Land DevelopmentLand Development

The Law of Physical AllotmentLand Subdivision

The Law of Physical AllotmentLand Subdivision

Brought to You By:Brought to You By

The Land Subdivision

Also Allotment

The allotment of land has physical, economic and environmental implication

Some are worried about elemental design to shape behavior, privacy, and livability

Living With The Results

Land Development Regulation

• Rules for the physical development of land are old – dating back to the 8th Century

• When Great Britain and Spain first settled America they sent “regulations” for the development of villages and towns in the colonies

• Land development is not zoning. It is the process of land design form, infrastructure, amenities, and services used to bring order to physical development

Why Have Land Development Regulations?

• Order and efficiency in development• The use of consistent & common development

standards throughout a jurisdiction• To establish exactions and allocate responsibility in the

provision of infrastructure and hold the community harmless

• Consumer protection• Preservation of natural resources• Prevent harm to others

Types of Land Development

– The site planning process» Used as an intermediate and final stage in the fine

grained design of physical development

– The platting process• A plat (not a plot plan) is a map and precise plan

• The plat is a precise survey of a tract of land that contains the necessary bearings, monuments, curves, and notations necessary to locate any lot.

• Platting is also used to divide a tract of land into “lots” rather than using a metes and bounds description

Early Development

• Land speculation was rampant in the U.S. from the very beginning of settlement.

• Speculation became a serious concern when early 20th Century towns began to expand from the limits of the original town plan

• Speculators (developers and subdividers) used standards for development that were inferior to those developed by the host community

• Land development regulations evolved over a period of 20 – 30 years in the U.S. and were not guided by the exact standards and models used in zoning

The Need For Consistency

Zipper of the Day• Freda Mae Batts Binford,

56, of Louisville, died Tuesday at her home. She was a native of Huntsville, AL, and a member of Sweet Leaf United Primitive Baptist Church. She is survived by several nieces and nephews; a godson, Pee-Air Binford; and other relatives and friends. Funeral services will be held at 11 a.m. Saturday at her church, 1814 Cedar St., with burial in Louisville Cemetery. Visitation will be from 6-9 p.m. Friday.

.

To Begin• Last week, I stated this woman was the

ugliest woman I had ever seen.  I have since been visited by her sister . . . . and now wish to withdraw that statement. ~Mark Twain

Was There A Euclid v Ambler for Land Development

Regulations?

• Not really! There has never been an federal appellant level test of physical regulations

• Why? One of the reasons is the constitutional nature of zoning versus subdivision

– Use of the land (zoning is burdened with numerous constitutional protections)

– Land development has few protections other than the right to a consistent procedure

– Land use is a right – but building is commodity– Selling lots to the public is somewhat like selling used

cars

Mansfield & Swett, Inc Town of the Twsp. Of West Orange

• Facts– A 4.5 acre plat is prepared and sent to the Planning

Commission for review– The plat contains 19 lots and 2 streets and is know as

“Shadowlawn.”– The projected sales price is $15,000 - $18,000 (in

1939)– The Planning Commission disapproves the plat on the

basis that the proposed plan does not conform to the “estate” nature of the vicinity (which were estate homes on 4 – 5 acre tracts and 3 times the value)

– Does not conform to the wishes of the neighbors– Too much density

ShadowLawn

Thomas Edison’s home in West Orange N.J. Located by Shadowlawn near his movie studio and lab

Glenmont

The Developer Sues• This is a constitutional attack on the substantive

due process of the subdivision approval process– Tests the validity of the West Orange statute

which requires a precise plan even after the property is zoned

– Mansfield – Swett claims that zoning powers are valid but that subdivision is actually a planning process where objective standards rule – not deliberations

• The trial court holds for the city and the developer appeals to the N.J. Supreme Court

Legal Analysis

• The court distinguishes between planning and zoning.• The character of zoning is the dedication of particular

uses to designated districts designed to protect the public welfare

• Planning (as subdivision) is a term of broad meaning but is used to designated the inherent authority of the town – in its building and development – to resort to such measures as are necessary to assure that the community has a common essential fabric.

