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Misc CorrespondenceROM FAX N0. Feb. 04 2003 11:12AM P2 .~ ~ ~ ~ Community Dev~eloptnsnt Depar~m~nt . P.O..Box a79 ._ Yeim~ WA~ 38597 (360) 458-3835 (360) 458-3144 FAX Memorandum To: Site Plan Review Committee From: Grant Beck, Community Development Director~~ . Date: January 30, 2003 Re: SUB-02-8329-YL -Project Review Schedule for ~Benum~Coyne Attached is,the application packet for the above referenced project. After your initial review of the information submitted, if you need additional information from the applicant, please let me know as soon as possible. The following is the tentative review schedule for the project. February 5 - SPRC TIA and Project Review. Department comments. February 7 -Notice of Application distributed -begin 15 day comment period. February 7 -- Environmental Determination issued by Planning Department. Begin 14 day comment period followed by 7 day appeal period. February 28 -Environmental Determination appeal time expired. ' March 21 -Public Hearing notice to paper, mailing and post site. March 2.4 -Complete Staff report for public hearing. April y Public Hearing .. .. . , ~ ~ ' . , ~.: . April 17 -Hearing Examiner Decision ROM FAX N0. Feb. 04 2003 11:12AM P3 CITY OF YELM PO Box 479 Yeim WA 98597 360-458-3835 x~ W IN PROJECT NAME ANp LOCATION; Benum/Coyne Subdivision Northeast corner of Wilkenson Road SE, and Canal Road LAND U9E CAgE; SUB-02-8.329-n An ap~licatlon submitted by Robert L.,.Coyne, and Benum Enterprises, P.O. 88373, for the above-referenced protect was received b the C' City has determined the application to be complete on November 22, 200 Box 73130, Puyallup, Wq related documents are available for public revlew Burin normal ~ Yeim on November 4, 2002, The Yalm Avenue W,, Yeim Wq, For additional information please contact G 2 The appltcatlon and any 9 I business hours at the Clty of Yelm, 105 Development Department, at• (360) 458-3835. rant Beck, Community PROJECT DESCRIPTION: The protect proposal is to subdivide family residential lots with roadway, utilities and stormwater facilities, A shovel' development permR is also required for development within 200 feet of xlmately 28 acres Into 108 singls- Ine substantial ENVIgONMENTAL and OTHEp DOCUMENTS SUBMITTED yy the Centralia Power Canal. Environmental Checklist, Traffic impact Analysis, and a relimina were also submitted. A Mitigated Determination of No F RFi THE AppLICATION: qn .included with this notice, nsigniflcanc publ shed on Feb uary 7, 2 09 nd is Additional Information or Project Studies Requested by the City; No ad ' ' requested at this time. dltlonai information has been No•preliminary determination of consistency with Ci At minimum, this project will be sub)ect to the tol-owing plans and re ul ' tY development regulations has been made. Comprehensive Plan: Zoning Title (17), Critical Areas Ordinance (14.08), Sto ' and Erosion Control Manual (DO g atrons; City of Yeim' E), Uniform Building Code, State Environmenta Pol'cy Act (SEPA) TIUe (14), Road Design Standards, Platting and Subdivision Title (16), and the Sho The City of Yelm invites your comments early in the review of this proposal, Crellne Master Program. directed to Grant Beck, Community Development Department. P.O. box 479 Y 3835. omments should be elm Wq 88597, 360-458- TH<r 15-pqY PUBLIC COMMENT PEAIOp ENDS AT•5:00 PM ON FEB This notice has been provided to appropriate local and state agencies, and AUAAY 24, 2003. of the project site. • These recipients, and any others who submit a written re ue mailing list, will also receive the following items when available or if appiicableoE ~ owners wthin 300 feet Determination, Notice of Public Hearing and Notice of Final Decision. If the q st to be placed on the City Council decision, it will be mailed to a-I those who participate In the ubil nvfronmental Threshold requesting the decisive in wriin p Proposed project requires a the date the environmental date minatlon ius is u dr ~Ey Council decisi ~ ~n hearing and•to atlyorie else ppeal occur within twonty one (21) days after Superior Court Appeals of site plan revlew decisions may be•filed within 14 da s Decision. be appealed through Y of Notice of Final NOTICE OF'4Pp1-ICATION Malted on: F brae 3 20 3 •f~OM FAX N0. Feb. 04 2003 11:13AM P4 ATTACHMENT SEPA CASE NUMBER 8329 Findings of Faot 1. This Mitigated Determination of Non Significance Is based on the project as proposed and the impacts and potential mitigation measures reflected in the following environmental documents: • Environmental Checklist (dated May 22, 2002, prepared by Skillings-Connolly, Inc.) • Traffic Impact Analysis (dated August 22, 2002, prepared by Skillings-Connolly, Inc.) . • Preliminary Storm Drainage and Erosion Control Report (dated September 2002, prepared by Skillings-Connolly) 2. The traffic Impact analysis submitted as part of the subdivision application indicates that the protect will generate 1034 vehicles per day of average weekday traffic, with a PM peak of 109 vehicles per hour. The project would not decrease the level of service at all but one of the intersections studied, including the following intersection's: State Routes 507 and 510 (Yeim Avenue and First Street) Ahoton Road and N.P. Road • N.P. Road and Wilkenson Road The two entrances into the subdivision and Wilkenson Road The level of service at Railway Road and First Street would decrease from LOS B to LOS C. The trafFc impact analysis recommends that payment of the Transportation Facility Charge as required pursuant to Chapter 15.40 Yelm Municipal Code will mitigate traffic impacts identified in the report, 3, Canal Road .currently intersects Wilkerson Road at an angle of approximately 50 degrees, which does riot provide safe sight distance for vehicles entering Wilkerson Road from Canal Road. An additional 1034 weekday trips added to W ilkerson Road, almost all of which will be traveling southbound past the Intersection with Canal Road, is a significant impact to traffic safety which can be mitigated through the realignment of the Canal Road intersection. 4. The Yelm School District has adopted a school mitigation requirement based on the demand that new • residential units create for additional school services and facilities. Additional demands an the school system will be mitigated through the requirement that the developer enter into a mitigation agreement with the District. 5. The proposed 507510 Aftemative Route is identified to bisect the subject property. The Alternative Route is a proposed replacement for State Routes 507 and 510 through the Ciiy of Yeim, creating a route for regional traffic to avoid the City core and local access traffic. The Altemetlve Route has been Identified, an Environmental Assessment has been prepared, and a Finding of No Signlflcant Impact has been issued. A public process was used to identify the proposed route and the Comprehensive Plan was updated to•adopt the route as part of the transportation system in the Clty. Yeim is currently attempting tc obtain funding for preliminary engineering and right-of-way acquisition. The creation of~ residential lots Within the proposed right-of-way of the Altemative Route is a significant • adverse impact. Pursuant to Section 197-11-330 (1)(c) WAC, these Impacts can be mitigated through tl~e subdivision review process end the application of existing policies end regulations. • Conclusions of Law artd Mitigation Measures . 1• The proposal will have a significant impact on the transportation system of the City of Yelm•which will be mitigated through the imposition of the Transportation Facility Charge as required in Chapter 15.40 Yelm Municipal Code. The proponent shall mitigate transportation impacts based on the new residential p.m. peak hour trips generated by the project. The Transportation• Facility Charge (TFC) shall be based on 1.01 new peak hour trips per residential unit. The proponent will be responslble•for a TFC of $757.50 per dwelling unit which is payable at time of building permit. 2. ~ • Prior••to~final subdivision approval, the developer shall realign Canal Road with Wilkerson to meet City Standards for intersections. Improvements to the intersection shall include.cors'road.improvements.. 3. The proposal will have a signfftcant impact on the Yeim School District which.wlll be mitigated through the negotiation of a school mitigation agreement with the Yelm School District. Prior to final subdivision approval, the proponent shall submit to the City of Yeim a signed school mitigation agreement between the developer and the Yeim School District. QOM . t MITIGATED pETERMINATION OF NONSIGNIFICANCE Proponent: Description of Proposal: Location of the Proposal: Section/Towns h ip/Range: Threshold Determination: Conditiams/Nlitigating Ms~res:~ Lead agency: Responsible Official: Date Comm FAX N0. Feb. 04 2003 11:13AM P5 Robert L. Coyne Benum Enterprises P, O. Box 73130 Puyallup, WA 88373 SEPA NO: 8329 Subdivide 28.02 acres into 108 residential lots in two phases. The project includes the construction of stormwater facilities, interior streets, end street Improvements to Wilkenson Road. The protect site is located on the east side Wilkenson Road, bounded on the north by the Centralia Power Canal, and on the east by the Yslm~Roy F'ralrfe Line Railroad. Sections 17 and 20, Townsh)p 17 North, Range 2 West, W.M. The City of Yelm as lead agency for this action has determined that this proposal doe_ s nct have, a probable significant adverse impact on the environment. Therefore, an environmental Impact st~temerrt (EIS) will not be required under RCW 43.21 C.030(2)(c). This decision was made after review ' of a completed environmental checklist and other Information on file with the lead agency. This information is available to the public on request. SEE' ATTACHED ~ . . City of Yelm Grant Beck, Community Development Director 7, 2003 X1'2003 at 5:00 P.M. ent Director This Mitigated Determination of •NonSignificance (MDNS) is issued pursuant to Washington Administrative Code 197-11-340(2), Comments must be submitted to Grant Beck, CommunltY•Development Department,'at City of Yelm, 105 Yelm Ave. W., P.O. Box 479, Yelm, WA 98597, by 5:00 p.m., February 21, 2003. ~ The Clty of Yelm will not act on this proposal prior to 5:00 p.m.,.Februery 28, 2003. .. , You may appeal this detQrmination to the Yelm City Councli, at above address, by submitting a written appeal no later than 5:00 p.m,., February 28, 2003. You should be prepared to make specific factual objections, ~ Contact Grant Beck, Community Development Director, to loam more about the procedures for SEPA appeals. This MDNS is not a permit and does not by itself constitute pro)ect approval. The applicant must comply with all applicable requirements of the City of Yelm prior to receiving construction permits which may inolude but are not limited to the Clty of Yelm Comprehensive Plan, Zoning Title (17}, Critical Areas Ordinance (14.08}, Storm water Drainage Design and Erosion Control Manual (DOS, Uniform Building Code, State Environmental Policy Act (SEPA} Title (14}, Road Design Standards, Platting arid Subdivision Title (16), and the Shoreline Master Program. DO NOT PU6LISH BELOW THIS LINE Published: Nisqually Valley News, Friday, February 7, 2003 Posted In publ{c areas: Friday,. F..ebruary. 7, 2003 Copies to: A!I agtancles/cRlzene on SEPA mailing Ilst end edlecent property owrrers,'Feluusryr 7, 2003 Dept. Of Ecology w/checklist, February 7, 2003. Brink, Ter From: Brink, Terry Sent: Wednesday, February 12, 2003 9:05 AM To: 'bdille@owensdavies.com' Cc: 'bbcoyne@ywave.com'; Fry, Betty; 'bbenum@benum-inc.com' Subject: MDNS/Benum & Coyne Plat Hi Brent: I am sending this to you as a follow up to our telephone conference yesterday afternoon. I received a telefax from the project engineer late yesterday afternoon after our telephone conference advising me of the correct information that should be included in Finding of Fact No. 1 of the MDNS: (i) The Environmental Checklist was dated November 1, 2002 and was prepared by Apex Engineering PLLC; (ii) The Traffic Impact Analysis ("TIA") was dated October 2002 and was prepared by Heath & Associates, Inc.; and (iii) The Preliminary Stormwater Plan was dated October 28, 2002 and was prepared by Apex Engineering PLLC. During our telephone conference, I mentioned that our clients may not have any objection to Finding of Fact No. 3 and Conclusion of Law No.2; provided that there is sufficient right-of-way available that is already controlled by the City of Yelm ("City"). Our clients acquiescence to this provision is also predicated on a showing that the impacts of this project justify the desired mitigation resulting in the realignment of Canal Road. As you know, our clients cannot lawfully be required to mitigate existing off-site geometric deficiencies in the City's roads. Moreover, upon review of the TIA, there is no identification of any need to realign Canal Road in order to mitigate impacts arising out of this project. As I said during our telephone conference, our clients object to Finding of Fact No. 5 in its entirety for the reasons I explained not the least of which the simple fact that there is absolutely no certainty that the so called "Alternative Route" will ever come to fruition. Plus, even if it is funded at some time in the future, it very likely will be realigned to an extent that will obviate the current prediction of its proposed location. The foregoing comments are not intended to be a comprehensive response the MDNS. They are merely follow up comments that supplement and modify what we discussed during our telephone conference. Based on the present information, our clients request that the City eliminate Finding of Fact Nos. 3 and 5 and Conclusion of Law No. 2. Also based on current information, our clients plan to file an appeal of the MDNS in the absence of the City's issuance of an Addendum to the MDNS eliminating the objectionable provisions. By way of reminder, during our telephone conference, I also mentioned that I thought that the City was required to give a fourteen (14) day appeal period after the comment period is completed. I took a quick look and am not sure but perhaps the applicable language is found in WAC 197-11-680 (3)(a)(D)(vii), which seems to require a fourteen (14) day appeal period. Please understand that our clients do not seek a legal confrontation regarding this project. However, our clients do not take casually the City's continuing attempt to unlawfully forfeit their property rights. We do not believe that the MDNS complies with applicable law as it is currently written. I look forward to discussing this matter with you at your earliest convenience. Terry Terry L. Brink Attorney-at-law Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, LLP Post Office 1157 Tacoma, Washington 98401 tbrink@GTH-law.com 253.620-6493 (direct) 253.620-6565 (facsimile) CONFIDENTIALITY NOTICE: This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, Brink, Ter From: Brink, Terry Sent: Tuesday, March 04, 2003 12:13 PM To: 'phillips@owensdavies.com' Cc: 'bbcoyne@ywave.com'; 'bbenum@benum-inc.com'; Fry, Betty Subject: FW: MDNS/Benum & Coyne Plat Hi Mick: Brent sent me an email last Thursday, February 27, 2003 advising that he was departing on a vacation. He suggested that I discuss our concerns about the first version of the MDNS dated February 7, 2003. I am forwarding a previous email that I sent to Brent with our concerns and objections. For your convenience we have also attached a blacklined version of the "Findings of Fact" and the "Conclusions of Law and Mitigation Measures." We have offered some revisions that we believe would be appropriate with respect to Finding of Fact Nos. 1 and 5. We continue to believe that Finding of Fact No. 3 and Conclusion of Law and Mitigation Measure No. 2 should be eliminated in their entirety since the Traffic Impact Analysis prepared by Heath & Associates, Inc. failed to identify any adverse impacts to the Canal Road and Wilkerson Road intersection resulting from this project. Moreover, the mitigation sought by the City appears to seek correction of an existing geometric deficiency not resulting from impacts from this project. We also believe that the second paragraph in Finding of Fact No. 5 should also be eliminated entirely since there is no assurance that the so-called "Alternate Route" will come to fruition. Moreover, even if funding is forthcoming, there is no certainty of the currently proposed location or the possible timing of such a future project. The proposed revisions to Finding of Fact No. 1 are simply ministerial corrections. The proposed revisions to Finding of Fact No. 5 are intended to add a qualifying statement that follows the historical summary of relevant past events. Its purpose is to acknowledge that unless and until the proposed project becomes a certainty that there cannot be a finding of an adverse impact. We also point out that Conclusion of Law and Mitigation Measure No. 2 would be impossible for a developer to perform unless there is currently sufficient right-of-way to make the proposed improvements. I would welcome the opportunity to discuss the foregoing observation with you at your convenience. Please give me a call @ 253.620.6493 when you are ready to discuss them. Incidentally, I will be leaving for a vacation later this week. I will be absent from my office from Friday, March 7, 2003 until Tuesday, March 18, 2003. Terry 1215107 vl.da P.S. Incidently, I received a telephone voice mail message from Grant Beck this morning regarding this same issue. However, I did not respond since your firm is acting as counsel for the City of Yelm in this matter and I have not sought or received permission to communicate directly with Mr. Beck without you or Brent present. --Original Message---- From: Bob & Barbara Coyne [SMTP:bbcoyne@ywave.com~ Sent: Wednesday, February 12, 2003 10:40 PM To: Brink, Terry Subject: Re: MDNS/Benum & Coyne Plat Hi Terry: I appreciate your prompt response to this. Is there anything you need me to do, or just wait to hear what the City and their attorney come up with... Thanks again, Bob C. -----Original Message ----- From: "Brink, Terry" <TBrink@gth-law.com> To: <bdille@owensdavies.com> Cc: <bbcoyne@ywave.com>; "Fry, Betty" <BFry@gth-law.com>; <bbenum@benum-inc.com> Sent: Wednesday, February 12, 2003 9:05 AM Subject: MDNS/Benum & Coyne Plat > Hi Brent: > I am sending this to you as a follow up to our telephone conference > yesterday afternoon. I received a telefax from the project engineer late > yesterday afternoon after our telephone conference advising me of the > correct information that should be included in Finding of Fact No. 1 of the > MDNS: (i) The Environmental Checklist was dated November 1, 2002 and was > prepared by Apex Engineering PLLC; (ii) The Traffic Impact Analysis ("TIA") > was dated October 2002 and was prepared by Heath & Associates, Inc.; and > (iii) The Preliminary Stormwater Plan was dated October 28, 2002 and was > prepared by Apex Engineering PLLC. > During our telephone conference, I mentioned that our clients may not have > any objection to Finding of Fact No. 3 and Conclusion of Law No.2; provided > that there is sufficient right-of-way available that is already controlled > by the City of Yelm ("City"). Our clients acquiescence to this provision is > also predicated on a showing that the impacts of this project justify the > desired mitigation resulting in the realignment of Canal Road. As you know, > our clients cannot lawfully be required to mitigate existing off-site > geometric deficiencies in the City's roads. Moreover, upon review of the > TIA, there is no identification of any need to realign Canal Road in order > to mitigate impacts arising out of this project. > As I said during our telephone conference, our clients object to Finding of > Fact No. 5 in its entirety for the reasons I explained not the least of > which the simple fact that there is absolutely no certainty that the so > called "Alternative Route" will ever come to fruition. Plus, even if it is > funded at some time in the future, it very likely will be realigned to an > extent that will obviate the current prediction of its proposed location. > The foregoing comments are not intended to be a comprehensive response the > MDNS. They are merely follow up comments that supplement and modify what we > discussed during our telephone conference. Based on the present > information, our clients request that the City eliminate Finding of Fact > Nos. 3 and 5 and Conclusion of Law No. 2. Also based on current > information, our clients plan to file an appeal of the MDNS in the absence > of the City's issuance of an Addendum to the MDNS eliminating the > objectionable provisions. > By way of reminder, during our telephone conference, I also mentioned that I > thought that the City was required to give a fourteen (14) day appeal period > after the comment period is completed. I took a quick look and am not sure > but perhaps the applicable language is found in WAC 197-11-680 > (3)(a)(D)(vii), which seems to require a fourteen (14) day appeal period. > Please understand that our clients do not seek a legal confrontation > regarding this project. However, our clients do not take casually the > City's continuing attempt to unlawfully forfeit their property rights. We > do not believe that the MDNS complies with applicable law as it is currently > written. I look forward to discussing this matter with you at your earliest > convenience. > Terry > Terry L. Brink > Attorney-at-law > Gordon, Thomas, Honeywell, > Malanca, Peterson 8~ Daheim, LLP > Post Office 1157 > Tacoma, Washington 98401 > tbrink@GTH-law.com > 253.620-6493 (direct) > 253.620-6565 (facsimile) > CONFIDENTIALITY NOTICE: This communication may contain > privileged or other confidential information. If you are not the > intended recipient, or believe that you have received this > communication in error, please do not print, copy, retransmit, > disseminate, or otherwise use the information. Also, please > indicate to the sender that you have received this email in > error, and delete the copy you received. Thank you. 3 ATTACHMENT SEPA CASE NUMBER 8329 Findings of Fact 1. This Mitigated Determination of Non Significance is based on the project as proposed and the impacts and potential mitigation measures reflected in the following environmental documents: Environmental Checklist (dated ?November l , 2002, prepared by A~~ex Engineering, PLLC , . .) Traffic Impact Analysis (dated October~g~~?, 2002, prepared by Heath. & AssociatesS~l~ngs-Fe~rtefly, Inc.) Preliminary Storm Drainage and Erosion Control Report (dated October 28S~e~ 2002, prepared by ~' b Anex En~ineerin~ PLLC), 2. The traffic impact analysis submitted as part of the subdivision application indicates that the project will generate 1034 vehicles per day of average weekday traffic, with a PM peak of 109 vehicles per hour. The project would not decrease the level of service at all but one of the intersections studied, including the following intersections: State Routes 507 and 510 (Yelm Avenue and First Street) photon Road and N.P. Road N.P. Road and Wilkenson Road The two entrances into the subdivision and Wilkenson Road The level of service at Rallway Road and First Street would decrease from LOS B to LOS C. The traffic impact analysis recommends that payment of the Transportation Facility Charge as required pursuant to Chapter 15.40 Yelm Municipal Code will mitigate traffic impacts identified in the report. .: - '. , ' - ... ~ ~ NOTE: Traffic Impact Analysis does not identifX any impacts consistent v~~ith Finding of Fact No. 3; moreover this appears to be an existing_„~eometric deficiency the miti>ation of which. should not be imposed on our client.) 4.3. The Yelm School District has adopted a school mitigation requirement based on the demand that new residential units create for additional school services and facilities. Additional demands on the school system will be mitigated through the requirement that the developer enter into a mitigation agreement with the District. ~tatsto~ vt.aocl - 1 - sr-.4. The proposed 507/510 Alternative Route is identified to bisect the subject property. The Alternative Route is a proposed replacement for State Routes 507 and 510 through the City of Yelm, creating a route for regional traffic to avoid the City core and local access traffic. The Alternative Route has been identified, an Environmental Assessment has been prepared, and a Finding of No Significant Impact has been issued. A public process was used to identify the proposed route and the Comprehensive Plan was updated to adopt the route as part of the transportation system in the City. Yelm is currently attempting to obtain funding for preliminary engineering and right-of--way acquisition. Notwithstanding the fore~oin~ the Cit~has not undertaken the design or a condemnation process related to the Alternative Route as of this date due to the lack of funding and certainty of the eventual construction of the Alternative Route. Therefore, the City carulot make a finding of aim significant adverse impact unless and until sufficient funding_for the~roject assures its constriction. ~. b - ~ b Conclusions of Law and Mitigation Measures The proposal will have a significant impact on the transportation system of the City of Yelm which will be mitigated through the imposition of the Transportation Facility Charge as required in Chapter 15.40 Yelm Municipal Code. The proponent shall mitigate transportation impacts based on the new residential p.m. peak hour trips generated by the project. The Transportation Facility Charge (TFC) shall be based on 1.01 new peak hour trips per residential unit. The proponent will be responsible for a TFC of $757.50 per dwelling unit which is payable at time of building permit. ~2. The proposal will have a significant impact impact on the Yelm School District which will be mitigated through the negotiation of a school mitigation agreement with the Yelm School District. Prior to final subdivision approval, the proponent shall submit to the City of Yelm a signed school mitigation agreement between the developer and the Yelm School District. [1215107 vl.docl - 2 - Fry, Betty From: Brink, Terry Sent: Tuesday, April 22, 2003 2:23 PM To: 'bdille@owensdavies.com' Cc: Fry, Betty; 'bbcoyne@ywave.com'; 'bbenum@benum-inc.com ; 'grant@yelmtel.com' Subject: MDNS/Benum & Coyne Preliminary Plat Hi Brent: I am sending this email as a follow-up to my telephone conference with Grant Beck on March 4, 2003. Following that discussion, it was my understanding that Grant was going to reissue the MDNS with appropriate corrections and whatever other modifications the City decides to make in response to our suggestions, if any. I also understood that the public hearing would be rescheduled for May 5, 2003. Finally, I agreed to request that our clients' engineer prepare a "ball-park" cost estimate for the City's proposed realignment of the intersection of Wilkerson Road & Canal Road together with a rough sketch of the revised intersection. Grant also agreed that any such alignment would have to be designed within the existing right-of-way since our clients have no way of assuring the obtaining of any additional right-of-way. The apparent purpose of the obtaining of the cost estimate was to determine if the estimate is less that the aggregate amount of the Transportation Facilities Charges ("TFC's") since Grant agreed that the actual cost of the proposed realignment would be an off-set to the TFC's. Grant also said that he had authorized the City's engineer to prepare some alternative site plans that he wanted our clients to review and consider. It was my understanding that the processing of the pending preliminary plat application would not be impeded by our clients' willingness to consider the City's proposed alternative site plans. However, here it is April 4, 2003, and I have not received any correspondence whatsoever from the City during the past month. This additional loss of processing time is frustrating to our clients. At no time have they consented to stop the processing of the current application. As you know, our clients offered comments regarding the MDNS. We pointed out material errors that needed to be corrected and we asked the City to reconsider its position with respect to several legal issues that we believe result in the City exceeding its legal authority (e.g., stating that there are adverse impacts arising out of this project because of the City's desire to engage in a potential future project for which there is no funding at the time of the environmental review). Our clients also spent time and energy exploring the possibility of the City's purchase of their property. When all of those efforts proved futile, our clients clearly expressed their desire to proceed with the permitting process as soon as practicable. Notwithstanding their frustration with the continuing delays occasioned by the City's failure to respond to our comments regarding the MDNS, our clients reviewed and considered the City's proposed alternative site plans. Our clients summarily rejected the proposed site plan having 90 lots none of which were in the potential future right-of-way. Our clients identified several material objections to the other proposed alternative site plan having 106 lot some of which were in the potential future right-of-way: (i) fewer lots; (ii) too many flag lots; (iii) loss of significant of open space; (iv) the ill-conceived road under the potential future overpass highway; and (v) reduction in the size of lots. During of our discussion of the second alternative site plan discussed above, it became apparent the in order to revise that site plan to a point that it would be of any interest whatsoever would require too many material changes and too much additional time. Plus, it would require a significant further reduction of the number of lots in order to restore a minimum and an average lot size that is similar to that of our clients° current site plan. The aggregate affect of all of the foregoing objections has resulted in our clients' loss of interest in spending more time considering either alternative. We have attached below our clients' engineer's cost estimate as Pdf file "A" and realignment plan as Pdf file "B" for your review and consideration. This email should be regarded as another request that the City respond to our comments on the MDNS and move forward with the threshold determination process. We are not aware of any legal justification for the past month's delay. In order to provide the required comment and appeal periods in conjunction with your planned withdrawal and re-issuance of the MDNS, the public hearing will have to be scheduled in June now. Please understand that our clients object to the past delays and any further delays in the processing of their application. We are attempting to send a copy of this email directly to Grant since Mic authorized me to communicate directly with Grant during your absence in early March. If you have any questions about or would like to discuss any of the foregoing, please give me a call @ 253.620.6493. Terry aeQ oee ExA.PDF ExB.PDF Terry L. Brink Attorney-at-law Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, LLP Post Office 1157 Tacoma, Washington 98401 tbrink@GTH-law.com 253.620-6493 (direct) 253.620-6565 (facsimile) CONFIDENTIALITY NOTICE: This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this email in error, and delete the copy you received. Thank you. 04/--14/03 14:55 FA% 253 473 0599 APE% ENGINEERING X1001/002 _ ~ ... ... TRANSMITTAL ~~ En9ineeringy T0: Terry Brink, Attorney at Law Gordon Thomas Hone ell DATE: ril 14, 2003 REGARDING: t3enum and Coyne Plat FILE(fASK: 2700212 FAX NUMBER: 253 620-6565 PHONE NUMBER: TOTAL PAGES: WE ARE TRANSMITTING THE FOLLOWING: ^ For approvallreview/comment ^ For your use DATE: DESCRIPTION: COMMENTS: Dear Terry, The attached sketch shows a roundabout as a conceptual intersection improvement at Wilkensen Road S.E. and Canal Road S.E. We considered several alternatives here and the roundabout seems to be a reasonable application. Further, it is a refinement of the intersection improvement shown on the C'tty's drawing dated March 28, 2003. We estimate the core improvements for this design to total approximately $60,000. These core improvements include only the earthwork, crushed surfacing top course, pavement and curbing. A hard copy will be put in today's mail. Comments? COPY T0: Benum Enterprises Attn: Mr. Bob Benum Mr. Bob Co e Heath and Associates Attn: Mr. Gres Heath SENDER: James H. (253) 926-4093 ^ (253) 770.1473 ^ EXHIBIT A FAX: (253) 539-13061 2601 South 35th, Suite 200 Tacoma, Washington 98409 (253) 473-4494 Fax: (253) 473-0599 PLEASE NOTIFY US IMMEDIATELY IF NOT RECEIVED PROPERLY ' CONCEPTUAL INTERSECTION IMPROVEMENT WILKENSEN RD. SE. AND CANAL RD. SE. \\ $C~9L~ ~ /'~-50~ ,iii F ~ ~~/~n~ /9.Q i i ' ~~ ~'~~ 22-~- ~ -s_ ~ ~~ W --- W Z J .6, _ _ ,~ ~B' _~ ~• iB ~y ~9 ~ ~1 EXHI~1 B ~~ ~ ~~~•~~ Brink, Ter From: Brink, Terry Sent: Tuesday, May 06, 2003 9:49 AM To: 'bdille@owensdavies.com' Cc: Fry, Betty; 'bbcoyne@ywave.com ; 'bbenum@benum-inc.com' Subject: RE: MDNS/Benum & Coyne Preliminary Plat Hi Brent: I am sending you this email because our clients are not pleased with yet more delays regarding their application. As you know, I sent you the email below on April 22, 2003 advising that our clients were frustrated with the continuing delays and wanted their application reactivated from its stagnant status. As of this time and date, we have received no response whatsoever from either you or your client. You are hereby advised that our clients intend to hold the City of Yelm accountable for the damages that it has suffered and continues to suffer as a result of the delays associated with the application that were caused solely by the City of Yelm's acts and/or omissions. As you know, the City of Yelm's refusal to timely process our client's application is not discretionary according to applicable Washington law. Terry Terry L. Brink Attorney-at-law Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, LLP Post Office 1157 Tacoma, Washington 98401 tbrink@GTH-law.com 253.620-6493 (direct) 253.620-6565 (facsimile) CONFIDENTIALITY NOTICE: This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this email in error, and delete the copy you received. Thank you. ----Original Message---- From: Brink, Terry Sent: Tuesday, April 22, 2003 2:23 PM To: 'bdille@owensdavies.com' Cc: Fry, Betty; 'bbcoyne@ywave.com'; 'bbenum@benum-inc.com'; 'grant@yelmtel.com' Subject: MDNS/Benum & Coyne Preliminary Plat Hi Brent: I am sending this email as a follow-up to my telephone conference with Grant Beck on March 4, 2003. Following that discussion, it was my understanding that Grant was going to reissue the MDNS with appropriate corrections and whatever other modifications the City decides to make in response to our suggestions, if any. I also understood that the public hearing would be rescheduled for May 5, 2003. Finally, I agreed to request that our clients' engineer prepare a "ball-park" cost estimate for the City's proposed realignment of the intersection of Wilkerson Road & Canal Road together with a rough sketch of the revised intersection. Grant also agreed that any such alignment would have to be designed within the existing right-of-way since our clients have noway of assuring the obtaining of any additional right-of-way. The apparent purpose of the obtaining of the cost estimate was to determine if the estimate is less that the aggregate amount of the Transportation Facilities Charges ("TFC's") since Grant agreed that the actual cost of the proposed realignment would be an off-set to the TFC's. Grant also said that he had authorized the City's engineer to prepare some alternative site plans that he wanted our clients to review and consider. It was my understanding that the processing of the pending preliminary plat application would not be impeded by our clients' willingness to consider the City's proposed alternative site plans. However, here it is April 4, 2003, and I have not received any correspondence whatsoever from the City during the past month. This additional loss of processing time is frustrating to our clients. At no time have they consented to stop the processing of the current application. As you know, our clients offered comments regarding the MDNS. We pointed out material errors that needed to be corrected and we asked the City to reconsider its position with respect to several legal issues that we believe result in the City exceeding its legal authority (e.g., stating that there are adverse impacts arising out of this project because of the City's desire to engage in a potential future project for which there is no funding at the time of the environmental review). Our clients also spent time and energy exploring the possibility of the City's purchase of their property. When all of those efforts proved futile, our clients clearly expressed their desire to proceed with the permitting process as soon as practicable. Notwithstanding their frustration with the continuing delays occasioned by the City's failure to respond to our comments regarding the MDNS, our clients reviewed and considered the City's proposed alternative site plans. Our clients summarily rejected the proposed site plan having 90 lots none of which were in the potential future right-of-way. Our clients identified several material objections to the other proposed alternative site plan having 106 lot some of which were in the potential future right-of-way: (i) fewer lots; (ii) too many flag lots; (iii) loss of significant of open space; (iv) the ill-conceived road under the potential future overpass highway; and (v) reduction in the size of lots. During of our discussion of the second alternative site plan discussed above, it became apparent the in order to revise that site plan to a point that it would be of any interest whatsoever would require too many material changes and too much additional time. Plus, it would require a significant further reduction of the number of lots in order to restore a minimum and an average lot size that is similar to that of our clients' current site plan. The aggregate affect of all of the foregoing objections has resulted in our clients' loss of interest in spending more time considering either alternative. We have attached below our clients' engineer's cost estimate as Pdf file "A" and realignment plan as Pdf file "B" for your review and consideration. This email should be regarded as another request that the City respond to our comments on the MDNS and move forward with the threshold determination process. We are not aware of any legal justification for the past month's delay. In order to provide the required comment and appeal periods in conjunction with your planned withdrawal and re-issuance of the MDNS, the public hearing will have to be scheduled in June now. Please understand that our clients object to the past delays and any further delays in the processing of their application. We are attempting to send a copy of this email directly to Grant since Mic authorized me to communicate directly with Grant during your absence in early March. If you have any questions about or would like to discuss any of the foregoing, please give me a call @ 253.620.6493. Terry « File: ExA.PDF » « File: ExB.PDF » Terry L. Brink Attorney-at-law Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, LLP Post Office 1157 Tacoma, Washington 98401 tbrink@GTH-law.com 253.620-6493 (direct) 253.620-6565 (facsimile) CONFIDENTIALITY NOTICE: This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please From: Grant Beck [SMTP:gbedc@ywave.com] rte. Sent: Wednesday, May 07, 2003 9:26 AM To: TBrink@gth-law.com Cc: Brent Dille Subject: Benum-Coyne Terry - Attached is a draft of the revised MDNS. I've been working to try to craft something that is going to work for your clients without an appeal of the SEPA threshold determination, as it has been the City's preference to be able to go to the Hearing Examiner on the same page as Bob and Bob. If the enclosed draft does this on the SEPA issue, we are on track for the June 2 Hearing Examiner date. The revised MDNS would be published on May 16 and would become final on May 30. Thanks, Grant Grant Beds, Director City of Yelm Community Development Department P.O. Box 479 Yelm, WA 98597 360.458.8408 360.458.3144 (FAX) gbeck@ywave.com <mailto:gbeck@ywave.com> Revised MDNS.doc SEPA NO: 8329 REVISED MITIGATED DETERMINATION OF NONSIGNIFICANCE Proponent: Robert L. Coyne Benum Enterprises P.O. Box 73130 Puyallup, WA 98373 Description of Proposal: Subdivide 28.02 acres into 108 residential lots in two phases. The project includes the construction of stormwater facilities, interior streets, and street improvements to Wilkenson Road. Location of the Proposal: The project site is located on the east side Wilkenson Road, bounded on the north by the Centralia Power Canal, and on the east by the Yelm~Roy Prairie Line Railroad. Section/Township/Range: Sections 17 and 20, Township 17 North, Range 2 West, W.M. Threshold Determination: The City of Yelm as lead agency for this action has determined that this proposal does not have a probable significant adverse impact on the environment. Therefore, an environmental impact statement (EIS) will not be required under RCW 43.21 C.030(2)(c). This decision was made after review of a completed environmental checklist and other information on file with the lead agency. This information is available to the public on request. Conditions/Mitigating Measures Lead agency: Responsible Official: Date of Issue: Comment Deadline: SEE ATTACHED City of Yelm Grant Beck, Community Development Director February 7, 2003 February 21, 2003 at 5:00 P.M. Grant Beck, Community Development Director This Mitigated Determination of NonSignificance (MDNS) is issued pursuant to Washington Administrative Code 197-11-340(2). Comments must be submitted to Grant Beck, Community Development Department, at City of Yelm, 105 Yelm Ave. W., P.O. Box 479, Yelm, WA 98597, by 5:00 p.m., February 21, 2003. The City of Yelm will not act on this proposal prior to 5:00 p.m., February 28, 2003. You may appeal this determination to the Yelm City Council, at above address, by submitting a written appeal no later than 5:00 p.m., February 28, 2003. You should be prepared to make specific factual objections. Contact Grant Beck, Community Development Director, to learn more about the procedures for SEPA appeals. This MDNS is not a permit and does not by itself constitute project approval. The applicant must comply with all applicable requirements of the City of Yelm prior to receiving construction permits which may include but are not limited to the City of Yelm Comprehensive Plan, Zoning Title (17), Critical Areas Ordinance (14.08), Storm water Drainage Design and Erosion Control Manual (DOE), Uniform Building Code, State Environmental Policy Act (SEPA) Title (14), Road Design Standards, Platting and Subdivision Title (16), and the Shoreline Master Program. DO NOT PUBLISH BELOW THIS LINE Published: Nisqually Valley News, Friday, May 16, 2003 Posted in public areas: Friday, May 16, 2003 Copies to: All agencies/citizens on SEPA mailing list May 16, 2003 Dept. of Ecology w/checklist, May 16, 2003. ATTACHMENT SEPA CASE NUMBER 8329 Findings of Fact 1. This Mitigated Determination of Non Significance is based on the project as proposed and the impacts and potential mitigation measures reflected in the following environmental documents: • Environmental Checklist (November 1, 2002, prepared by Apex Engineering) • Traffic Impact Analysis (dated October 18, 2002, prepared by Heath & Associates) • Preliminary Storm Drainage and Erosion Control Report (dated October 28, 2002, prepared by Apex Engineering) 2. The traffic impact analysis submitted as part of the subdivision application indicates that the project will generate 1034 vehicles per day of average weekday traffic, with a PM peak of 109 vehicles per hour. The project would not decrease the level of service at all but one of the intersections studied, including the following intersections: State Routes 507 and 510 (Yelm Avenue and First Street) Rhoton Road and N.P. Road N.P. Road and Wilkenson Road The two entrances into the subdivision and Wilkenson Road The level of service at Railway Road and First Street would decrease from LOS B to LOS C. The traffic impact analysis recommends that payment of the Transportation Facility Charge as required pursuant to Chapter 15.40 Yelm Municipal Code will mitigate traffic impacts identified in the report. 