Agenda - Planning Commission - 02/04/1997

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Page 2 -- January 15, 1997 Z.B. Taking -- Did county show dedication and road improvements were justified? Citation: Art Piculell Group v. Clackamas County, 922 P. 2d 2227 (Oregon) 5996 The Art PiculelI Group, a developer, wanted to build a subdivision in Clackamas County, Ore. Ail the proposed lots but one were south of a road than generally ran east-west. The lot north of the road was at the western edge of the subdivision. Residents of the proposed subdivision would not depend on only the road for access. Traffic from another subdivision would have access to the road through the new subdivision. The county approved the subdivision with conditions: It required the developer to dedicate 10 feet of property and make partial road improvements to the portion of the road bordered on the south by the subdivision. In addition, the developer had to make full street improvements to the road segment bordered on both sides by the subdivision. Some of the county hearing officer's findings contained an error, incorrectly stating the subdivision's utilities would be built within the road's right of way. The developer argued the condition to make road improvements was unconstitutional under the U.S. Supreme Court's Dolan decision, tt said its subdivision would create only 2.6 percent of the traffic on the street, so it should have to contribute only 2.6 percent of the cost of improvements. The hearing officer had stated that "[t]his type of mathematical analysis is specifically disapproved in Dolan." The officer agreed the cost of improvements was high compared to the subdivision's use of the road, but was comparable to the cost of the whole road system. The County Land Use Board of Appeals (LUBA) affirmed the county's decision, concluding the county had shown that, as required by Dolan, rough proportionality existed between the impact of the subdivision and the conditions imposed on the developer. LUBA's decision did not mention the hearing officer's incorrect statements about the location of utilities. The developer asked a court to review LUBA's decision on several grounds. The developer argued the incorrect statements in the county's findings automatically meant LUBA was wrong to uphold the conditions. The county responded that LUBA did not mention the incorrect statement, and probably had not even considered it. The developer also argued the county and LUBA had not applied Dolan correctly. According to the developer, Dolan did not allow the county even to consider the benefits the dedication and road improvement would provide to the subdivision in deciding whether the conditions were roughly proportional to the subdivision's impact. Finally, the developer claimed the hearing officer ignored its evidence about the amount of traffic the subdivision would create compared to all the traffic on the road. DECISION: Reversed and sent back to the Land Use Board of Appeals. The hearing officer's decision had to be reversed because it was based on