• There can be no question that the power to properly plan and design the community is constitutional

Approval• The court finds that, unlike zoning, a large

measure of discretionary authority is vested in the City to determine the standards for development

• HOWEVER• This is not to say that the power can be used in an

arbitrary manner• Land development regulations “are not written in

the context of advantage or detriment of a particular neighbor or owner but the effect on the entire community as a social, economic and political unit”

Conclusion

• Although the density may be much higher than the surrounding neighborhood, Shadowlawn is nevertheless an area of stately brick homes in a well planned setting. If the density is too great, then the Planning Commission may modify it

• When surrounded by appropriate safeguards it will not create abnormal traffic nor is there a reason to believe that it will degrade the value of the nearby homes

• Held for Mansfield and Swett

The Platting Process

• Land and Infrastructure/Economic Studies• The Sketch Plan• The Preliminary Plat• The Final Plat• The Precise Plat

Studies

Drainage

Traffic

Circulation

Soil

Traffic Impact Analysis

Topographical/Soils

Facilities/Infrastructure

Storm water Flow Analysis

Due Diligence

Yadda Yadda

Example Sketch Plan - Informal

Sketch Plan - Formal

Preliminary Plat – With Topography

Preliminary Plat – Staff Review Copy

Final Plat

The Subdivision/Development

The Integrated Fabric of Development

Even Manufactured Homes

Vesting, Platting and Approvals

• What is the relationship between the preliminary and final plats?

• What is the obligation of government? The obligation of the applicant?

• When does the right to vest occur in subdivision?

Youngblood v Bd. Of Supervisors of San Diego

County• This case involves the Rancho Del Dios subdivision• In 1974 the County approved a tentative plat for one

acre lots which was then permitted by the zoning ordinance and in accord with the general plan

• Later that year the County amended the general plan for this area calling for 2 acre lots

• Final plat approval was given in 1975 for the one acre lots on 274 acres. In 1978 the County rezoned the area for 2 acre lots

• Neighbors brought action for a mandamus to force the county to rescind the plat and conform to the two acre lots

Youngblood - Reasoning

• The County – Since the lots are already platted and the infrastructure is installed and sized to the scale of development, the plat or any revisions do not have to conform to the current plan.

• Youngbloods – The County has a duty to conform all densities and lot sizes to the current plan. If necessary, potential buyers can purchase two lots.

• The CA Supreme Ct. – Once a tentative plan is approved, infrastructure is installed, and the final plat ready for signature, the rights of the developer are vested

The Real Argument

• The opponents argue that even if the preliminary plat was consistent with the Comp. Plan, the Commission should not have approved the final plat because by this time the requirements had changed

• Once the tentative map is approved, the developer often must expend substantial sums to comply with the conditions attached to that approval. These expenditures will result in the construction of improvements consistent with the proposed subdivision, but often inconsistent with alternative uses of the land.

Conclusion

• “It is only fair to the developer and to the public interest to require the governing body to render its discretionary decision whether and upon what conditions to approve the proposed subdivision when it acts on the tentative map.” Approval of the final map thus becomes a ministerial act once the appropriate officials certify that it is in substantial compliance with the previously approved tentative map

• Rancho Del Dios rules!

Governing Body Action

• State law requires that the PLANNING COMMISSION approve the plat and the Governing Body endorse the dedications

• Lawrence passed a home rule ordinance that gave the City Council the authority to APPROVE plats

• Moore’s plat was reconsidered and refused for reasons other than non-conformance of public dedications

Moore v City of Lawrence, 1982

• Mr. Moore submitted a subdivision plat to the City of Lawrence

• The plat was found to be in conformance with the City’s subdivision regulation

• The Planning Commission endorses the plat• The Plat was sent to the Governing Body as required by

law• The Governing Body defers the endorsement for 4

months

The Thought Plickens

• The city commission refuses to accept the dedications because of an zoning issue with the Moore’s

• The Lawrence ordinance requires endorsement by the city before filing the final plat

• KS statutes vest the planning commission with the task of approving or disapproving the plat.