3. Canal Road currently intersects Wilkerson Road at an angle of approximately 50 degrees, which does not provide safe sight distance for vehicles entering Wilkerson Road from Canal Road. An additional 1034 weekday trips added to Wilkerson Road, almost all of which will be traveling southbound past the intersection with Canal Road, is a significant impact to traffic safety which can be mitigated through the realignment of the Canal Road intersection. 4. The Yelm School District has adopted a school mitigation requirement based on the demand that new residential units create for additional school services and facilities. Additional demands on the school system will be mitigated through the requirement that the developer enter into a mitigation agreement with the District. Conclusions of Law and Mitigation Measures The proposal will have a significant impact on the transportation system of the City of Yelm which will be mitigated through the imposition of the Transportation Facility Charge as required in Chapter 15.40 Yelm Municipal Code. The proponent shall mitigate transportation impacts based on the new residential p.m. peak hour trips generated by the project. The Transportation Facility Charge (TFC) shall be based on 1.01 new peak hour trips per residential unit. The proponent will be responsible for a TFC of $757.50 per dwelling unit which is payable at time of building permit. Prior to final subdivision approval, the developer shall realign Canal Road with Wilkerson to meet City Standards for intersections, provided that the cost of improvement does not exceed the Transportation Facility Charge in condition 1 above and no additional right-of-way is required for the realignment. The TFC's for the project shall be waived for the cost of realignment. Improvements to the intersection shall include core road improvements only. The proposal will have a significant impact on the Yelm School District which will be mitigated through the negotiation of a school mitigation agreement with the Yelm School District. Prior to final subdivision approval, the proponent shall submit to the City of Yelm a signed school mitigation agreement between the developer and the Yelm School District. Fry, Betty From: Brink, Terry Sent: Wednesday, May 14, 2003 3:46 PM To: 'gbeck@ywave.com'; Brink, Terry Cc: Brent Dille; 'bbcoyne@ywave.com ;Fry, Betty; 'bbenum@benum-inc.com' Subject: RE: Benum-Coyne Hi Grant: We have reviewed the revised draft MDNS and find it acceptable; except with respect to the second to last sentence in Mitigation Measure No. 2. We suggest that the language should be more clear as to intent. According to our interpretation of your language, we propose the following revised sentence: "The TFC's for the project required pursuant to Mitigation Measure No. 1 above shall be waived, in their entirety, in the event that the fe~~ie-~es~e~realignment described in this Mitigation Measure 2 is effected by the proponent." Incidentally, I already have a hearing regarding another matter on June 2, 2003. Plus, I question whether that would be adequate timing with regard to the required notices, comment and appeal periods. I am available on June 9, 2003, if that date would work for you and the Examiner. After you have an opportunity to review and consider the foregoing, please advise us as to how you plan to proceed. We would like to schedule the hearing as soon as practicable after June 9, 2003, if that date does not work for you and/or the Examiner. Thanks, Terry Terry L. Brink Attorney-at-law Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, LLP Post Office 1157 Tacoma, Washington 98401 tbrink@GTH-law.com 253.620-6493 (direct) 253.620-6565 (facsimile) CONFIDENTIALITY NOTICE: This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this email in error, and delete the copy you received. Thank you. -----Original Message----- From: Grant Beck [SMTP:gbeck@ywave.com] Sent: Wednesday, May 07, 2003 9:26 AM To: TBrink@gth-law.com Cc: Brent Dille Subject: Benum-Coyne Terry - Attached is a draft of the revised MDNS. I've been working to try to craft something that is going to work for your clients without an appeal of the SEPA threshold determination, as it has been the City's preference to be able to go to the Hearing Examiner on the same page as Bob and Bob. If the enclosed draft does this on the SEPA issue, we are on track for the June 2 Hearing Examiner date. The revised MDNS would be published on May 16 and would become final on May 30. Thanks, Grant Grant Beck, Director City of Yelm Community Development Department P.O. Box 479 Yelm, WA 98597 360.458.8408 360.458.3144 (FAX) gbeck@ywave.com <mailto:gbeck@ywave.com> « File: Revised MDNS.doc » SEPA NO: 8329 REVISED MITIGATED DETERMINATION OF NONSIGNIFICANCE Proponent: Robert L. Coyne Benum Enterprises P.O. Box 73130 Puyallup, WA 98373 Description of Proposal: Subdivide 28.02 acres into 108 residential lots in two phases. The project includes the construction of stormwater facilities, interior streets, and street improvements to Wilkenson Road. Location of the Proposal: The project site is located on the east side Wilkenson Road, bounded on the north by the Centralia Power Canal, and on the east by the Yelm~Roy Prairie Line Railroad. Section/Township/Range: Sections 17 and 20, Township 17 North, Range 2 West, W.M. Threshold Determination: The City of Yelm as lead agency for this action has determined that this proposal does not have a probable significant adverse impact on the environment. Therefore, an environmental impact statement (EIS) will not be required under RCW 43.21 C.030(2)(c). This decision was made after review of a completed environmental checklist and other information on file with the lead agency. This information is available to the public on request. Conditions/Mitigating Measures: Lead agency: Responsible Official: Date of Issue: Date of Revision: Comment Deadline: SEE ATTACHED City of Yelm Grant Beck, Community Development Director February 7, 2003 May 23, 2003 N/A Grant Beck, Community Development Director This revised Mitigated Determination of NonSignificance (MDNS) is issued pursuant to Washington Administrative Code 197-11-340(2). The City of Yelm will not act on this proposal prior to 5:00 p.m., June 6, 2003. You may appeal this determination to the Hearing Examiner, at above address, by submitting a written appeal no later than 5:00 p.m., June 6 , 2003. You should be prepared to make specific factual objections. Contact Grant Beck, Community Development Director, to learn more about the procedures for SEPA appeals. This MDNS is not a permit and does not by itself constitute project approval. The applicant must comply with all applicable requirements of the City of Yelm prior to receiving construction permits which may include but are not limited to the City of Yelm Comprehensive Plan, Zoning Title (17), Critical Areas Ordinance (14.08), Storm water Drainage Design and Erosion Control Manual (DOE), Uniform Building Code, State Environmental Policy Act (SEPA) Title (14), Road Design Standards, Platting and Subdivision Title (16), and the Shoreline Master Program. DO NOT PUBLISH BELOW THIS LINE Copies to: All agencies/citizens on SEPA mailing list May 28, 2003 Dept. of Ecology, May 28, 2003. - ATTACHMENT SEPA CASE NUMBER 8329 Findings of Fact This Mitigated Determination of Non Significance is based on the project as proposed and the impacts and potential mitigation measures reflected in the following environmental documents: • Environmental Checklist (dated November 1, 2002, prepared by Apex Engineering) • Traffic Impact Analysis (dated October 18, 2002, prepared by Heath & Associates) • Preliminary Storm Drainage and Erosion Control Report (dated October 28, 2002, prepared by Apex Engineering) 2. The traffic impact analysis submitted as part of the subdivision application indicates that the project will generate 1034 vehicles per day of average weekday traffic, with a PM peak of 109 vehicles per hour. The project would not decrease the level of service at all but one of the intersections studied, including the following intersections: State Routes 507 and 510 (Yelm Avenue and First Street) Rhoton Road and N.P. Road N.P. Road and Wilkenson Road The two entrances into the subdivision and Wilkenson Road The level of service at Railway Road and First Street would decrease from LOS B to LOS C. The traffic impact analysis recommends that payment of the Transportation Facility Charge as required pursuant to Chapter 15.40 Yelm Municipal Code will mitigate traffic impacts identified in the report. 3. Canal Road currently intersects Wilkerson Road at an angle of approximately 50 degrees, which does not provide safe sight distance for vehicles entering Wilkerson Road from Canal Road. An additional 1034 weekday trips added to Wilkerson Road, almost all of which will be traveling southbound past the intersection with Canal Road, is a significant impact to traffic safety which can be mitigated through the realignment of the Canal Road intersection. 4. The Yelm School District has adopted a school mitigation requirement based on the demand that new residential units create for additional school services and facilities. Additional demands on the school system will be mitigated through the requirement that the developer enter into a mitigation agreement with the District. Conclusions of Law and Mitigation Measures The proposal will have a significant impact on the transportation system of the City of Yelm which will be mitigated through the imposition of the Transportation Facility Charge as required in Chapter 15.40 Yelm Municipal Code. The proponent shall mitigate transportation impacts based on the new residential p.m. peak hour trips generated by the project. The Transportation Facility Charge (TFC) shall be based on 1.01 new peak hour trips per residential unit. The proponent will be responsible for a TFC of $757.50 per dwelling unit which is payable at time of building permit. 2. Prior to final subdivision approval, the developer shall realign Canal Road with Wilkerson to meet City Standards for intersections, provided that the cost of improvement does not exceed the Transportation Facility Charge in condition 1 above and no additional right-of-way is required for the realignment. The TFC's for the project required pursuant to Mitigation Measure No. 1 above shall be waived, in their entirety, in the event that the for the cost of realignment described in this Mitigation Measure 2 is effected by the proponent. 3. The proposal will have a significant impact on the Yelm School District which will be mitigated through the negotiation of a school mitigation agreement with the Yelm School District. Prior to final subdivision approval, the proponent shall submit to the City of Yelm a signed school mitigation agreement between the developer and the Yelm School District. ~OF TyF p.Q~ • I Ip ~ ~_ Ci o Yelm a M a ~" ~ 105 Yelm Avenue West -~ .~ ~.. P.O. Box 479 YELM Yelm, Washington 98597 WASH~N6TON (360) 458-3244 November 22, 2002 Robert L. Coyne Benum Enterprises P.O. Box 73130 Puyallup, WA 98373 Dear Bob: This letter is regarding you and Robert Benum's application for preliminary subdivision and shoreline substantial development permit for the subdivision of approximately 28 acres located on Wilkenson Road just south of the Centralia Power Canal into 108 residential lots. The application was submitted to the City of Yelm on November 4, 2002, along with application fees in the amount of $3,850.00. The proposal has been assigned project number SUB 02- 8329-YL. I will be acting as the project planner for your application. The Community Development Department has reviewed the application and has determined it to be complete. ant Beck, Dir~tor mmunity Development Department c. Brent Dille, City Attorney / Terry Brink, Attorney for Benum/Coynev' Bob Benum, Applicant Robert Crippen, Apex Engineering The City of Yelm is nn Equnl Opporhsnit~ Provider Yelm Municipal Code 17.12.030 Chapter 17.12 Sections: 17.12.010 17.12.020 17.12.030 17.12.040 17.12.050 17.12.060 17.12.070 17.12.080 17.12.090 LOW-DENSITY RESIDENTIAL DISTRICT (R-4) Intent. Permitted uses. Prohibited uses. Environmental performance standards. Lot area. Off-street parking. Landscaping. Stormwater runoff. Open space. 17.12.010 Intent. It is the intent of this chapter to: A. Enhance the residential quality of the city by providing a high standard of development for sin- gle-family residential areas; B. Guide residential development to those areas where: 1. Public sewers are in place or available prior to residential building construction, or 2. Sewers can be extended at minimal cost, or 3. New technology in the processing of domestic sewage makes residential development in unsewered areas environmentally acceptable; C. Guide development of residential areas in such manner as to encourage and plan for the avail- ability of public services and community facilities such as utilities, police and fire protection, streets, schools, parks and recreation. (Ord. 561 § 3, 1995; Ord. 555 § 14, 1995). 17.12.020 Permitted uses. A. Specific types of uses permitted in the low- density residential district: 1. Single-family dwellings including du- plexes on individual lots at a density of not more than four dwelling units per gross acre; 2. Mobile/manufactured homes as provided in Chapter 17.63 YMC; 3. Planned residential developments as pro- vided in Chapter 17.60 YMC; 4. Townhouse developments as provided in Chapter 17.61 YMC; 5. Residential care facilities. B. Other or related uses permitted: 1. Accessory buildings or structures clearly incidental to the residential use of the lot such as storage of personal property or for the pursuit of avocational interests; 2. Home occupations as provided in Chapter 17.69 YMC; 3. Secondary dwelling units as follows: a secondary dwelling unit may be created on a sin- gle-family lot for the exclusive use of persons related by blood or mamage to the owner/occupant of the property. The secondary dwelling. unit may consist of one or more rooms, including kitchen and cooking facilities; and may be created by new construction, conversion of, or addition to, either the main residence on the lot or legal accessory building; provided, that: a. For lots of record under one acre such conversion or addition shall not cause the maxi- mum allowable building or development coverage of the lotto be exceeded and shall not itself exceed 1,000 square feet, b. For lots of record of one ace or more such conversion or addition shall not cause the maximum allowable building or development cov- erage of the lot to be exceeded and shall not itself exceed a 28-foot by 56-foot manufactured home or a stick-built home of equal size, c. Such conversion or addition shall be subject to the availability of public utilities or the approval of the Thurston County environmental health department, d. Said conversion or addition shall com- ply with all rules and regulations of the building, plumbing, fire and other applicable codes, e. A building permit and all other applica- ble permits shall be obtained prior to construction of such conversion or addition; 4. Special uses as provided in Chapter 17.66 YMC, subject to site plan review; 5. The keeping of common household ani- mals or pets is permitted; provided, that their keep- ing does not constitute a nuisance or hazard to the peace, health and welfare of the community in gen- eral and neighbors in particular; 6. Family day-care homes as provided in Chapter 17.65 YMC. (Ord. 669 § 1, 1999; Ord. 561 § 3, 1995; Ord. 555 § 14, 1995). 17.12.030 Prohibited uses. A. Kennels are prohibited. B. Uses other than those identified or described in YMC 17.12.020 are prohibited. (Ord. 561 § 3, 1995; Ord. 555 § 14, 1995). 17-19 17.12.040 17.12.040 Environmental performance standards. A. Permitted uses shall create no noise, emis- sions, odors or other nuisances which are demon- strably disruptive or disturbing to other residences in the area, or which are of a quality or quantity not normally associated with residential use. B. The construction of accessory buildings shall be encouraged in such a manner as to make them complementary to the basic architectural character of the main building on the lot, or appro- priate to the accessory use. C. Special uses shall comply with the develop- ment guidelines described for such uses in Chapter 17.66 YMC. D. All uses shall comply with the applicable environmental performance standards of Chapter 17.57 YMC. (Ord. 561 § 3, 1995; Ord. 555 § 14, 1995). 17.12.050 Lot area. The size and shape of lots shall be as follows, provided they adhere to the density requirements: A. Minimum lot area: none; B. Minimum front yard measured from city right-of--way line: 1. On collectors: 25 feet, 2. On arterials: 35 feet, 3. On local streets: 15 feet, with a 20-foot minimum driveway approach; C. Minimum side yards: 1. Minimum on one side: five feet, 2. Minimum total both sides: 12 feet; D. Minimum flanking yard: 15 feet; E. Minimum rear yard: 25 feet; F. Maximum building coverage: 50 percent; G. Maximum development coverage: 75 per- cent; H. Maximum height of buildings: 1. Main building: 35 feet, 2. Accessory building: 16 feet; I. Accessory Buildings. All accessory buildings must comply with the current building setbacks as stated in this chapter; provided, however, if the accessory building is less than 120 square feet, the following setbacks are permitted: 1. Front yard: 25 feet, 2. Side yard: a. One side: five feet, b. Total both sides: 12 feet, 3. Rear yard: five feet. (Ord. 561 § 3, 1995; Ord. 555 § 14, 1995). 17.12.060 Off-street parking. Off-street parking shall be provided in accor- dance with Chapter 17.72 YMC. (Ord. 561 § 3, 1995; Ord. 555 § 14, 1995). 17.12.070 Landscaping. Landscaping shall be provided according to Chapter 17.80 YMC and the provisions of this sec- tion are supplemental thereto. Landscaping is required for the purpose of minimizing surface water runoff and diversion, preventing soil erosion and promoting the aesthetic character of the com- munity. Natural vegetation, groundcover, stands of trees or shrubs existing prior to development of the site may be acceptable to meet the landscaping requirement. Areas which have been cleared of vegetation or groundcover prior to or during con- struction, and which are not otherwise developed, shall be landscaped with trees, shrubs and suitable groundcover. Suitable materials for groundcover are those which permit rainwater infiltration of the soil and may include sod, ivy, bark, noncompacted gravel and the like. (Ord. 561 § 3, 1995; Ord. 555 § 14, 1995). 17.12.080 Stormwater runoff. All Stormwater runoff shall be retained, treated and disposed of on-site or disposed of in a system designed for such runoff and which does not flood or damage adjacent properties. Systems designed for runoff retention and control shall comply with specifications provided by the city and shall be subject to its review and approval, and shall, more- over, comply with Chapter 5 of the Yelm develop- ment guidelines, drainage design and erosion control standards for the city of Yelm. (Ord. 561 § 3, 1995; Ord. 555 § 14, 1995). 17.12.090 Open space. Open space dedications or fees-in-lieu thereof shall be provided according to Chapter 14.12 YMC. (Ord. 561 § 3, 1995; Ord. 555 § 14, 1995). 17-20 LAW OFFICES GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON &DAHEIM LLP TACOMA OFFICE 1201 PACIFIC AVENUE, SUITE 2200 POST OFFICE BOX 1157 TACOMA, WASHINGTON 98401-1157 (253) 620-6500 FACSIMILE (253) 620-6565 WARREN R. PETERSON (1926-1989) THOMAS L. FISHNURNE (1939-1987) REPLY TO TACOMA OFFICE Dilect Dial Tame: (253) 620-6493 Direc[ Dial Sea[tle: (206) 676-6493 Fheil Ad'itirs3: thri nima~+hh_]aW,[pR ALBERT R. MALANCA WARREN J. DAHEIM JOE CORDON, JR. DENNIS S. HARIAWE MARK G. HONEYWELL, P.S. WILLIAM E. HOLT RONALD B. LEIGHTON JOHN C. GUADNOIA DONALD W. HANFORD TIMOTHY J. WHI TTERS WILLIAM 7. LYNN KENNETH G. KI EFFER JAMES C. NALDO ROBERT G. HUTCHINS, P.S. MATTHEW W. STANLEY J. RICHARD CREATURA MICHAEL D. HITT DONALD S. NHEN ROBERT C. GRAYSON VICTORIA L. VREEiAND JOHN R. NNNELLY, JA. ALFRED M. FALK AIAN D. MACPHERSON DIANE J. KERO C. JAMES FRUSN BRADLEY A. MAKA SALVADOR A. MUNGIA WARREN E. MARTIN EI LEEN S. PETERSON F. MIKE SNAPPER BRADLEY B. JONES TERRY L. BRINK MATTHEW A. REIBER JAMES T. SEELY MARGARET Y. ARCHER LINDA C7 LEE MICHAEL T. PFAU SANDRA J. ROVAI JAMES B. MEADE MELISSA K. BRYAN OARRELL L. COCNRAN DAVID P. MOODY BRADLEY G. DAMS STEPHANIEL. BLOOMFIELD AMANDA M. O'HALIARAN DAVID B. JENSEN JOAN C. FOLEY TIMOTHY L. ASNCRAFT JULIE E. DICKENS T. LEE HUMPHREYS VAIARIE 2EECK THADDEUS P. MARTIN DIANNE K. CONWAY MICHELLE A. MENELY , LAURA WESELMANN LAFCADIO DARLING BRIAN [ADENBURG MARCO DEIANGE STEVEN SITEK STEVEN REICH J. BRADLEY BUCKHALTER STONE GRISSOM JASON SCHAUER S. SHANN TACEY BRUCE KRI EGMAN GARY E. HOOD LAAISSA PAYNE PATRICIA PEARSON ROBERT CALOWELL JONGNON YI JEMI MA MCNLLUM J.D. SMITH SEATTLE OFFICE ONE UNION SQUARE 600 UNIVERSITY, SUITE 2100 SEATTLE, WASHINGTON 98101-4185 (206) 676-7500 FACSIMILE (206) 676-7575 OF COUNSEL JOSEPH H. GORDON W. WALIACE CAVANAGH, JR. L. R. GHIIARDUCCI, JR. ELIZABETH PIKE MARTIN CHARIATTE N. CRACKER DONALD H. THOMPSON DALE L. CARLISLE, P.S. THOMAS J. GREENAN LEWIS ELLSWORTH August 13, 2002 SENT VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Shelly Badger City Administrator City of Yelm P.O. Box 479 Yelm, WA 98597 RE: July 31, 2002 Pre-Application Meeting Benum Enterprises, Inc. Preliminary Plat Thurston County Tax Parcel Nos.: 643-01-200100 and 227-17-330100 Dear Ms. Badger: Our tine represents Robert Benum and Robert L. Coyne, Jr., who are the owners of the above-referenced property. We are advised that our clients attended a pre-submission conference pursuant to YMC § 16.12.010 at the City of Yelm (the "City") on July 31, 2002 in anticipation of submittal of a preliminary plat application. We are also advised by our clients that one of the topics of discussion during the meeting was the Y2/Y3 Transportation Corridor. According to Mr. Coyne, the City has taken the position that the Traffic Impact Analysis ("TIA") to be prepared in conjunction with the State Environmental Policy Act ("SEPA") process will require an analysis of the impacts to the Y2/Y3 Transportation Comdor caused by the proposed preliminary plat including any potential mitigation measures. It is our understanding that the Y2/Y3 Transportation Comdor is a possible future public road construction project that is not currently: (i) funded; (ii) engineered; or (iii) targeted for commencement of construction. On May 28, 2002, I had an opportunity to speak with the [1186321 v6] GORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP August 13, 2002 Page 2 Washington State Department of Transportation's ("WSDOT") Real Estate Specialist Mark Ellis regarding the Y2/Y3 Transportation Corridor. Mr. Ellis confirmed that: (i) the Y2/Y3 Transportation Corridor project has not even been designed; (ii) there is no money available; (iii) there is no assurance if and when the money may become available; and (iv) it is likely that the currently proposed alignment will change from its present location by the time condemnation proceedings are underway. Mr. Ellis also mentioned that the last similar transportation comdor project of this nature that he is aware of was in Sequim, Washington. Mr. Ellis said that it took approximately twenty (20) years to obtain the necessary financing for the Sequim project. As far as I know, neither the City or the State of Washington (the "State") has made any offer to purchase all or any portion of our clients' property under threat of condemnation pursuant to Washington's eminent domain laws codified under Title 8 RCW entitled "Eminent Domain." Moreover, we are advised that neither the City or the State has any intention of making any such offer to purchase all or any of the property under the threat of condemnation at this time, or in the foreseeable future. In light of the foregoing information, the City's demand that the Y2/Y3 Transportation Corridor be considered in the TIA and that related mitigation measures be determined during the SEPA process is unlawful and would give rise to an inverse condemnation claim. Inverse condemnation is defined by Washington law as the manner in which property owners recover just compensation for the taking of their property when condemnation proceedings have not been instituted. Martin v. Port of Seattle, 64 Wn.2d 309 (1964), cert. Denied, 379 U.S. 989 (1965). Inverse condemnation has also been characterized as an action brought against a governmental entity having power of eminent domain, to recover the value of property which has been appropriated in fact but without a formal exercise of the power. Id. A party alleging inverse condemnation must establish the following elements: (i) a taking or damaging; (ii) of private property; (iii) for public use; (iv) without just compensation being paid; (v) by a governmental entity that has not instituted formal proceedings. Phillips v. King County, 136 Wn.2d 946 (1998). Ownership of property entails more than the right to exclusive possession; it includes the right to use of the land. Thus inverse condemnation actions maybe brought seeking recovery for interference with the use and enjoyment of the property regardless of whether condemnation is characterized by physical invasion. Highline School Dist. v. Port of Seattle, 87 Wn.2d 6 (1976). As you know, if our clients were to succumb to the demands of the City, the proposed preliminary plat would be virtually decimated by the division of the property by a two hundred foot (200') right-of--way together with an elevated limited access state highway running through the middle of the property. Not only would the use of the two hundred foot (200') right-of--way create significant adverse impacts to the preliminary plat, but the elevated state highway would [1186321 v6] CORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP August 13, 2002 Page 3 also cause additional significant adverse impacts to the remainder parcels because of the: (i) excessive noise; (ii) air pollution: and (iii) aesthetically offensive elevated structures in the midst of a residential subdivision, etc. Attached is an 8 %2" x 11" copy of the current preliminary plat site plan that shows an overlay of the currently proposed location of the Y2/Y3 Transportation Corridor and its potential impact on this project. The foregoing described scenario would deprive our clients of the economically reasonable use of their property as a result of restrictive goverrunental regulations that are not justified because of the absence of any condemnation proceeding. A property owner who is deprived of the economically reasonable use of land as a result of restrictive governmental regulations is entitled to compensation if the property owner can demonstrate that the application for the use of the property was made and refused, or that the application would be futile. Orion Corp. v. State, 103 Wn.2d 441 (1985), cert. denied, 486 U.S. 1022, 100 L. Ed. 2d 227, 108 S. Ct. 1996 (1988) (Orion I); Estate of Friedman v. Pierce County, 51 Wn.App. 176 (1988), aff'd, 112 Wn.2d 68 (1989). The primary purpose of this letter is to advise the City that under the present circumstances our clients have no intention of conducting an analysis that would result in any mitigation of a project that may or may not ever be constructed. We believe that the City has exceeded its lawful authority in asserting such a demand in this instance. Our clients are in the process of preparing its application for a preliminary plat and will be submitting it to the City for processing as soon as practicable. Our clients will comply with all of the lawful regulatory controls in effect at the time of a complete application in accordance with RCW 58.17.033(1). If the City rejects the application, or fails to process it in a timely manner, our client intends to file a lawsuit against the City: (i) for violations of its own ordinances YMC § 16.12.040 and YMC § 16.12.130; (ii) for violations of RCW 36.70B.070 and RCW 36.70B.120; and (iii) because such rejection of the application will be considered uncontroverted evidence that pursuit of an administrative remedy would be futile. In the Friedman case cited above, the Court of Appeals held that a landowner must show by "uncontroverted evidence that pursuit of administrative remedies would be futile." Friedman, 51 Wn.App. @ 181. On appeal, the Supreme Court held that the issue of futility is to be decided by the Court, not the jury, and that although the landowner has a substantial burden of proof when seeking to establish futility, futility need not be shown by uncontroverted evidence. Estate of Friedman v. Pierce County, 112 Wn.2d 68 (1989). Although our clients seek no confrontation with the City, please understand that our clients are determined to protect their lawful property rights against the City's recent unlawful demands. We urge the City to reconsider its position with regard to this matter and to withdraw its demands with regard to the Y2/Y3 Transportation Corridor. If litigation becomes necessary, [1186321 v6] CORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP August 13, 2002 Page 4 our clients will seek: (i) a writ of mandamus ordering the City to process their application; (ii) alternative damages incurred as a result of the inverse condemnation; (iii) damages incurred because of the City's disregard for and violation of applicable local and state land use regulatory controls; and (iv) damages and attorneys fees for wrongful refusal to process a permit pursuant to RCW 64.40 and 42 U.S.C.A. § 1983. The City's failure to process our clients' application would be arbitrary and capricious under state law and would deny due process of law under federal law. Moreover, the decision makers would not have legislative immunity for such acts and could be held individually liable. Yours very truly, Terry L. Brink TLB:cs cc: Robert E. Benum, President, Benum Enterprises, Inc. Robert L. Coyne, Jr., Executive Vice President, Benum Enterprises, Inc. 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C~ t Q d c-I..--I ~ ~ 3 .f7 Q C Z Q f1 W~~~ LL 1~ - Vl ~~ m C C N LL U° ~ ~I ~ ~ •~ ~ ~ ~ ~ w ~ ~ ~ ~ a ~ ~ O ~ •~ A ~~ ~ V ~ ~ ~ ~ 0 ~ O a ~ ~+ E~ r a a s ~ 0 '~ U ' ~ ~ ~ .t E v O o ro v~ c N ~ o Y .c = v ° ~ ~, ai w ~ avi N c L ~ ~ v ~ O :.^ Cn u U O ro ca T~ ~ ~~ y h U Q yC c0 c v ,.. v ~ .?n 0 ~ ~ 'v F c ';; ~ >, ~ v y ~ 0.y y Y ~ ~ ~ ~ y c~~ v <a ~ 3 ca ~ ca b0 3 R > y c ~ w ~ p ~ ' _ y 00 a 'N c c 3 0~ ~.~ o m'o >,N m3 e~>,G~~~ ~~G~~y~ y y~ ~ ~ ~,~. ~.. mr- aw.UC>~ ~ °~E u r v N d `-°~'Y August 2, 1999 Erling Birkland Prairie Electric Co. PO Box 875 Yelm, WA 98597 Re: SUB-99-8236-YL -Canal Estates Preliminary Plat Approval. Dear Mr. Birkland: On July 28, 1999, the Yelm ~~ty Council considered your application for the above referenced project. After review of the Planning Commission's recommendation, pubic hearing comments and the staff report dated July 20, 1999, the City Council found the project, as conditioned in the staff report, to be consistent with all applicable City policy's and development standards and approved the preliminary plat. Preliminary Plat approval is valid for 5 years from July 28, 1999. Within the 5-year period all conditions of approval shall be satisfied and an application for final plat shall be submitted to the City for the project to remain vested. The project is approved subject to the following findings and conditions of approval: Findings: 1. Proponent. Prairie Electric Co., Erling Birkland 2. Location. Southwest corner of Canal Road and Rhoton Road. Tax Parcel 22718310300. 3. Public Notice. Notice of the Public Hearing was published in the Nisqually Valley News on July 9, 1999, and posted in public areas on July 1, 1999. The notice was mailed to adjacent property owners and the applicant on July 1, 1999. 4. Existing Land Use. Vacant. 5. Adjacent Land Uses. Low Density Single family residential. 6. Comprehensive Plan: The site is designated Low Density - Residential. 7. Zoning. Chapter 17.12, Low-Density Residential District (R-4). Mr. Erling Birkland August 2, 1999 Page 2 8. Soils and Geoloay. Spanaway gravelly sandy loam. 9. Ground Water. The project site is located in a Category I Aquifer Recharge area. Ground water levels on the site are fairly close to the surface (30' or less in some areas) especially along the western property line and the southwest corner of the site. In 1996/1997 the area to the west and south of the site experienced high groundwater levels which resulted in localized flooding. Topographic information indicates that the regional low area is along and west of the site's western property line. 10. Transportation and Site Access The site fronts on both Canal Road and Rhoton Road. The Yelm Development Guidelines, Section 48.130, requires a minimum spacing of 200' between intersections that include a designated Neighborhood Collector Street. The Yelm Development Guidelines, Chapter 4, classifies Canal Road and Rhoton Roads as Neighborhood Collectors. The newly constructed internal road would be classified as a Local Access Residential Street. Consistent with City of Yelm Ordinance 580, Concurrency Ordinance, a single family dwelling unit generates 1.01 new pm peak hour trips. As proposed the development would generate 26 new pm peak hour trips. The Concurrency Ordinance requires that impacts to the transportation system from new traffic be mitigated through the Transportation Facility Charge of $750.00 per new pm peak hour. The preferred alternative for the Y-3 transportation corridor runs from east to west along the southern property line and 120' deep. The route is currently being analyzed through an environmental assessment with the final adoption of the transportation corridor to occur in the late summer or early fall of 1999. Because the corridor is not adopted at this time, the City can not require the developer to alter the site lay-out to accommodate the future right-of-way. Staff has reviewed the lay-out with consideration of the future Y-3 corridor and believes that through traffic control (one-way street) that the infrastructure constructed for the project will not have to be physically altered. The future acquisition of right-of-way for the Y-3 corridor will include lots 1 - 9. Acquisition of right-of-way can not begin until the corridor is adopted by the City Council and funding is available. 11. Parkins. Chapter 17.72, Off-Street Parking and Loading, requires two (2) parking stalls for each residence. 12. Wastewater. The project site is in the Sewer Service Area but is not currently served by the Sewer Treatment Plant. The existing service line designated to serve the site is located at the intersection of View Drive and Rhoton Road. As determined in the City's 1998 Sewer Comprehensive Plan the project site is located Mr. Erling Birkland August 2, 1999 Page 3 at the end of the 4" service line planned to serve the site. 13. Water Supply. The project site is in the Water Service Area, but is not served with City water. The existing service lines designated to serve the site are an 8" line located at the intersection of View Drive and Rhoton Road and a 10' line located west of the property on Canal Road. The City's 1995 Water Comprehensive Plan requires these lines to be connected in the future to ensure adequate fire flow for the area. 14. Drainage/Storm water. The completed project will increase impervious surfaces on the site and adjacent streets. Impervious surfaces create stormwater runoff. When uncontrolled and untreated stormwater runoff can create health and safety hazards. YMC requires all development to comply with the City stormwater Manual for the control and treatment of stormwater runoff. stormwater facilities require continued maintenance to ensure they remain in proper working condition. The preliminary stormwater report and conceptual layout appear to meet minimum City standards. 15. Open Space. Chapter 16.14, Parks and Open Space requires single family residential developments to provide 5% of the development site in improved open space or pay a fee-in-lieu of providing on-site open space. The applicant is proposing to pay the fee-in-lieu of rather than providing on-site open space. The fee-in-lieu of is calculated by multiplying .77~ per square foot of required open space. 5% of the gross site represents .33 of an acre (14,288.00 sq ft.) The fee-in-lieu of for the project site is $11,0001.76. The fee-in-lieu of is payable prior to final plat approval, unless the City approves a property lien against each lot and then the fee-in-lieu of would be payable at time of building permit issuance. The applicant has not requested a property lien for the fee-in-lieu of. 16. Utilities. The site is served by Puget Sound Energy (electric and gas) and Yelm Telephone. 17. Fire Protection. Fire protection is provided by the Thurston County Fire District #2. The applicant has submitted Fire Flow Calculations for existing hydrants located at Crystal Springs and Canal Road which meet current city standards. 18. Police Protection. Police protection is provided by the City of Yelm. 19. Public Schools. The project site is within the Yelm School District. Through the environmental review, the School District has required the applicant to mitigate school Mr. Erling Birkland August 2, 1999 Page 4 impacts as a result of the development. The applicant is required to enter into an agreement with the School District specifying a $650.00 mitigation fee for each dwelling unit. The mitigation fee is payable at time of building permit issuance. 20. SEPA: A Mitigated Determination of NonSignificance was issued on July 1, 1999 (Exhibit III.) Conditions of Approval• Transportation -Conditions of Approval Consistent with City of Yelm Ordinance 580, Concurrency Ordinance, a single family dwelling unit generates 1.01 new pm peak hour trips. As proposed the development would generate 26 new pm peak hour trips. The Concurrency Ordinance requires that impacts to the transportation system from new traffic be mitigated through the Transportation Facility Charge of $757.50 per new single family dwelling unit. The TFC is payable at time of building permit issuance. 2. The applicant shall be responsible for half-street improvements along the site's frontage on Rhoton Road and Canal Road. The off-site roadway section is "Neighborhood Collector" (detail attached). The frontage improvements include lane improvements, curb, planter strip, sidewalk, landscape and storm drainage. The on-site roadway section is "Local Access Residential" (detail attached). 3. The applicant shall dedicate sufficient right of way on which to construct the half-street improvements. These improvements shall be constructed with the sub-division. 4. Access will be limited to one full access on Rhoton Road and one full access on Canal Road, per the preliminary plan submitted by the applicant to the City. 5. Road .design shall meet the intent of the City's Development Guidelines. 