day hardly justifies requiring petitioners to part with 20,000 square feet
24 of their land without compensation. That does not comport with what the
25 Supreme Court meant by 'rough proportionality.''' 13] Or App at 228.
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] The court in Schultz appeared to consider a ratio of eight new vehicle trips to an
2 exaction of 20,000 square feet to be manifestly unsupportable under Dolan.6 Framed in that
3 way, the present case is a much closer question. The proposed development has
4 approximately twice the vehicular impacts of that at issue in Schultz, and the proposed M
5 Street exaction is approximately five times smaller. Expressed as' the ratio of new vehicle
6 trips to the square footage ofthe exaction, the ratio in the present case is more than ten times
7 smaller than the ratio in Schultz. Further, there are in the present case identified safety
8 concerns and benefits to the property that were apparently not present in Schultz. Although it
9 is a very close question, we believe that the identified impacts, safety concerns and benefits
10 justifY the M Street exaction.
] ] , The second and fifth assignments of error are denied. The third assignment of error is
12 sustained. The fourth assignment of error is denied, in part.
13
B.
"Clipped Corner" and Sidewalk Exactions
14
1.
Nexus
] 5 Petitioners argue that the city's findings fail to establish a nexus between the
] 6 governmental interests in traffic safety and the alleviation of congestion and the exactions for
] 7 a clipped corner and sidewalks on 8th Street.7 According to petitioners, the city's findings
] 8 pertain only to the right-of-way for vehicular traffic; they are wholly inadequate to establish
] 9 any basis for exacting the remaining right-of-way.
20 There is a logical connection between the city's legitimate governmental interests and
21 the exactions for the clipped corner and sidewalks. Presumably, those exactions will provide
~~wever, we do not understand the court to suggest that such ratios are an optimum or necessary way of
assessing either rough proportionality or the question of impennissib~e extent.
'According to the findings supporting the city's initial decision, the clipped corner is needed "to allow for
future sidewalk and handicapped ramp construction," McClure I Record 70. Therefore, we believe it is
appropriate to analyze the city's justification for the clipped corner exaciion in conjunction with our analysis of
the city's 8th Street sidewalk exaction,
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a separation between the different modes of transportation and will allow additional sight
2 distance for the users of the road. We conclude that there is an essential nexus between the
3 exactions and the city's legitimate governmental interests.
4
2.
Nature of Impacts/Exaction
5 Petitioners argue that the city has utterly failed to demonstrate that there will be any
6 impact from the development on pedestrian and bicycle traffic. Petitioners contend that there
7 may be a relationship between the dedication of the M Street right-of-way for vehicular
8 traffic based on the impacts the development's vehicles will have on the city's streets.
9 However, petitioners argue in their first assignment of error that neither the initial city
] 0 decision nor the decision on remand establishes a relationship between the impacts caused by
1] the development and the city's exactions relating to the clipped corner and sidewalk.
12 Petitioners contend that separate analysis and evidence is required to support these exactions.
13 The city argues that it is not necessary to establish a rough proportionality between
14 each and every exaction and the impacts that justifY those exactions. According to the city,
15 all of the exactions fall under the general umbrella of transportation improvements and the
16 impacts of the development's vehicular traffic also justifY exactions that are needed to serve
17 pedestrian and bicycle traffic.
18 Generally speaking, dedications for sidewalks and other public ways are reasonable
19 exactions to avoid excessive congestion from a proposed use of property. Dolan, 5]2 US at
20 395. However, we agree with petitioners that, like the city in Dolan, the city here has failed
21 to establish a relationship between the vehicular and nonvehicular impacts of the proposed
22 development and the required dedication of land for sidewalks along 8th Street. As we stated
23 in McClure 1, the city's findings are flawed in that they
24 "make no attempt to establish a relationship between the number of
25 nonvehicular trips from the proposed development, whatever that number may
26 be, and its effect on the transportation system." 37 Or LUBA at 773.
27 We do not agree with the city that it can exact land for sidewalk improvements under
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the rubric of general transportation needs without some attempt to make an "individualized
2 determination" that relates identified impacts to the exactions. With respect to the clipped
3 comer, the city's findings fail to make any kind of individualized determination whatsoever.
4 Petitioners' first assignment of error is sustained, in part.
5
C.
Improvement Agreeinent
6 In their first assignment of error, petitioners also contend that the city's findings are
7 wholly inadequate to justifY Condition ] O. See n I. Petitioners argue that any exactions
8 imposed in an improvement agreement must similarly comply with Dolan.
9 The city responds that the improvement agreement is merely a waiver of
] 0 remonstrance to the formation of a local improvement district, and does not prevent
] ] petitioners or succe~sors in' interest from protesti~g the percentage or amount of
12 improvement costs. The city contends that such an agreement is not subject to a takings
13 analysis under the Fifth Amendment, because there is no loss of the beneficial use of
] 4 property as a result of the condition. ,
] 5 We agree that a waiver of remonstrance to the formation of a local improvement
] 6 district is not subject to the analysis required by Dolan because it, by itself, does not result in
] 7 a loss of petitioners' property.