Conclusion

• The planning commission is responsible for reviewing & approving all plats

• The governing body may refuse to accept dedications only when such offers to dedicate do not meet the technical requirements for infrastructure development

In Kansas At Least -

• The final plat must be approved by the planning commission and:– Endorsed by the governing body– The endorsement means that the proposed

dedications conform to the city’s standards– Endorsement cannot be withheld for reasons

unrelated to physical and engineering standards

Good Reasons For Standards

Things To Avoid

Two Reasons to Refuse Dedications

Ellington Const. V Hempstead

• So how long does a plat last?• Where do old plats go?• Do lots die – or do they age in place?

The Background

• Village Law provides for an exemption period of three years after the filing of a subdivision plat during which an amendment increasing lot area or dimension requirements shall not "be applicable to or in any way affect any of the lots shown and delineated on such subdivision plat“

• Prior to an increase in the applicable area and dimension requirements, Ellington failed to complete his approved subdivision to apply for building permits on all of the proposed lots.

What Did Ellington Do?

• In 1975, the Town of Ramapo Planning Board accepted for filing petitioner's "average density" subdivision plat. As a condition of its "average density" approval, the town required that 12.105 acres of the 33.522 acres in the subdivision be irrevocably dedicated to it for parkland purposes. The subdivision was approved to be developed in two sections, the first to consist of nine lots and the second of twenty-two lots.

• 3 months later the parkland was dedicated and Ellington files the final plat the following month

The Next Step• Between 1980 and 1984 seven homes were built• However, in 1982 the Town Board amended the

plat (it did not change any lot or street arrangement)

• All seven homes were constructed in phase one – phase two remained vacant but all its lots complied with the Town’s requirements

• However, in 1984 the Town amended its ordinance to make the minimum lot 35,000 sq ft. Phase I lots were all 22,500 sq. ft.

The Saga Continues• In 1986 Ellington seeks a building permit for

Phase II but is denied because he did not seek a permit during the 3 year exemption period (Sept. 1975 to 1978)

• Ellington applies to the Board of Zoning Appeals for an area variance but is denied

• Both the trial and the appeals court reversed the BZA findings that the development rights were not vested and order the Town to issue permits to Ellington

• The case is appealed by the Town to the Supreme Court of New York

Vesting Gets Complicated

• This is a question of statutory interpretation• It ain’t simple• On its face, the statute said that everything on the plat

is exempt for three years but it does not say how you get the exemption

• Do you have to apply for a building permit(s) – do you have to apply for all the building permits?

• Do you have to construct all the homes within three years?

• Is it enough that you just install all the infrastructure?

So – What Gives

• The court says that the normal law will grant vested rights once the final plat is approved and the developer makes substantial investments

• The Town says – no way – you have to apply for building permits – and you have to actually build

• The court concludes by using common sense:– You have to have your preliminary and final plat

approved before the change– When you made substantial improvements and

expended $$$ sum of money you get vested rights– After this the 3 year rule does not apply

Garipay v Hanover

• Can you flat deny a preliminary plat?• Put in another way – if the land is properly

zoned doesn’t the owner have a right to develop it

• What happens when you can’t get there from here?

Background

• Garipay proposes a preliminary plat of 49 homes in the Town of Hanover

• The road leading from the Town’s road network to the subdivision is steep, winding, an inadequate to carry the increased traffic. It is only 15 feet wide with no shoulders

• There are already 18 homes in the area• The Planning Commission denies the preliminary plat• The egg sucking contest begins

Narrow, Winding Roads Are A Problem

Different Views

• The Planning Commission says that this proposed development is premature

• Garipay says how can it be premature if there are already 18 homes in the area?