6. Street lighting shall be installed on the north side of the internal loop road. 7. Sidewalks shall be installed on the north side of the internal loop road. Site Grading -Conditions of Approval 8. Site grading and fill placed on the proposed site shall be compacted to 95% density per the City's Development Guidelines. 9. The applicant shall leave a minimum of 10 feet of undisturbed soil between the property line and the toe of the slope on the West Side of Lots #8-15. Water -Conditions of Approval Mr. Erling Birkland August 2, 1999 Page 5 10. The applicant shall connect each lot to the City water system. The connection fee for each dwelling is based on Equivalent Residential Unit usage (each ERU equals 240 gallons of water consumption per day). The ERU fee is established by City resolution and is payable at time of building permit issuance. The meter fee is established by City resolution and is payable at time of building permit issuance. 11. The onsite water line installation shall be looped to afford maximum fire protection as per the Uniform Fire Code. 12. All water connection fees are due at time of building permit issuance. 13. To ensure compliance with the City's 1995 Water Comprehensive Plan, the Applicant shall connect to the 8 inch main at the intersection. of View Drive and Rhoton Road. The 8-inch water main shall be extended to the intersection of Canal Road. The 10-inch water main shall be installed from the intersection of Rhoton Road west along Canal Road to the west property line of Canal Estates. 14. As per City of Yelm "Development Guidelines" minimum hydrant spacing shall be 660 linear feet on the internal loop road. In addition, a hydrant shall be placed at the north edge of the proposed cul-de-sac. 15. With the consent of the City Council, a latecomer's agreement will be entered into for applicable benefit properties. 16. Water lines and fire hydrants shall be installed on the north side of centerline of the internal loop road. Sanitary Sewer -Conditions of Approval 17. The applicant shall connect to the City STEP sewer system. The connection fee for each dwelling is based on Equivalent Residential Unit usage (each ERU equals 240 gallons of water consumption per day). The ERU fee is established by City resolution and is payable at time of building permit issuance. A $135.00 inspection fee shall be paid for each onsite installation. 18. Upon completion of the onsite installation as per the City's Development Guidelines, the STEP sewer equipment shall be deeded to the City by easement. 19. All sewer connection fees are due at time of building permit issuance. 20. STEP collector lines shall be installed on the north side of centerline of the internal loop road. 21. To ensure compliance with the City's 1998-Sewer Comprehensive Plan, the Applicant shall connect to the 4 inch main at the intersection of View Drive and Rhoton Road. The 4 inch sewer main shall be extended to the intersection of the internal connector road. The 4 inch sewer main shall be installed along the north side of the internal connector Mr. Erling Birkland August 2, 1999 Page 6 road to the intersection of Canal Road. 22. With the consent of the City Council, a latecomer's agreement shall be entered into for applicable benefit properties. Storm Water -Conditions of Approval 23. The applicant shall design and construct all storm water facilities in accordance with the DOE Storm Water Manual, as adopted by the City of Yelm. Best Management Practices (BMP's) are required during construction of the storm water facilities. 24. The applicant shall compile a final storm water report along with construction drawings. 25. The applicant shall submit a storm water operation and maintenance plan to the Public Works Department for approval prior to final plat approval. 26. The applicant shall conduct hydrological testing to ensure the site is not subject to unusual high groundwater. The applicant will identify areas of ponding and potential effects associated with planned fills. Design Standards -Conditions of Approval 27. The applicant shall utilize the City's Development Guidelines as a guide to develop project civil drawings. Open Space -Conditions of Approval 28. The fee-in-lieu of for the project site is $11,0001.76. The fee-in-lieu of is payable prior to final plat approval. SEPA Mitigation -Conditions of Approval 29. The applicant shall enter into an agreement with the Yelm School District to mitigate impacts to the school district. The applicant shall provide the City with a recorded copy of the agreement. All mitigation fees shall be paid by the applicant prior to building permit issuance. Landscape -Conditions of Approval 30. The applicant shall landscape the stormwater facilities in accordance with Chapter 17.80 of the YMC. 31. The applicant shall landscape the planter strips for all streets as per the YMC. 32. The 15' stormwater facility easement located between the cul-de-sac and the stormwater retention pond shall be landscaped along the easement boundaries which Mr. Erling Birkland August 2, 1999 Page 7 are adjacent to residential lots. The landscaping shall effectively delineate the easement to ensure neighboring properties do not encroach upon the easement. 33. The applicant shall submit a final landscape and irrigation plan to the Planning Department for approval. If I can be of further assistance or you have any questions, please contact me at 458-8408. 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AGO 1992 NO. 23 *728 Office of the Attorney General State of Washington AGO 1992 No. 23 October 13, 1992 GROWTH MANAGEMENT ACT--GROWTH PLANNING HEARINGS BOARDS--PROPERTY-- ADMINISTRATIVE LAW--Appeal to Growth Planning Hearings Boards Based on Claim That Regulation has Negative Impact on Property 1. RCW 36.70A.280 authorizes the Growth Planning Hearings Boards to hear petitions which allege that governments planning under the Growth Management Act are not in compliance with the requirements of the Act as it relates to plans and regulations adopted pursuant to RCW 36.70A.040. One requirement of the Act is that governments adopting plans and regulations consider the goal of protecting private property rights. The Boards have jurisdiction over petitions that allege that private property rights have not been considered or have been considered in an arbitrary or discriminatory manner. 2. The Growth Management Act does not contain any provision prohibiting the adoption of plans and regulations that may negatively affect a particular private property interest. Therefore, RCW 36.70A.280 does not authorize the Growth Planning Hearings Boards to grant relief to a specific property owner if plans and regulations do have a negative impact on the owner's specific property and a property owner cannot challenge plans or regulations based solely on a claim that the plans or regulations result in a negative impact on the owner's property. 3. A city or county that adopts plans or regulations pursuant to RCW 36.70A.040 is not required to give individual notice to each property owner whose property value may be negatively impacted as a result of the plans or regulations. Honorable Elmira Forner State Representative 417 John L. O'Brien Building Post Office Box 40694 Olympia, Washington 98504-0694 Dear Representative Forner: By letter previously acknowledged, you asked our opinion on several questions related to the Growth Management Act, chapter 36.70A RCW as it relates to the protection of private property rights. RCW Page 1 36.70A.040 requires certain counties and cities to adopt a comprehensive land use plan and development regulations. RCW 36.70A.280 provides that the Growth Planning Hearings Boards, established pursuant to RCW 36.70A.250, can hear and determine certain petitions challenging the plans and regulations adopted pursuant to RCW 36.70A.040. Your questions relate to this appeal process. This opinion does not involve a property owner's ability to seek relief in court for an alleged unconstitutional taking of private property by the government. The appeal process before the Growth Planning Hearings Boards does not limit the relief available to a property owner in such a judicial action. We paraphrase your questions as follows: 1. Do the Growth Planning Hearings L3oards have the statutorily conferred jurisdiction to hear a claim which alleges that a city or county failed to properly consider the impact of its comprehensn~c plans or regulations on private property rights'? 2. Do the Growth Planning Hearings Boards have the statutorily conferred jurisdiction to determine whether a comprehensive plan or regulation negatively impacts an individual owner's specific property? 3. If the answer to Question 2 is yes, what criteria should the Growth Planning Hearings Board use in determining whether the plans or regulations result in a negative impact on the owner's property? 4. Is a county or city that adopts comprehensive plans or regulations pursuant to RCW 36.70A.040, required to give individual notice to each private property owner whose property value may be negatively impacted as a result of the plans or regulations? The answer to Question 1 is yes. The ans~~ers to Questions 2 and 4 are no. Since the answer to Question 2 is no, we do not reach Question 3. BACKGROUND Before addressing the specific questions, some background discussion of the relevant law is necessary. Your inquiries relate mainly to the Growth Management Act (GMA), originally enacted in 1990. Laws of 1990, 1st Ex.Sess., ch. 17. This legislation was intended to govern certain counties and cities in planning urban growth. Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 The GMA requires some government entities (FN1) to formulate and enact comprehensive land use plans and development regulations. RCW 36.70A.040. Each plan must include the following mandatory items: 1. Aland use element 2. A housing element 3. A capital facilities element 4. A utilities element 5. A rural element (for counties only) 6. A transportation element RCW 36.70A.070. Those counties which must act are to designate an urban growth area within which urban growth may occur but outside of which only nonurban growth is permitted. RCW 36.70A.110. Those counties and cities must enact development regulations to implement the comprehensive plan. RCW 36.70A.120. The GMA also specifies that government entities must designate and adopt development regulations addressing natural resource lands and critical areas. RCW 36.70A.060, .170. *729 In developing and implementing the comprehensive plan and development regulations, government entities are required to establish procedures for public participation. RCW 36.70A.140. That provision further states: "Errors in exact compliance with the established procedures shall not render the comprehensive land use plan or development regulations invalid if the spirit of the procedures is observed." Id. In addition to the requirements set forth above, the GMA also sets forth a list of goals which are to be considered in enacting plans and regulations. The statute provides: Planning goals. The following goals are adopted to guide the development and adoption of comprehensive plans and development regulations of those counties and cities that are required or choose to plan under RCW 36.70A.040. The following goals are not listed in order of priority and shall be used exclusively for the purpose of guiding the development of comprehensive plans and development regulations[.] RCW 36.70A.020 (emphasis added). The GMA then lists the following 13 goals: 1. Urban growth 2. Reduced sprawl 3. Transportation 4. Housing 5. Econonuc development 6. Property rights 7. Permits 8. Natural resource industries 9. Open space and recreation 10. Environment Page 2 11. Citizen participation and coordination 12. Public facilities and services 13. Historic preservation RCW 36.70A.020. In 1991, the GMA was modified and expanded. Laws of 1991 1st Sp.Sess., ch. 32. Additional requirements and considerations were mandated for planning. As relevant to the present questions, however, the most significant change to the GMA in 1991 was the creation of the Growth Planning Hearings Boards (Boards). Three boards with regional jurisdictional boundaries were established. RCW 36.70A.250. The members of the Boards are appointed by the Governor. RCW 36.70A.260. The Boards are granted authority to hear only those petitions which allege either: (a) That a state agency, county. or city is not in compliance with the requirements of this chapter. or chapter 43.210 RCW (FN2) as it relat~•s iu plans, regulations, and amendments thereto. adopted under RCW 36.70A.040; or (b) that the twenty-year growth management planning population projections adopted by the office of financial management pursuant to RCW 4 x.62.0 should be adjusted. RCW 36.70A.280(1). The Final Bill Report on the 1991 amendments states that the Boards were created Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 to resolve disputes regarding the GMA. Final Bill Report, ESHB 1025, Laws of 1991, 1st Sp.Sess., ch. 32. The GMA discusses the Boards' review of petitions: Comprehensive plans and development regulations, and amendments thereto, adopted under this chapter are presumed valid upon adoption. In any petition under this chapter, the board, after full consideration of the petition, shall determine whether there is compliance with the requirements of this chapter. In making its determination, the board shall consider the criteria adopted by the department under RCW 36.70A.190(4). (FN3) The board shall find compliance unless it finds by a preponderance of the evidence that the state agency, county, or city erroneously interpreted or applied this chapter. RCW 36.70A.320 (emphasis added). In issuing a fmal order, the Boards must base their decisions exclusively on whether the city, county, or state agency is in compliance with the requirements of chapter 43.21 RCW. RCW 36.70A.300(1). (FN4) The Boards must find either (1) that the government entity is in compliance with the GMA, or (2) that the government entity is not in compliance and remand to the effected entity for compliance. Id. (FNS) Any party aggrieved by the Boards' final order may appeal to the Thurston County Superior Court. RCW 36.70A.300(2). ANALYSIS Question 1: Do the growth planning hearings boards have the statutorily conferred jurisdiction to hear a claim which alleges that a city or county failed to properly consider the impact of its comprehensive plans or regulations on private property rights? *730 The first question addresses whether the Boards may hear petitions alleging that the government entities failed to properly consider the impact of their actions upon private property. This question relates to the Boards' authority to review petitions. As discussed above, the Boards may hear only those petitions which (a) allege noncompliance with the requirements of the GMA (or SEPA as it relates to plans or regulations adopted pursuant to RCW 36.70A.040), or (b) challenge the planning population projections. Thus, for purposes of the first question, in order to bring a petition before the Boards the Page 3 challenge must be to government entities' compliance with the requirements of the GMA. The GMA contains a list of goals which must he considered in developing comprehensive plans and regulations. RCW 36.70A.020. One of the 13 designated goals provides: "Property rights. Private property shall not be taken for public use without just compensation having been made. The property rights of landowners shall be protected from arbitrary and discriminatory actions." RCW 36.70A.020(6). The concept that private property shall not he taken for public use has its origins in the Fifth Amendment of the United States Constitution which provides in part that "[n]or shall private property be taken for public use, without just compensation." This restriction is applied to the states through the Fourteenth Amendment to the united States Constitution. Article 1, section 16 (amendment 9) of the Washington Constitution provides the same right. Sintra, Inc. v. Seattle, 119 Wn.2d 1, 13, 829 P.2d 765 (1992). In addition to outright physical appropriation of property, a taking can be accomplished by over- regulation. A taking by regulation is often called an inverse condemnation, because the condemnation is found by the court after it has already been implemented by the regulation. Id.; see Lucas v. South Carolina Coastal Coun., 50~ U.S. 1003, ] 19 L.Ed.2d 561, 1 12 S.Ct. 2886 (1992). The GMA lists the protection of private propert~~ rights as a goal in the development of plans and regulations. That goal has two distinct component parts. First, is the constittrtional requirement of compensation for a taking of property, and second is the protection of property rights from arbitrary and discriminatory actions even when there is ^o constitutional taking. RCW 36.70A.020 provides that the goals (including property rights) "shall be used exclusively for the purpose of guiding the development of comprehensive plans and development regulations". Accordingly, government entities are required to consider the impact of their actions upon private property rights. The failure to do so constitutes noncompliance with the requirements of the GMA giving the Boards jurisdiction over such claims. 1F'~6 In our judgment, therefore, the Boards have jurisdiction over a petition which alleges that private property rights have not been properly considered. or Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 have been considered in an arbitrary or discriminatory manner. We do not speculate about what type of fact situation would be sufficient to warrant a finding of noncompliance with the GMA. That is clearly the province of the Boards. RCW 36A.70.320 provides that the Boards are to uphold the plan or regulation unless they find "by a preponderance of the evidence that the state agency, county, or city erroneously interpreted or applied this chapter." As it relates to Question 1, the GMA requires that private property rights shall be considered. If the Boards find by a preponderance of the evidence that government entities failed to consider the impact of their actions on private property rights, such entities would have erroneously applied the provisions of the GMA. Additionally, RCW 36.70A.020(6) provides that such rights are to be free from "arbitrary and discriminatory actions". Thus, if the Boards find by a preponderance of the evidence that government entities considered private property rights but did so in an arbitrary or discriminatory manner, noncompliance with the GMA also would be established. Upon a determination of noncompliance for whatever reason, the matter is remanded to the relevant government entity for compliance. RCW 36.70A.300(1). It is important to note that the Boards' jurisdiction relates to the process a local government follows in adopting its plans and regulations. RCW 36.70A.020(6) requires that local governments consider the goal of protecting private property. However, once this goal is considered, the GMA does not require that local governments reach a particular conclusion. *731 The GMA lists 12 other goals which must also be considered in developing comprehensive plans and regulations. These goals cover a number of areas ranging from reducing sprawl to promoting economic development to protecting natural resources. RCW 36.70A.020(2), (5), (8). The GMA does not dictate any particular goal, such as the protection of property interests should dominate over other goals. Rather, there is an inherent tension in seeking to accommodate by comprehensive action all of these goals, some of which are in conflict. Government entities must weigh these goals and exercise discretion in determining how to address them in enacting their plans and regulations. Thus, with regard to property rights, a government entity is not in compliance with the GMA if it fails to consider property rights in developing its plans and Nape 4 regulations, or if it considers property rights in an arbitrary and discriminatory manner. The Boards have jurisdiction to consider these issues. Question 2: Do the growth planning hearings boards have the statutorily conferred jurisdiction to determine whether a comprehensive plan or regulation negatively impacts an individual owner's specific property? The thrust of this question appears to relate to which forum is available to consider concerns about the protection of specific private properties. Not every negative impact on private property implicates the constitutional protection of property but some negative impacts do raise the issue of the taking of private property. Although your question is phrased in broader terms, it essentially addresses whether a private landowner, with reference to his or her own specific property, can seek redress for an alleged unconstitutional taking by an appeal through the Growth Planning Hearings Boards process establishcd in the GMA. The focus of this question changes from the general validity of the comprehensive plan or regulation to the impact of the plan or regulation upon a particular individual. Essentially, your question is whed~er allegations of negative impact upon a specific piece of private property are claims of noncompliance with the GMA, such that the Boards have authority to review such petitions and grant relief for the specific property owner. We could answer that question in the affirmative only if the GMA requires government planning action to be free of negative impacts on any private property interests. We find no such requirement in the GMA. The GMA specifies the mandatory elements to be included in the comprehensive plan. RCW 36.70A.070 (FN7) Nothing in this section, however, indicates that government planning action must be neutral with respect to private property interests. Accordingly, no relevant requirement is found in that section. As discussed above, however, the GMA contains a goal providing that private property shall neither be taken without compensation nor be subject to arbitrary or discriminatory action. RCW 36.70A.020(6). This goal does not prohibit government entities f-rom adopting comprehensive plans or regulations that result in an inverse condemnation of property that could be considered a taking under the constitution. (Of course, Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 if the government takes private property, it will be liable for just compensation. See, e.g., Sintra„ 119 Wn.2d 1.) Rather, this goal requires that government entities consider the impact of their plans and regulations upon property rights and that they not do so in an arbitrary or discriminatory manner. In this respect, the property rights goal provides statutory protection for property rights in addition to the protection provided by the constitution. The constitution prohibits taking private property without just compensation. The constitution does not require that government entities consider the impact of their plans and regulations on property rights prior to adoption, but the Legislature has required such consideration under the GMA. The Boards were created to resolve questions about whether government entities have complied with the requirements of the GMA. These include the 13 goals to guide the adoption of plans and regulations. Property rights is but one of 13 goals. RCW 36.70A.020. No goal in the GMA takes precedence over the others. The goals are not listed in order of priority and some of the goals are in conflict. The challenge for government entities is to weigh these goals and decide which goals are most important in their local communities when formulating plans and regulations. *732 The Boards were not created to consider or resolve questions regarding the specific impact of plans or regulations on individual property. Nor were they intended to be a forum for resolution of specific takings questions involving individual property. The purpose of the Boards is to ensure that government entities comply with the planning goals and requirements of the GMA. Accordingly, a claim of negative impact upon specific private property does not constitute a challenge to compliance with the property rights goal of the GMA. The GMA also contains a provision directing that the Attorney General's Office develop a process for the consideration of the constitutional protection of property being taken without compensation. RCW 36.70A.370 provides in part: (1) The state attorney general shall establish by October 1, 1991, an orderly, consistent process, including a checklist if appropriate, that better enables state agencies and local governments to evaluate proposed regulatory or administrative actions to assure that such actions do not result in an unconstitutional taking of private property. It Page 5 is not the purpose of this section to expand or reduce the scope of private property protections provided in the state and federal Constitutions. The attorney general shall review and update the process at least on an annual basis to maintain consistency with changes in case law. An analysis of that section shows that it also does not provide the basis for concluding that a negative impact on a specific private property right constitutes noncompliance with the planning requirements of thr GMA. RCW 36.70A.370 relates only to the questi~in of an unconstitutional taking of property. "fo the e~trnl your question addresses impacts upon specific properly that do not rise to the level of an unconstitutional taking, that statute does not apply. For possible constitutional taking claims, RC'W 36.70A.370 is designed to assist government entities in the evaluation of proposed comprehensive plans and regulations. While the Legislature provided a process to alert government entities to the potential costs of a "taking", it further provided that the review process is protected as an attorney client privilege. RCW 36.70A.370(4). This statute is directed to the process for evaluating impact, not the resultant decision. The GMA is directed at comprehensive decisions. The requirements deal with the necessary elements and considerations on a broad basis. RCW 36.70A.370 must be evaluated in terms of the overall intent of the GMA. With this view, the process is established to ensure that government entities consider the overall issue of the possible constitutional compensation requirement for the taking of property. It is not intended as a mechanism for addressing whether there is in fact a taking and, if so, what is the compensation that is required to be paid for a particular piece of property. For these specific situations, judicial review is available. Private property rights are protected by both the United States and Washington Constitutions. See Sintra, 119 Wn.2d at 13; Robinson v. Seattle, 1 19 Wn.2d 34, 49, 830 P.2d 318 (1992); Lucas v. South Carolina Coastal Coun., 505 U.S. 1003, 119 L.Ed.2d 561, 112 S.Ct. 2886 (1992). The courts may award monetary damages for constitutional takings. See Sintra, at 24. Thus, while the courts are available as forums to address such property rights claims, the Legislature has not given the Boards authority to provide relief for the "taking" of a specific property. We emphasize that the Boards' lack of jurisdiction over these individual claims in no way linuts the relief available in court. Indeed, the Legislature appears to Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 have made the judgment that the courts remain the proper forum to resolve an individual property owner's takings claim. In summary, the GMA does not contain any provision prohibiting the adoption of comprehensive plans or development regulations based solely on the fact that such plans or regulations may negatively affect a particular private property interest. Nor does the GMA authorize the Boards to grant relief to specific property owners if the comprehensive plans and regulations do have a negative impact upon those specific properties. Accordingly, we conclude that a private property owner cannot seek relief from a negative impact on that owner's specific property by appealing to the Boards. *733 Question 3: If the answer to Question 2 is yes, what criteria should the growth planning hearings board use in determining whether plans or regulations result in a negative impact on the owner's property? Since the answer to Question 2 is no, we do not reach Question 3. Question 4: Is a county or city that adopts plans or regulations pursuant to RCW 36.70A.040 required to give individual notice to each private property owner whose property may be negatively impacted as a result of the plans or regulations? Your final inquiry is whether government entities must provide individual notice to property owners whose property may sustain a negative impact from government action relating to comprehensive plans and development regulations. You specifically reference RCW 36.70A.140 and .290. RCW 36.70A.140 requires government entities planning under the GMA to establish a procedure for public input during planning and implementation. This section does not specifically require individual notice. RCW 36.70A.290 establishes the filing date for petitions before the Boards. (FN8) Such petitions must be filed within 60 days of the date cities and counties publish notice of the adoption of comprehensive plans or development regulations. This section does not specify the form of the publication. (FN9) Thus, the general city and county procedures for publication of ordinances and resolutions would govern. Cities are required to publish ordinances, or Page 6 summaries thereof, in their official ne~a~spapers. RC~~~~ 35.21.180, 35.22.288, 35.23.310, 35.24.220.: ~?,. 300 35.30.018, 35A.12.160. Similarly, counties are required to publish notices in their official newspapers. RCW 36.32.120(7). These statutes do not require that individual notice be given. We have found no provision in the GMA requiring notice directly to individuals who may be affected by actions taken under its provisions. Absent a specific statutory statement, there is no basis for imposing an individual notice standard with respect to planning actions. You also ask whether any other state law relating to comprehensive planning or development regulations requires individual notice. Chapter 36.70 RCW, which grants authority for county and regional planning, requires notice of public hearings on comprehensive plans to be given through publication in a newspaper of general circulation in the county and in the official gazette of the county if one exists. RCW 36.70.390. (FN10) Similarly, the planning commission statute. authorizing municipalities to adopt comprehensive plans, requires notice of proposed adoption to be given by publication in a newspaper and official gazcnc RCW 35.63.100. See also 3>A.63.070 (re•quiring the same for code cities). Again, neither of these sections mandates individual notice and thus no such requirement can be implied. Because of the broad nariire of this inquiry and the numerous statutes which arguably relate to comprehensive planning and development regulations, we cannot categorically state that no provisions exist which require individual notice. As discussed above, however, we reviewed the statutes specifically addressing the area of comprehensive planning by cities and counties and found no section requiring individual notice. (FN11) We trust this opinion will be of assistance to you. Very truly yours, Kenneth O. Eikenberry Attorney General Stacia E. Reynolds Assistant Attorney General William B. Collins Senior Assistant Attorney General Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 (FN1) For ease of reference those cities and counties either required to plan or choosing to plan, under RCW 36.70A.040, and thus subject to the requirements of the GMA, will be referred to in this opinion as "government entities". (FN2) Chapter 43.21C RCW is the codification of the State Environmental Policy Act (SEPA). That act requires that environmental impact be considered in authorizing government actions. See Cougar Mountain Assoc. v. King Cy., 111 Wn.2d 742, 765 P.2d 264 (1988). In the context of the GMA, SEPA requires that government entities consider environmental impacts in adopting comprehensive plans and development regulations. *734 (FN3) That section requires the Department of Community Development to adopt "procedural criteria to assist counties and cities in adopting comprehensive plans and development regulations that meet the goals and requirements of this chapter." These rules were filed with the Code Reviser, pursuant to the Administrative Procedure Act, on September 2, 1992. (FN4) The relevant portion of RCW 36.70A.300(1) provides: Such final order shall be based exclusively on whether or not a state agency, county, or city is in compliance with the requirements of this chapter, or chapter 43.21C RCW as it relates to plans, regulations, and amendments thereto, adopted under RCW 36.70A.040. (FNS) If the matter is remanded on the Boards' own motion or that of the petitioner, the Boards may hold a second hearing to determine compliance. RCW 36.70A.330(1), (2). If the Boards find the entity not to be in compliance, they transmit the finding to the Governor. RCW 36.70A.330(3). The Governor may take action including the withholding of funds. RCW 36.70A.340. (FN6) The requirement in RCW 36.70A.020(6), that local governments consider the goal of property rights, should not be confused with the requirement in RCW 36.70A.370, that local governments utilize the process established by the Attorney General to evaluate proposed regulatory or administrative actions to assure that such actions do not result in an unconstitutional taking of private property. RCW 36.70A.370(4) provides that the "process used by government agencies shall be protected by attorney client privilege.'° A copy of the process issued by the Attorney General in February 1992 is Page 7 attached to this opinion. It contains an express statement that "[a] private party, however, does not have a cause of action against an agency for failure to utilize the recommended process." (FN7) These elements are listed above at page 3. (FN8) In relevant portion, RCW 36.70A.290(2) provides: The date of publication for a city shall be the date the city publishes the ordinance, or summary of the ordinance, adopting the comprehensive plan or development regulations, or amendment thereto. as is required to be published. Promptly after adoption, a county shall publish a notice that it has adopted the comprehensive plan or development regulations, or amendment thereto. The date of publication for a county shall be the date the county publishes the notice that it has adopted the comprehensive plan or development regulations, or amendment thereto. (FN9) We note that the Boards have filed proposed regulations with the Code Reviser governing petitions for review filed with the Boards. See WAC 242-02-230, State Register 92-15-134 (Aug. 1992). However, this regulation does not impose a requirement upon local governments to give individual notice to each private property owner whose property nay be negatively impacted as a result of the plans or regulations. (FN10) Although chapter 36.70 RCW, entitled the Planning Enabling Act, authorizes counties and regions to plan, it does not require such action of specified government entities as does the GMA. chapter 36.70A RCW. (FN11) We note that SEPA requires that notice ~~f~ government action under its provisions requires notice be given to individuals by mailing notice of a particular project to the latest recorded real property owners who share a common boundary line with the property upon which the project is proposed. RCW 43.21C,080. The Washington State Legislature enacted amendments to the Growth Management Act dunng the 1991 session. Section 18 of the Act requires the Office of the Attorney General to develop an orderly, consistent process that better enables state agencies and local governments to evaluate proposed regulatory or administrative actions to assure that such actions do not result in unconstitutional takings of private property. Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 This process must be used by state agencies and local governments that are required to or choose to plan under RCW 36.70A.040. A private party, however, does not have a cause of action against an agency for failure to utilize the recommended process. The Act also provides that "The process used by government agencies shall be protected by attorney client privilege." See Laws of 1991, 1st Sp.Sess., ch. 32, § 18(2), (4). *735 Attorney General Eikenberry assigned a work group to develop an advisory memorandum on this subject along with a recommended process. This product was published in the Washington State Register, and widely distributed to government agencies, interested groups and individuals. The office also conducted seven public meetings around the state for comment on the subject. A substantial number of individuals and entities submitted written and oral comments. In response to this input, the Attorney General's Office has modified the initial draft advisory memorandum and recommendation. 1. The Attorney General's Office has prepared and will distribute an advisory memorandum to all government agencies which exercise regulatory authority impacting private property rights. This advisory memorandum includes discussions of the most recent Supreme Court decisions, along with examples of specific types of situations which raise constitutional questions. The advisory memorandum will be updated annually to reflect recent court decisions. 2. Local governments and state agencies should review the advisory memorandum with their legal counsel and distribute it to all decisionmakers and key staff. Government sensitivity regarding private property rights can be further increased if agency decisionmakers at all levels of government have consistent, authoritative guidance on the applicable constitutional limitations. This is particularly important for potential property uses which may be subject to the regulatory jurisdiction of multiple agencies. 3. Local government and state agencies should use the warning signals in the advisory memorandum as a checklist to determine whether a proposed regulatory action may violate a constitutional requirement. The warning signals are phrased as questions. If there are affirmative answers to any of these questions, the proposed regulatory action should be reviewed in detail by staff and approved by counsel. 4. State agency and local government actions implementing the Growth Management Act Page 8 programs, such as planning under the Gro~~ th Management Act, should be assessed by bo[h staff and legal counsel. Examples of these actions include the adoption of development regulations and designations for natural resource lands and critical areas, and the establishment of policies or guidelines for conditions, exactions or impact tees incident to permit approval. This assessment should also be used for the issuance or denial of permits for land use development. 