18 Petitioners' first assignment of error is denied, in part.
19 CONCLUSION
20 The city's findings on remand provide a more detailed Dolan analysis to justifY its
2] exactions. The findings demonstrate that the M Street exaction satisfies the Dolan rough
22 proportionality requirement. However, we again conclude that the findings the city adopted
23 to support all of its exactions fall short of what the Fifth Amendment requires. In particular,
24 the city failed to make individualized determinations explaining why the 8th Street sidewalk
25 and the clipped corner exactions are roughly proportional to the identified impacts of the
26 proposed development.
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The city's decision is remanded.
2 Holstun, Board Member, concurring.
3 I concur with the majority that the challenged decision must be remanded. Although
4 I agree with'the result reached in this case, I write separately to emphasize what] perceive to
5 be the central problem that local governments face under Dolan and to suggest a way to deal
6 with it. The 'central problem under Dolan's rough proportionality test is that the things that
7 must be, shown to be roughly proportional in extent (exactions and impacts) are different
8' kinds of things} This makes it difficult to compare them directly in any meaningful way, 9
9 One of the city's solutions to this problem is to develop surrogate comparisons that it can
10 quantifY.JO That approach, while permissible under Dolan, will always'be inconclusive., In
] ] addition, such an approach will always be subject to the criticism and weakness that it is not
12 really comparing the impacts and exactions that the city ultimately must show are roughly
13 proportional.
] 4 One way to directly compare impacts and exactions in a meaningful way is to reduce
] 5 those exactions and impacts to a common commodity or measurement. One obvious
16 possibility is dollars, Placing an estimated value on the land or improvements that' a local
17 government seeks to exact will require some additional expense and 'effort, but should not be
] 8 inordinately difficult. Estimating the costs to the local government of responding to expected
] 9 development impacts, and determining whether an applicant for development ,approval can
20 reasonably be expected to pay part or all of that cost through exactions, will involve more
81 think it will be an exceedingly rare case where the Nol/an requirement for an essential nexus between the
exaction and the public purpose that is relied on to justifY the exaction will be lacking, Similarly, it will be an
exceedingly rare case where the Do/an requirement that the exaction and development impacts be related in
nature will be Jacking. Both of those requirements are clearly met in this case. The only real issue in this case
is whether the exactions and development impacts are roughly proportional in exlent.
'For example, the difficulty of describing how a particular number' of additional vehicle trips and a
particular amount of land are roughly proportional seems obvious, "
IOSupplemental Findings 2 and 3 are examples,
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effort and expense and will be more difficult. However, I do not see any reason why, with
2 appropriate study and documentation, a defensible estimate of the recoverable cost to the city
3 'for each additional auto trip, school child, park user, pedestrian, etc. could not be developed.
4 Once the exaction and impacts are both reduced to their dollar values, the rough
5 proportionality test becomes much more workable and predictable.
6 Dolan clearly does not require that impacts and exactions be reduced to a common
7 commodity or measurement to allow them to be directly compared in a meaningful way.
8 However, surrogate comparisons such as the ones that the city employed in this case are
9 inevitably going to be inconclusive and subject to criticism. Because the ultimate legal
10 standard is subjective and the level of scrutiny on review is heightened under Dolan, the
] ] local government's ability to predict in advance whether such surrogate, comparisons will
] 2 suffice to demonstrate rough proportionality will inevitably be an uncertain exercise. 11
13 ]n this case, I believe the city's discussion of quantified surrogate comparisons and
] 4 safety concerns with the Parcel 3 driveway as proposed, along with the identified benefits
15 that the new lots will obtain from the M Street extension, succeed in demonstrating rough
16 proportionality between th'e exaction and the impacts, although it is a close question. ] do not
17 believe the city came particularly close to demonstrating rough proportionality between the
18 required dedication ofland for the sidewalk and identified impacts and benefits. 12
111 note that, although the uncertainty created under Do/an's rough proportionality requirement is relatively
new, uncertainty is nothing new to Fifth Amendment takings jurisprudence, See Agins v, Tiburon, 44 7 US 255,
260-61, 100 S Ct 2138, 65 LEd 2d 106 (1980) ("no precise rule determines when property has been taken,
[however,] the question necessarily requires a weighing of private and public interests"); Armstrong v, United
Slales, 364 US 40, 49, 80 S Ct 1563, 1568,4 L Ed 2d 1554 (1960) (Takings Clause is "to bar Government from
, forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the
public as a whole"); Pennsylvania Coal Co, v, Mahon, 260 US 393, 415, 43 S Ct 158,67 L Ed 322 (1922)
(regulation that goes "too far" may constitute a taking of property), What is new under Dolan is the shifting of
the burden to the city to justifY that its exaction does not violate the Fifth Amendment and the heightened
scrutiny that is applied to thatjustificalion on review, Art Piculell Group, 142 Or App at 331-32.
l2Such a case can perhaps be made, particularly if such sidewalk improvements can properly be viewed as
primarily benefiting petitioners' property. However, the city's decision fails to make that case. .
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