Court’s View• Under the statutory scheme used in New

Hampshire it is the the duty of the Planning Commission to judge when services are inadequate to serve new, proposed development

• If inadequate, the Planning Commission must make this judgment and declare the subdivision to be premature

• And yes, the Planning Commission may examine “off-site” facilities to make this judgment rather than just pure “on-site” facilities

Take Home Point

• A new development is not an island. It must be viewed within the context of the whole community and must mesh within the total pattern of infrastructure

Baker v Planning Board

• In 1935 Baker and wife grant the town of Farmington an easement across their land

• Easement contains a drainage pipe with an open ditch to conduct water from one part of the town to its out-skirts

• Farmington builds a ditch across Baker’s land: Water is collected into a drain scupper – then to the river

From the Town to the River

Can You Guess What Happens

Next

• Over the years the town develops in the direction of the Baker’s property

• Within 25 years the construction of two large parking lots overwhelms the drainage capacity

• Baker’s land floods every time it rains

The Baker’s Plan

• In 1965 the Baker’s submit a preliminary plan to develop their 11 acres

• It is denied because:– Would need a sewer lift rather than a gravity tie into the

main sewer lateral– If the town can no longer use the property as a

detention basin the downstream drainage system would be overwhelmed

– Commission votes it down because the town cannot stand the expense of the new drainage system

Court’s Finding

• “Obviously a planning board may not exercise its authority to disapprove a plan so that a town may continue to use the owner's land as a water storage area and thereby deprive the owner of reasonable use of it.”

• Meeting the public interest does not include using the land of another for lack of community ambition

The LineYou might say that the Planning Board crossed the line

Keller’s View Of Subdivision Review

Two things are sure to happen when you wrestle with a pig

1. The pig will enjoy it

2. You are sure to get dirty

Exactions – Fees and Other Give Me’s

• The core principle of subdivision review and approval is that the local government should be held harmless

• This means that all new development must pay their way and not shift the financial burden to the local government as a whole– What is a fair exaction?– Are exactions only limited to on-site improvements or

should the developers pay all or part of the costs for off-site improvements?

– What forms of exactions are permissible? Is cash $$ in the form of a fee OK to use?

How To CollectThe Exactions

The Developer’s View

Homebuilder’s Association of Palm Beach v Palm Beach, FL

This case involves the validity of a Palm Beach County ordinance imposing an impact fee on new development for the purpose of constructing roads made necessary by the increased traffic generated by such new development.

The ordinance requires any new land development activity generating road traffic to pay its "fair share" of the reasonably anticipated cost of expansion of new roads attributable to the new development.

Fair Share of Traffic Cost

                                                               

The Method

• The formula takes into consideration the costs of road construction and the number of motor vehicle trips generated by different types of land use

• A fee of $300 per unit for single family homes, $200 per unit for multi-family, $175 per unit for mobile homes with other amounts for commercial or other development, all subject to annual review.

• Palm Beach is divided into 40 traffic zones and the fees go into a trust fund for each zone to finance new road construction

The Construction Association Sues

• The lawsuit against Palm Beach poses three challenges– Whether Palm Beach County has authority to impose

an impact fee on new development for the construction of public roads

– Whether the proposed ordinance violates the equal protection clauses of the Constitutions of the United States and State of Florida.

– Whether the ordinance imposes a regulatory fee or a tax

The Authority

• The Const Assoc says there is no special grant of power to enact a fee for traffic

• The court says that the home rule power of counties to govern themselves is broad. There is nothing in the general statute of the state the forbids this

• There are statutes that allow the county to provide and regulate arterial, toll, and other roads, bridges, tunnels and related facilities; eliminate grade crossings; provide and regulate parking facilities; and develop and enforce plans for the control of traffic and parking.