5. The assessment should be incorporated into the agency's review process. Since the extent of the assessment necessarily depends on the type of regulatory action and the specific impacts on private property, the agency should have some discretion to determine the extent and the form of the assessment. For some types of actions, the assessment might focus on a specific piece of property. For others, it may be useful to consider the potential impacts on types of property or geographic areas. It is strongly suggested, however, that any government regulatory actions which involve warning signals be carehilly and thoroughly reviewed by legal counsel. As mentioned above, the Legislature has specifically indicated that the process used shall be protected by attorney client privilege. The agencies thercfure have the discretion to determine the extent of distribution and publication of reports developed as part of the recommended process. Government agencies, exercising regulatory authority which impacts the use of property, must be sensitive to the constitutional limits on their authority, and thereby respect private property rights. The failure to recognize these constitutional limits erodes public confidence in government. It may also subject the government agency to liability for costs and damages associated with the invalidation of the government regulatory action, or the imposition of an obligation to pay compensation for the taking of the property. The purpose of this advisory memorandum is to provide a tool to assist state agencies and local government in evaluating whether proposed administrative or regulatory actions may violate constitutional limitations. The memorandum outlines some general legal principles derived from cases ~~hich have interpreted the constitutional provisions in specific fact situations. Most of the cases involving regulatory takings issues have discussed the takings clause of the United States Constitution. Some opinions also refer to a substantive due process ri~zht under the Constitution. Both constitutional provisions Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 are discussed. The memorandum also includes a list of warning signals, i.e., situations which may involve constitutional issues and should be further assessed by staff and legal counsel. Some important cases are listed and described briefly in Appendix A. An outline of the Washington Supreme Court's most recent decision on this subject is in Appendix B. *736 This memorandum is intended as an internal management tool for agency decisionmakers. It is not a formal Attorney General's Opinion under RCW 43.10.030(7), and should not be construed as an opinion by the Attorney General on whether a specific action constitutes a taking or a violation of substantive due process. Legal counsel should be consulted for advice as to any particular action which may involve a constitutional taking or due process violation. Government has the authority and responsibility to protect the public health, safety and welfare. This is an inherent amibute of sovereignty. Pursuant to this authority, the government may properly regulate or limit the use of property. Accordingly, government may abate public nuisances, terminate illegal activity, establish building codes, safety standards or sanitary requirements. The government may limit the use of property through land use planning, zoning ordinances, setback requirements and environmental regulations. The government may also establish conditions or requirements for potential uses of property which may have adverse impacts. Conditions may include the granting of easements or donation of property for public use. Government regulation which goes "too far," however, constitutes a taking of property for which just compensation may have to be paid. This portion of the memorandum outlines the general principles courts use to determine whether a given government regulation effects a "taking" under the constitution. The Fifth Amendment to the United States Constitution provides that private property shall not be taken for public use without just compensation. Article 1, section 16 of the Washington State Constitution provides that "No private property shall be taken or damaged ... without just compensation...." The government may not, therefore, take property except for public purposes within its constitutional authority and only upon payment of just compensation. Government may take citizens' property and use the Page 9 land for a public building, a highway or some other public purpose. When it does so, it must compensate the property owner. Government historically acquires property and compensates landowners whose land it takes through a condemnation proceeding. The government may also become liable for the payment of just compensation to private property owners whose land has been either physically occupied or invaded by the government on a permanent basis. This is generally referred to as an inverse condemnation. Government land use regulation does not ordinarily constitute a taking of property. It may, however. amount to a taking if the regulation goes "too far." When this occurs, the government may be obhgatcd to pay compensation. There is no precise mathematical formula to determine when a regulation goes "too far." To determine whether this has occurred, courts engage in an ad hoc balancing of factors. Courts consider the economic impact of the regulation on the property, die extent of the regulation's interference with investment- backed expectations and the character of the government action. The character of the government action includes its purposes and the extent to which it destroys a property right such as the right to possess, exclude others from, or dispose of property. The Fourteenth Amendment to the United States Constitution has been interpreted by courts to include a right of substantive due process which protects an individual's property from arbitrary regulation. There is also a due process clause in article 1, section 3 of the Washington State Constitution. The Washington Supreme Court recently stated that the substanti~~e duc process limitation protects landowners from unduly oppressive regulation. The Court described a balancing test similar to the takings analysis im~ul~~ing the nature of the government interest and the extent of the impact on private property rights. If a land use regulation or ordinance is found unduly oppressive on the private landowner, the remedy is invalidation of the regulation or ordinance. The violation of constitutional limits on the scope of regulatory authority may have financial consequences to government agencies. The specific remedy depends on the nature of the government action, and the impact on the property owner. If a regulatory action is determined to be a taking of property, then just compensation is mandated. In determining just compensation, the court would consider the impact on the value of the property. If the Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 taking was due to an overly severe land use regulation, and was temporary and reversible, the government has the option of either implementing the regulation and paying just compensation, or withdrawing the regulation. If the regulation is withdrawn, the government may nonetheless be liable for a temporary taking. *737 The remedy for a violation of the substantive due process requirement is the invalidation of the regulation. The government agency should be aware that if the regulation is invalidated under this constitutional provision, there may be claims for damages or reasonable attorney's fees under the Federal Civil Rights Act. Government agencies should also be aware that under state law, a property owner who has filed an application for a permit has a cause of action for damages to obtain relief from agency actions which were arbitrary, capricious and made with knowledge that the action was in excess of lawful authority. See RCW 64.40. This state law also provides relief for failure to act within the time limits established by law. A person challenging an action or ordinance generally must exhaust available administrative remedies before seeking court review and has the burden of proving that the action or ordinance violates the constitutional provision. The following warning signals are examples of situations which may raise constitutional issues. The warning signals are phrased as questions which agency staff may review regarding the potential impact of a regulatory action on specific property. Agencies should use these warning signals as a checklist to determine whether a regulatory action may raise constitutional questions and require further review. The fact that a warning signal may be present does not automatically mean that there has been a taking. It means only that there could be a constitutional issue and that agency staff should carefully review the proposed action with legal counsel. If property is subject to regulatory jurisdiction of multiple government agencies, each agency should be sensitive to the cumulative impacts of the various regulatory restrictions. Regulation or action resulting in a permanent physical occupation of all or a portion of private property will generally constitute a taking. For Page 10 example, a regulation which required landlords to allow the installation of cable television boxes in their apartments was found to constitute a taking. See Loretto v. Teleprompter '.Manhattan ('-11~y' Corp., 458 U.S. 419 (1982). If the dedication of property is not reasonably and specifically designed to prevent or compensate for adverse impacts of a proposed development on a legitimate public interest worthy of government protection, there may be a taking. A court will review whether the action in question substantially advances a legitimate state interest. For example, the United States Supreme Court determined in Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), that compelling an owner of waterfront property to grant a public easement which does not substantially advance the public's interest in beach access, constitutes a taking. Similarly, the Washington Court of Appeals determined in Unlimited v. Kitsap Cy., 50 Wn.App. 723, 750 P.2d 651, review denied, 111 Wn.2d 1008 (1988), that compelling the landowner to dedicate strips of property to allow commercial access to a public road from a private property and to extend the road, constituted a taking. The Court held that the requirement of conunerial access served no public purpose and that the acquisition of the land for an extension for which the County had no immediate plans to build was not necessitated by Unlimited's development. On the other hand, state statutes require local governments to assure that adequate procisiuns have been made for the public health, safety and welfare before approving subdivisions. Miller .'. Port Angeles, 38 Wn.App. 904, 909, 691 P.2d 229 (1984). The Court in Miller approved of the exaction of land to widen roads necessary to handle traffic generated by the proposed development. Deprivation of all economically viable uses of the property may constitute a taking or a substantive due process violation. Unlike warning signals 1 and 2, it is important to analyze the regulation's effect on the property as a whole, and not just the impact on a portion of the property. It is also important to assess whether there is any profitable use of the remaining property available. See, for instance, Florida Ruck Industries, Inc. v. United States, 791 F.2d 2~9 3 (Fed.Cir.1986). The remaining use does not necessarily have to be the owner's planned use, a prior use or the highest and best use of the property. Among other factors. the court may consider whether there is an impact on investment- Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 backed expectations. *738 A regulation which has a significant impact on the owner's economic interest should be carefully reviewed. Courts will often compare the value of property before and after the impact of the challenged regulation. Although a reduction in property value, alone, may not be a taking, a severe reduction in property value often indicates a reduction, or elimination of reasonably profitable uses. Another economic factor which courts will consider is the extent to which the challenged regulation frustrates legitimate, investment-backed expectations of the owner. As with warning signal 3, these economic factors are normally applied to the property as a whole. Regulations which deny the landowner a fundamental right of ownership, including the right to possess, exclude others and dispose of all or a portion of the property are potential takings. The United States Supreme Court has held that barring the inheritance of certain interests in land held by individual members of an Indian tribe constituted a taking. Hodel v. Irving, 481 U.S. 704 (1987). The Washington Supreme Court has considered regulations which precluded houseboat moorage owners from terminating leases to regain possession as a taking. See Granat v. Keasler, 99 Wn.2d 564, 663 P.2d 830 (1983). Appendix A is a list of some of the principal cases dealing with regulatory takings issues, and a summary of the result in each case. These cases provide examples of how courts have resolved specific questions, and may be helpful for assessing how courts might resolve analogous situations. There are, of course, a number of other cases which have discussed or resolved regulatory takings issues, and some excellent law review articles on the subject. Appendix B is a brief summary of the most recent State Supreme Court decision on a regulatory takings issue. Presbytery of Seattle v. King Cy., 114 Wn.2d 320, 787 P.2d 907 (1990). Presbytery held that plaintiffs failure to exhaust administrative remedies barred judicial consideration of its takings claims. The opinion, however, analyzed the state and federal case law on takings, and discussed the applicability of both the takings clause and substantive due process clause to government regulatory actions. This opinion is a useful starting point for detailed legal analysis of whether a particular regulatory action constitutes a taking or a violation of substantive due Nage 11 process rights. This opinion should be carefully read in light of recent United States Supreme Court opinions on the subject (Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987); Keystone Bituminous Coal Assn v. DeBenedictis, 480 U.S. 470 (1987); and First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987)). There are also some other cases pending in the Washington and United States Supreme Courts involving regulatory takings issues. A Seattle historic preservation ordinance required a building owner conducting repairs to replace a "parapet" in a manner approximating the original design. The building owner claimed that the property was unconstitutionally taken. The State Supreme ('Dort ruled that the estimated cost of replacing the parapet would not be an undue hardship on the building owner. considering the market value and income producing potential of the building. The constitutional challenge to the historic preservation ordinance was, therefore. rejected. Lake Lawrence, Inc., a lessee from the State, sought plat approval from Thurston County for a proposed residential development. The County denied preliminary plat approval upon the ground that the proposed development would interfere with eagle perching and feeding areas. In response to a claim that this was an unconstitutional taking of private property the State Supreme Court held that it was not, primarily because the County had indicated that it would approve a less intensive development. (The County Commission had found no adverse impact from development of 11 of the 22 lots proposed by the developer.) There was a strong public interest in protecting the eagles, and there had been no showing that all reasonably profitable uses of the property ~~ere foreclosed. A mining company in 1972 pw~chased 1.~6U acres of wetlands (formerly part of the Everglades, but now excluded by road, canal and levee) for the purpose of mining limestone. In 1980 the company applied to the U.S. Army Corps of Engineers fora "section 404" permit for the dredging and filling involved in the mining operation. The application covered only 98 acres, and the court limited the case to that acreage. The Corps of Engineers denied the application, primarily for the purpose of protecting the wetlands. The courts indicated that actions under the Clean Water Act are not insulated from takings challenges. In this case, the denial of a permit by the Corps of Engineers reduced the property value by 95 percent, and eliminated all reasonably profitable uses, except Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 perhaps holding the property for speculation (which was not deemed a reasonable use, given that nothing could be done with the property). Under these circumstances, the courts held that the United States had unconstitutionally taken the mining company's property, and required that the government compensate the company. *739 A Seattle houseboat ordinance provided that the only reason that a houseboat moorage owner could evict a paying tenant would be for the purpose of using the moorage site for the owner's own non-commercial residence. When an owner appealed, the State Supreme Court, after reviewing its prior opinions on the subject, ruled that the Seattle ordinance was an unconstitutional taking of private property without just compensation. The Court's reasoning followed the reasoning of its earlier decision in Kennedy v. Seattle, 94 Wn.2d 376, 617 P.2d 713 (1980), where a similar ordinance was invalidated because it basically turned over perpetual occupancy rights of a person's property to another. Pursuant to federal legislation passed in 1889, portions of Sioux Indian reservation land were "allotted" to individual tribal members (held in trust by the United States). Allotted parcels could be willed to the heirs of the original allottees. As time passed, the original 160-acre allotments became fractionated, sometimes into very small parcels. Good land often lay fallow, amidst great poverty, because of the difficulties in managing property held in this manner. In 1983 Congress passed legislation which provided that any undivided fractional interest which represented less than 2 percent of the tract's acreage and which earned less than $100 in the preceding year would revert to the tribe. No compensation was to be provided tribal members whose property was lost under the statute. The statute was challenged by tribal members. The United States Supreme Court noted that under the balancing test traditionally applied to "takings" challenges, it might very well have held the statute constitutional. In this case, however, the character of the government regulation was "extraordinary" in that it destroyed "one of the most essential" rights of ownership--the right to devise property, especially to one's family. The Court held that such a step was an unconstitutional taking without just compensation, regardless of the public interest which might favor the legislation. A New York State statute required landlords to allow the installation of cable television on their property. The owner of an apartment building in New York City challenged the statute, claiming an Page 12 unconstitutional taking of private property. The installation in question required only a small amount of space to attach equipment and wires on the roof and outside walls of the building. The United States Supreme Court ruled that the statute was unconstitutional, concluding that "a permanent physical occupation authorized by government is a takin~~ without regard to the public interests that it may serve." The Court reasoned that an owner suffers a special kind of injury when a "stranger" invades and occupies the owner's property, and that such an occupation is "qualitatively more severe" than a regulation on the use of property. Maple Leaf Investors, appellant, owned property along the Cedar River in an area subject to flood control regulations. These regulations prohibited the construction for human habitation within the floodway channel; 70 percent of appellant's property lay within the floodway channel. On a challenge to the constitutionality of the flood control regulations, the Washington State Supreme Court examined the balance between the public interest in the regulations and the private interest in using the property without restriction. The Court found that the primary pwpose of the regulations was not to put the property to public use, but to protect the public health and safety. The Court noted that the regulations prevented harm to persons who might otherwise live in the Flood~~~ay. and also that structures built there nught break loose and endanger life and property downstream. Further, since 30 percent of the property was still usable, there was no indication that the regulations prevented protitable use of the property. Finally, the Court noted that it was not the State which placed appellant's property in thr path of floods. The Court upheld the constitutionality of the regulations. James and Marilyn Nollan, the prospective purchasers of a beach front lot in California, sought a permit to tear down a bungalow on the property and replace it with a larger house. The property lay between two public beaches. The Nollans were granted a permit, subject to the condition that they allow the public an easement to pass up and down their beach. On appeal by the Nollans, the United States Supreme Court reasoned that it clearly would have been an unconstitutional taking of the Nollans° property if the government (absent the permit application) had simply ordered the Nollans to give Che public an easement. The question remained whether this ~~as proper in the context of the Nollans' permit application. The permit condition is only valid if it substantially advances legitimate state interests. There was no indication that the Nollans' house plans interfered in Copyright (c) West Group 2003 No claim to original U.S. Govt. works Wash. AGO 1992 NO. 23 any way with the public's ability to walk up and down the beach. If the Nollans' plans would block views from the highway to the beach, requiring an easement along the beach front would not tend to solve that problem. There was, therefore, no "nexus" between any public interest which might be harmed by the construction of the house, and the permit condition. Lacking this connection, the required easement is just as unconstitutional as it would be if imposed outside of the permit context. (The Court noted that protecting views from the highway by limiting the size of the structure or banning fences may have been lawful.) *740 Grand Central Station has been declared a "landmark" under the City of New York's historic preservation ordinance. Penn Central, the owner of Grand Central, proposed to "preserve" the original station while building a 55-story building over it. The City denied the construction permit. In response to Penn Central's takings claim, the United States Supreme Court noted that there was a valid public purpose to the City ordinance, and that, so far as the Court could ascertain, Penn Central could still make a reasonable return on its investment by retaining the Station as it was. Penn Central argued that the landmark ordinance would deny it the value of its "pre- existing air rights" to build above the terminal. The Court noted that it must consider the impact of the ordinance upon the property as a whole, not just upon "air rights." Further, under the ordinance in question, these rights were transferable to other lots, so they might not be lost. The Court upheld the constitutionality of the ordinance. A property owner, Unlimited, sought a planned unit development approval to construct a convenience store on part of its property. The County approved the application subject to two conditions, which required Unlimited (1) to dedicate a 50-foot right of way to provide commercial access to the next door property, and (2) to dedicate a strip of its property sufficient to extend a county arterial along the front of its property. Unlimited appealed these conditions. The State Court of Appeals, relying upon the United States Supreme Court's decision in Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), stated that a private property interest can be exacted without compensation only where "the problem to be remedied by the exaction arises from the development under consideration, and the exaction is reasonable and for a legitimate public purpose." The Court ruled that providing commercial access to the adjacent private property served no public interest, and that nothing in Unlimited's proposal caused the need to extend the arterial. Thus, the conditions imposed by the County Page 13 were unconstitutional and the decision of the County was reversed. Most of the cases involving regulatory takings issues have focused on the takings clause of the L`nited States Constitution. Some opinions, however, also referred to a substantive due process limitation on regulatory actions. The Washington State Supreme Court in a recent opinion has attempted to distinguish the two theories, and thereby provide an analytical framework for resolution of specific issues. See Presbytery of Seattle v. King Cy., 114 Wn.2d 320, 787 P.2d 907, cert. denied, 111 S.Ct. 284 (1990). See also Orion Corp. ~~. Washington, 109 Wn.2d 621, 747 P.2d 1062 (1987)- cert. denied, 486 U.S. 1022 (1988) (Orion II). The Presbytery opinion is a necessary starting poin[ for a detailed legal analysis, especially for cases which will be resolved in state courts. This opinion, however, must be read in light of recent United States Supreme Court decisions on the takings clause. Those decisions, along with other federal court decisions, appear to view the relationship between substantive due process and takings concepts differently. The majority opinion in the Presbytery case, reads previous case law as indicating that the takings clause applies to a more narrow range of regulatory activity than the substantive due process clause. This distinction is critical because the remedy for a violation of the substantive due process clause is the invalidation of the regulation, rather than just compensation. Government agencies should be aware that the United States Supreme Court has accepted review of a South Carolina Supreme Court decision which similarly narrowed the range of regulatory activity subject to the just compensation remedy. The Court in Presbytery indicated that the first step in analyzing a constitutional challenge to a land use regulation must be to determine whether to analyze the challenge under the "takings" clause or the due process clause. A regulation which safeguards the public interest in health, safety, the environment or the fiscal integrity of an area will not normally be a taking. l~hr constitutional validity of such a regulation is analyzed by considering whether it violates substantive due process. The remedy for a violation of due process is normally invalidation of the ordinance. On the other hand, if the regulation goes beyond safeguarding those public interests, and enhances a publicly owned right in property, or if it destroys a Copyright (c) West Group 2003 No claim to original li.S. Govt. works Wash. AGO 1992 NO. 23 fundamental amibute of ownership (the right to possess, to exclude others and to dispose of property), then the regulation is subject to analysis under the "takings" clause. If it is a "taking," just compensation will be required. *741 After noting this threshold inquiry is necessary, the Court's opinion in Presbytery then goes on to describe how land use regulations are reviewed under both the due process and "takings" analyses. The opinion reasoned that land use regulations which enhance a publicly owned right in the property, or deny a fundamental amibute of ownership are subject to a takings analysis. Examples may include requiring dedication of property, the granting of easements, or interference with the right to possess, or dispose of property, or to exclude others. A takings analysis in a particular situation would first involve an assessment of whether the regulation substantially advances a legitimate state interest. If the court determined that the regulation substantially advanced a legitimate state interest, then it would be necessary to assess the extent of the economic impact on the property subject to the regulation. The factors the court might consider include: I. The economic impact of the regulation on the property; 2. The extent of the regulation's interference with investment-backed expectations; and 3. The character of the government action. The opinion did not suggest a specific mathematical test to determine when a taking occurs. If the court, after assessing these factors, finds that there has been a taking, just compensation is required. The opinion in Presbytery emphasized that even if a regulation did not amount to a taking, it is also subject to substantive due process requirements. In assessing whether a regulation has exceeded constitutional limitations, the court must consider three questions. First, is the regulation aimed at achieving a legitimate Page 14 public purpose`? There must be a public problem or "evil" for there to be a legitimate public purpose. Second, is the method used in the regulation reasonably necessary to achieve the public purpose? The regulation must tend to solve the public problem. Third, is the regulation unduly oppressive on the landowner'? If so, there may be a due process violation. The "unduly oppressive" inquiry invol~~~s balancing the public's interests against those of thr regulated landowner. Factors to be considered in analyzing whether a regulation is unduly oppressive include: 1. The nahtre of the harm soueht to be avoided: 2. The availability and effectiveness of less drastic protective measures; and 3. The economic loss suffered by the property owner. In assessing these three factors, the Court directed trial courts to the following considerations: a. On the public's side, the seriousness of the public problem, the extent to which the owner's land contributes to it, the degree to which the proposed regulation solves it and the feasibility of less oppressive solutions. b. On the owner's side, the amount and percentage of value loss, the extent of remaining uses, the temporary or permanent nature of die regulation, the extent to which the owner should have anticipated such regulation and how feasible it is for the owner to alter present or currently planned uses. The opinion did not suggest or establish a specific mathematical test to determine whether there was a violation of substantive due process requirements. I he remedy for a violation of substantive due process is invalidation of the regulation. It should be noted that some other decisions have not utilized the "unduly oppressive" standard in evaluating substantive due process issues. Government agencies should review this issue with their legal counsel. Copyright (c) West Group 2003 No claim to original U.S. Govt. works 29 LYLALR 247 Page 1 (Cite as: 29 Loy. L.A. L. Rev. 247) Loyola of Los Angeles Law Review November, 1995 Note and Comment *247 EXACTIONS FOR TRANSPORTATION CORRIDORS AFTER DOLAN v. CITY OF TIGARD David Ackerly Copyright © 1995 by the Loyola Law School of Loyola Marymount University; David Ackerly I. INTRODUCTION [N]or shall private property be taken for public use, without just compensation. FN1 Once we saw the black ribbon stretching to the horizon as the solution to all our transportation problems. FN2 As long as we could make the road longer or wider, we could solve congestion with just a bit more asphalt. FN3] Modern reality requires a variety of approaches for commuting, shopping, and business travel. Transportation corridors can promote efficiency, the formulation of comprehensive planning and intermodal solutions, and the protection of fragile *248 environmental and natural resources. FN4 Traditional zoning techniques may actually cause greater traffic congestion-- resulting in energy inefficiency and pollution production--by allowing large retail developments that make public transportation impractical, and by increasing the distance between residences and commercial structures. FNS When society benefits from preserving existing land uses--residences, shops, vacant lots, and even entire neighborhoods--property owners feel that society should bear the cost, not the individual property owner. FN6 In 1987 the Court began to shift the balance back toward private property rights. IFN7] In a series of decisions, the Court has expressed and refined a test for takings analysis. In Dolan v. City of Tigard, FN8 Chief Justice Rehnquist, writing for afive-four majority, expanded the "essential nexus" test of Nollan v. California Coastal Commission. FN9 Nollan required that the exaction sought by local government be substantially related to the harms imposed by the development. FN10 Now a simple nexus is no longer sufficient; the municipality bears the legal burden of showing that the exaction is roughly proportionate to the harm. FN11 However the Court, by imposing the rough proportionality requirement on top of the *249 essential nexus test, fails to allow city planners the flexibility necessary to design creative solutions to reduce the negative impacts of regional development. jFN 121 At first the concept of rough proportionality is seductive. Why should any government possess the power to exact remedies not directly related to the problems exacerbated by private development? The reality is that city planning requires consideration of a larger area than a single parcel. Neighborhoods and cities are vibrant, integral units. Each new or more intensive use of a site creates a regional impact. If the city fails to require the developer to mitigate the burdens created, the cost for mitigation falls on the existing neighboring property owners. The city planner's goal is to ensure that each development or improvement also contributes to the improvement of the community at large. F[ N13] Exactions fall on the party in the best position to absorb the cost-- the developer--who will, theoretically, realize a sizable profit on the investment. [FN141 The alternative is to place a growing tax burden on other property owners who are unable to externalize the cost. This alternative not only raises issues of fairness but may also destroy Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 2 (Cite as: 29 Loy. L.A. L. Rev. 247) marginal businesses, thus adding to the blight of the neighborhood. FN15 The Court in Dolan rejected the city of Tigard's demand for a bike path dedication. F[ N16] Holding that the city had failed to establish *250 that the path would alleviate the problems caused by increased car trips to a much larger hardware store on the site, FN17 the Court's new addition to the takings analysis potentially cripples the necessary flexibility of city planning. State and federal laws now support the expanding view of alternative transportation options. FN18 To ensure that development is not merely economically sustainable but also environmentally sustainable, municipalities must have the tools to alter existing traffic options in favor of intermodal ones. Part II of this Note examines the history of exactions and regulatory takings. Part III examines the background of Dolan and the basis for the decision. By examining the cases used to refine the test, Part IV seeks to determine how the Court will apply the test to future factual situations. Part V analyzes the holding in light of the equities involved and the need for alternative solutions to existing problems. Part VI concludes that the Court should use rough proportionality only to ensure that the exactions imposed on developments do not wildly exceed the burdens imposed. The test should not be used to tie the hands of city planners. II. HISTORY OF EXACTIONS AND REGULATORY TAKINGS The Fifth Amendment's guarantee ... [is] designed 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. FN19 A. Physical Invasions and Regulatory Takings As far back as Pumpelly v. Green Bay Company, FN20 the Court established that the permanent physical invasion of a property right constituted a compensable taking. F[ N21] In Pumpelly, a dam constructed *251 downriver of the subject property caused permanent flooding of the site and destruction of the property's value. Fj_N22] Seventy years later the Court held that frequent takeoffs and landings by military aircraft at low altitudes that forced chicken farmers to abandon their business constituted a physical invasion. FL N231 The Court more recently upheld the physical invasion standard in Loretto v. Teleprompter Manhattan CATV Corp., F[ N24] in which a local regulation requiring landlords to allow installation of cable television junction boxes on their property was held to effect a compensable taking. FN25 The Court has upheld regulatory takings--restrictions by the municipality on the use of property--as a proper application of the police power. FN26 After the citizens of Kansas amended their constitution in 1880 to forbid the manufacture and sale of alcohol, FL N271 two brewery owners were sued for continuing a nuisance in violation of the amendment. F[ N28] They brought suit for compensation, claiming that the state's action caused their breweries to lose all or most of their *252 value. F[ N29] The Court held that the police powers of astate--those that regulate the health, safety, and welfare of the public--are subjects over which the federal government has no power. FN30 The police powers allow the abatement of a nuisance, even when the value of the property is destroyed. F[ N31] Such actions do not violate the Fourteenth Amendment, which is not incompatible with the principle "that all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community." FN32 The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken from an innocent owner. F[ N33] Later cases found the Court upholding regulations that effectively prohibited the legitimate existing uses of property, including a livery stable, F[ N34] a brick yard, FN35 a grove of cedar trees, FI N36] a gold mine, FN37 and a gravel pit. FN38 In the words of Justice Holmes, "the general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." FN39 Holmes held invalid a regulation prohibiting coal mining that might cause surface subsidence, even if it allowed the destruction of a home *253 built above the ore. FN40 Sixty-five years later, in Keystone Bituminous Coal, the Court sought to reconcile Holmes' view with a separate line of cases that upheld similar regulations. FN41 Where Justice Holmes Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 3 (Cite as: 29 Loy. L.A. L. Rev. 247) saw the earlier statute as wrongfully restoring rights freely contracted away, FL N421 the Court in Keystone Bituminous Coal found the new act was a public, not a private, benefit as it applied to all the surface lands overlying coal fields. F[ N43] The public goal was "'conservation of *254 surface land areas,"' FN44 which the Court considered a valid exercise of the police power. F[ N451 Had the act eliminated all economically viable use of the land, the state would have committed a compensable regulatory taking. F[ N46] Petitioners claimed a taking based on the estimated twenty-seven million tons of coal the association could not mine as a result of the restrictions. FN47 But that quantity of coal represented less than two percent of the petitioners' total potentially minable coal. ~FN48] None of the mines had shown an operating loss as a result of the regulation; F~ N49] therefore, the coal operations were economically viable enterprises. Ff N50] In holding that the two percent was inseparable from the entire volume of coal owned by the mining companies, the Court relied on Penn Central Transportation Co. v. New York City. FN51 In Penn Central, the city, under an historical landmark preservation statute, had prevented the owners of Grand Central Terminal from constructing a fifty-story office tower above the historical building. FN52 The Court rejected the owners' takings claim, refusing to consider the air rights as severable from the remainder of the full block parcel under a takings analysis. F[ N53] The owners could continue to use the terminal, which produced revenue, FL N541 and could sell or transfer the air rights to other nearby sites. FN55 A physical invasion of private property by the government, or its agent, will always constitute a taking. FN56 For a regulatory taking count to succeed, however, the plaintiff must allege not only an *255 almost complete destruction of economically viable use of the property, but that destruction must affect the broadest possible definition of the extent of the property. FN57 B. Exactions, From Subdivisions to Redevelopment Subdividing a piece of property can greatly increase its value. But the same increase in land use density that generates the greater value also creates a burden on the local infrastructure. F[ N58] Courts since the 1920s have upheld subdivision exactions as a means of ameliorating these burdens. FN59 These exactions are not a taking or an act of eminent domain because they are "reasonable and necessary for the public welfare" and are granted in exchange for the privilege of recording the developer's plat. FN60 However, the municipality's exaction must conform with the state's enabling legislation. Fj N61 ] *256 With diminishing funds available for land condemnation and capital improvements, cities have imposed a wide variety of in lieu fees on proposed subdivisions. FL N62] The fees imposed may go beyond the immediate impact of the development to alleviate regional problems exacerbated by the development. F[ N63] C. Modern Takings Analysis The beginnings of the modern trend in takings analysis were apparent in Keystone Bituminous Coal. F[ N64] Justices Powell, O'Connor, and Scalia joined Chief Justice Rehnquist in his dissent. FN65 Finding little difference between the two Pennsylvania statutes, Fj N661 the Chief Justice distinguished the Subsidence Act from the Court's historical analysis of nuisance statutes, which avoided a takings problem by "rest ing on discrete and narrow purposes." FL N671 But more importantly, the dissent considered the twenty-seven million tons of coal *257 separately from the remaining coal. FN68 Disdaining the majority's determination that this challenge was to a regulatory taking, not a physical invasion, the Chief Justice concluded the distinction was irrelevant when discussing the impact on property rights. F~ N691 While a physical invasion will always destroy the full bundle of property rights, the impact of a regulation may destroy only one or more of the individual sticks in that bundle. FN70 Chief Justice Rehnquist returned to the nuisance rationale that serves as a basis for most land use and environmental law, finding that at most it serves as an exemption to compensable takings for two reasons. FN71 First, the Court recognized that nuisance regulations had "discrete and narrow purposes" justifying the government's right to exercise its police power. FL N721 Second, and more important in light of the dissent's conclusion that the twenty-seven million tons of coal were a separate interest from the remainder, the Court has previously upheld regulations that have dramatically reduced the value of a parcel but has never upheld one that has extinguished the Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 4 (Cite as: 29 Loy. L.A. L. Rev. 247) entire value. FN73 By defining the coal that the companies could not mine as a distinct property interest, the Chief Justice had no trouble determining that the Subsidence Act was a compensable taking. FN74 *258 1. Nollan and essential nexus The Nollans owned a small beach cottage in a strip of private residences located between two public beaches. jFN751 They sought to replace the structure with athree-bedroom house. F[ N761 The Coastal Commission (Commission) approved the permit contingent upon the Nollans granting a public easement to the beach between the high tide line and their existing concrete seawall. FN77 When challenged, the Commission justified this exaction as necessary to prevent