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and within the floodplain· This area shall include portions at a
<br /> suitable elevation for the construction ora pedestrian/bicycle
<br /> pathway within thc floodplain in accordance with the adopted
<br /> pedestrian/bicycle plan.
<br />
<br /> Thus, the commission required that Dolan dedicate the
<br />portion of her properD' lying within the 100-year floodplain for
<br />improvement ora storm drainage system along Fanno Creek attd
<br />that she dedicate an additional 15-foot strip of land adjacent to
<br />the floodplain as a pedestrian/bicycle pathway. The dedication
<br />required by that condition encompasses approximately 7,000
<br />square feet, or roughly 10 percent of the property.
<br />
<br />Findings of the Planning Commission
<br />Thc commission made a series of' findings conceroing the
<br />relationship between the development conditions and thc
<br />project's anticipated impacts. First, it noted that "li]t is reason-
<br />able to assume that customers and employees of the future uses of
<br />this site could utilize a pedestrian/bicycle pathway adjacent to
<br />this development for their transportation and recreational needs."
<br />The commission also found that creating a convenient, safe
<br />pedestrian/bicycle pathway system "could of'fset some of the
<br />traffic demand on [nearby] streets and lessen the increase in
<br />traffic congestion." It went on to note that the required flood-
<br />plain dedication would be reasonabh' related to Dolan's request
<br />to intensify the use of'the site given the increase in the import, i-
<br />ons surface. The commission stated that the "anticipated
<br />increased stormwater flow from the subject property to an
<br />already strained creek and drainage basin can only add to the
<br />public need to manage the stream channel and floodplain for
<br />drainage purposes." Based on this anticipated increased
<br />stormwater flow, the commission concluded that "thc require-
<br />ment of'dedication of the floodplain area on the site is related to
<br />rite applicant's plan to intensi~' development on the site."
<br />
<br />Conditions Found Unconstitutional
<br />First, the Court struck down the floodplain dedication, then the
<br />bicycle pathway condition. Most interestingly, the Court neither
<br />made use of nor mentioned its new "rough proportionaliD," test
<br />in either finding. In failing to use its new standard, the Court has
<br />confused matters more, which is especially ironic after saying that
<br />the purpose for introducing it was to avoid confusion with the
<br />rational basis and reasonable relationship standards. Concerning
<br />the floodplain dedication, it stated that "[w]e conclude that the
<br />findings upon which the ciD, relies do not show the required
<br />reasonable relationship between the floodplain easement and the
<br />petitioner's proposed new building" (emphasis added).
<br /> Basically, the Court objected to the floodplain dedication
<br />because the city. did not mereJy prohibit the landowner building
<br />in the floodplain, but demanded that she grant a permanent
<br />easement for the public to use the dedicated strip of land as a
<br />public greenway along the river. The Court concluded that this
<br />type of permanent recreational easement did not merely regulate
<br />her use of this portion of her property but amounted to a taking
<br />of her property without just compensation:
<br />
<br /> The city has never said why a public greenway, as opposed to
<br /> a private one, was required in the interest of flood control.
<br /> The difference to petitioner, of course, is the loss of her
<br /> ability to exclude others .... It is difficult to see why
<br /> recreational visitors trampling along petitioner's floodplain
<br /> easement are sufficiently related to the city's legitimate
<br /> interest in reducing flooding problems along Fanno Creek,
<br /> and the city has not attempted to make any individualized
<br /> determination to support this part of its request.
<br />
<br /> Turning to the bicycle path condition, the Court used its
<br />most strained ri:asoning to declare this development exaction
<br />unconstitutional. Again, the court failed to mention its new test,
<br />Although conceding that dedications for streets, sidewalks, and
<br />other public ways are reasonable exactions to control traffic
<br />congestion generated by a proposed property use, it added that
<br />"the city has not met its burden of demonstrating that the
<br />additional number of vehicle and bicycle trips generated by the
<br />petitioner's development reasonably relate to the city's
<br />requirement for a dedication of the pedestrian/bicycle pathway.'~
<br /> Most alarming about the Court's conclusion was that the
<br />city did, in fact, have findings. This was not simply a case
<br />where a local zoning or planning }.)od3, made sonic conclusory
<br />statement, such as that the condition furthered the
<br />community's health, safety, and general welfare. Rather, the
<br />city found that the development would generate roughly 435
<br />additional trips per day.
<br /> An especially derisive passage from thc harshly worded
<br />dissenting opinion written by Justice Stevens alludes to the
<br />majority's result-oriemed reasoning concerning the bicycle path:
<br />
<br /> The Court's rejection of tile bike path condition amounts to
<br /> nothing more than a play on words. Even, one agrees that the
<br /> bike path "could" offset some of the increased traffic flow that
<br /> tile larger store will generate, but the findings do not
<br /> unequivocally state that it will do so, or tell us just how man)'
<br /> cyclists will replace motorists. Predictions on such matters are
<br /> inherently nothing more than estimates. Certainly the
<br /> assumption that there will be an offsetting benefit here is
<br /> entirely reasonable and should suffice whether it amounts to
<br /> 100 percent, 35 percent, or only 5 percent of the increase in
<br /> automobile traffic that would other~vise occur. If the Court
<br /> proposes to have the federal judiciaD, micromanage stare
<br /> decisions of this kind, it is indeed extending its welcome mat to
<br /> a significant new class of litigants. Although there is no reason
<br /> to believe that state courts have failed to rise to the task,
<br /> properU, owners have surely found a new friend today.
<br />
<br />Conclusions
<br />An analysis of Dola, leaves the reader with man)' unanswered
<br />questions, is the so-called rough proportionality test nothing
<br />more than a fancy expression for the reasonable relationship
<br />test? Seemingly so. If other courts tr').., to apply this standard,
<br />what are its parameters? The Court states that no "precise
<br />mathematical calculation is required, but the cit'), must make
<br />some sort of individualized determination that the required
<br />dedication is related both in nature and extent to the impact of
<br />the proposed development." The ci~,'s planning commission
<br />did make findings, especially with regard to the bicycle path
<br />condition. So how exacting must the), be? The Court is
<br />apparently placing a hea~ry burden on the municipality to justify
<br />the condition, which goes much further than the essential nexus
<br />required by Nollan.
<br /> Following the Supreme Court's now-famous "takings
<br />triloD'" of cases issued in 1987, government regulators and
<br />municipal plannerq have heard the warnings against overly
<br />intrusive land-use controls. Man)' shared a perception then that
<br />the First £,glish, KO,front, and Nolla, cases would have a
<br />chilling effect on municipal efforts to regulate land use. In
<br />hindsight, one sees that there was some basis for concern over
<br />how they might interfere with zoning and land-use planning.
<br />Local regulators and planners exercised greater caution in their
<br />land-use decisions, which probably resulted in better planning,
<br />more carefully crafted zoning ordinances, and more sound
<br />judgments regarding development applications.
<br />
<br />
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