• The Association loses round 1

Equal Protection

• The Const Assoc says that our position is that since anyone can drive a vehicle over any of these roads, regardless of whether he lives in the zone or has paid the impact fee, there is too great a disparity between those who pay and those who receive the benefit

• The court says “use your head” since it is sufficient if the improvements constructed with the fees imposed bear a reasonable relationship to the needs created by the subdivision.

• But, says the Const Assoc., the fair share ordinance isn’t fair because some Palm Beach communities decided not to adopt it

Is It Fair

• The fact that an impact fee is payable on land located in the county whereas it would not be payable on nearby land in a municipality which has opted out does not offend equal protection. Unequal or different charges or fees assessed in incorporated and unincorporated areas, like different hours for retail liquor sales and other areas of regulation which may lack uniformity, are not improper where such legislation is otherwise a valid exercise of governmental power.

Round 3 – Tax Or a Fee?

This Is Important

• Revenue raising by government takes two forms– A tax – where the amount of funds generated do not

have to be proportionate to the need– A fee – where the amount of money raised must be

proportionate to the need

• When you collect a tax you can spend it on anything. When you levy a sales tax you can pay salaries, buy donuts for meetings, or hats for police

• When you levy a fee it must be spent on the specific need that created the fee. You can’t spend road fee money to catch stray dogs

Conclusion – It Is A Fee!

• The ordinance is well crafted by a specific study• It recognizes that the rapid rate of new development

will require a substantial increase in the capacity of the county road system.

• The cost of construction of additional roads far exceeds the fair share fees imposed by the ordinance by about eighty-five percent. The formula for calculating the amount of the fee is not rigid and inflexible, but rather allows the person improving the land to determine their fair share by furnishing his own independent study of traffic and economic data in order to demonstrate that his share is less than the amount under the formula set forth in the ordinance.

Retroactive Impact Fees?

• The City of Key West v R.J.L.S Corp.

What Happened?

• In the August of 1981 Key West issued building permits for 76 condo units to R.L.J.S. – all units were pre-sold

• In 1983 the City issued permits for 92 additional units and 40 were pre-sold. R.J.L.S. paid $19,400 in sewer connection and permit fees when they obtained these permits

• In the Spring of 1984 the City issued the certificates of occupancy for the first 76 units

• In late 1984 the City enacted separate impact fees for sewer, solid waste, and traffic

The New Fees

• The purpose of these ordinances was to allocate to new residents of the City 'a fair share of the cost of new public facilities', specifically those . . . dealing with sewer and solid waste treatment and those capital improvements necessitated by increased traffic on account of new development in the City

• Fees would be collected when the occupancy permit was issued

• R.J.L.S. would not pay the fees and Key West refused to issue the certificates

The Trial Court

• "The timing in this case is particularly significant to the Court in that it makes virtually impossible any chance of the developer citizen being able to pass on the impact fee. Because the Plaintiffs' rights in their building permit had already vested, Key West could not retrospectively impose fees that amount to a personal punishment to him. Such interference with the Plaintiffs' vested rights to complete construction in accordance with the terms of the building permits, constitutes a due process violation and are therefore unconstitutional."

The Appeals Court

• In principle we see nothing wrong with transferring to the new user of a municipally owned water or sewer system a fair share of the costs new use of the system involves.

• The developers say the doctrine protects them because after receiving the building permit, they reasonably believed that they knew of all the expenses that they would have to pay, and in reliance on this set prices for the units. They claim that the City's subsequent assessment of impact fees after the units were sold retroactively denied them the force and effect of the building permit and violated their vested rights.

Conclusions

• The court finds that “Vested rights involve a change of mind or broken promise, the imposition of different requirements after the start of construction. Because the building department approved plans and issued a building permit, there is no reason to believe that the city council would not enact impact fees where needed

• No constitutional right of the developer was offended by the municipalities action …” without a contractual agreement, one cannot assume that additional taxes or fees will be imposed

Exactions – Dedication of Infrastructure

• Rohn v City of Visalia

Cou

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tre

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Can the City condition site plan approval and a building permit on 14% of Rohn’s land for alignment of Court Street?