a solid wall of two-story residences from creating a psychological barrier to the public. FN78 The Commission reasoned that if the public could not see the beach, then it could not realize that it had a right to pass below the high tide line between the two public beaches. FN79 After the Commission promulgated its regulations, it approved forty- three shoreline development permits in the same tract, each one carrying the same dedication as the Nollans'. FN80 The California Court of Appeal upheld the dedication as sufficiently related to the burden created, even if the burden was a cumulative one not created solely by the Nollans' home. FN81 Further, the court held that the regulation did not deprive the Nollans of all reasonable use of their property. FC N821 *259 The Supreme Court reversed. FN83 Justice Scalia, writing for the five-person majority, began by noting that if the Commission had required the Nollans to dedicate the beachfront easement without conditioning it on a building permit, then that action would constitute a taking. F[ N841 However, the majority assumed, without deciding, that the Commission's purposes were valid. F[ Ng5] They further assumed that the Commission could deny the permit unless the denial so drastically interfered with the Nollans' use of their property that the action itself constituted a taking. FN86 Had the Commission proposed an exaction that protected the public's right to view the ocean, the Court would have upheld it. FN87 But the required dedication of access to the beachfront lacked an "essential nexus" to the Commission's stated purpose. FL N88] Justice Scalia rejected the comparison between visual access and physical access, deeming it a mere play on words. F[ Ng9] Without an essential nexus between the harm caused and the exaction sought, the Commission's act became an attempt to take land without compensation. FN90 2. Lucas Justice Scalia had another opportunity to narrow the takings analysis in Lucas v. South Carolina Coastal Council. FN91 David Lucas purchased two residential lots on a barrier island intending to build single family residences. FN92 After he purchased the lots, South Carolina passed the Beachfront Management Act, FN93 which effectively *260 prohibited all construction on either lot. FN94 Lucas filed suit seeking compensation, and the trial court held the statute had destroyed "'any reasonable economic use of the lots."' F[ N95] Justice Scalia examined the "harmful or noxious uses" standard applied in early Court takings decisions. F~ N96J He found the nuisance test was equivalent to the modern takings analysis as stated in Agins v. City of Tiburon, FN97 namely that "'land use regulation does not effect a taking if it "substantially advances legitimate state interests.""' fFN9g] Justice Scalia noted that a court could read the regulation either as harm preventing and therefore not compensable, or benefit conferring and compensable. FN99 Which reading a given court applies to the regulation "depends primarily upon one's evaluation of the worth of competing uses of real estate." ~FN100 Rejecting noxious use as an objective criterion, F[ N10 ~ the majority returned to the bundle of rights an owner gains upon acquiring title. F[ N102] All owners must anticipate some use restrictions on their property under a lawful exercise of the police power. FN103 However, if a statute is enacted after the owner acquires title, and that statute destroys all economically valuable use, then that statute has effected a taking of the property. [FN104] If the owner's proposed use would constitute a nuisance to neighboring properties, the state could then enjoin the use without employing inverse condemnation. Fj N105] Such a proposed use was always unlawful, even if the state had not explicitly proscribed it. FN106 The new test for a total taking of property must include an analysis of the harm posed to neighboring properties, the appropriateness *261 of the proposed use for the particular site, and any possible mitigation measures. FN107 On Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 5 (Cite as: 29 Loy. L.A. L. Rev. 247) remand, the state was instructed to identify nuisance principles under state law, which would meet the new standard, or grant Lucas's petition for compensation. F[ N108] Four justices filed separate opinions, reviewing the same briefs, yet finding a seemingly different set of facts. Justice Kennedy felt it necessary to examine the reasonableness of Lucas's expectations. FN109 Justice Blackmun noted that during half of the previous forty years the two lots in question were either part of the beach or flooded twice daily at high tide. FN110 In fact, both lots were completely submerged between 1957 and 1963. FN111 After Lucas moved to the island and before he purchased the two lots, the homes in the area required repeated sandbagging and construction of two seawalls to protect them from the encroaching ocean. FN112 The South Carolina statute included a finding that beachfront construction had, among other effects, "accelerated erosion and threatened adjacent property," FN113 thereby acting as a private nuisance under the majority's scheme. FN114 Next, Justice Blackmun challenged the majority's characterization of the property's state as valueless. FN115 Justice Blackmun argued that the owner could still use the site to camp, live in a tent or movable trailer, swim, or picnic. FN116 The owner could also sell the property, which would have value to neighbors as protection for their own property. FN117 Finally, Lucas retained the right favored by both Justice Scalia and the Chief Justice, the right under Kaiser Aetna v. *262 United States to exclude others. FN118 If the gravel pit in Goldblatt v. Town of Hempstead FN119 and the shuttered brickyard in Hadacheck v. Sebastian [FN120] retained residual value, then Justice Blackmun had no trouble finding such value in Lucas's lots. F[ N121] Justice Stevens, after finding no support for the majority in the Court's past decisions, FN122 predicted that the new test "will, I fear, greatly hamper the efforts of local officials and planners who must deal with increasingly complex problems in land-use and environmental regulation.... These officials face both substantial uncertainty because of the ad hoc nature of takings law and unacceptable penalties if they guess incorrectly about that law." FN 123 III. DOLAN V. CITY OF TIGARD A. Expanding a Hardware Store in Six Easy Years [Q]uestions arising under the Just Compensation Clause rest on ad hoc factual inquiries, and must be decided on the facts and circumstances in each case. FN124 Florence Dolan owns a chain of plumbing and hardware supply stores, FN125 including the 9700 square foot A- Boy Electric and Plumbing Supply store located at 12520 SW Main Street in the Central Business District of Tigard, Oregon. FN126 The existing structure dates from the late 1940s. [FN127] Tigard is a city of some 30,000 residents on the outskirts of Portland. F[ N128] The store is located on a 1.67 acre lot that also includes athirty-nine space paved parking lot that covers *263 forty percent of the property. FN129 Main Street marks the southern boundary of the property, and Fanno Creek crosses the southwestern corner marking the western boundary of the site. FLN130] In 1989 Mr. and Mrs. Dolan applied to redevelop their property. FN131 The City approved the design subject to conditions the Dolans found unacceptable. FN132 They appealed to the Land Use Board of Appeals (CUBA), FN133 which rejected their takings challenge as not ripe for review. FN134 The Dolans had failed to seek a variance from the City. F[ N135] In March 1991 the Dolans made a virtually identical application to the City including a variance request. F[ N1361 The proposal included razing the existing store, constructing a new 17,600 square foot hardware store, and paving a thirty-nine car parking lot. F[ N137] Future plans for the site consisted of a separate structure to house rental businesses and an expansion of the parking lot. FN138 In compliance with Oregon's Comprehensive Land Use Management Program, FN139 Tigard adopted a comprehensive plan in its Community Development Code (CDC). FN140 Properties located in the Central Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 6 (Cite as: 29 Loy. L.A. L. Rev. 247) Business District must leave at least a fifteen percent greenway, so that structures and pavement will not cover more than eighty-five percent of the site. FN141 The site is also located within the Action Area Overlay Zoning District. FN142 To reduce street congestion, *264 the City adopted acity-wide system of pedestrian and bike paths as part of its Congestion Management Plan. FN143 The bike path routes were written into the general plan, and any new development on a property containing a planned bike path was required to dedicate that portion of the property for use as a bike path. FN144 The general plan included a bike path cutting across the Dolans' property running parallel to Fanno Creek. FN145 The City's Comprehensive Plan recognizes that automobile trips "will remain the most dominant source of transportation." FN146 Although approximately forty miles of sidewalks or bike paths existed in Tigard in 1991, bikes were used primarily for recreation. FN147 Existing bike paths were concentrated around schools and new subdivisions. FN148 However, the plan did foresee the bicycle and pedestrian pathways possibly replacing some short automobile trips for shopping purposes. FN149 The City's bike path plan supplemented the Washington County Bicycle Pedestrian Pathway Master Plan, which was adopted in 1974. F[ N150] The major obstacle for implementing *265 this master plan was the lack of public funds for acquiring right-of--ways. FN151 The bike path along Fanno Creek would connect the hardware store on Main Street with the Civic Center and the primary employment corridor along Hall Boulevard. FN152 Fanno Creek floods seasonally in Tigard. FN153 The City adopted a Master Drainage Plan in 1981, which contained improvements to the creek bed, including excavation next to Mrs. Dolan's site and restrictions on impervious construction adjacent to the creek. FN154 Increased runoff from structures or paved lots would cause greater rates of flow during storms. FN155 All property owners share the costs for these improvements, with those adjacent to the creek paying more for the greater benefit they realize. FN156 The Dolans' proposed development was within the specified zoning for the site, and the City Planning Commission gave conditional approval subject to the requirements of the CDC. FN157 These requirements specified that those portions of the Dolans' property falling within and adjacent to the 100-year storm floodplain of Fanno Creek be dedicated for a protective greenway. FN158 Part of that greenway was to include a pedestrian and bike path in accord with the general plan. FN159 The greenway exaction amounted to roughly ten *266 percent of the property. FN160 The property owner generally bears the cost of constructing the bike path. FN161 The Dolans filed for a variance from these conditions. FN162 They contended that the dedication was a taking under both the Oregon and U.S. Constitutions. FN163 The planned development necessitated building on part of the land required for dedication. FN164 Additionally, they argued that no park existed for the bike path to access. FN165 They did not propose other measures to mitigate the impact of their development. FN166 The CDC permits variances only when a literal interpretation of the zoning would cause "an undue or unnecessary hardship." IFN1671 Applying this standard, the Commission rejected the requested variance. , FN168 In doing so the Commission found it reasonable to assume that customers and employees could use the required bike path for both transportation and recreation. Fj N169] The site plan included a bike rack. FN170 Further, the Commission found that the bike path could "offset some of the traffic demand on ... nearby streets and lessen the increase in traffic." FN171 The longterm plan for *267 development envisioned an extensive and continuous pathway system, which a variance that allowed for construction over the designated right-of--way would jeopardize. FN172 The City found that the proposed development would generate an additiona1937 car trips per week. FN173 The Commission also found that the dedication of the floodplain was reasonably related to the increased use of the site. FN174 "The development, which creates the need, should be responsible for providing the City with the necessary data for making sound decisions. The burden is on the applicant to prove that a project will not adversely affect the environment or create undue future liabilities for the City." F[ N175] Paving the gravel parking lot, combined with the almost doubled area of the roof, would increase storm water flow into Fanno Creek thereby adding to the City's flood control needs. FN176 The City's Master Drainage Plan apportions costs to property owners as direct or indirect benefits. FN177 Properties adjoining the *268 creek bed receive the direct benefit from reduced flooding. FN178 Other property owners benefit indirectly from the lack of flooded roads and the subsequent limitations on emergency services. FN179 The City only required that the new construction not encroach upon the floodplain, which would limit the City's ability to make future improvements for flood control. FN180 The City planned to construct and maintain a Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 7 (Cite as: 29 Loy. L.A. L. Rev. 247) landscaped buffer between the new bike path and the commercial development. FN181 The Dolans appealed to the LUBA based on the lack of a nexus between the proposed development and the exaction. FN182 LUBA assumed the City's findings were supported by substantial evidence. FN183 The City found that the larger store and parking lot would generate more car trips by customers and employees, and the Commission found a"'reasonable relationship"' between the increased traffic generated and the bike path, which would serve as an alternate form of transportation. FN184 LUBA also found a reasonable relationship between the increased runoff caused by the new construction and the greenway exaction. FN185 The court of appeals rejected the Dolans' argument that Nollan required an essential nexus between the impacts and conditions of development. FN186 The supreme court failed to establish a standard *269 for the third inquiry in Nollan, FN187 the relationship between the impact of the development and the exaction sought. FN188 In rejecting the petitioners' demand for a more stringent standard under the Fifth Amendment, the court relied on Commercial Builders v. City of Sacramento FN189 as the controlling case law in the Ninth Circuit. FN190 The court found that the argument fora"'substantial relationship"' or "'essential nexus"' was based on language found in the second, not the third, prong of the Nollan test. FN191 The reasonable relation was satisfied by LUBA's finding that the bike path was reasonably calculated to alleviate traffic congestion and provide for greater nonvehicular access to the area. FN192 The court dismissed arguments that the exaction was an invasion of the property affecting it as a whole, or alternately that it denied all economically viable use of the land. FN193 The Dolans appealed on the issue of the correct standard, arguing that an essential nexus or substantial relationship was required. FN194 The Oregon Supreme Court affirmed the court of appeals' interpretation of the Nollan test. FN195 The court reviewed the necessity that the land use regulation, in order to not effect a taking, had to substantially advance a legitimate state interest and not deny *270 the owner of an economically viable use of the property. FN196 Since the Dolans had not challenged the City's findings, the court found an essential nexus between the increase in traffic congestion due to development of the site and the alternative forms of transportation. FN197 Similarly, the exaction was held reasonably related to the expansion of the business. FN198 The court also rejected the Dolans' claim that the exactions constituted a per se taking because the dedication would result in a permanent, physical occupation of their property. FN199 The dissent agreed that the exaction served a legitimate state purpose, FN200 but found that the City's plan to complete its proposed system, by acquiring the easements, did not justify why the property owner should bear the burden. FN201 If a mere showing of a legitimate public need was enough, then there was no need for the relationship prong, no matter what standard was applied. FN202 Rejecting the "'magic words"' from each successive Supreme Court decision, FN203 the dissent held that " i f in fact the government needs to take part of a landowner's property because of intensified uses of the developed property, imposing the burden of showing precisely why the need in fact exists is a modest burden to place on the government. Such precision is lacking in this order." FN204 *271 B. The U.S. Supreme Court Following her husband's death, Mrs. Dolan filed a petition for writ of certiorari. FN205 The Supreme Court granted certiorari to determine whether the nexus analysis required a more precise relationship between the burdens caused and the exactions sought. FN206 First, the Court noted in dictum that if the City had simply required Mrs. Dolan to dedicate the land without tying it to the redevelopment of the property, Tigard would have taken Mrs. Dolan's property in an inverse condemnation. FN207 But Chief Justice Rehnquist affirmed the police power of local government to restrict land use and reduce property values without compensation. FN208 The majority adopted the Agins test that a land use regulation is valid if it "'substantially advances legitimate state interests' and does not'den y an owner economically viable use of his land."' FN209 The Court then distinguished these tests from the present case. Mrs. Dolan applied for a building permit to develop a single parcel, not for a change in zoning. FN210 Nor did Mrs. Dolan appeal from a use restriction, but from a permit approval predicated on an exaction. FN211 Applying the Nollan test, the Court found the first prong-- essential nexus--easily satisfied. FN212 Preventing the flooding of Fanno Creek and reducing traffic congestion through alternative modes are both legitimate public purposes that satisfy the essential nexus test between Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) "legitimate state interest" and the exaction sought by the City. ~FN2131 Page 8 In Nollan the Court found the essential nexus lacking, so it did not address the exact nature of the relationship between the exaction *272 and the impact of the development. FN214 To determine the applicable standard, the Court turned to state law. FN215 1. Developing the test a. any rational basis The Court first examined a challenge to a Montana zoning ordinance requiring dedication of at least one-ninth of all proposed subdivisions, excluding roads, for public parks and playgrounds. FN216 The property owner challenged this statute as an act of eminent domain under the guise of the police power. FN217 The Supreme Court of Montana held that the standard of reasonableness used to evaluate the exercise of police power required an elastic and progressive application, not bound by the limits of precedent. FN218 As in Nollan the court noted that the act of seeking approval of a subdivision plat was voluntary, and the City could impose any reasonable condition on the privilege of recording the plat. FN219 Applying a strict standard of review, the court upheld the statute because (1) the plaintiff introduced no evidence rebutting the presumption of validity, and (2) any rational basis is all that is required to uphold a legislative act. FN220 The Montana court indirectly cited Ayres v. City Council of Los Angeles FN221 for the proposition that a local government may require the developer of a subdivision to provide streets necessitated by the increase in activity due to the development. FN222 The Yellowstone County regulation would have gone too far, however, if it required dedication of a major thoroughfare whose primary benefit was to the entire community instead of subdivision residents. FN223 *273 The Chief Justice rejected this standard, finding it "too lax to adequately protect petitioner's right to just compensation if her property is taken for a public purpose." Fj N224] b. specific and uniquely attributable The Court next looked at a very exacting standard, first developed in Pioneer Trust & Savings Bank v. Village of Mount Prospect. FN225 In Pioneer Trust the plaintiff sought to record a plat subdividing the property into approximately 250 residential units. FN226 The plat conformed with all municipal requirements except that it failed to dedicate six and seven-tenths acres for public use. FN227 The Illinois Supreme Court had previously considered the statute for narrowly tailored exactions, once upholding a requirement that a subdivider install curbs and gutters along the street, FN228 and once striking down an in lieu fee provision for educational facilities. F[ N229] In the latter case the court referred to the distinction in Ayres while holding that "it does not follow that communities may use ... approval of a subdivision plat to solve all of the problems which they can foresee." FN230 In rejecting Mount Prospect's condition precedent for approval of the plat, the Pioneer Trust court found that the village's schools were already near capacity. F[ N231] This was not a result of the planned subdivision. FN232 Either the village could have developed more slowly, or the school system expanded more rapidly, so that the need for educational facilities would not be "specifically and uniquely attributable" to the planned subdivision. FN233 The court explained its standard: If the requirement is within the statutory grant of power to the municipality and if the burden cast upon the subdivider is specifically and uniquely attributable to his activity, then *274 the requirement is permissible; if not, it is forbidden and amounts to a confiscation of private property in contravention of the constitutional prohibitions rather than reasonable regulation under the police power. FN234 The Court rejected this direct proportionality test, holding that the U.S. Constitution does not "require[ ]such exacting scrutiny." FN235 Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) c. reasonable relationship Page 9 The Court next looked to the approach adopted by a majority of states, which required a "reasonable relationship" between the exaction and the impact. FN236 In Simpson v. City of North Platte, FN237 the Nebraska Supreme Court invalidated a city ordinance that required anyone seeking to erect or enlarge a structure to dedicate land for use as a public street to the full width required by the comprehensive plan. FN238 The Nebraska Supreme Court based its decision on the Nebraska takings clause: "'The property of no person shall be taken or damaged for public use without just compensation therefor."' FN239 Moreover, the court applied a "reasonable relationship" test. FN240 If the dedication had a nexus to the planned property use, it constituted a valid exercise of the police power. FN241 If, however, the landowner's application was "merely being used as an excuse for taking property," FN242 then it was a compensable act of inverse condemnation. FN243 In order to be reasonable, the relationship had to be "'substantial, demonstrably clear and present."' FN244 Here the court found that the dedication constituted a form of "'land banking"' to preserve the open land for possible future extension of the dead- end street in question, a requirement unrelated *275 to the development of the site. FN245 The court found that the variances in the ordinance were too "severe and unusual" to rescue the ordinance. FN246 Similar reasoning led the Wisconsin Supreme Court to uphold in lieu fees assessed to a developer in Jordan v. Village of Memomonee Falls. F[ N247] Within the newly platted subdivisions, the village ordinance required the developer to dedicate land for schools, parks, and recreational needs. FN248 If the dedication was "not feasible or compatible with the comprehensive plan," FN249 the ordinance assessed a fee of $200 per residential site. FN250 The developers challenged the fee as an unconstitutional taking without compensation, but the court concluded that the municipality could condition plat approval upon the subdivider's supplying all necessary improvements, including transportation, water, sewage, schools, parks, and playgrounds. FL N2511 The court held that the "specifically and uniquely attributable" test that the Illinois Supreme Court applied in Pioneer Trust FN252 was an acceptable yardstick if not interpreted to impose too great a burden of proof on the City, FN253 preferring a "reasonable connection" standard. FN254 Finding that in most instances the City could not prove that a particular subdivision uniquely generated a need for a new park or *276 school site, the court determined that the City could show that a group of subdivisions, over a period of years, cumulatively created a need for a park or school. FN255 In the absence of contravening evidence, the court found this cumulative effect sufficient to justify the exaction or an in lieu fee. FN256 Although the court held the exaction was reasonable, the Village could not exercise its police power under the Wisconsin Constitution FN257 unless expressly authorized by the legislature. F[ N25g] If a subdivision was too small to justify dedication of land for a school, the court held that it was inequitable to completely release the subdivider from the obligation. FN259 The fee was neither a tax nor a special assessment, but rather an equalization fee that allowed equal treatment of all subdivisions, regardless of their size. FN260 The Minnesota Supreme Court upheld a similar subdivision exaction in Collis v. Bloomington. FN261 The appeal was solely a facial challenge to a state enabling statute that authorized municipalities to condition subdivision approval on dedication of land for parks and playgrounds, and to the city ordinance that implemented the statute by requiring the dedication of ten percent of the proposed subdivision, or an in lieu fee. F[ N262] The court upheld the ordinance under the federal Takings Clause and the corresponding section of the Minnesota Constitution. FN263 In adopting the Jordan test FN264 of a reasonable relationship between the dedication and the burden, F[ N265] the court noted that a subdivider is not "defending hearth and home against the *277 king's intrusion," but is a "manufacturer, processor, and marketer of a product ... simply attempting to maximize his profits from the sale of a finished product." FN266 The court regarded a subdivision without streets, lights, storm drains, and other conveniences as a defective product, one that posed a greater threat to a municipality than defective consumer goods. FN267 The separate issue of the ten percent dedication caused greater concern. FN268 A subdivision of homes on large lots would create a far smaller burden on the city's infrastructure than high rise apartments constructed on the same property. FN269 Nonetheless, the court found that the language of both the ordinance and the enabling statute, Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 10 (Cite as: 29 Loy. L.A. L. Rev. 247) which only proposed the ten percent as a general yardstick, ~FN270J allowed judicial review of the exaction and was therefore facially constitutional. FN271 On a similar set of facts, the Texas Supreme Court upheld an in lieu fee as a condition to subdivision plat approval in City of College Station v. Turtle Rock Corp. FN272 The ordinance required that the City collect fees to establish an account for acquisition or development of a neighborhood park. FN273 Unless the City spent these fees within two years, the ordinance required the City to grant the developers a refund. FN274 The developer, Turtle Rock, challenged the fees under the Texas Constitution's takings provision. FN275 The court recognized that "there is ... no one test and no single sentence rule .... The need to adjust the conflicts between private ownership of properly *278 and the public's interests is a very old one which has produced no single solution." FN276 The lower court had held all exactions for park land per se invalid since it did not believe parks were necessarily beneficial to a neighborhood. FN277 The exactions, therefore, lacked a "substantial relation to the safety and health of the community." F[ N278~ The state supreme court held that in addition to this nexus requirement, a constitutionally valid exaction had to be reasonable, not arbitrary. FN279 In finding that the ordinance met both prongs, the court first relied on persuasive holdings from other states declaring park land dedication as a valid exercise of the police power. FN280 The lower court relied on an earlier decision holding such exactions unconstitutional, FN281 but the supreme court distinguished that case as violative of the second prong. FN282 The ordinance in question had no provisions requiring the City to spend the in lieu fee on land or improvements near the development--a benefit to the ultimate home buyers--nor did the ordinance place a time limit on the use of the fees exacted. FN283 Therefore, the exaction was unconstitutional as arbitrary and unreasonable; with no limits on how or when the City could spend the fees collected, the function was more a tax than an assessment under the police power. FN284 Since the dedication did not render the entire property "wholly useless" or cause "total destruction" of the economic value of the entire tract, there was no taking. FN285 The court summarizes its reasonable connection test as a balance between need and benefit that will ensure the subdivision receives a beneficial use of the exaction. FN286 The court cites as examples of evidentiary considerations *279 the "size of lots in the subdivision, the economic impact on the subdivision, and the amount of open land consumed by the development." FN287 Requiring a deposit of exaction fees into the municipality's general fund did not disturb the Utah Supreme Court in Call v. City of West Jordan. FN288 The court found that use of the funds for the stated purpose was assured by the good faith of the public officials, and that collection of funds for a specified purpose automatically creates a special trust within the general fund in favor of the designated benefit. FN289 The West Jordan ordinance required that the developer dedicate seven percent of the land in a subdivision, or its equivalent value in lieu, for flood control or public parks. FN290 The court upheld this provision, in addition to exactions for sewers and other improvements. The court justified its ruling by comparing the slums and ghettos of inner cities, which lack public parks, to the enriched life of those cities with numerous parks, plazas, recreational, and cultural areas. FN291 In modern times of ever-increasing population and congestion, real estate developers buy land at high prices. From the combined pressures of competition and desire for gain, they often squeeze every lot they can into some labyrinthian plan, with only the barest minimum for tortious and circuitous streets, without any arterial ways through such subdivisions, and with little or no provision for parks, recreation areas, or even for reasonable "elbow room." The need for some general planning and control is apparent, and makes manifest the wisdom underlying the delegation of powers to the cities .... FN292 In evaluating the dedication provision, the court reasoned that "the dedication should have some reasonable relationship to the needs created by the subdivision." F[ N293] Although the ordinance would result in benefits to both the subdivision and the community of West *280 Jordan, the court found that the ordinance met the reasonable relationship requirement. FN294 Finally, in Parks v. Watson, F[ N295] a developer, seeking vacation of platted streets within a proposed apartment project, challenged the Klamath Falls City Council's contingent dedication of a twenty-foot strip along the main thoroughfare. FN296 The developer was willing to pay a negotiated fee of one dollar per square foot for the vacated property, but the dispute turned on ownership of the easement. FN297 Parks agreed to grant an easement Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 11 (Cite as: 29 Loy. L.A. L. Rev. 247) for purposes of widening the road. FN298 However, the city sought a dedication in order to acquire fee simple ownership of an existing geothermal well on the strip. FN299 The developer planned to use the well to heat the new apartment complex. FN300 The developer brought suit under the Civil Rights Act and sections one and two of the Sherman Act. FN301 The civil rights action, in part, involved a takings claim. FN302 The court held that a "condition requiring an applicant for a governmental benefit to forgo a constitutional right is unlawful if the condition is not rationally related to the benefit conferred." FN303 Finding that street vacation cases are analogous to subdivision exaction cases, FN304 the court rejected the city's action, finding no rational relationship between the vacation of the platted streets and the required transfer of ownership in the geothermal well. FN305 *281 Dissenting from the majority's reversal of the trial court's dismissal of the section 1983 claims, Judge Wallace found that aggressive negotiation for the transfer of government property was justified under Honolulu Rapid Transit. FN306 In Honolulu Rapid Transit a contract for the sale of the local bus company was upheld even though the City was not required to pay just compensation. FN307 Judge Wallace believed there was no takings issue involved, as the government may bargain aggressively "with 'due regard for its own interest."' FN308 Judge Wallace dismissed the Parks majority's distinction that Honolulu Rapid Transit involved a condition directly related to the subject of the benefit. FN309 The majority not only agreed that the City was free to negotiate aggressively, but failed to object to Klamath Falls charging two and a half times more per square foot than it customarily did for street vacation. FN310 The City could have simply charged enough for the street vacation to condemn the geothermal well with money left over. FN311 The City could similarly require the developer to construct street lights or other projects that would benefit the City directly. FN312 Thus, Judge Wallace rejected the distinction between geothermal wells and street lights and considered each concession equally valid under Honolulu Rapid Transit as an exercise of the government's role as a market participant. [FN3131 2. Application to the Dolan site In Dolan the Chief Justice found that a reasonable relationship standard was the most closely aligned with constitutional requirements. FN314 To avoid confusion with the rational basis test of the Fourteenth Amendment, the Court coined the term "rough proportionality" *282 for the new prong of its takings analysis. FN315 The majority then shifted the traditional burden of proof from the applicant, requiring the municipality to demonstrate the rough proportionality between the dedication and the nature and extent of the proposed development. FN316 While not requiring a "precise mathematical calculation," FN317 the Court did require the City to make "some sort of individualized determination." FN318 Next, the Chief Justice turned to the dedication required of Mrs. Dolan. FN319 The Court conceded that the City had a legitimate interest in restricting development on the floodplain. FN320 The floodplain dedication was within the fifteen percent greenway space already required under the City's ordinance. FN321 However, the Court questioned the City's demand for a dedication that would create a public right-of--way. FN322 While the City conceded that recreational access to the floodplain easement was merely ancillary to the primary goal of limiting destructive floods, the Court found no nexus to support the public easement. F[ N323] Chief Justice Rehnquist concluded that the City demanded more than a prohibition on building on the floodplain bordering Fanno Creek, the City wanted access for public use. FN324 This violated Mrs. Dolan's valuable right to exclude others from her property. FN325 Commercial use of the property did not diminish the *283 strength of this right. FN326 If the new construction impinged on an existing public greenway space, then the City could require Mrs. Dolan to dedicate land as a replacement greenway. FN327 But the Court held that the City had failed to establish a reasonable relationship between the public easement and the expansion of the hardware store. FN328 Next the Court accepted the City's fmding that the development would increase traffic within the district at the rate of approximately 435 additional trips daily. FN329 The Chief Justice held that traditional dedications for relief from congestion such as "streets, sidewalks, and other public ways are generally reasonable." FN330 However, the Court determined that the City's finding that the bikepath could offset some of the traffic was insufficient to justify the exaction. FN331 In remanding the case the Court concluded that " n o precise mathematical calculation is required, but the City must make some effort to quantify its findings in support of the dedication for the Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) pedestrian bicycle pathway." FN332 3. Souter's dissent Page 12 Justice Souter found no need to expand on Nollan's essential nexus test, that an exaction must have a reasonable relationship to the adverse impact of the proposed development. FN333 The majority acknowledged that flood control was a sufficient justification for the *284 City to require dedication of land bordering Fanno Creek. FN334 But in rejecting the exaction for public recreational facilities on the flood control easement, Justice Souter did not find that the majority was applying any proportionality test. FN335 The majority's test was actually the Nollan analysis, that the justification for the bike path hinged on the essential nexus between the traffic congestion caused by the redevelopment of the site and the bike path's ability to relieve that congestion. FN336 According to Justice Souter the City failed to meet the majority's nexus analysis because it used "could" instead of "would" when describing the bike path's potential offset of increased traffic congestion. FN337 Had Tigard found that the bike path would offset the increased traffic, even to some extent, it would have satisfied the relationship requirement. FN338 Reviewing the record, Justice Souter felt that the City had met this test by establishing in its Comprehensive Plan that ""'bicycle and pedestrian pathway systems will result in some reduction of automobile trips within the community.""' FN339 This finding satisfied the traditional test that exactions for street expansion are valid if they relieve increased congestion caused by planned development. FN340 Justice Souter concluded by rejecting the majority's shifting of the burden of proof to the municipality and its expansion on the Nollan test. FN341 Almost as a postscript he added, "the right test for the enunciation of takings doctrine seems hard to spot." FN342 *285 4. Stevens's dissent Justice Stevens, joined by Justices Blackmun and Ginsburg, noted that the majority's decision would have a great impact. FN343 First, the Court agreed that both exactions--for flood control and traffic demand mitigation-- fulfilled Nollan's essential nexus test. FN344 However, the two new hurdles posed--the rough proportionality between the harm caused and the benefit derived, and the shifting of the burden to the municipality--had no precedent in the dozen cases cited. FN345 The reasonable relationship test the majority cited is, for all intents and purposes, the essential nexus test, not the rough proportionality test adopted by the majority. FN346 The state court cases also emphasize the benefit the developer received in exchange for the dedication, a concept the Chief Justice overlooked. FN347 These same cases also look at the impact on the entire parcel, either a dedication of a minor percentage of the land, or its in lieu equivalent, rather than individual property rights from the whole bundle. FN348 None of the cases, for example, found the Kaiser Aetna right to exclude determinative, or even considered it. FN349 And even restrictions on that right to exclude fail to rise to the level of a constitutional taking "unless they 'unreasonably impair the value or use' of the property." FN350 Justice Stevens concluded that essential nexus is the correct standard, and that the inquiry should go beyond that "only if the developer establishes that a concededly germane condition is so grossly disproportionate to the proposed development's adverse effects that it manifests motives other than land use regulation on the part of the city." F[ N351] Maintaining the Court's traditional burden on the petitioner, Mrs. Dolan failed to show that public recreational use of the easement created any burden on property used for a large hardware store. FN352 *286 Justice Stevens also found that the majority's word play--of "could" and "would"--that it used to deny the bikepath was a form of federal court micromanaging of state land use decisions that could--or would--cause a flood of new litigants. FN353 The dissent next challenged the Court's mixing of the substantive due process protections of the Fourteenth Amendment with the Takings Clause of the Fifth. FN354 In cases involving a physical invasion of property, combining the two has little effect. FN355 Regulatory takings cases pose a much greater risk of "potentially open- ended sources of judicial power to invalidate state economic regulations," FN356 as in the line of cases following the Lochner decision. FN357 In conclusion Justice Stevens noted that uncertainty will always characterize predictions of the future impact of development on all aspects of urban life. FN358 The interests of private developers must give way to the greater Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 13 (Cite as: 29 Loy. L.A. L. Rev. 247) public interest in mitigating or eliminating potential impacts. FN359 The burden should remain on the developer to demonstrate that exactions have "unreasonably impaired the economic value of the proposed improvement." FI N3601 Thus, " i f the government can demonstrate that the conditions it has imposed in a land-use permit are rational, impartial and conducive to fulfilling the aims of a valid land-use plan, a strong presumption of validity should attach to those conditions." FN361 *287 IV. THE DOLAN TEST AND TRANSPORTATION CORRIDORS Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. FN362 The Euclid FN363 Court could never have looked seventy years into the future to see the problems cities currently face. They would be unlikely to see "the wisdom, necessity and validity" of some modern exactions. Future courts will likely find the Dolan majority's limits on transportation "arbitrary and oppressive." FN364 The majority in Dolan FN365 accepted the floodplain exaction as reasonably related and roughly proportionate to the potential flooding caused by increased runoff from the more intensively developed site. FN366 Tigard can require Mrs. Dolan to leave the land as a greenway, undeveloped, but it can not require her to allow the City to use the parcel as a pedestrian and bike path. FN367 That would require proof from the City that the use of the bike path would roughly offset the increased automobile traffic generated by the larger hardware store. FN368 The City could have denied the permit instead of granting conditional approval, FN369 theoretically avoiding years of litigation. If cities deny applications of problematic developments, without acting arbitrarily or capriciously, until the developer proposes the dedications *288 the city seeks, then cities may avoid the Dolan complications altogether. Shifting the burden from the developer to the municipality may fundamentally affect the process, or it may simply generate greater expense--more experts and more studies. But each city should not have to prepare its own study on the ability of bike paths to reduce automobile traffic and congestion anymore than the Court would require each city to prepare an individual study on the ability of adult theaters to degrade neighborhoods. FN370 Tigard clearly established the positive effects of bike paths, and their ability to alleviate some of the negative impact of increased automobile use. FN371 Mrs. Dolan did not contest the development fees Tigard imposed on her project. jFN3. 