Land Development

1
Land Development

• The Law of Physical Allotment
• Land Subdivision

2
Brought to You By
3
The Land Subdivision
4
Land Development Regulation

• Rules for the physical development of land are
  old dating back to the 8th Century
• When Great Britain and Spain first settle 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

5
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

6
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

7
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

8
The Need For Consistency
9
Zipper of the Day

• Freda Mae Batts Binford 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. .

10
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

11
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

12
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

13
ShadowLawn
Thomas Edisons home in West Orange N.J. Located
by Shadowlawn near his movie studio and lab
Glenmont
14
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

15
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

16
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

17
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 thee value of the
  nearby homes
• Held for Mansfield and Swett

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The Platting Process

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

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Studies
Drainage Traffic Circulation Soil
20
Example Sketch Plan - Informal
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Sketch Plan - Formal
22
Preliminary Plat With Topography
23
Final Plat
24
The Subdivision/Development
25
The Integrated Fabric of Development
26
Even Manufactured Homes
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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?

28
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

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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

30
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.

31
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!

32
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
• Moores plat was reconsider and refused for
  reasons other than non-conformance of public
  dedications

33
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
  Citys 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

34
The Thought Plickens

• The city commission refuses to accept the
  dedications because of an zoning issue with the
  Moores
• 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.

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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

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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 citys standards
• Endorsement cannot be withheld for reasons
  unrelated to physical and engineering standards

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Good Reasons For Standards
38
Things To Avoid
39
Two Reasons to Refuse Dedications
40
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?

41
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.

42
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

43
The Next Step

• Between 1980 and 1984 seven homes were built
• However, in 1982 the Town Board amended the
  platting ordinance (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 Towns 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.

44
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
  vested and orders the Town to issue permits to
  Ellington
• The case is appealed by the Town to the Supreme
  Court of New York

45
Vesting Gets Complicated

• This is a question of statutory interpretation
• It aint 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?

46
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

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Garipay v Hanover

• Can you flat deny a preliminary plat?
• Put in another way if the land is properly
  zoned doesnt the owner have a right to develop
  it
• What happens when you cant get there from here?

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Background

• Garipay proposes a preliminary plat of 49 homes
  in the Town of Hanover
• The road leading from the Towns 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

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Narrow, Winding Roads Are A Problem
50
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?

51
Courts 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

52
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

53
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 Bakers land
  Water is collected into a drain scupper then to
  the river

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From the Town to the River
55
Can You Guess What Happens
56
Next

• Over the years the town develops in the direction
  of the Bakers property
• Within 25 years the construction of two large
  parking lots overwhelms the drainage capacity
• Bakers land floods every time it rains

57
The Bakers Plan

• In 1965 the Bakers submit a preliminary plan to
  development 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

58
Courts 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

59
The Line
You might say the Planning Board crossed the line
60
Kellers View Of Subdivision Review

• Two things are sure to happen when you wrestle
  with a pig
• The pig will enjoy it
• You are sure to get dirty

61
Exactions Fees and Other Give Mes

• 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?

62
How To CollectThe Exactions
The Developers View
63
Homebuilders 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.
64
Fair Share of Traffic Cost
65
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

66
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

67
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

68
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 isnt fair because some Palm Beach
  communities decided not to adopt it

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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.

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Round 3 Tax Or a Fee?
71
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 cant
  spend road fee money to catch stray dogs

72
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.

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Hollywood Incorporated v Broward County - 1983

• The Florida Constitution gives charter counties
  such as Broward all the home rule powers of local
  self-government not inconsistent with general
  law, empowering the County government with broad
  powers.

74
The Issue

• Broward county intends to provide open space and
  recreation by one the three methods
• Dedicate three (3) acres for every one thousand
  residents of the proposed subdivision
• Pay the amount of money equal to the value of
  land that would have been dedicated
• Pay an impact fee according to a schedule in the
  ordinance.

75
The Program

• The county implemented a county park program with
  a standard of three acres of developed county
  level parkland per one thousand residents. This
  is on the low side.
• The ordinance requires the funds collected to be
  "expended within a reasonable period of time, for
  the purpose of acquiring and developing land
  necessary to meet the need for county level parks
  created by the development in order to provide a
  system of county level parks which will be
  available to and substantially benefit the
  residents of the platted area.
• The ordinance limits the use of these funds to
  acquiring and developing new land for park
  purposes within fifteen miles of the platted
  land.

76
The Challenge

• Hollywood, Inc is a real estate development
  corporation that paid a fee equal to the value of
  the land that would be dedicated under the second
  option of the ordinance.  Later, they sought
  declaratory and injunctive relief as well as a
  refund of the fee, challenging the part of the
  ordinance that requires, as a condition of plat
  approval, the dedication of land or the payment
  of a fee for use by the County in acquiring and
  developing county level parks.

77
The 1st Argument

• Hollywood asserts that Broward County lacked the
  legal authority to adopt this type of ordinance
  and that violates fundamental constitutional
  rights including due process and equal protection
  and constitutes a taking without compensation and
  is, in fact, an illegal tax.

78
(No Transcript)
79
Retroactive Impact Fees?

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

80
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

81
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

82
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."

83
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.

84
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

85
Exactions Dedication of Infrastructure

• Rohn v City of Visalia

Tulare Ave
Can the City condition site plan approval and a
building permit on 14 of Rohns land for
alignment of Court Street?
McSwain Mansion
ROHN
Court Street
86
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.

87
Layout
Tulare Ave
Court Street
88
Rohns 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

89
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

90
Rohn Submits A Site Plan

• The City presents a plan for street alignment
  that represented a dedication of 14 of Rohns
  land or 3,401 sq ft. of Rohns 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

To be dedicated
Court Street
91
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.

92
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 Rohns 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.

93
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

94
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.

95
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.

96
And More Exactions
97
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.

98
Widening
4 short plats Sparks

• 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

County Road
99
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

100
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.

101
The Sparkses Are Elated
102
Mr. Sparkes says we kicked butt
103
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.

104
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

105
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

106
OH! Failure
Sparks moves out of town and starts a new business
107
Recent Manhattan House of the Week Awards
The Short Shaft Award
108
The Good Taste Award
109
The Pedestrian Access Award
110
At Law

• Should the County have approved the final plat or
  should they have rescinded the preliminary plat
  and required compliance with the 2 acre lots?
• It is clear that California Land Development Law
  requires that the tentative subdivision map be in
  accord with the existing comprehensive plan at
  the time of its approval
• The court notes the Comp. Plan only required that
  lots sizes in this area must range from .1 - .75
  acres
• Rancho Del Dios lots averaged .6 acre