ROHN

Tulare Ave

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McSwain Mansion

Background

• Court Street runs north and south and intersects Tulare Avenue, which runs east and west. The portion of Court Street south of Tulare Avenue is skewed to the east; it does not line up perfectly with the continuation of Court Street as it crosses Tulare to the north. It appears that this imperfect intersection came into existence during the original planning development of the area.

•The City presents a plan for street alignment that represented a dedication of 14% of Rohn’s land or 3,401 sq ft. of Rohn’s 24,259 sq. ft.

Rohn’s Property

• Rohn owns real property at the southeast corner of Court Street and Tulare Avenue. A single family residence was on the property and it was zoned for either single or multifamily residences. Rohn applied to the city for an amendment to the general plan to change the land use designation from residential to professional administrative offices. The owners intended to convert the house to an office building.

• During this process the house was placed on the State Register of Historic Places

Plan Amendment

• The Planning Commission and the City Council approved a change from multi-family housing to office buildings on the property. Both hearings mentioned the condition that Rohn must dedicate land to complete the street re-alignment

• Rohn applied for a special permit and it was granted by the Historic Preservation Advisory Board and the City Council. The zoning was conditioned on the dedication of land for Court Street improvement

Rohn Submits A Site Plan

• The City presents a plan for street alignment that represented a dedication of 14% of Rohn’s land or 3,401 sq ft. of Rohn’s 24,259 sq. ft.

• Rohn files suit before the district court The court finds that there was no reasonable relation between the required dedication and the use for which the building permit was requested given the amount of new traffic generated

Cou

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To be dedicated

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To be dedicated

Appeals Court

• A dedication involves the uncompensated transfer of an interest in private property to a public entity for public use. A regulatory body may constitutionally require a dedication of land as a condition of development, and such a requirement is not viewed as an act of eminent domain

• If the applicant must donate property for a public use that bears no relationship to the benefit conferred on the applicant or the burden imposed on the public, there is a taking of property. Conversely, if there is such a rational relationship, the requirement of dedication of property . . . is a validly imposed condition.

Analysis• The disagreement in this case is whether there is

a sufficient nexus or relationship between the condition imposed and respondents' proposed conversion

• The city argues that the required nexus exists because Rohn’s project imposes a greater traffic burden and creates the need for the street widening and realignment.

• The city contends that as long as there is some nexus, the amount of property required for dedication is unlimited.

Conclusion• There is no substantial nexus between the

dedication condition and the alleged traffic burden created by the conversion

• The record disputes that the change in use of the property will impose a significant traffic burden in the area or the city's streets in general

• The staff findings concluded that the conversion of the property would impose no significant traffic problems in the area

• The planning report acknowledged that conversion of the property, and others in the area, to professional use would decrease the potential traffic that could result if the zoning remained the same and apartments were built

So – What Happens?

• The dedication required by the Site Plan Review was not based on any traffic problems, but as a means of implementing the connection and the long-awaited realignment of Court Street at its intersection with Tulare Avenue

• Therefore, it is neither proportionate to the impact of development nor does it form a rational nexus to the need for dedication.

Too Bad, So Sad For the City

• “The record indicates that the city viewed the landowners' application for rezoning and site plan review as the "hook" it needed to acquire this property for nothing, even though the reasons for the dedication existed long before the conversion of the McSwain Mansion was proposed.”

• The "hook," however, is unavailable. As in Nollan, the city may proceed with its general traffic plan, but if it wants 3,400 square feet of respondents' property for a street project lacking any relation to the proposed conversion, it must pay for it.