72] The City's general plan required developers to pay for bus pads and other transportation enhancements if the development created a need for the improvements. FN373 Given that the new store would generate 435 additional car trips per day, FN374 had the Comprehensive Plan called for an extra traffic lane adjacent to the site, or a turn bay for ingress to and egress from the site, the Court would likely have upheld an exaction of as much land as sought for the bike path. But if the Court would allow an exaction for an automobile lane, it would need to expand the analysis to general traffic congestion created and all the possible ways to alleviate it. Cities need the flexibility to design creative local and regional solutions to growth, and the Court should not press them into seeking dedications for street expansion as the only relief for increased development. *289 From Justice Holmes FN375 forward, the Court has implicitly acknowledged that takings law is based in policy, not a fixed calculation. FN376 The Court needs to allow flexibility for local city planners and transportation officials in designing remedies to the impacts of development. If the basis of land use regulation is nuisance law, if no one may use property so as to negatively impact the property of others, then takings law must begin with social responsibility. V. SUSTAINABLE GROWTH AND TRANSPORTATION OPTIONS The tragedy of the commons is that, in times of dwindling resources, each individual will increase, not decrease, Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 14 (Cite as: 29 Loy. L.A. L. Rev. 247) use of those resources. FN377 Enclosure, first in Britain and later in the colonies, signalled an end to the common weal and a rise in the status of land as property, freely alienable. F[ N3781 Enclosure brings about "a new ecological order." F[ N379] As with the land, the environment itself becomes a commodity. FN380 In 1987 the World Commission on Environment and Development issued a report, Our Common Future (The Brundtland Report). FN381 The report posited a fixture in which elimination of *290 poverty and decaying urban environments could only be achieved through worldwide growth. FN382 A response to that report challenged the rate of growth in gross national product, estimated at five and nine-tenths percent per annum, as unsustainable environmentally. FN383 Holding it unlikely that the environment can sustain a doubling of the world's economy, let alone the five to ten times urged by the Brundtland Report, FN384 Robert Goodland urged that we must accelerate our technical improvements in resource productivity, FN385 a change that can only occur as a shift from a reliance on growth to sustainable progress. FN386 Sustainability has become the buzzword of the 1990s. FN387 As a society we must see our current levels of consumption as inherently unsustainable. FN388 Yet during the period 1960 to 1990, the percentage of workers commuting in private vehicles grew from sixty-eight to *291 eighty- eight. FN389 Vehicle occupancy rates have fallen during the same period for all travel uses, both business and pleasure. FN390 In 1990 the United States emitted thirty-five percent of the carbon dioxide generated by transportation. FN391 As of 1986 the United States had the largest number of cars of any region of the world, as well as the greatest number of cars per capita. FN392 The traditional solution to traffic congestion has been to construct new roadways. This solution, however, is no longer viable in many situations because of financial constraints, environmental restrictions, community opposition to roadway expansion and changing traffic patterns. In fact, it is well established that construction of additional roadways often exacerbates congestion by making travel by automobile more accessible. FN393 Congressional intent to alter our direction is found in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), FN394 briefly alluded to by the Dolan majority. FN395 ISTEA alters the national goals of paving roads to the horizon, found in the early Interstate Highway acts. Instead of interstates, we now have the "National Intermodal Transportation System." The policy statement begins: It is the policy of the United States Government to develop a National Intermodal Transportation System that is economically efficient and environmentally sound, provides the foundation for the United States to compete in the global economy, and will move individuals and property in an energy efficient way. *292 ... The National Intermodal Transportation System shall consist of all forms of transportation in a unified, interconnected manner, including the transportation systems of the future, to reduce energy consumption and air pollution while promoting economic development and supporting the United States' preeminent position in international commerce. ... The National Intermodal Transportation System must be operated and maintained with insistent attention to the concepts of innovation, competition, energy efficiency, productivity, growth, and accountability. Practices that resulted in the lengthy and overly costly construction of the Dwight D. Eisenhower System of Interstate and Defense Highways must be confronted and stopped. jFN396] Section 1007 of ISTEA allows funds previously authorized for highway construction to be diverted to other projects, including "[c]arpool projects, fringe and corridor parking facilities and programs, and bicycle transportation and pedestrian walkways." FN397 Section 1033 allows use of National Highway System Funds, Federal Lands Highway Funds, and federal funds for bridge construction and maintenance for construction of bicycle transportation facilities and pedestrian walkways. F[ N39g] Bicycle transportation facilities are defined as "new or improved lanes, paths, or shoulders for use by bicyclists, traffic control devices, shelters, and parking facilities for bicycles." FN399 A transportation corridor goes far beyond an interstate highway system, encompassing such alternative forms as airports, canals, or high-speed rail lines. FN400 At their best, such corridors are regional, the focus of a comprehensive plan to manage the increasing congestion which accompanies urban growth. FN401 *293 Bicycles are the most energy-efficient form of transportation, as well as one of the least polluting. FN402 Oregon has long been a leader in bikepath/greenway development, with plans similar to the planned East Tujunga Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 15 (Cite as: 29 Loy. L.A. L. Rev. 247) Wash-Los Angeles River Class I bikeway. FN403 Class I bikepaths--those not only dedicated to bikes but completely separate from the roadway-- "significantly increase the percentage of bicycling and walking commuter and other utilitarian trips, improve safety, increase access, and promote intermodal travel." FN404 Combining bike and pedestrian-friendly rights- of-way can greatly increase use of both options, relieving congestion on local arterials. FN405 After Chicago installed five Class I paths, commuter use of bikes rose from an area average of one percent to a local use of almost sixteen percent. FN406 In Portland, Oregon, more than 700 bicyclists purchased permits to allow bikes on buses and light rail trains during the first three months of the program. FN4071 The planned Brooklyn-Queens Greenway has more than eighteen million dollars committed to develop a system linking thirteen parks, four lakes, museums, and recreational facilities in an uninterrupted path from the Atlantic Ocean to Long Island Sound. FN408 The City of Tigard has developed a comprehensive plan that links its downtown to the outskirts by way of a Class I bikepath. FN409 The route runs along Fanno Creek, cutting through Mrs. Dolan's *294 property. FN410 Studies in other communities have shown that development of Class I bikepaths has encouraged commuters and local shoppers to use the path instead of the family car. The benefits to the community range from less congestion and fuel consumption to improved air quality and a more healthy populace. The state and federal legislatures have acted to encourage such efforts; the executive branch is committed to discovering and employing alternatives in order to achieve a sustainable future. The Supreme Court should relax its new rough proportionality test to allow intermodal transportation solutions. If a municipality shows that a new development will increase traffic congestion, then the Court should allow flexibility in exactions that will encourage city planners to explore all possible solutions, not merely more roads and more highways. VI. CONCLUSION To the 1926 Euclid Court, apartment houses were a prospective nuisance that zoning could prevent from penetrating single family housing neighborhoods. FN411 Breweries, cedar trees, and low flying planes are only nuisances under specific circumstances. FN412 Yet each was closed, destroyed, or liable for damages in specific circumstances. We have long considered the car, most often the single occupant vehicle, as the epitome of transportation. But when stuck in a freeway traffic jam for hours, the auto seems as much a nuisance as a brick yard FN413 or a gravel pit. FN414 The courts must continue to safeguard private property from regulatory takings. But as demands on the common wealth of humankind, the environment, continue to grow, the absolute quantity and nature of the sticks in the bundle of property rights must undergo a fundamental change. The Court must consider expanding the opportunities for city planners to make our urban centers both livable and sustainable communities. When a proposed development will burden that community, the Court must allow a flexible approach to ameliorating that burden. Even if the development's impact can only be measured in number of car trips generated, the Court must allow *295 the city to offset that increased congestion through all means at their disposal, from futuristic technologies down to humble bike paths. FN1 . U.S. CONST. amend. V. FN2 . Before 1900 the demand to pave roadways came from bicyclists. ALAN BLACK, URBAN MASS TRANSPORTATION PLANNING 41 (1995). The first federal highway Act was passed in 1916. Id. (citing Federal-Aid Road Act of 1916, 39 Stat. 355.) Federal urban highway programs began during World War II. Id. (citing Federal Highway Act of 1944, 58 Stat. 839, ch. 626.) Not until 1956, however, with the passage of the Interstate and Defense Highway System Act, did construction begin on the project to connect all major population centers. Sallie Gaines, The Roads That Changed America: Our Tale of the Interstates is One of Vision, Politics and $116 Billion, CHI. TRIB., Oct. 20, 1991, § 17 (Transportation), at 1, 5. President Eisenhower had admired the German autobahns while serving as Allied commander-in-chief. Id. He saw in them not only an opportunity to create a large number of jobs quickly after the end of the Korean conflict but also an essential means for moving troops and equipment in national emergencies. Id. The Federal-Aid Highway Act of 1962, Pub. L. No. 87-866, 76 Stat. 1145, added 23 U.S.C. § 134, introduced Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 16 (Cite as: 29 Loy. L.A. L. Rev. 247) regional solutions by providing that federal funding be "based on a continuing comprehensive transportation planning process." This section was amended by the Intermodal Efficiency Surface Transportation Act of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (codified as amended in scattered sections of 23, 49, and other titles of the U.S.C.) to read that "transportation plans and programs for urbanized areas ... shall provide for the development of transportation facilities (including pedestrian walkways and bicycle transportation facilities) which will function as an intermodal transportation system." 23 U.S.C. $ 1340 (Supp. V 1993). FN3 . See, e.g., MELVIN M. WEBBER, ON STRATEGIES FOR TRANSPORT PLANNING 1 (Organization for Economic Cooperation and Development Working Paper No. 100, 1969) (on file with the Loyola of Los Angeles Law Review). f FN4]. A working definition of a transportation corridor is: [A] specific geographic area which includes: (1) the maximum right-of--way required to meet the transportation needs generated by the projected population and employment through the life of the corridor plan, and (2) all adjacent areas which are affected by the transportation facility and are reasonably necessary to accomplish the objectives established in the plan. Robert H. Freilich & Stephen P. Chinn, Transportation Corridors: Shaping and Financing Urbanization Through Integration of Eminent Domain Zoning and Growth Management Techniques, 55 UMKC L. REV. 153, 156 (1987). FNS .See Robert Cervero, Jobs-Housing Balancing and Regional Mobility, 55 J. AM. PLAN. ASSN 136, 139 (1989). The Southern California Association of Governments has reduced its 1989 predictions to account for the economic downturn of the 1990s; yet, it still predicts an ever increasing distance between centrally located housing and outlying affordable housing in Southern California. See SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS, REGIONAL COMPREHENSIVE PLAN AND GUIDE, chs. 2-6 (May 1995). FN6 . See, e.g., Dolan v. City of Tigard 114 S.Ct. 2309 (1994) (finding property owner sought variance from providing easement for floodplain and bike path in order to receive redevelopment permit); Ayres v. City Council, 34 Cal. 2d 31 207 P.2d 1 (1949) (fmding developer challenged required dedication of land for highway bordering subdivision). FN7 . See infra notes 64-123 and accompanying text. FN8 . 114 S.Ct. 2309 (1994). FN9 . 483 U.S. 825 (1987). FN10 . Id. at 837. FN11 . Dolan 114 S.Ct. at 2321. FN12 . See, e.g., EUROPEAN CONFERENCE OF MINISTERS OF TRANSPORT & ORGANIZATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, URBAN TRAVEL AND SUSTAINABLE DEVELOPMENT 23 (1915) ("Difficult decisions will have to be made: the planning of development, the cost of travel, the design of vehicles and management of traffic will all have to change."); John Black, URBAN TRANSPORT PLANNING: THEORY AND PRACTICE 21 (1981) ("There is a wide divergence of opinion on Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 17 (Cite as: 29 Loy. L.A. L. Rev. 247) how to solve the 'urban transport problem', but the aim of transport planning is to search for the best solutions given the resources available."). FN13 . See, e.g., Weber, supra note 3, at 2 ("[T]he accumulating research findings are dramatizing the long-sensed fact that transportation facilities are integral subsystems within the larger city systems and that personal travel and goods shipment are inextricably bound up in the workings of modern societal systems."). FN14 . See Vickie Been, "Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 COLUM.L.REV. 473, 483, 493 (1991). FN15 . See, e.g., Benjamin B Quinones Redevelopment Redefined• Revitalizing the Central City with Resident Control 27 U. MICH. J.L. REF. 689 (1994) (concluding that redevelopment projects designed to revitalize inner cities ignored local concerns and contributed to decline of neighborhoods). FN16 . Dolan 114 S.Ct. at 2321. F[ N17]. Id. at 2321-22. FN18 . See, e.g., James W Spensley New Clean Air Re ulg ations: Limiting Transportation Development Options, 23 COLO. LAW. 1099 (1994) (urging that local communities must develop alternative transportation options); Robert E. Yuhnke, The Amendments to Reform Transportation Planning in the Clean Air Act Amendments of 1990, 5 TUL. ENVTL. L.J. 239 (1991) (noting the federal statute will require the development of alternative transportation options). FN19 . Armstrong v United States 364 U.S. 40, 49 (1960). FN20 . 80 U.S. X13 Wall) 166 (1871). FN21 . The Court noted that improvements to roads or waterways were intended to benefit the public; thus, any consequential damages resulting from the improvements were not compensable takings. Id. at 180-81. But "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution." Id. at 181. The government must compensate the owner despite the weight of the justification for the invasion. Lucas v South Carolina Coastal Council 112 S.Ct. 2886 2893 (1992). Ff N22]. Pum~elly 80 U.S. (13 Wall. at 176-77. FN23 . United States v. Causby 328 U.S. 256 (1945). The Court held that the flights were below the navigable airspace that Congress placed in the public domain and thus imposed a servitude on the property. Id. at 264-67. However, the flights must be both so low and so frequent that they cause a "direct and immediate interference with the enjoyment and use of the land" to constitute a taking. Id. at 266. FN24 .458 U.S. 419 (1982). Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) FN25 . Id. Page 18 F[ N261. The term police power is defined very broadly: An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well- nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation .... Public safety, public health, morality, peace and quiet, law and order-- these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it. Berman v. Parker 348 U.S. 26, 32 (1954). FN27 . Mugler v. Kansas 123 U.S. 623, 624 (1887). F[ N28J. Id. FN29 . Id. at 654. FN30 . Id. at 658-59 (citing The License Cases 46 U.S. (5 How.)_504 (1847)). FN31 . Id. at 658. FN32 . Id. at 665. FN33 . Id. at 669. FN34 . Reinman v. Little Rock 237 U.S. 171 (1915). FN35 . Hadacheck v Sebastian 239 U.S. 394 (1915). FN36 . Miller v. Schoene 276 U.S. 272 (1928). The red cedar trees were ordered destroyed to prevent the spread of cedar rust, which was fatal to apple trees in a nearby orchard. Id. at 277. The statute provided compensation for the expense incurred for felling the trees, but not for the value of the standing trees or the decrease in the property's market value. Id. The exercise of the police power was justified by the threat to a more valuable resource. Id. at 279- 80. FN37 . United States v Central Eureka Mining Co. 357 U.S. 155 (1958). FN38 . Goldblatt v Town of Hempstead, 369 U.S. 590 (1962). The statute prohibited any excavations below the water table, effectively ending a business that had operated for 31 years. Id. at 595-96. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 19 (Cite as: 29 Loy. L.A. L. Rev. 247) F[ N39]. Pennsylvania Coal Co. v. Mahon 260 U.S. 393, 415 (1922). Fj N40]. Id. at 414-16. Pennsylvania law was unique in considering subsurface support as a separate interest from the surface or mineral estate. Keystone Bituminous Coal Assn v. DeBenedictis 480 U.S. 470, 500 (1987). As a practical matter, the "support estate" is always owned by the owner of one of the other two estates. Id. at 500-01. During the period from 1890 through 1920, approximately 90% of the support estate in the bituminous coal fields of western Pennsylvania was severed from the surface estate. Id. at 478. The Mahons, who had purchased only the surface on which they built their home, sought an injunction under the Kohler Act of 1921, PA. STAT. ANN. tit. 52, § 661 (1966), which prohibited mining that would cause subsidence under structures. Pennsylvania Coal Co., 260 U.S. at 412. The Court accepted the mining company's argument that the Kohler Act was not a bona fide action under the state's police powers but legislation designed to increase the property rights of a few homeowners. Keystone Bituminous Coal 480 U.S. at 482-83. Justice Brandeis, dissenting in Pennsylvania Coal Co., summarized the nuisance exception to compensable takings: Coal in place is land; and the right of the owner to use his land is not absolute. He may not so use it as to create a public nuisance; and uses, once harmless, may, owing to changed conditions, seriously threaten the public welfare. Whenever they do, the legislature has power to prohibit such uses without paying compensation. Pennsylvania Coal Co., 260 U.S. 417 (Brandeis, J, dissenting). FN41 . 480 U.S. 470 (1987). In 1966 the Pennsylvania Legislature enacted the Bituminous Mine Subsidence and Land Conservation Act, PA. STAT. ANN. tit. 52, § $ 1406.1-.21 (Supp. 1995) [hereinafter Bituminous Subsidence Act], to remedy the failings of the state's existing subsidence statutes. Id. at 474. The Act prohibited the mining of coal that would cause subsidence in public buildings, residences, and cemeteries that existed when the legislation was enacted. Id. at 476. The Pennsylvania Department of Environmental Resources promulgated regulations requiring that at least 50% of the coal beneath the listed land uses must be left in place to provide surface support. Id. at 476-77. The Court distinguished the Subsidence Act from the Kohler Act due to the legislature's explicit finding in the former that the "'act shall be deemed to be an exercise of the police powers of the Commonwealth for the protection of the health, safety and general welfare of the people."' Id. at 485 (quoting Bituminous Subsidence Act, supra § 1406.2). The Kohler Act was held by Holmes to benefit a few private parties since it did not apply to land whose surface was owned by the coal companies. Id. at 486 (quoting Bituminous Subsidence Act, supra § 1406.2). FN42 . The Court has interpreted the Contract Clause, U.S. CONST. art. I, § 10, to invalidate acts intended to repudiate existing debtor-creditor relationships, not to override the states' police power. Keystone Bituminous Coal at 502-03 (citing Manigault v Springs 199 U.S. 473 480 (1930)). Protection of health, morals, and welfare was deemed paramount to rights granted in contracts between individuals. Id. FN43 . Keystone Bituminous Coal at 486. FN44 . Id. at 485 (quoting Bituminous Subsidence Act, supra note 41, § 1406.2). FN45 . Id. [FN46]. Id. FN47 . Id. at 496. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) FN48 . Id. FN49 . Id. F[FN50]. Id. at 497. FN51 .438 U.S. 104 130-31 (1978). FN52 . Id. at 116-19. Page 20 F[ N53]. "'Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated." Id. at 130. FN54 . Id. at 135. FLN55]. Id. at 136-37. FN56 . Loretto v Teleprompter Manhattan CATV Corp. 458 U.S. 419 434- 35 (1982). The Court added that this type of physical invasion will constitute a taking "without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner." Id. FN57 . See, e.g., Keystone Bituminous Coal, 480 U.S. 470 (holding two percent of the coal that the company could not mine under the regulations was not severable from remaining 98% in order to establish a compensable taking); Penn Central 438 U.S. 104 (holding marketable air rights not severable from property and structure value for takings analysis). FN58 . The Court addressed this burden/benefit reasoning in Bauman v. Ross, 167 U.S. 548 (18971. In 1893 Congress passed an act to plot the continuation of major thoroughfares in the District of Columbia outside the existing boundaries of the cities of Washington and Georgetown. Id. at 551. Where the extensions passed through existing subdivisions, the government was required to pay for the land it condemned, half coming from the government and half from an assessment of those lands bordering the thoroughfares for the benefit they would receive from the roadway. Id. at 558. FN59 . Michigan upheld an exaction to widen existing streets to conform with their dimensions recorded in the city's general plan in Ridgefield Land Co v. City of Detroit 217 N.W. 58, 60 (Mich. 1928). The New York courts first upheld an exaction for parkland within a proposed subdivision in In re Lake Secor Development Co., 252 N.Y.S. 809 812 (Sup. Ct. 1931). FN60 . Ridgefield Land Co. 217 N.W. at 60; see Mansfield & Swett Inc. v. Town of West Orange, 198 A. 225, 229 (N.J. Sup. Ct. 1938) (the state possesses the inherent authority--it antedates the Constitution--to resort, in the building and expansion of its community life, to such measures as may be necessary to secure the essential common material and moral needs.... A comprehensive scheme of physical development is requisite to community efficiency and progress; see also Associated Home Builders v. City of Walnut Creek 4 Cal. 3d 633 644, 484 P.2d 606, 615, 94 Cal. R~tr. 630, 639 (1971) (the rationale of the cases affirming constitutionality ... [is] that the subdivider realizes a Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 21 (Cite as: 29 Loy. L.A. L. Rev. 247) profit from governmental approval of a subdivision since his land is rendered more valuable by the fact of subdivision, and in return for this benefit the city may require him to dedicate a portion of his land for park purposes whenever the influx of new residents will increase the need for park and recreational facilities.). FN61 . See, e.g., City of Corpus Christi v Unitarian Church 436 S.W.2d 923 (Tex. Ct. App. 1968) (holding that lack of constitutional, statutory, or charter authorization for required dedication of easement without compensation in order to record plat violates takings clause). FN62 . See Donald L. Connors & Michael E. High, The Expanding Circle of Exactions: From Dedication to Linkage, 50 LAW & CONTEMP. PROBS. 69 (1987); Charles Siemon, Who Bears the Cost?, 50 LAW & CONTEMP. PROBS. 115 (1987). In a case remanded three days after the Court decided Dolan, the Court signalled that in lieu fees for sports facilities and public art would receive heightened scrutiny after the Dolan decision. Ehrlich v City of Culver City 15 Cal. App. 4th 1737 19 Cal. Rytr. 2d 468 (1993), vacated, 114 S.Ct. 2731 (1994). Fj N63]. In dictum, the California Supreme Court noted: It is difficult to see why, in the light of the need for recreational facilities ... and the increasing mobility of our population, a subdivider's fee in lieu of dedication may not be used to purchase or develop land some distance from the subdivision but which would also be available for use by subdivision residents. If, for example, the governing body of a city has determined ... that a specific amount of park land is required for a stated number of inhabitants, if this determination is reasonable, and there is a park already developed close to the subdivision to meet the needs of its residents, it seems reasonable to employ the fee to purchase land in another area of the city for park purposes to maintain the proper balance between the number of persons in the community and the amount of park land available. Associated Home Builders 4 Cal 3d at 640 n 6 484 P.2d at 612 n.6 94 Cal. Rvtr. at 636 n.6. F[ N64]. Keystone Bituminous Coal Assn v. DeBenedictis, 480 U.S. 470 1987 . FN65 . Id. at 506-21 (Rehnquist, C.J., dissenting). FN66 . Id. at 507-08 (Rehnquist, C.J., dissenting). The dissent noted that the legislature passed the Kohler Act to eradicate public evils including wrecked streets, collapsed buildings, broken pipelines, and loss of human life--all recognized by the Pennsylvania Supreme Court as a valid exercise of the police power. Id. at 509-10 (Rehnquist, C.J., dissenting) (citing Mahon v. Pennsylvania Coal Co., 118 A. 491, 492 (Pa.), rev'd, 260 U.S. 393 (1922)). FN67 . Id. at 513 (Rehnquist, C.J., dissenting). FN68 . Id. at 517 (Rehnquist, C.J., dissenting). FN69 . Id. at 515 (Rehnquist, C.J., dissenting). The Chief Justice cited Causby in which the continuous takeoffs and landings over the chicken farm were held as much a taking as if the government "had entered upon the surface of the land and taken exclusive possession of it." Id. at 516 (citing United States v. Causby 328 U.S. 256, 261 (1946)). FN70 . Id. at 516 (Rehnquist, C.J., dissenting). FN71 . Id. at 512-13 (Rehnquist, C.J., dissenting). Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 22 (Cite as: 29 Loy. L.A. L. Rev. 247) FN72 . Id. at 513 (Rehnquist, C.J., dissenting). The Chief Justice cited Goldblatt v. Town of Hempstead, 369 U.S. 590 1962 , in which the regulation prohibited excavation below the water table in order to protect ground water supplies; Hadacheck v. Sebastian, 239 U.S. 394 (1915), concerning a regulation that prohibited the operation of a brickyard within city limits; and Mugler v. Kansas 123 U.S. 623 (1887), where a countywide prohibition act forced the closure of local distilleries. Keystone Bituminous Coal, 480 U.S. at 513 (Rehnquist, C.J., dissenting). FN73 . Keystone Bituminous Coal, 480 U.S. Id. (Rehnquist, C.J., dissenting). The Chief Justice referred to Miller v. Schoene 276 U.S. 272 (1928), in which a regulation mandating the owner of diseased red cedar trees to destroy his trees did not extinguish the value of his land because he could still salvage their value as lumber. Keystone Bituminous Coal 480 U.S. at 513 (Rehnquist, C.J., dissenting). Even when the local government enjoined the entire enterprise, as in Goldblatt, Hadacheck, and Mugler, the land retained some value. Id. at 513-14 (Rehnquist, C.J., dissenting). FN74 . Keystone Bituminous Coal 480 U.S. at 520-21 (Rehnquist, C.J., dissenting). FN75 . Nollan v California Coastal Comm'n 483 U.S. 825, 827 (1987). FN76 . Id. at 828. FN77 . Id. Under the California Coastal Act of 1976 CAL. PUB. RES. CODES § 30000-30900 (West 1986 & Su .1995 ,any development within the coastal zone required a permit from the commission. CAL. PUB. RES. CODE X30600 (West 1986). FN78 . Nollan 483 U.S. at 828-29. FN79 . Id. FN80 . Id. at 829. FN81 . Id. at 830 (citing Nollan v California Coastal Comm'n 177 Cal App 3d 719 723-24 223 Cal. Rntr. 28, 30-31 (1986), rev'd, 483 U.S. 825 (1987)). The court of appeal relied on an earlier case, Grupe v. California Coastal Comm'n 166 Cal App 3d 148 212 Cal. Rptr. 578 (1985), in which the court upheld a similar exaction because "[r]espondent's beach front home [was] one more brick in the wall separating the People of California from the state's tidelands." Id. at 167 212 Cal. Rptr. at 589. The court in Grupe also noted that while "a particular development need not create the need for a particular exaction, we believe Associated Home Builders does require that the exaction be designed to meet needs to which the project contributes, at least in an incidental manner." Id. at 166 n.l l 212 Cal. Rptr. at 589 n.l l (referring to Associated Home Builders v. City of Walnut Creek, 4 Cal. 3d 633, 484 P.2d 606 94 Cal. Rptr. 630 1971)). FN82 . Nollan, 483 U.S. at 830. FN83 . Id. at 842. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) Page 23 FN84 . Id. at 831. Justice Scalia rejected Justice Brennan's contention that such an easement could constitute "a mere restriction" on the use of the property. Id. Relying on Loretto v. Telepro~ter Manhattan CATV Corp. 458 U.S. 419 (1982), and Kaiser Aetna v. United States, 444 U.S. 164 (1979), Justice Scalia reiterated the importance of the right to exclude others from one's property. Nollan, 483 U.S. at 831. [FN85~. Nollan, 483 U.S. at 835-36. FN86 . Id. FN87 . Id. at 836. Justice Scalia suggested height or width restrictions as legitimate means of fulfilling the Commission's purpose. Id. Even a permanent easement for public access on the Nollans' property that would allow passersby to still view the ocean would pass constitutional muster. Id. FN88 . Id. at 837. FN89 . Id. at 838. Fj N90]. Id. at 837. FN91 . 112 S.Ct. 2886 (1992). FN92 . Id. at 2889. FN93 . S.C. CODE ANN. ~ $ 48-39-10 to 48-39-360 (Law. Co-op. 1987 & Supp.1994). FN94 . Lucas, 112 S.Ct. at 2889. The act allowed Lucas to construct a walkway or small deck on the site. Lucas v. South Carolina Coastal Council 424 S.E.2d 484, 485 (S.C. 1992). FN95 . Lucas 112 S.Ct. at 2890 (citing Lucas v South Carolina Coastal Council 404 S.E.2d 895, 896 (S.C. 1991), rev'd, 112 S.Ct. 2886 (1992)). FN96 . Id. at 2897-99. FN97 .447 U.S. 255 (1980). FN98 . Lucas, 112 S.Ct. at 2897 (quoting Nollan 483 U.S. at 834 (quoting Agins 447 U.S. at 260)). FN99 . Id. at 2898. FN100 . Id. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) F[ N1011. Id. at 2899. FN102 . Id. FN 103. Id. FN104 . Id. at 2900. FN 105 . Id. at 2900-01. FN 106 . Id. at 2901. FN107 . Id. Page 24 FN108 . Id. at 2901-02. On remand the South Carolina Supreme Court held that the Coastal Council was unable to establish any nuisance action that would justify the taking, and remanded the case to the trial court solely for determination of damages. Lucas~424 S.E.2d at 486. FN109 . Lucas 112 S.Ct. at 2903. FN110 . Id. at 2905 (Blackmun, J., dissenting). FN111 . Id. (Blackmun, J., dissenting). FN112 . Id. (Blackmun, J., dissenting). [FNF 1131. Id. at 2906 (Blackmun, J., dissenting) (quoting S.C. CODE ANN. ~ 48-39-250(4) (Law. Co-op. Supp.1994)). FN114 . Id. at 2905-06 (Blackmun, J., dissenting). "If the state legislature is correct that the prohibition on building in front of the setback line prevents serious harm, then, under this Court's prior cases, the Act is constitutional." Id. at 2906 (Blackmun, J., dissenting). FN115 . Id. at 2908 (Blackmun, J., dissenting). FN116 . Id. (Blackmun, J., dissenting). FN117 . Id. (Blackmun, J., dissenting). Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) FN118 . Id. (Blackmun, J., dissenting) (citing Kaiser Aetna v. United States 444 U.S. 164 (1979)). FN119 . 369 U.S. 590 (1962). FN120 . 239 U.S. 394 (1915). FN121 . Lucas 112 S.Ct. at 2908-12 (Blackmun, J., dissenting). FN122 . Id. at 2919 (Stevens, J., dissenting). FN123 . Id. at 2922 (Stevens, J., dissenting). Page 25 FN124 . Keystone Bituminous Coal Assn v. DeBenedictis 480 U.S. 470, 508 (1987) (Rehnquist, C.J., dissenting). FN125 . Brief for Respondent at 1, Dolan v Cit~of Tigard 114 S.Ct. 2309 (1994 (No. 93-518) [hereinafter Respondent BriefJ. FN126 . Petition for Writ of Certiorari app. G at G-6 to-9, Dolan (No. 93- 518) [hereinafter Petition for Certiorari]. FN127 . Id. at G-8. FN128 . Respondent Brief, supra note 125, at 1. FN129 . Brief for Petitioner at 3-4, Dolan (No. 93-518) [hereinafter Petitioner BriefJ. FN130 . Id. FN131 . Respondent Brief, supra note 125, at 3. FN132 . Id. at 7. FN133 . Oregon law grants LUBA exclusive jurisdiction to hear appeals of land use decisions. Dunn v. City of Redmond 735 P.2d 609 610 (Or. 1987). FN134 . Petitioner Brief, supra note 129, at 7 n.l. FN135 . Petition for Certiorari, supra note 126, app. D at D-4 (citing Dolan v. City of Tigard, Or. LUBA No. 91- Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) 161 (Jan. 7, 1992), rev'd, 114 S.Ct. 2309 (1990. F[ N136].Id. FN137 . Dolan, 114 S.Ct. at 2313. FN138 . Id. at 2313-14. FN139 . OR. REV. STAT. § § 197.005-.860 (1991). FN140 . Dolan 114 S.Ct. at 2313. LFN1411. Id. (citing TIGARD, OR., COMMUNITY DEV. CODE ch. 18.66 (ref. 1994)) [hereinafter CDC]. Page 26 FN142 . Petitioner Brief, supra note 129, at G-17 to -21 (citing CDC, supra note 141, ch. 18.86). The Action Area Overlay zone was repealed by Ordinance No. 91-30 (Oct. 8, 1991), but at the time of the application it required only dedication of the right of way, not construction of the bike path. Respondent Brief, supra note 125, at 12 (citing CDC ch. 18.86.040.A.1.b). In order to require construction of the bike path, the City had to find that the development would "principally benefit" from the improvement. Id. (citing CDC, supra note 141, ch. 18.164.110.B). There was no such finding for the subject property. Id. FN143 . Respondent Brief, supra note 125, app. A at A-9 to -14. FN144 . Id. at 12. FN145 . Id. FN146 . Id. at A-4 (quoting City of Tigard's Comprehensive Plan, Transportation Assumptions II(1) at I-221). FN147 . Id. at A-6 (citing City of Tigard's Comprehensive Plan, Transportation Assumptions II(1) at I-256). FN148]. Id. (citing City of Tigard's Comprehensive Plan, Transportation Assumptions II(1) at I-221). FN149 . Id. at A-5 (citing City of Tigard's Comprehensive Plan, Transportation Assumptions II(1) at I-221). FN150 . Id. at A-9 to -10 (citing City of Tigard's Comprehensive Plan, Transportation Assumptions II(1) at I-267). The county commissioners fmance bike paths through a one percent tax on retail gasoline sales. Possible bike path locations are evaluated by their potential: 1. To reduce hazards that exist on present roads; 2. To provide safe access to schools, recreation areas and major shopping areas; 3. To develop the possibility of walking to school rather than riding, thereby eliminating some school bus Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) Page 27 transportation; 4. To serve the greatest number of potential users; 5. To provide safety for walkers and bike riders to summer activities which require transportation by auto; and 6. []To establish pedestrian access to mass transportation. Id. at A-10 (quoting City of Tigard's Comprehensive Plan, Transportation Assumptions II(1) at I-267 to I-268). FN151 . Id. at A-8 (quoting City of Tigard's Comprehensive Plan, Transportation Assumptions II(1) at I-258). A voter-approved bond issue in 1989 allotted $364,000 for bike path construction. Id. at 11-12, 12 n.3 (citing City of Tigard's Public Facilities Plan at 16). A 1991 capital improvement plan allocated a further $455,000 for pedestrian or bike path improvements. Id. (citing City of Tigard's Public Facilities Plan at 16). FN152 . Id. at 12. FN153 . Dolan v. City of Tigard 854 P.2d 437 439 (Or. 1993) (citing City of Tigard Planning Commission Final Order No. 91-09 PC at 13, 20-21, r eprinted in Petition for Certiorari, supra note 126, at G-24 [hereinafter Commission Order]). FN154 . Respondent Brief, supra note 125, at 8. FN155 . Id. at 7. FN156 . Id. at 9 (citing CDC, supra note 141, chs. 18.84, 18.86, 18.164.100). FN157 . Dolan v. Cit~of Tigard 854 P.2d 437 439 (Or. 1993), rev'd, 114 S.Ct. 2309 (1994). FN158 . The 100-year floodplain, as determined by the Army Corps of Engineers, consists of all land lying below 150 feet above sea level. Petition for Certiorari, supra note 126, at G-43. The city's greenway dedication requirement extends 15 feet from the floodplain onto the adjacent property. Id. The new hardware store would be built at 152.5 feet above sea level, thus potentially benefitting from all measures taken to reduce local flooding. Id. at G-9, G-43 to -44. FN159 . Dolan, 854 P.2d at 439. jFN160 . Dolan, 114 S.Ct. at 2314. FN161 . Respondent Brief, supra note 125, app. B at B-63 (citing CDC, supra note 141, ch. 18.164.110.B). FN162 . Dolan, 114 S.Ct. at 2314. FN163 . The City never sought, nor had authority to seek, a transfer of the right of way in fee simple. The exaction sought a dedication of an easement. Respondent Brief, supra note 125, at B-8 (citing CDC, supra note 141, ch. 18.32.250.E2); see Portland Baseball Club v. City of Portland, 18 P.2d 811, 812 LOr. 1933) ("In this state the rule is that, where land has been dedicated or appropriated for a public street, the fee in the street remains in the original Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 28 (Cite as: 29 Loy. L.A. L. Rev. 247) owner subject only to the public easement, and, upon the vacation of the street, it reverts to the owner of the abutting premises freed from the easement."). FN164 . Petition for Certiorari, supra note 126, at G-28 (citing City of Tigard Resolution No. 91-66). Fj_N1.65]. Respondent Brief, supra note 125, app. E at E-4 (citing Site Development Review Application, Statement of Justification for Variance (Mar. 26, 1991)). FN166 . Id. FN167 . Dolan, 114 S.Ct. at 2314 (citing CDC, supra note 141, § 18.134.010). FN168 . Id. F[ N1691. Dolan, 854 P.2d at 439. FN170 . Id. FN171 . Commission Order, supra note 153, at G-24. The City found that: "[T]he dedication and pathway construction are reasonably related to the applicant's request to intensify the development of this site with a general retail sales use, at first, and other uses to be added later. It is reasonable to assume that customers and employees of the future uses of this site could utilize apedestrian/bicycle pathway adjacent to this development for their transportation and recreation needs. *** In addition, the proposed expanded use of this site is anticipated to generate additional vehicular traffic thereby increasing congestion on nearby collector and arterial streets. Creation of a convenient, safe pedestrian/bicycle pathway system as an alternative means of transportation could offset some of the traffic demand on these nearby streets and lessen the increase in traffic congestion." Dolan v City of Tigard 832 P.2d 853 855 (Or. Ct. App. 1992), rev'd, 114 S.Ct. 2309 (1994) (quoting Commission Order, supra note 153, at G-24). FN172 . The City's order suggested that all future requests for improvements in designated areas must provide exactions for the floodplain greenway and the bikepath: "It is imperative that a continuous pathway be developed in order for the paths to function as an efficient, convenient, and safe system. Omitting a planned for section of the pathway system, as the variance would result in if approved, would conflict with Plan purposes and result in an incomplete system that would not be efficient, convenient, or safe. The requested variance therefore would conflict with the City's adopted policy of providing a continuous pathway system intended to serve the general public good and therefore fails to satisfy the first variance approval criterion. ~~***** "As noted above, approval of the variance request would have an adverse effect on the existing partially completed pathway system because a system cannot fully function with missing pieces. If this planned for section is omitted from the pathway system, the system in this area will be much less convenient and efficient. If the pedestrian and bicycle traffic is forced onto City streets at this point in the pathway system because of this missing section, pedestrian and bicycle safety will be lessened." Dolan, 854 P.2d at 445-46 (Peterson, J., dissenting) (quoting Commission Order, supra note 153, at G-26 to -27). Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 29 (Cite as: 29 Loy. L.A. L. Rev. 247) FN173 . Petition for Certiorari, supra note 126, at G-14 to -15. FN174 . Dolan 114 S.Ct. at 2315. FN175 . Respondent Brief, supra note 125, at A-19, A-21 (quoting TIGARD, OR., COMPREHENSIVE PLAN § 3.2 FLOODPLAINS). FN176 . Dolan, 114 S.Ct. at 2315. FN177 . Petitioner Brief, supra note 129, at 8-9. FN178 . Id. at 9. FN179 . Id. at 8-9. FN 180 . Id. at 10. FN181 . Dolan, 114 S.Ct. at 2314. FN182 . Id. at 2315. FN183 . Id. FN184 . Petition for Certiorari, supra note 126, at D-16 (citing Dolan, Or. LUBA No. 91-161). LUBA concluded that the reasonable relationship test was correct under both the Fifth Amendment of the U.S. Constitution and Article I, § 18 of the Oregon Constitution. Id. at D-11 (citing Dolan, Or. LUBA No. 91-161). LUBA explained "'[t]he "reasonable relationship" standard is somewhere between the more extreme standards followed by courts in a few jurisdictions which require that the need for a development exaction be "specifically and uniquely attributable" to the proposed development, or that a development exaction merely have "some relationship" to the proposed development."' Dolan. 832 P.2d at 854 (quoting Dolan, Or. LUBA No. 91- 161, quoting Parks v. Watson, 716 F.2d 646 (9th Cir.1983)). The Ninth Circuit reaffirmed the reasonable relationship test after Nollan v. California Coastal Comm'n 483 U.S. 825 (1987), in Commercial Builders v. Sacramento 941 F.2d 872 (9th Cir.1991), cert. denied, 504 U.S. 931 (1992). FN185 . Dolan, 114 S.Ct. at 2315. FN186 . Dolan 832 P.2d at 855. FN187 . Nollan v California Coastal Comm'n, 483 U.S. 825, 838 (1987). The Commission claims ... that we may sustain the condition at issue here by finding that it is reasonably related to the public need or burden that the Nollans' new house creates or to which it contributes. We can accept, for purposes of discussion, the Commission's proposed test as to how close a "fit" between the condition and the burden Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) is required, because we find that this case does not meet even the most untailored standards. Id. FN188 . See Dolan 832 P.2d at 854. FN189 . 941 F.2d 872 (9th Cir.1991). FN190 . Dolan, 832 P.2d at 855. Page 30 FN191 . Id. The Oregon Supreme Court determined that the "essential nexus" test in Nollan applied only to the relationship between the land use regulation implemented by the permit and the permit condition itself, the so- called second inquiry. That test did not apply to the relationship between the impact and the exaction, the third inquiry. See Department of Trans v Lundberg 825 P.2d 641 646 (Or. 1992), cert. denied, 113 S.Ct. 467 (1992). FN192 . Dolan, 832 P.2d at 856. FN193 . Id. F[ N194]. Dolan. 854 P.2d at 438. FN195 . Id. at 442-43. FN196 . The Parks court, in rejecting the exaction, held there was no rational relationship to any public purpose related to the development's impacts. Parks v Watson 716 F.2d 646 653 (9th Cir.1983). FN197 . Dolan, 854 P.2d at 443. FN198 . Id. FN199 . Dolan 854 P.2d at 441 n.8. In rejecting this argument, the court cited Yee v. Cit~of Escondido, 503 U.S. 519 (1992), in which the Court held that "'[t]he government effects a physical taking only where it requires the landowner to submit to the physical occupation of his land."' Dolan 854 P.2d at 441 n.8 (cFuoting Yee, 503 U.S. at 527 . Since Mrs. Dolan could withdraw her application for a development permit, the occupation could only occur with her permission and therefore was not a per se taking. Id. FN200 . Id. at 445 (Peterson, J., dissenting). FN201 . Id. at 447 (Peterson, J., dissenting). FN202 . Id. (Peterson, J., dissenting). Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) FN203 . Id. at 449 (Peterson, J., dissenting). FN204 . Id. (Peterson, J., dissenting). FN205 . Petitioner Brief, supra note 129, at ii. F[ N206). Dolan v City of Tigard 114 S.Ct. 2309, 2312 (1994). Page 31 FN207 . Id. at 2316. The Court noted that removing the right to exclude others from her property would deprive Mrs. Dolan of "'one of the most essential sticks in the bundle of rights that are commonly characterized as property."' Id. (quoting Kaiser Aefia v United States 444 U.S. 164 176 1979 ). FN208 . Id. FN209 . Id. (quoting Agins v. City of Tiburon 447 U.S. 255, 260 (1980)). FN210 . Id. FN211 . Id. FN212 . Id. at 2317-18. FN213 . Id. FN214 . Id. at 2317. Nollan recognized that: "'[A] use restriction may constitute a "taking" if not reasonably necessary to the effectuation of a substantial government purpose."' Nollan v California Coastal Comm'n 483 U.S. 825, 834 1987) (quoting Penn Central Transp Co v City of New York 438 U.S. 104 127 (1978)) (alteration in original). FN215 . Dolan 114 S.Ct. at 2318-19. FN216 . Billings Properties Inc v Yellowstone County 394 P.2d 182 (Mont. 1964). FN217 . Id. at 184. FN218 . Id. at 186. FN219 . Id. at 186-87. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 32 (Cite as: 29 Loy. L.A. L. Rev. 247) FN220 . Id. at 188. FN221 . 34 Cal. 2d 31 207 P.2d 1 (1949). FN222 . Billings Prog_erties 394 P.2d at 188 (citing Ayres v City Council of Los Angeles 34 Cal. 2d 31, 207 P.2d 1 1940. FN223 . Id. FN224 . Dolan, 114 S.Ct. at 2319. FN225 . 176 N.E.2d 799 (Ill. 1961). FN226 . Id. at 800-01. FN227 . Id. at 800. FN228 . Petterson v Cit~of Naperville 137 N.E.2d 371 (Ill. 1956). F[ N229]. Rosen v Village of Downers Grove 167 N.E.2d 230 (Ill. 1960). FN230 . Id. at 234. FN231 . Pioneer Trust 176 N.E.2d at 802. FN232 . Id. FN233 . Id. FN234 . Id. FN235 . Dolan, 114 S.Ct. at 2319. FN236 . Id. at 2318-19. FN237 .292 N.W.2d 297 (Neb. 19801. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) FN238 . Id. at 299. FN239 . Id. at 300 (quoting NEB. CONST. art. I, ~ 21). FN240 . Id. at 301. FN241 . Id. FN242 . Id. FN243 . Id. Page 33 FN244 . Id. (quoting 181 Inc v Salem County Planning Bd. 336 A.2d 501 506 (N.J. Super. Ct. Law Div. 1975)). FN245 . Id. The New Jersey court rejected an exaction for future improvements. "'Such dedication must be for specific and presently contemplated immediate improvements--not for the purpose of "banking" the land for use in a projected but unscheduled possible future use."' Id. (citing 181 Inc. 336 A.2d at 506). FN246 . Id. FN247 . 137 N.W.2d 442 (Wis. 1965), appeal dismissed, 385 U.S. 4 (1966. FN248 . Id. at 444. FN249 . Id. FN250 . Id. The ordinance assessed $120 per lot for schools and $80 per lot for recreational facilities. Id. FN251 . Id. at 448. FN252 . 176 N.E.2d at 802. FN253 . Jordan 137 N.W.2d at 447. FN254 . Id. at 448. The court stated the reasonableness test for the application of the police power: The municipality by approval of a proposed subdivision plat enables the subdivider to profit financially by selling the subdivision lots as home building sites and thus realizing a greater price than could have been obtained if he had sold his property as unplatted lands. In return for this benefit the municipality may require him to dedicate part of his platted land to meet a demand to which the municipality would not have been put but for the influx of people into the community to occupy the subdivision lots. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) Id. FN255 . Id. at 447. Page 34 FN256 . Id. Possible contravening evidence would be a showing that the municipality prior to the opening up of the subdivisions, acquired sufficient lands for school, park and recreational purposes to provide for future anticipated needs including such influx, or that the normal growth of the municipality would have made necessary the acquisition irrespective of the influx caused by opening of subdivisions. Id. at 448. FN257 . WIS. CONST. art. XI, § 3. FN258 . Jordan 137 N.W.2d at 449-50 (citing WIS. STAT. ANN. § 236.45 (West 1987)). FN259 . Id. FN260 . Id. at 450. FN261 .246 N.W.2d 19 (Minn. 1976). F[ N2621. Id. at 21. FN263 . Id. at 27-28. "Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured." MINN. CONST. art. I, § 13. FN264 . Jordan 137 N.W.2d at 447. FN265 . See Collis 246 N.W.2d at 26. FN266 . Id. at 25 (quoting John D. Johnston, Jr., Constitutionality of Subdivision Control Exactions: The Quest for a Rationale, 52 CORNELL L.Q. 871, 923 (1967)). FN267 . Id. FN268 . Id. at 27. FN269 . Id. FN270 . The ordinance stated that "as a general rule, it is reasonable to require an amount of land equal in value to Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) Page 35 ten percent of the undeveloped land proposed to be subdivided." Id. at 21 (citing BLOOMINGTON, MINN., CODE § 20.09 II B). FN271 . Id. at 27-28. FN272 . 680 S.W.2d 802 (Tex. 1984). FN273 . Id. at 804. FN274 . Id. FN275 . "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person ...." TEX. CONST. art. I, § 17. FN276 . College Station, 680 S.W.2d at 804 (quoting Cit~of Austin v. Teague 570 S.W.2d 389, 391 (Tex. 1978)). FN277 . City of College Station v Turtle Rock Corp 666 S.W.2d 318 321 (Tex. Ct. App. 1984). FN278 . Id. FN279 . College Station 680 S.W.2d at 805. FN280 . Id. FN281 . Id. (noting Berg Dev Co v City of Missouri City 603 S.W.2d 273 (Tex. Civ. App. 1980)). FN282 . Berg Dev Co. 603 S.W.2d 273 (finding the Missouri City ordinance invalid as unreasonable and arbitrary). FN283 . College Station, 680 S.W.2d at 805-06. FN284 . Id. FN285 . Id. at 806 (citing Teague 570 S.W.2d at 393). FN286 . Id. at 807. FN287 . Id. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) jFN2881. 606 P.2d 217 (Utah 1979). FN289 . Id. at 220. FN290 . Id. at 218. FN291 . Id. F[ N292]. Id. at 219. FN293 . Id. at 220. FN294 . Id. FN295 . 716 F.2d 646 (9th Cir.1983). FN296 . Id. at 649-50. FN297 . Id. at 649. FN298 . Id. FN299 . Id. at 650. FN300 . Id. at 649-50. Page 36 FN301 . Id. at 649. The Civil Rights Act is codified at 42 U.S.C. § 1983 (1988) and the Sherman Antitrust Act is codified at 15 U.S.C. § ~ 1- 7 1988 . The antitrust claim charged the city's action was an attempt to monopolize the geothermal heating market. Parks, 716 F.2d at 650. The district court granted a motion for summary judgment on the grounds that the developer lacked standing because the developer could not establish an injury to its business or property. Id. at 657-58. The court of appeals remanded for consideration of harm not merely to Klamath's potential off-site geothermal heating business, but also the harm to the potential sale of energy to the planned apartment complex. Id. at 662. FN302 . Parks. 716 F.2d at 662. FN303 . Id. at 652. FN304 . Id. at 653. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) FN305 . Id. Page 37 FN306 . Id. at 665 (Wallace, J., dissenting) (citing Honolulu Rapid Transit Co. v. Dolim, 459 F.2d 551 (9th Cir.), cert. denied, 409 U.S. 875 (1972)). F[ N307]. Honolulu Rapid Transit 459 F.2d at 552-53. FN308 . Parks. 716 F.2d at 665 (Wallace, J., dissenting) (quoting Albrecht v United States 329 U.S. 599 604 1947 ). FN309 . Id. at 655. FN310 . Id. at 666-67. FN311 . Id. at 667. FN312 . Id. F[ N313].Id. FN314 . Dolan 114 S.Ct. at 2319. FN315 . Id. The term "rough proportionality" was reportedly coined by Justice Scalia during oral argument. Paul D. Kamenar, A Quest for an Invigorated Takings Clause, THE RECORDER, Aug. 26, 1994 (Supreme Court 1993-94 Term Supp.), at 7. FN316 . Dolan 114 S.Ct. at 2319-20 2320 n.8. FN317 . Id. at 2319. FN318 . Id. FN319 . Id. at 2320. FN320 . Id. The City's interest arose from the increase in the impervious surface on the property--by paving the parking lot and increasing the square footage of the store--which would cause increased storm-water runoff from the site. Id. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 38 (Cite as: 29 Loy. L.A. L. Rev. 247) FN321 . Id. FN322 . Id. F[FN323]. Id. at 2320-21. FN324 . Id. at 2320. FN325 . Id. The Chief Justice cited Kaiser Aetna v. United States 444 U.S. 164 (1979). In Kaiser Aetna the petitioner dredged a private lagoon and a channel through an adjacent beach to create a private marina. Id. at 165-66. The Court held that although connecting the new marina to the ocean had created a navigational servitude, thus subjecting future actions to approval by the Army Corps of Engineers, the servitude did not create a right of public access without just compensation. Id. at 179-80. While the public has free access to navigable waters, the owner of this formerly private pond could not lose the valuable right to exclude others except by an act of eminent domain. Id. at 175-80. However, the Court did note that the government could have conditioned its approval on the petitioner's complying with measures that would promote navigation; however, it could only do so prospectively, not retrospectively. Id. at 179-80. FN326 . Dolan, 114 S.Ct. at 2321. The City contended that the public easement would not impair the value of the commercial property. Id. (citing Prune Yard Shopping Ctr v. Robins 447 U.S. 74 (1980)). But the Court distinguished Prune Yard, which required a major shopping mall to allow individuals to distribute pamphlets and solicit signatures on petitions because the mall could place reasonable time, place, and manner restrictions on the individuals. Id. Mrs. Dolan, however, would lose all right to control the actions of individuals if required to dedicate a public easement. Id. at 2320-21. FN327 . Id. at 2321. FN328 . Id. FN329 . Id. FN330 . Id. FN331 . Id. at 2321-22. FN332 . Id. at 2322. FN333 . Id. at 2330-31 (Souter, J., dissenting). F[ N334]. Id. at 2330 (Souter, J., dissenting). FN335 . Id. (Souter, J., dissenting). Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 39 (Cite as: 29 Loy. L.A. L. Rev. 247) FN336 . Id. (Souter, J., dissenting). FN337 . Id. (Souter, J., dissenting). FN338 . Id. (Souter, J., dissenting). FN339 . Id. at 2331 (Souter, J., dissenting) (quoting Respondent Brief, supra note 125, at A-5 (quoting Tigard, Or., Comprehensive Plan at I-221)). F[ N3401. Id. (Souter, J., dissenting) (quoting Pennell v. San Jose 485 U.S. 1, 20 (1988) (Scalia, J., concurring in part and dissenting in part) ("'[T]he common zoning regulations requiring subdividers to ... dedicate certain areas to public streets, are in accord with our constitutional traditions because the proposed property use would otherwise be the cause of excessive congestion."')). FN341 . Id. (Souter, J., dissenting). FN342 . Id. (Souter, J., dissenting). F[ N343]. Id. at 2322 (Stevens, J., dissenting). FN344 . Id. at 2323 (Stevens, J., dissenting). FN345 . Id. (Stevens, J., dissenting). [FN346]. Id. (Stevens, J., dissenting). FN347 . Id. at 2324 (Stevens, J., dissenting). F[ N34g]. Id. (Stevens, J., dissenting). FN349 . Id. at 2324-25 (Stevens, J., dissenting). FI N350]. Id. at 2325 (Stevens, J., dissenting) (quoting Prune Yard, 447 U.S. at 82-84). FN351 . Id. (Stevens, J., dissenting) (footnote omitted). F[ N352]. Id. at 2326 (Stevens, J., dissenting). Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) FN353 . Id. (Stevens, J., dissenting). FN354 . Id. at 2326-27 (Stevens, J., dissenting). FN355 . Id. at 2327 (Stevens, J., dissenting). FN356 . Id. (Stevens, J., dissenting). Page 40 FN357 . Id. (Stevens, J., dissenting) (citing Lochner v. New York, 198 U.S. 45 (1905)). Justice Stevens compared the Dolan majority's refusal to recognize the sufficient nexus between the proposed site development and increased flood and traffic problems with the Lochner majority's refusal to find a nexus between the regulation in question and the state's interest in protecting human health. Id. (Stevens, J., dissenting). FN358 . Id. at 2329 (Stevens, J., dissenting). FN359 . Id. (Stevens, J., dissenting). F[ N3601. Id. at 2330 (Stevens, J., dissenting). FN361 . Id. at 2329-30 (Stevens, J., dissenting). FN362 . Village of Euclid v. Ambler Realty Co. 272 U.S. 365, 386-87 (1926). FN363 . Ville of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). FN364 . Id. at 387. FN365 . Dolan v. City of Tigard 114 S.Ct. 2309 (1994). FN366 . Id. at 2317-18. FN367 . Id. at 2320-22. FN368 . Id. at 2321-22. FI N369]. Id. at 2322 (Stevens, J., dissenting). FN370 . See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (19861. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 41 (Cite as: 29 Loy. L.A. L. Rev. 247) FN371 . See Amicus Brief on the Bicycle-Pedestrian Pathway Dedication by the Rails-to-Trails Conservancy, et al., Dolan v. City of Tigard, 114 S.Ct. 2309 (1994) (No. 93-518) [hereinafter Rails-To-Trails Amicus BriefJ. The brief noted that projected population growth and existing traffic congestion contributed to the region's non- attainment status for ozone and carbon monoxide under the Clean Air Act, 42 U.S.C. $ 74070 1( 988). Rails to Trials Amicus Brief, supra at 6-8. The brief further cited statistics that more than 30 million Americans ride a bike regularly and that bicycling is faster than driving a car or riding a bus for trips under three miles. Id. at 14 (citing Michael Everett, Consumer Demand for Bicycle Transportation in the United States, 28 TRAFFIC Q. 585, 585 (1974). In addition, the brief detailed the increase in shopping trips and commuting by bicycle after the construction of dedicated bike paths. Id. at 14-18. FN372 . Dolan v. City of Tigard 854 P.2d 437, 439 (1993). FN373 .Rails-to-Trails Amicus Brief, supra note 371, at 11 (citing CDC, supra note 141, ch. 18.120.180.12 (1983)). FN374 . Dolan, 114 S.Ct. at 2321. FN375 . "The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon 260 U.S. 393, 415 (1922). FN376 . The Court in Dolan could only create a rough proportionality test. Dolan 114 S.Ct. at 2319-20 ("No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the development."). Justice Souter found the definition of a taking elusive. Id. at 2331 (Souter, J., dissenting) ("The right case for the enunciation of takings doctrine seems hard to spot."). FN377 . The commons were the original open lands used communally for grazing and agriculture. This theory was explored by Garrett Hardin in The Tragedy of the Commons, 166 SCIENCE 1243-48 (1968), reprinted in ECONOMIC FOUNDATIONS OF PROPERTY LAW 2-11 (Bruce A. Ackerman ed., 1975). FN378 . THE ECOLOGIST, WHOSE COMMON FUTURE: RECLAIMING THE COMMONS (1993). The concept of the "commonwealth" lives on in the official designations of four states--Kentucky, Massachusetts, Pennsylvania, and Virginia--and one territory--Puerto Rico--as commonwealths. 6 ENCYCLOPEDIA BRITANNICA 166-67 (1972). F~N379]. THE ECOLOGIST, supra note 378, at 60 (quoting Ivan Illich, Silence is a Commons, COEVOLUTION Q. (Winter 1983)). FN380 . Id. FN381 . WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE, (Oxford Univ. Press 1987). The work is commonly known as the Brundtland Report after the commission's chair, Norwegian Prime Minister Gro Harlem Brundtland. Development, as used in this report, grew from post-World War II references to "underdeveloped nations." See, e.g., President Harry S. Truman, Inaugural Address (Jan. 20, 1949), Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 Page 42 (Cite as: 29 Loy. L.A. L. Rev. 247) in 5 PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED STATES: HARRY S. TRUMAN 112, 114 (1964) ("[W]e must embark on a bold new program for making the benefits of our scientific advances and industrial progress available for the improvement and growth of underdeveloped areas."). FN382 . The Bruntland Report, supra note 381, at 65. FN383. ENVIRONMENTALLY SUSTAINABLE ECONOMIC DEVELOPMENT: BUILDING ON BRUNDTLAND 9-12 (Robert Goodland et al. eds., 1991). FN384 . Id. at 16. FN385 . Id. at 24. Fj N386]. Id. at 95. [FN387]. J. Eugene Grigsby III, Rules for "Sustainable Development" Must be Socially Inclusive, L.A. TIMES, Aug. 21, 1994, at D2 ("'Sustainable development' is a hot topic among architects, planners and a new breed of business leaders."). In 1993 President Clinton established the President's Council on Sustainable Development, Exec. Order No. 12 852 58 Fed. Reg,. 35,841 (1993). The Vision Statement of the Council includes: "Protection of natural systems requires changed patterns of consumption consistent with a steady improvement in the efficiency with which society uses natural resources.... Sustainable development requires fundamental changes in the conduct or government, private institutions, and individuals." The goals of the task force on Energy and Transportation include reduced traffic congestion in urban areas and a decrease in per capita vehicle miles traveled. PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT, INFORMATION PACKET (Mar. 1995). Federal planning for sustainable growth includes the National Sciences and Technology Council. See NATIONAL SCIENCES AND TECHNOLOGY COUNCIL, BRIDGE TO A SUSTAINABLE FUTURE (1995); NATIONAL SCIENCES AND TECHNOLOGY COUNCIL, TECHNOLOGY FOR A SUSTAINABLE FUTURE: A FRAMEWORK FOR ACTION (1994). FN388 . In 1989 the United States produced one fifth of the world's total emissions of carbon dioxide from industrial processes. HUEY D. JOHNSON, GREEN PLANS: GREENPRINT FOR SUSTAINABILITY (1995). F[ N389]. COUNCIL ON ENVIRONMENTAL QUALITY, TWENTY-FOURTH ANNUAL REPORT 270 (1993). FN390 . Id. at 271. FN391 . UNITED NATIONS ENVIRONMENT PROGRAMME, THE WORLD ENVIRONMENT 1972- 1992 (Mostafa K. Tolba et al. eds., 1992). FN392 . Id. at 412. FN393 . Robert H. Freilich & S. Mark White, Transportation Congestion and Growth Mana eg ment: Comprehensive Approaches to Resolving America's Major Quality of Life Crisis 24 LOY. L.A. L. REV. 915, 926 Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) 1991 . Page 43 FN394 . Intermodal Surface Transportation Act of 1991 Pub. L. No. 102- 240, 105 Stat. 1914 (codified as amended in scattered section of 23, 49, and other titles of the U.S.C.). [FN395]. Dolan v. City of Tigard, 114 S.Ct. 2309, 2318 (1994). F[..._N396]. 49 U.S.C.A. § § 5501 aL(bLWest Supp.1995). FI N397]. 23 U.S.C. § 133 (Supp. V 1993). FN398 . Id. at § 217. FN399 . Id. at § 217(j). F[ N400]. Robert H. Freilich & Stephen P. Chinn, Transportation Corridors: Shaping and Financing Urbanization Through Integration of Eminent Domain, Zoning and Growth Management Techniques, 55 UMKC L. REV. 153, 165 (1987). FN401 . Id. at 167-68. FN402 . Ryan Snyder, Bicycles in Ecological Cities, 4 EARTHWORD 6. FN403. Larry Smith, Combining Ecology and Transportation: The East Tujunga Wash-L.A. River Bikeway/Greenway, 4 EARTHWORD 8. F[ N4041. FED. HIGHWAY ADMIN., THE NATIONAL BICYCLING AND WALKING STUDY: TRANSPORTATION CHOICES FOR A CHANGING AMERICA 21 (1994). There are three classes of bike paths: Class I: Path for bicycles separated from motorized vehicles. Class II: Bike lane on roads, usually designated by painted line and signs. Motorized vehicles are permitted to use bike lanes to make turns and to park, where it's allowed. Class III: Bike route shared by bikes and motor vehicles, designated by signs. Julie Sheer, Urban Riders: Bicycle Commuting in the Valley, L.A. TIMES, Aug. 1, 1993, at B1 (Valley ed.). FN405 . Joel Woodhull, Link Between Transit and Land Use: The Pedestrian, 4 EARTHWORD 12. FN406 . Id. F[ N407]. Id. at 32. FN408 . CHARLES A. FLINK & ROBERT M. SEARNS, GREENWAYS: A GUIDE TO PLANNING, DESIGN, Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 29 LYLALR 247 (Cite as: 29 Loy. L.A. L. Rev. 247) AND DEVELOPMENT 108 (1993). FN409 . Dolan, 114 S.Ct. at 2314. Ff N410].Id. F~N4111. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926. F[ N412]. See supra notes 27-38. FN413 . Hadacheck v. Sebastian, 239 U.S. 394 (1915. FN414 . Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962. END OF DOCUMENT Page 44 Copr. © West 2003 No Claim to Orig. U.S. Govt. Works FOCUS - 28 of 55 DOCUMENTS HOWARD COUNTY, Maryland v. JJM, INC. No. 140, Septemk~er Term, 1983 Court of Appear of Maryland 30l Md. 256; 482 A.2d A08; 1984 Md. LEXIS 367 October 2!5, 1984 SUBSEQUENT HISTORY: [***1] Motion for Reconsideration Denied December 3, 1984. PRIOR HISTORY: Appeal from the Circuit Court for Howard County pursuant to certiorari to the Court of Special Appeals. Raymond J. Kane, JUDGE. DISPOSITION: JUDGMENT AFFIRMED; HOWARD COUNTY TO PAY THE COSTS. time limitation on the reservation of the property and there were no benefits or payments to the developer. The court affirmed that § 16.113(b)(2) constituted an unconstitutional taking and not merely a valid exercise of police power. The court found that the ordinance could be upheld if there was a reasonable nexus between the exaction and the proposed subdivision. Because the duration of the reservation was unlimited and did not permit the developer any effective use of the property placed in reservation, the court held that the ordinance constituted an unconstitutional taking without just compensation. OUTCOME: The court affirmed the lower court judgment that the ordinance was an unconstitutional CASE SUMMARY PROCEDURAL POSTURE: Appellee developer submitted a subdivision plan with residential lots within a right-of--way for the proposed relocation of a state route. Because the plan did not comply with Howard County, Md., Code § 16.113(b)(2) that such road right- of-ways be reserved, appellant county did not approve it. The local planning appeals board affirmed, but the Circuit Court for Howard County (Maryland) reversed. The county sought review. OVERVIEW: The county argued that the reservation of a right-of--way in a subdivision for a proposed state road constituted a valid exercise of police power and was not an unconstitutional taking of property without compensation. The county further argued that the ordinance did not deprive the developer of all beneficial use of the property and that possible diminution in value of the property did not render the regulation a taking. The developer asserted that Howard County, Md., Code § 16.113(b)(2) constituted an unconstitutional taking of property without compensation because there was no taking of the developer's property. LexisNexis(TM) HEADNOTES -Core Concepts Governments > Local Governments > Ordinances & Regulations ~ [HNl] Howard County, Md., Code § 16.1 li(b)(2) (1980 ~~~ Supp.) provides in pertinent part that the owner shall '~, reserve within a proposed subdivision such part(s) of the right-of--way fora new state road designated on the general plan and included in the state's twenty-year highway needs inventory which is located within the ~~ subdivision. Such reservation shall be in the general 'location and to the right-of-way width specified by the state. Howard County, Md., § 16.108(54) defines "reservation" as the assignment of land by a developer for a specified use, to be held by him or his assignees for that use and no other use to a fuhire time. Civil Procedure > Appeals > Reviewability > Adverse Determinations [HN2] The right of appeal is wholly statutory. Therefore, the General Assembly must expressly grant such a right. 301 Md. 256, *; 482 A.2d 908, **; 1984 Md. LEXIS 367. *** A quasi-judicial agency cannot institute an appeal when its decision is reversed by a circuit court absent an express grant of the right to appeal. Because the agency acts in a quasi judicial capacity, it has no interest in an appeal from a decision it has rendered and therefore it cannot be deemed an aggrieved party. Real & Personal Property Law > Zoning & Land Use > Zoning Generally [HN3] Zoning cannot be used as a substitute for eminent domain proceedings so as to defeat the constitutional requirement for the payment of just compensation, in the case of a taking of private property for public use, by depressing values and so reducing the amount of damages to be paid. Real & Personal Property Law > Zoning & Land Use > Land Use Planning [HN4] Reservation involves no conveyance but restricts the right of the subdivider and others to use the land for anything but the restricted purpose. Real & Personal Property Law > Zoning & Land Use > Constitutional Limits Real & Personal Property Law > Zoning 8r Land Use > Land Use Planning [HNS] Subdivision regulation often makes positive exactions of the owner. It may require him to construct streets or sewers, to convey a portion of his land to the municipality for public use, or to pay the equivalent of such construction or dedication in cash. This necessitates a more specific test of constitutionality, that is, the legislation should not only be substantially related to the public health, safety, morals, or general welfare, but, insofar as dedications, activities, and expenditures are positively required of the subdivider these requirements should be reasonably related to the subdivision in question and should concern types of improvement for which municipalities have generally been conceded the power to levy special taxes or assessments. Constitutional Law > Procedural Due Process > Eminent Domain & Takings Real & Personal Property Law > Zoning & Land Use > Constitutional Limits [HN6] Where the proposed platting of land by an owner for residential development is approved by the governing body of a city in accordance with previously approved zoning regulations, subject to the sole restriction that a portion of the land in a defined highway corridor within the proposed plat be reserved in its undeveloped state for possible highway purposes at some indefinite date in the distant future, the governing body has taken property from the landowner for which it is required to respond in damages by inverse condemnation. Page 2 Constitutional Law > Procedural Due Process > Eminent Domain & Takings Real & Personal Property Law > Zoning & Land L'se > Constitutional Limits [HN7] The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. Real & Personal Property Law > Zoning & Land Use > Constitutional Limits [HN8] In order to exact from a developer a setting aside of land for highway purposes, there must be a reasonable nexus between the exaction and the proposed subdivision. COUNSEL: Paul T. Johnson, Senior Assistant County Solicitor, Ellicott City, Maryland (Timothy E. Welsh, County Solicitor, Ellicott City, Maryland, on the brief), for appellant-cross/appellee. Lewis Straughn Nippard, Ellicott City, Maryland, for appellee-cross/appellant. JUDGES: Smith, Eldridge, Cole, Davidson, * Rodowsky and Couch, JJ. and James C. Morton, Jr., Associate Judge of the Court of Special Appeals (retired), specially assigned. * Davidson, J., participated in the hearing and in the conference of the case in regard to its decision, but because of illness did not take part in the adoption of the opinion. OPINIONBY: SMITH OPINION: [*258] [**908] At issue in this case is the validity of a Howard County statute requiring developers to "reserve within a proposed subdivision such part(s) of the right-of-way for a new state road designated on the general [**909] plan and included in the state's twenty- year highway needs inventory which [***2] is located within the subdivision."@ We perceive the central issue here to be whether the proposed subdivision reasonably generates the need for the highway in question. No evidence of such need has been presented. Therefore, we agree with the circuit court that when the statute is read 301 Md. 256, *; 482 A.2d 908, **; 1984 Md. LEXIS 367, *** as a whole it deprives the owner of all use of its land and hence, as applied in this case, is an unconstitutional taking of property without compensation. Thus, we shall affirm. Howard County is a charter county under Md. Const. art. XI-A. It is authorized by Maryland Code (/957, 198/ Repl. ~o[.) Art. 25A, ~ S(X) to enact local laws "relating to zoning and planning including the power to provide for the right of appeal of any matter arising under such planning and zoning laws to the circuit court" and thence to the Court of Special Appeals. Pursuant to this authority Howard County Charter 1105 established the Office of Planning and Zoning and the County enacted subdivision regulations. [HN 1 Howard County Code (1977, 1980 Supp.) § 16.113(b)(2) provides in pertinent part: "The owner shall reserve within a proposed subdivision such part(s) of the right-of--way for a new state road designated [***3] on the general plan and included in the state's twenty-year highway needs inventory which is located [*259] within the subdivision. Such reservation shall be in the general location and to the right-of--way width specified by the state." Definitions of terms used in the County's subdivision and land development regulations are contained in § 16.108. Section 16.108(54) defines "reservation" as "the assignment of land by a developer for a specified use, to be held by him or his assignees for that use and no other use to a future time." In the fall of 1980 appellee JJM, Inc., submitted a subdivision plan to the Office of Planning and Zoning. The plan was for the Hammond Hills Subdivision. It involved a 115.12 acre parcel located on the northeast side of existing Maryland Rt. 216 and approximately 1,500 feet east of U.S. Rt. 29. In compliance with Howard County Code § 16.113(b)(2), the subdivision plat showed the right-of--way for the proposed relocation of Rt. 216 as being reserved. This right-of--way cut a wide swath through the proposed development. A small part of the tract was between the existing Rt. 216 and the proposed Rt. 216. Most of the land was on the north [***4] side of the proposed relocated Rt. 216. The right-of--way reservation for Rt. 216 was established in 1971 when the County Council adopted the general plan of highways. The relocation of Rt. 216 was included in the State's 1980 twenty-year highway needs inventory. The Office of Planning and Zoning approved this subdivision plan in December 1980. On December 7, 1981, JJM submitted a revised sketch plan for the same property. The revised plan Page 3 showed residential lots within the right-of-way reservation area. Because the revised plan did not comply with Howard County Code § 16.113(b)(2) and 16.111(3), specifying that subdivision layouts "shall be in accordance with the highway part of the transportation element," the Office of Planning and Zoning refused to approve the subdivision. JJM appealed to the Howard County Board of Appeals. It was established in proceedings before the board that the [*260] proposed relocation of Rt. 216 had not been included within the State's six-year construction plan, a necessary step for its construction, and that the process of including Rt. 216 in the six-year construction plan would take at least one year, but probably longer. The Director [***5] of the Office of Planning and Zoning testified that from 1971, the time the proposed relocation was incorporated into the County's general plan, to 1981, the time of the submission of the revised plan, all that had been accomplished was a determination that the proposed road would be built at some time in the future. He further stated that, given [**910] the circumstances of the case, there was no possibility that a variance would be granted to the developer. The Board of Appeals affirmed the decision of the Office of Planning and Zoning, stating that the latter had acted in accordance with Howard County Code § 16.113(b)(2). JJM appealed to the Circuit Court for Howard County. It sought declaratory and injunctive relief. The circuit court held § 16.113(b)(2) unconstitutional as applied to JJM's revised sketch plan. In so holding it first noted that JJM was required to reserve a portion of its land, without compensation, for an indefinite period of time. Second, the court recognized not only the right of a governmental authority to regulate the development of private property by means of the police power, but also the fact that an exercise of the police power which imposes [***6] an "onerous burden" on the owner's property rights constitutes a compensable taking. Third, the court reviewed our decision in Md.-Nat'l Cap. P. & P. Co~nm'n r. C'harlu~ick, 286 Md. 1, 405 A2d 24! (1979). It determined that the following proposition emerged from that case: "A regulation requiring a reservation limited in scope and duration would be a valid exercise of the police power. Section 16.113(b)(2) must therefore meet the test of reasonableness."@ The court concluded that, given the facts before it, the application of the Howard County statute to JJM deprived the property owner of the right to make "any effective use of the property placed in reservation."@ The court [*261 ] further determined that the effect of the law was to "'freeze' the property of a prospective condemnee by restricting, inhibiting and 301 Md. 256, *; 482 A.2d 908, **; 1984 Md. LEXIS 367, *** preventing the owner from improving or changing the condition of its property."@ It held that these factors, combined with the absence of any opportunity for variance relief, rendered the law unconstitutional as applied. Howard County and JJM appealed to the Court of Special Appeals. We granted a writ of certiorari before consideration of the matter by the intermediate [***7] appellate court. In the view we take of this case we have no need to consider JJM's appeal. II JJM has moved to dismiss Howard County's appeal Hence, we must first decide that issue. [HN2] The right of appeal is wholly statutory. Therefore, the General Assembly must expressly grant such a right. See, e.g., Maryland Board v. Armacost, 286 Md. 353, 354-55, 407 A.2d 1148, 1150 (1979); Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 500, 331 A.2d 55, b4 (1975); Urbana Civic v. Urbana Mobile, 260 Md. 458, 46/, 272 A.2d 628, 630 (1971). We have held that a quasi-judicial agency, such as the Howard County Board of Appeals in this case, cannot institute an appeal when its decision is reversed by a circuit court absent an express grant of the right to appeal. We have reasoned in several cases that because the agency acts in a quasi- judicial capacity, it has no interest in an appeal from a decision it has rendered and therefore it cannot be deemed an aggrieved party. See, e.g., Armacost, 286 Md. at 356-57, 407 A.2d at 11 S1; Employment Sec. Adm. v. Smith, 282 Md. 267, 269-70, 383 A.2d 1108, 1110 (1978), Bd. of Ex. of Land, Arch. v. McWilliams, 270 Md. 383, 386, 311 [***8] A.2d 792, 794 (1973); Board of Zoning Appeals v. Guns, 259 Md. 368, 368-69, 269 A.2d 833, 833 [*262] (1970); Zoning Appeals Board v. McKinney, 174 Md. 551, 563-64, 199 A. 540, 545-46 (1938). nl nl Maryland Code (1957, 1982 Repl. Vol.) Art. 41, ~ 256A provides that "the political subdivisions of this State and their agencies and instrumentalities have the status of an interested person ... in all matters including appeals."