And More Exactions

City of Key West v R.J.L.S. Corp

• Does a municipality's assessment of developmental impact fees upon the developer of a condominium apartment building violate any constitutionally protected right of the developers where such fees are assessed after a building permit has been issued and the developers have sold a substantial number of the building units?

Southernmost Point in the Continental U.S.

Condo Project Site

Background

• In August 1981, Key West approved the developers' community impact statement and site plan.

• Several months later, the City issued a building permit for 76 units, all of which had been sold.

• In October 1983, the developers obtained a building permit for 92 additional units, some 40 of which were already sold.

• The developers paid $ 19,400 in sewer connection and permit fees when they obtained this second permit.

Three Years Later

• In the spring of 1984, the City issued certificates of occupancy for the first 76 units. Thereafter, during a one-year period beginning in late 1984, the City enacted ordinances imposing separate impact fees for sewers, solid waste, and traffic.

• The purpose of these ordinances was "to allocate to new residents of the City 'a fair share of the cost of new public facilities', specifically those . . . dealing with sewer and solid waste treatment and those capital improvements necessitated by increased traffic on account of new development in the City.“

• Each of the ordinances provided that "no certificate of occupancy shall be issued" until any applicable impact fee was paid.

R.J.L.S is. … …

• The developers refused to pay the three impact fees, the City denied their request that certificates of occupancy be issued for the additional 92 units in the development.

Were Development Rights Vested? The Trial Court

• There must be an opportunity to pass the fees to the ultimate user who causes the impact on the community is necessary for the law to meet constitutional muster.“

• The developers were not afforded such an opportunity and, second, that the City attempted to retrospectively apply the fees after the developers' rights in the building permit had vested.

Florida Supreme Court

• The law requires that the fees be fairly applied to “new users” that will burden the system

• The law does not require the city to pass these fees directly to individuals

• The burden is on the person who requests the permit, rather than the ultimate user

Conclusion

• "Appellants' attempt to use a vested rights principle to gain immunity from unforeseen taxes is virtually without precedent, and if followed to its logical conclusions, would shield any lawful business from newly enacted taxes if that business had made any sort of irrevocable commitments, either financial or contractual, in commencing operations in that municipality.

• The imposition of a new tax, or the increase in the rate of an old one, is simply one of the usual hazards of the business enterprise

A Few Interesting Statistics

• Population 2004 – 25,478• Housing Units - 13,306• The census reports that 57% of the

wage& hour employees lack housing• The median income is twice as

high as Florida’s median• Median value of housing unit

is $368,533

Sparks v Douglas County

• The Sparkses filed 4 minor plat applications• Each plat would contain 4 lots• The planning director reviewed the plat applications and

determined the streets bordering the plats were deficient in right of way width by county standards and thus would not accommodate future construction of street improvements. The director also determined that 32nd Street did not meet fire code requirements for safe access.

Widening

4 short plats

SparksC

ounty Road

The Subdivision Review Committee approved the plats subject to certain conditions. Each plat had to dedicate a certain amount of right-of-way – ranging from 5’ to 25’ for road widening purposes

Actions

• The Sparkses appealed to several local administrative review bodies but the conditions were upheld

• The district court also held that the streets were deficient in size and capability and upheld the conditions for dedication

Circuit Court of Appeals

• The Court of Appeals reversed the trial court in a split decision.

• The majority determined there was no evidence that residential development of the Sparkses' properties would have an adverse impact which would necessitate widening the adjacent roads. The court concluded that requiring dedication of rights of way as a condition for plat approval was an unconstitutional taking.

The Sparkses Are Elated

Mr. Sparkes says: “we kicked butt”

http://aalto.arch.ksu.edu/jwkplan/cases/City%20of%20Olympia%20v%20Drebick%20_%20impact%20fee,%20growth%20management%20act,%20cumulative%20vs%20specific%20traffic%20impact.htm

Washington Supreme Court

• As a prerequisite for development permission, a regulation may require a landowner to dedicate property rights for public use if the regulatory exaction is reasonably calculated to prevent, or compensate for, adverse public impacts of the proposed development

• Using the Dolan Rule - 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 proposed development.