@ That section is not applicable to this case because the case here does not arise under the Administrative Procedure Act, Code (1957) Art. 41, ~¢ 244 et seq. JJM argues in this case that the appeal is brought on behalf of the Board of Appeals or ther Office of Planning and Zoning and not on behalf of the County. To [**911] support this contention, it notes a letter written Page 4 by the Director of the Office of Planning and Zoning to the County Solicitor in which an appeal from the circuit court decision was requested. Nevertheless, Howard County is named as a party on this appeal [***9J 'fhe County Solicitor entered his appearance on behalf of the Planning Department in the circuit court and his office has been involved in the case at least from that time. Therefore, it would appear that if the County is authorized to be a party and if the solicitor is authorized to represent the County in suits of this nature, then the appeal in this case was properly brought. Howard County Charter § 103 provides that "[t]he corporate name shall be 'Howard County, Maryland,' and it shall thus be designated in all actions and proceedings touching its rights, powers, properties, liabilities and duties."@ Section 405(b) provides that only the County Solicitor is authorized to represent the County and its "several offices, departments, boards, commissions and other agencies."@ The grant of this duty to the County Solicitor strongly implies that the drafters of the charter intended that the County should have adequate counsel in all legal matters in which it becomes involved. A catchall provision in § 904 of the charter expressly grants the County "all powers necessary and convenient for the conduct of its affairs," which obviously should include the power to defend its subdivision [***10] regulations against charges of unconstitutionality. The [*263] Office of Planning and Zoning is the department of the County concerned with those regulations. [t is logical for it to be the agency requesting the County Solicitor to proceed with an appeal in the name of the County in this case. Therefore, in construing the statute as a whole so as to avoid absurd consequences, it would seem that the County is authorized to be a party to the present appeal. See In re Special Investigation No. 281, 299 Md. /8/, 200, 473 A.2d 1, 10 (1984). Sce also Baltimore Ciry v. Borinsky, 239 Md. 611, 6/6, 212 ,4?d 508, 510-11 (1965) (Court concluded that Baltimore City was a proper party to a suit given that the zoning ordinance at issue was a proper exercise of its police power and that Baltimore City had a legitimate interest in upholding its policies). JJM, in urging that we dismiss the County's appeal, cites § 501(d) of the Charter, which states that the Board of Appeals "shall be a party to all appeals and shall be represented at any such hearing by the Office of Law."(iu That section, however, deals with appeals to, not from the circuit court. In Howard County v. [*** 1 1 J Mangione, 47 Md.App. 350, 423 A.2d 263 (l)80~, the Court of Special Appeals determined that ~ 5011d) did not attempt to bestow on the Board of Appeals the right of appeal normally granted an "aggrieved party."(c~ The court stated: 301 Md. 256, *; 482 A.2d 908, **; 1984 Md. LEXIS 367, *** "While it may be administratively expedient to require the Board to be a party in the circuit court in order to provide that court on appeal with all the pertinent information which the Board had before it and upon which the Board reached its conclusion, there is nothing in this scheme which suggests that the charter intended to clothe the Board with the duty to represent Howard County in upholding the integrity of its zoning laws."@ 47 Md.App. at 356. 423 A.2d at 267. Thus, § 501(d) does not alter the conclusion, based on other provisions of the charter, that Howard County is authorized to be a party to the present appeal. [*264] III The County argues that the requirement that a developer reserve aright-of--way in a subdivision for a proposed state road constitutes a valid exercise of the police power, not an unconstitutional taking of property without compensation. It says that under the circumstances here the subdivision regulation [***12] does not deprive JJM of all beneficial use of the property. Further, the possible diminution in the value of the property does not render application of the regulation a taking: diminution of value alone is not a proper basis for invalidating a [**912] police power regulation. It argues that the lower court not only overlooked this legal proposition, but also failed to recognize that the purpose of the reservation provision was to prevent the placement of improvements in the path of a proposed highway. JJM contends that the reservation provision constitutes an unconstitutional taking of property without compensation. Relying on our decision in Chadwick, 286 Md. 1, 405 A.2d 241, JJM points out that no time limitation on the reservation of this property exists and no benefits or payments are to be made to it while the property is reserved. Accordingly, it is contended that JJM is deprived of all beneficial use of the property because reservation of that portion necessary for the relocation of Rt. 216 would disrupt development of the entire tract. JJM further argues that Howard County is not authorized to act as the State's agent for the purpose of reserving land for the [***13] use and benefit of the State. The County urges that this case is controlled by Krieger v. Planning Commission, 224 Md. 320, 167 A.2d 885 (1961). Krieger also was a Howard County case. There a planning commission created under a public local law denied approval of a subdivision plan because it failed to take into consideration the fact that a road abutting the property in question was designated a "primary road," to have a minimum width of 100 feet. Further, the lot areas shown on the plan were not sufficient, excluding the bed of the planned road, to Page comply with the 20,000 square feet minimum lot size specified [*265] in the zoning regulations. In that case, the Court determined that the planning commission's action was reasonable: "As the trial court pointed out, the purpose of these sections was to avoid subdivision and improvement of land in the path of a projected highway or in the path of a projected enlargement of an existing highway. If the Planning Commission were powerless to require compliance, the whole purpose of planning and zoning, which looks to the future, would be frustrated."~~ 224 Md. at 323, 167 A.2d at 886. Judge Henderson went [***14] on to say for the Court in that case: "Planning with reference to future streets is no novelty in Maryland. See Clarks Lane Carden Apts. v. Schloss, 197 Md. 457, 460 [, 79 A.2d 538 (1951)J. On the other hand, as noted in Congressional School v. Stare Reads C'nmm.. 218 Md. 236, 241, (146 A.2d 558 (1958),) there seems to be general agreement among the authorities that [HN3] zoning cannot be used as a substitute for eminent domain proceedings so as to defeat the constitutional requirement for the payment of just compensation, in the case of a taking of private property for public use, by depressing values and so reducing the amount of damages to be paid. In that case we found it unnecessary to decide the validity of a zoning classification claimed to have been made to hold down the cost of subsequent acquisition by condemnation for highway use. Nor do we find it necessary to decide the question in the instant case. "There is nothing in the record to show a present taking, as distinguished from a regulation of use, or to indicate that if, or when, the strip of land adjacent to the existing highway is condemned for purposes of~ widening, the owner will not be paid the full [***15] value thereof. Nor is the appellant prechided from putting the twenty-foot strip to whatever permissible use he pleases. There is no change in the use classification. He is simply denied a right to include it in computing the areas of lots fronting [*266] on the road so that in the event of future widening in conformity to the master plan the lots will still comply with the applicable area requirements. The action of the Commission is not designed to keep the strip in an unimproved condition so that the cost of condemnation would be less. The setback provisions would prevent its development in any case. Moreover, it is not shown that the present or future value [**913] of the land would be diminished by compliance with the master plan and regulations. It may well be that its value would be enhanced or that the developer could recoup any additional expense from 301 Md. 256, *; 482 A.2d 908, **; 1984 Md. LEXIS 367, *** prospective lot purchasers."@ 224 Md. at 323-24, 167 A.2d at 887. The Court rejected not only the contention of appellant that the absence of a guarantee from the State Roads Commission that the road would be widened in the future rendered the planning commission's action unreasonable, but also the argument [***16] that the planning commission had no authority to act as the State's agent in such a matter. The Court perceived no merit in these contentions because: the local code authorized adoption of a master plan; there was evidence that the County and the State Roads Commission coordinated road plans and highway development; and there was a foreseeable need for widening primary and arterial roadways in the County because of population expansion. 224 Md. at 325, 167 A.2d at 888. The Court concluded, "[T]here is no violation of constitutional principle."@ 224 Md. at 326, 167 A.2d at 888. The difference between this case and Krieger is the definition of reservation contained in Howard County Code § 16.108(54), which requires a developer to assign the land "for a specified use, to be held by him or his assignees for that use and no other use to a future time."@ It will be recalled that § 16.113(b)(2) requires the owner to "reserve within a proposed subdivision such part(s) of the right-of--way for a new state road designated on the general plan," and further states that "[s]uch reservation shall be in the general location and to the right-of--way width specified by [*267] the state."@ [***17] Although the County suggests that the reserved land could be farmed, such a use would not be for highway purposes: the clear language of the statute provides that reserved land may be used for "no other use" than that for which it is reserved. In Chadwick, 286 Md. !, 405 A.2d 241, we held that the Maryland-National Capital Park and Planning Commission unconstitutionally deprived landowners of property without just compensation because it compelled them to place land in public reservation for a period not to exceed three years. Although the land was exempt from taxes during this period, the statute in question specified that "any land so reserved [should not] be put to any use whatsoever, except upon written approval of the board," other than permission to "remov[e] weeds or trash from property so reserved...."@ 286 Md. at S, 405 A.2d at 243. We concluded that the "Commission's resolution placing appellees' land in reservation for a period up to three years stripped the landowners, for that extended period of time, of all reasonable use of their property and was tantamount to a `taking' without compensation as the lower court declared."@ 286 Md. at 12, 405 A.2d at 247. [***18] Chief Judge Murphy said for the Court: Page 6 "We construe the ordinance under which the Commission acted as not permitting the landowner to make, as a matter of right, any use of the property placed in reservation (other than to remove trash and weeds). We further construe the ordinance as not authorising the planning board to permit, upon the landowner's application, any use of the reserved property which conflicts with the flat prohibition contained in the ordinance against grading the land, erecting any structures thereon, or removing trees, top soil or other cover. Restrictions of such totality upon the use of property placed in reservation for athree-year period bring this case within the principle, so well illustrated in Pennsylvania Coal [ Co. v. Mahon, 260 U. S. 3J3, 43 S.Ct. 158, 67 L.Ed. 322 (1922)J, that a governmental restriction imposed on the ase of land may be so [*268] onerous as to constitute a taking which constitutionally requires the payment of just compensation."@ 286 Md. at 13, 405 A.2d at 247 (emphasis in original). The Court further stated: "The resolution does not merely circumscribe a beneficial use of the property; it [**914] [***19] inhibits all beneficial use for up to three years, without any guarantee that the property will be acquired in the future. That the Commission's resolution is tantamount to a taking is, we think, clearly buttressed by cases in other jurisdictions."@ 286 Md. at 15, 405 A.2d ar 248. We concluded the opinion by saying: "The Commission, supported by a well-prepared amicus curiae brief filed by the Attorney General. urges that we apply the rationale of cases like Headley i~ C,ih~ of Rochester, 272 N. Y. 197, 5 N.E.2d 198 (l>3O, and State v. Manders, 2 Wis.2d 365, 86 N. W 2d 469 (1957), sustaining the constitutionality of so-called official map laws -- statutes which establish the location of existing and planned streets and place restrictions on the issuance of permits to build structures in the bed of proposed roadways. These statutes restricting development in the bed of mapped streets contain provisions for variances to assure the landowner of a reasonable return on affected property, including the granting of a building permit to prevent substantial damage accruing to the owner where that course of action is required by justice and equity. Maryland's statute controlling [***20] development in mapped streets is similar to those involved in Headley and Manders. See Maryland Code (I 957, 1978 Repl. Lol.) Art. 668, ~ 6.01 et seq. n[2] [*269] "The facts of the present case clearly distinguish it from the cited cases involving the reservation of street locations. As in those cases. we recognize the need to promote intelligent planning by 301 Md. 256, *; 482 A.2d 908, **; 1984 Md. LEXIS 367, *** placing reasonable restrictions on the improvement of land scheduled to be acquired for public use. We do not, therefore. condemn as beyond the police power the enactment of reservation statutes which are reasonable in their application both as to duration and severity. Our holding today is a narrow one, limited to the facts before us. We conclude only that the Commission's resolution passed pursuant to § 50-31 of the County Code, placing appellees' land in reservation for up to three years, without any reasonable uses permitted as of right, was tantamount to a 'taking' in the constitutional sense."@ 286 Md. at 17-18, 405 A.2d at 249-50 (footnote omitted). To similar effect see Lomarch Corp. v. Mayor of Englewood, 51 N.J. 108, 237 A.2d 881 (1968), involving a one-year reservation. Compare [***21] Carl M. Freeman, Inc. v. St. Rds. Comm'n, 252 Md. 319, 330, 250 A.2d 250 (1969), in which we held unconstitutional a Montgomery County statute which provided that "[a]ny area reclassified by a local or sectional [*270] or District plan map amendment sh[ould] exclude and be held to exclude any portion of the area l[ying] in the bed of a road, street, or alley, whether existing or proposed on a plan adopted by the Commission or other duly constituted public authority." n2 Maryland Code (1957, 1983 Repl. Vol.) Art. 66B, ~ 6.01 provides for reservation of locations of mapped streets, etc., for future dedication or acquisition for public use. It is applicable when a planning commission has adopted the transportation element of the plan of the territory within its subdivision jurisdiction or of any major section or district thereof It provides in relevant part: "In the resolution of adoption of a plat the local legislative body shall fix the period of time for which the street locations shown upon the plat shall be deemed reserved for future taking or acquisition for public use. ... The commission may, at any time, negotiate for or secure from the owner or owners of any such lands releases of claims for damages or compensation for such reservations or agreements indemnifying the county or municipal corporation from such claims by others, which releases or agreements shall be binding upon the owner or owners executing the same and their successors in title.... At any time the local legislative body may, by resolution, abandon any reservation and shall certify any such abandonment to the said clerk of the circuit court." Page 7 Section 6.02 goes on to control development in the bed of mapped streets and the circumstances under which an owner may secure a permit for such development. The statute is essentially unchanged from that appearing as Code (1957) Art. 668, ~ ,¢' 31 and 32, discussed for the Court by Chief Judge Brune in Cong. School v. Roads Commission, 2l8 Md. 236, 245, 146 A.2d 558 (1958). [***22] [**915] We come down to the issue in this case, which is whether the Howard County subdivision regulation requiring JJM to reserve land for a proposed State highway constitutes an exercise of the County's police power or a taking. If the regulation is determined to be a valid exercise of the police power, then JJM has no legal cause for complaint. If, on the other hand, the regulation is determined to be a taking of the property, the County has no right to require the reservation for the proposed highway. D. Hagman, Urban Planning and Land Development Control Law § 140 (1975) defines the terms dedication and reservation: "Dedication ordinarily involves the conveyance of an interest in land by the fee owner to the public; usually to the local government having jurisdiction over the land. [HN4] Reservation, on the other hand, involves no conveyance but restricts the right of the subdivider and others to use the land for anything but the restricted purpose."@ Id. at 259. See also R. Anderson, American Law of Zoning ~ 23.25 (2d ed. 1977). Anderson comments in § 24.03: "The adoption of an official map, implemented by statutes prohibiting the improvement [***23] of areas depicted as streets, highways, drainage systems, or other public installations, raises constitutional questions which have troubled the courts as deeply as the more extensive controls imposed by zoning restrictions and subdivision regulations. While an official map, in the usual case, has less impact upon a landowner's free use of his tract than is true in the case of an ordinance which imposes restrictive zoning, or one which prohibits subdivision unless expensive improvements are installed, such a map may [*271] wholly deny him the use of a small area. Attorneys react sharply to such a deprivation, and some courts have been similarly disturbed. The notion that a municipality can deny to a landowner the use of land marked on a map as a paper street seems, at first blush, an affront to constitutionally protected property rights. 301 Md. 256, *; 482 A.2d 908, **; 1984 Md. LEXIS 367. *** ***"The serious issue of constitutionality did not arise until official maps were given the additional effect of depriving an owner of mapped land of the right to develop it in any way which required a building permit. Given such effect, an official map became more than a mere mapping of future streets. It became a mapping which limited [***24] the landowner's right freely to improve the mapped portions of his property, and it lent credibility to the argument that such a deprivation was a taking of property for public use. The courts have expressed diverse views as to whether an official map which limits land use in this manner and to this extent is an unconstitutional taking of property."@ Id. at 173-75. A number of scholars have written on problems similar to that in the case at bar. See generally, Brown, Reservation of Highway and Street Rights-of--Way By Official Maps, 66 W. va.L.Rev. 73 (1964); Johnston, Constitutionality of Subdivision Control Exactions: The Quest for a Rationale, 52 Cornell L.Q. 871 (1967); Mandelker, Planning the Freeway: Interim Controls in Highway Programs 1964 Duke L.J. 439 (1964); Reps, Control of Land Subdivision by Municipal Planning Boards, 40 Cornell L.Q. 258 (1955); Reps and Smith, Control of Urban Land Subdivision, 14 Syracuse L.Rev. 405 (1963); Wells and Lallas, Subdivision Land Dedication: Objectives and Objections, 27 Stanford L. Rev. 4 / 9 (1975). Professor Johnston states, "The transition in goals of subdivision control has necessitated reconsideration [***25] of its rationale. The observable progression has been from 'voluntariness,' to 'privilege,' to the police power."@ 52 Cornell [*272] L.Q. at 876. Citing Ridgefield Land Co. u. City of Detroit, 241 Mich. 468, 472, l17 N. W. 58, 59 (1928), he says: "In upholding street width and location requirements imposed on a developer by [**916] the city of Detroit, the Supreme Court of Michigan stated that 'in theory at least, the owner of a subdivision voluntarily dedicates sufficient land for streets in return for the advantage and privilege of having his plat recorded."'@ Id. at 877. As to the "privilege" of recordation Professor Johnston states that "[c]itations of authority supporting the privilege rationale usually begin with Ross v. Goodfellow, [7 App. D. C. 1 (Ct.App.1895)J."@ In discussing that case he states: "The subdividers in Ross had contended that, even if the commissioners had the power to propose a deflection of Delaware Avenue, they were not authorized to condition plat approval upon the dedication of land for the proposed street. The court rejected this contention. Page 8 [I]t must be remembered that each owner has the undoubted [***26] right to lay off his land in any manner that he pleases, or not to subdivide it at all. He cannot be made to dedicate streets and avenues to the public. If public necessity demands part of his land for highways, it can be taken only by condemnation and payment of its value. But he has no corresponding right to have his plat of subdivision so made admitted to the records. In providing for public record Congress can accompany the privilege with conditions and limitations applicable alike to all persons. In providing for such record in the Act of 1888, Congress sought to subserve the public interest and convenience by requiring practical conformity in all subdivisions of land into squares, streets and avenues, with the general plan of the city as originally established, and this, regardless of the fact that it might, in some instances, practically coerce the dedication of streets to public use which would otherwise have to be paid for. This recitation is unaccompanied by citation of authority. The opinion appears to rest solely on the conclusion that [*273] the action of the commissioners was authorized by Congress, and that their exercise of this authority was not [***27] subject to judicial review. The crucial issue -- whether the required dedication constituted a taking for which compensation is required by the fitth amendment -- apparently was not raised by the subdividers. It is thus improper to cite Ross as authority for the proposition that compulsory dedication of streets as a condition of plat recordation is not prohibited by the fifth amendment."@ Id. at 883. For the proposition that constitutionality was not raised he cites the court's statement on motion for rehearing where Chief Justice Alvey said for the court that Ross was not a case "in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States -- conditions necessary to exist to entitle the party applying to writ of error to the Supreme Court of the United States."@ 7 App.D.C. at lS. Professor Johnston indicated that Ridgefield, 241 Mich. 468, 2/ 7 N. W 58, is significant "in the development of the 'privilege' rationale ...."(c~ Id. at 884. He further states: "While conceding that existing streets could not be widened without payment for compensation, the court distinguished the situation under [***28] review. Here the city is not trying to compel a dedication. It cannot compel the plaintiff to subdivide its property or to dedicate any part of it for streets. It can, however, impose 301 Md. 256, *; 482 A.2d 908, **; 1984 Md. LEXIS 367, *** any reasonable condition which must be complied with before the subdivision is accepted for record. In theory at least, the owner of a subdivision voluntarily dedicates sufficient land for streets in return for the advantage and privilege of having his plat recorded. Unless he does so, the law gives him no right to have it recorded. This was followed by a supporting quotation from Ross [**917] "It should be noted that, since Michigan law permitted conveyance of subdivision lots by metes and bounds, recordation was not a legal necessity. Thus, application of the privilege rationale seems proper. Yet the court [*274] was unwilling to rely solely upon the 'privilege' rationale. The exaction was upheld alternatively as a proper exercise of the police power."@ Id. at 885. He further discusses that case: "The opinion thus indicates that, when the reasonableness of subdivision control regulation is at issue, the ultimate determinant of validity should [***29] be neither voluntariness nor privilege, but the police power. This suggests two questions. First, why impose a reasonableness requirement where the owner is permitted to subdivide without recordation? On this matter, the opinion is silent. Second, if reasonableness must be a function of 'necessity,' what is the test and how is it applied? The court refers to aself-evident relationship between street width and public safety and indicates that this relationship justifies the exercise of the police power. But this begs the question. The relationship exists with respect both to existing streets and to proposed streets, but the opinion explicitly concedes that the police power does not justify the widening of existing streets without compensating those whose land is taken for that purpose. The opinion furnishes no explanation for the distinction. Nevertheless, subsequent to Ridgefield Land Co., the test of validity of subdivision control regulations has often been said to depend upon whether or not they constitute a 'reasonable exercise of the police power.'@ In the formulation and application of tests of reasonableness, however, the courts have expressed divergent [***30] views."@ Id. at 886. Ayers v. City Council of Los Angeles, 34 Cal.2d 31, 207 I'.2d 1 (1949), is an oft-cited case in matters of this kind. In fact, Professor Hagman at 254 refers to it as "the leading case on subdivision exactions ...."@ Professor Johnston describes the case as one "where the subdivider owned thirteen acres of land in the shape of a long, narrow right triangle, bounded on two sides by thoroughfares, which intersected at the apex. (The tract was less than 500 feet wide at the base and Page 9 [*275] extended some 2,400 feet to the apex.)(n' The owner proposed to subdivide this tract into ten residential lots, one business lot, and one lot for religious use. A nearby cross street, sixty feet in width, would have bisected the tract if extended through the developer's land. On his proposed plat, the subdivider dedicated a strip of land sixty feet in width for the extension of this street, with the business and religious use lots abutting it on either side. The planning commission, however, conditioned plat approval upon the dedication of a strip eighty feet in width for the extension of this street. "I-he subdivider, challenging the reasonableness [***31] of the condition, brought an action of mandamus to compel recordation of his plat."@ Id. at 889. The court in Ayres stated: "[T]he proceeding here involved is not one in eminent domain nor is the city seeking to exercise that power. It is the petitioner who is seeking to acquire the advantages of lot subdivision and upon him rests the duty of compliance with reasonable conditions for design- dedication, improvement and restrictive use of the land so as to conform to the safety and general welfare of the lot owners in the subdivision and of the public. The well-considered observations in Mansfield & Swett v. Town of West Orange, 120 N.J.G. 145 (/98 A. ?25J. also involving a subdivision proceeding, are pertinent in this connection. The court there recognized the distinction between the exercise of the sovereign power of eminent domain and the noncompensatory nature of reasonable restrictions in respect to private interests when they must yield to the good of the community. That these general principles apply in [**918] subdivision map proceedings is also demonstrated in the cases of Ridgefield Gand Co. v. City of Detroit, 241 Mich. 468 ~2l7 [***32] N.W. 58J, and Newton v. American Sec. Co., 20l Ark. 943, 948 [148 S. W.2d 31 /J, where the distinction was made between the exercise of authority in such proceedings and the exercise of the power of eminent domain. In each of those cases it was held that the [*276] requirement for the dedication of land to the widening of existing streets was not a compulsory taking for public use; but that where it is a condition reasonably related to increased traffic and other needs of the proposed subdivision it is voluntary in theory and not contrary to constitutional concepts." a 34 Cal.'d at 42, 207 P.2d 1. Professor Johnston further comments relative to that case: "Ayres has been followed in a number of subsequent cases concerning compulsory dedication of land for streets. Unfortunately, it is usually cited to support the flat proposition that subdivision control requirements for 301 Md. 256, *; 482 A.2d 908, **; 1984 Md. LEXIS 367, *** street widening are valid conditions to plat approval. Such citations fail to consider the limited facts of Ayres: the regulations had actually benefited the subdivider by reducing his costs."@ Id. at 893-94. Relative to compulsory dedication for educational and recreational [***33] uses, Professor Johnston comments, "[S]o long as the period of reservation is not unreasonably long and the owner is not denied all beneficial use of his property, this type of statute could be upheld by analogy to street-mapping or interim- zoning ordinances."@ Id. at 906. It is significant in the context of this case that by way of footnote he states: "Safety-valve provisions could include assurance of full utilization of the land for any purpose other than buildings, plus the familiar variance remedy administered by boards of adjustment, utilizing either the zoning ('unnecessary hardship') standard or the more liberal street-mapping ('reasonable return') standard. Both are provided for in the New Jersey enabling act."@ Id, at 906, n. 157. Messrs. Reps and Smith comment: "[F]undamental differences do exist between the ... areas [of subdivision regulation and zoning]. While zoning involves no more than negative prohibitions on certain uses of the owner's property, [HNS] subdivision regulation often makes positive exactions of the owner. It may require him to construct streets or sewers, to convey a portion of [*277] his land to the municipality [***34] for public use, or to pay the equivalent of such construction or dedication in cash. It is submitted that this difference necessitates a more specific test of constitutionality, i.e., the legislation should not only be substantially related to the public health, safety, morals, or general welfare, but, insofar as dedications, activities, and expenditures are positively required of the subdivider these requirements should be reasonably related to the subdivision in question and should concern types of improvement for which municipalities have generally been conceded the power to levy special taxes or assessments."@ 14 Syracuse L.Rev. at 407 (emphasis in original). Nichols' The Law of Eminent Domain § 1.42[2] (Rev. 3d ed. by J. Backman, 1973 Recompilation by P. Rohan 1981) states: "It has been held ... that where the need for a road is substantially generated by public traffic demands, rather than by the proposed development, eminent domain must be used rather than the police power. "One of the tests requires the establishment of a reasonable relationship between the approval of the Page 10 subdivision and the municipality's need for land."@ Id. at 1-186-88. The [***35] latter work goes on in § 1.42[9] to state: "The mapping out of streets upon vacant land near large and growing cities has often been provided for, so that a systematic plan for the gradual enlargement [**919] of the city can be followed. A mere provision that after the recording of the map no streets shall be laid out which are not in accordance therewith is unobjectionable; but it is sometimes enacted that if the owner builds upon the land marked out for a street, when the street is aeh~ally laid out he shall receive no compensation for his building. As the plotting of a street under such a statute substantially amounts to depriving the owner of the use of the land within the limits of the projected street for any but temporary purposes, it is generally held that such statutes [*278] are unconstitutional unless the owner is given compensation for his loss."@ Id. at 1-277-79. Ventures in Property I v. City of Wichita, 225 Kan. 698, 594 P.2d 671 (1979), was an inverse condemnation action virtually identical on its facts to the case at bar. It was there claimed that the City of Wichita took land by inverse condemnation when it declined to approve platting [***36] of land in contemplation of the building of a future highway sometimes referred to as the Northeast Circumferential. The court said: "Preliminary to our discussion we note the Northeast Circumferential project remains inactive to this date. The preliminary field surveys have not been initiated. and planning has gone no further than the initial highway corridor. No right-of-way plans have been made and no facility has been constructed. Nor is the Northeast Circumferential one of the projects proposed for funding in the Secretary of Transportation's current plans through 1984, as approved by the Highway Advisory Committee on May 14, 1976. In short the project was and currently remains in a hold and study status."@ Id. at 702-03. 594 P.2d 671. It further stated, "On the admitted facts the matter before the Wichita City Commission was how to reserve the highway corridor from development so that future condemnation would be less costly, and so that development would not jeopardize the location of the corridor for highway purposes."@ Id. at 710, 594 P.2d 671. After extensive discussion of the authorities, the court said: "Confining our decision to the factual [***37] situation presented, we hold [HN6] where the proposed platting of land by an owner for residential development 301 Md. 256, *; 482 A.2d 908, **; 1984 Md. LEXIS 367, *** is approved by the governing body of a city in accordance with previously approved zoning regulations, subject to the sole restriction that a portion of the land in a defined highway corridor within the proposed plat be reserved in its undeveloped state for possible highway purposes at some indefinite date in the distant future, the governing body [*279] has taken property from the landowner for which it is required to respond in damages by inverse condemnation."@ Id. at 713-14, 594 P.2d 671. Brazer v. Borough of Mountainside, 55 N.J. 456, 262 A.2d 857 (1970), also presented facts similar to that in the case at bar. As the court put it: "Plaintiffs' application for approval of a subdivision of their land in the Borough of Mountainside was granted by the borough Planning Board, but only on condition that they reserve, and show on their subdivision plat, a right-of--way across the property for the future extension, as shown on the borough's master plan, of an existing street which now dead-ends at plaintiffs' sideline. Any building permit was directed to be denied [***38] until this was done."@ Id. at 459, 262 A.2d 857. The court further stated: "What was obviously intended is that plaintiffs would be required to offer irrevocably to dedicate this 50 foot strip, which amounts to about 20% of the area of the rear half of the property, for construction of the proposed street sometime in the future, without compensation either for the loss of its use in the meantime or for its value at any time."@ Id. at 462, 262 A.2d 857. The case was considered "on the hypothesis ... that the proposed subdivision did not make reservation of the right-of--way [**920] necessary because there would be street access by use of the dead-end."@ Id. at 463, 262 A.2d 857. After discussing a number of cases, the court said: "[T]he plain rationale of these cases is that, as was said in the context of off-site improvements in Longridge Builders, Inc. v. Planning Board of Princeton Township, 52 N.J. 348, 350 [, 245 A.2d 33@ (1968), a subdivider may be compelled only to assume a cost 'which bears a rational nexus to the needs created by, and benefits conferred upon, the subdivision... See Lake Intervale Homes, Inc. [***39] v. Parsippany-Troy Hills, 28 N.J. 423, 441-443 [, 147 A.2d 28J (1958).'@ Beyond that, Planning Board impositions, [*280] although purportedly authorized by the Planning Act or the local ordinance, amount to impermissible exactions."@ Id. at 465-66, 262 A.2d 857. The court held: Page 11 "So under the hypothesis that the proposed extension of Camelot Court through plaintiffs' property is not necessary or rationally related to the subdivision, because they have physical access by and are legally entitled to use the dead-end thereof, defendants may not condition subdivision approval upon a reservation of the right-of--way through the property for the proposed street extension and the lower tribunals were in error in holding to the contrary. To the same general effect elsewhere, see People ex rel. Exchange National Bank v. Lake Forest, 40 Ill.2d 281, 239 N.E.2d 819 (/968); but cf Ayres v. City Council of City of Los Angeles, 34 Cal. 2d 3/, 207 P.2d 1, I l A. L.R.2d 503 (1949)." ~~ ld. at 468, 262 A.2d 857. A number of cases support the proposition that there must be a reasonable nexus between the exaction and die subdivision. Some of [***40] the cases arise in litigation concerning requirements that land be set aside for parks or schools. Whether streets, highways, parks or schools are involved, however, the principle is the same. The cases include Aunt Hack Ridge Estates. lnc. i~. Planning Commission, 160 Conn. 109, 117-18, 273 A?d 880 (/970) (park); Wald Corp. v. Metropolitan Dade County, 338 So.2d 863 (F1a.Dist.Ct.App.1976). cert. denied, 348 So.2d 955 (F1a.1977) (drainage canal); Pioneer Tr. & Sav. Bk. v. Mt. Prospect, 22 111.24 37~, 380, 176 N.E.2d 799 (1961) (school); Schwing v. Cit7 ~/ Baton Rouge, 249 So.2d 304, 310 (La.App.), cert. denied, 259 La. 770, 252 So.2d 667 (1971) (street); Collis v. City of Bloomington, 310 Minn. S, 17-18, 246 N. W.2d 19 (1976) (park); Home Bldrs. Assn, etc. v. City of Kansas City, S55 S.W.2d 832 (Mo.1977) (en bane) (park); Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 33, 35, 394 P.2d 182 (1964) (park); Simpson v. City of North Platte, 206 Neb. 240, 245-46. 292 N. W.2d 297 (1980) (street); Robbins Auto Parts, lnc. v. City of Taconia, 117 N.K. 235, 236, 371 [*281] A.2d 1 /67 (1977) (highway); Frank Ansuini, lnc. v. Cin [***41] of Cranston, 107 R./. 63, 69, 264 A. 2d 9/0 (1970) (park); Bd. Sup. James City County v. Rotive, 2/h Va. 128, 138-40, 216 S.E.2d 199 (1975) (street); Jordan v. Menomonee Falls, 28 Wis.2d 608, 617, 137 N. W?d 442 (1965) (park and school); but see Jeriad. Inc. ~~. village of Scarsdale, l 8 N. Y.2d 78, 218 N. E. 2d 673 (1966). We bear in mind in this case the "fine line" distinction observed by Justice Holmes for the Court in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415, 43 S.Ct. 158, 160, 67L.Ed. 322 (1922): [HN7] "The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."@ Mahon, 260 U. S. at 415. 43 S.Ct. at 160. Cf. Euclid v. Ambler Realty Co., 272 U. S. 301 Md. 256, *; 482 A.2d 908, **; 1984 Md. LEXIS 367, *** 365, 387, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926) ("The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions."). The trial judge in the case at bar focused upon the provision of Howard County Code, § 16.108(54), which restricts reserved land "for that use and no other use to a [**921] future time."@ [***42] He "construe[d] the subject provision as not permitting the landowner to make, as a matter of right, any effective use of the property placed in reservation."@ Further, he pointed out that the duration of the reservation is unlimited and that the State is not required by law to acquire the property placed in reservation. We observe that a reservation, which has many positive features as noted in Krieger, 224 Md. 320, 167 A.2d 885, and Chadwick, 286 Md. 1, Page l2 405 A.2d 241, does not necessarily have to be as restrictive as the provision here. It was not, for example, so restrictive in Krieger. Moreover, the statute here is in sharp contrast with the purpose of Code (1957, 1983 Repl. Vol.) Art. 66B, ~ ~' 6.01-.03, to which Chief Judge Murphy referred for the Court in Chadwick, 286 Md. a~ 18, 405 A.2d at 249-50. [*282] We hold that [HN8] in order to exact from a developer a setting aside of land for highway pwposes there must be a reasonable nexus between the exaction and the proposed subdivision. No such nexus has been shown here. In this case the landowner has been deprived of all use of his land. Hence, we shall aftirm the judgment of the trial court. JUDGMENT AFFIRMED; [***43] HOWARD COUNTY TO PAY THE COSTS. ********** Print Completed ********** 111JSP Time of Request: June 20, 2003 05:02 PM EDT Print Number: 1821:0:4597371 Number of Lines: 468 Number of Pages: Send To: FOWLER, LARA - GORDON LEXIS-NEXIS-L3431-SPIEKER 24900 SE 40TH DR ISSAQUAH, WASHINGTON 98029-5774 Print Request: Current Document: 28 Time of Request: June 2D, 2003 05:D2 PM EDT Number of Lines: 468 Job Number: 1821:0:4597371 Client ID/Project Name: 111JSP Source: Eminent Domain Proceedings Terms: what effect does an already approved master plan or transportation plan have on a developer's ability to develop their land? Focus: transport! Send to: FOWLER, LARA - GORDON LEXIS-NEXIS-L3431-SPIEKER 24900 SE 40TH DR ISSAQUAH, WASHINGTON 98029-5774