So Who Made This Determination?

• The Planners did• The Subdivision Review Committee did• The Douglas County Regional Planning Commission did• The Board of County Commissioners did• The Trial Court Did• The appeals court may not substitute its findings for

those of the trial court unless such findings are so wide of the mark as to constitute an arbitrary and unreasonable finding

Decision

• The Sparkse’ concede that a "nexus“ exists between requiring dedication of rights of way and the County's legitimate interest in promoting road safety.

• The pivotal issue is whether the exactions demanded by Douglas County are roughly proportional to the impact of the Sparkses' proposed developments The Sparkses also claim there is no way to truly measure the impact of development

• Reversed – The Degree of connection is sufficient to permit the conditions on platting to remain

OH! Failure

Sparks moves out of town and starts a new business

Olympia – Proportionate Tax?

City of Olympia v Drebick 2004

• In 1998, John Drebick sought a building permit to build a new commercial office building near the City's boundary

• The building was to have four stories and 54,698 square feet.

• The City granted the permit on the condition that Drebick  help to improve the City's roads by paying a traffic impact fee.

The Washington Impact Fee Law

• a) Impact fees - Shall only be imposed for system improvements that are reasonably related to the new development;

(b) Shall not exceed a proportionate share of the costs of system improvements that are reasonably related to the new development; and

(c) Shall be used for system improvements that will reasonably benefit the new development.

Estimating the Fee

• The City calculated the fee by estimating– (1) the total square footage of all new commercial office

space likely to be built within the city's boundaries and – (2) the cost of all road improvement projects that such

space would necessitate within the city's boundaries. It then divided (1) into (2) to obtain an average rate per square foot that each new office building should pay toward all of the City's road improvement projects, regardless of any particular building's traffic-related impacts.

Applying the Fee

• Multiplying this average rate ($ 2.95 per square foot) times the number of square feet in Drebick's specific development (54,698) resulted in a fee of $ 161,359 which Drebick paid under protest.

The Protest

• Drebick appealed to the City's hearing examiner. • He argued in part that the City could not impose an

impact fee that exceeded the individualized traffic-related effects of his specific project and that those effects would be fully mitigated by a payment of about $ 29,000

• The City countered that it was imposing an excise tax not a regulatory fee, and thus it could impose such a tax without regard to the individualized impacts of Drebick's specific project

Trial Court

• The court held that the City's assessment was "analogous to" a tax and thus that the City did not have to show a "proportional nexus" between its assessment  and the traffic-related effects of Drebick's specific project.

When Dedications Are Appropriate – The Appeal

• Is it is permissible to require the payment of a development impact fee as a condition of issuing a building or land use permit depends on four principles: – (1) the government must identify a public problem or

problems that the condition is designed to address; – (2) the government must show that the proposed

development will create or exacerbate the identified public problem (i.e., there must be a nexus between the development and the identified public problem);

Principles Continued -

– (3) the government must show that its proposed condition or exaction tends to solve or at least alleviate the identified public problem (i.e., there must be a nexus between the proposed solution and the identified public problem);

– and (4) the government must show that its proposed solution to the identified public problem is roughly proportional to that part of the problem that is created or exacerbated by the proposed development.

But, The Washington Statute Requires Specificity

• A local ordinance enacting impact fees shall include a schedule of impact fees which shall be adopted for each type of development activity that is subject to impact fees, specifying the amount of the impact fee to be imposed for each type of system improvement. The schedule shall be based on a formula or other method of calculating such impact fees.“

• This language speaks to the amount to be assessed and collected from each type of development activity for each type of system improvement. It does not, however speak to the amount that any particular project is to pay.

Conclusion

• The Washington Supreme Court finds that the law requires an “individualized” method of accounting for the impact fee

• Found for the developer. The dragon is slain