Minutes - Council - 05/18/2005 - Special

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William Goodrich Ltr May 18, 2005 Page 2 National Planning Conference, 1 (1998). This principle especially pertains to exactions, impact fees or other conditions placed upon a developer for public facilities outside of or extrinsic to the development upon which the fee is levied. Id_~. These actions by municipalities have led courts to scrutinize the connection between such fees and the need generated by the development for the particular facility in question. Id.~. If no connection or "nexus" is found by the court, the fees, dedications or exactions are considered to be unconstitutional takings of property without compensation. Id__~. at 2. A case in which the court found such an exaction to be an unconstitutional taking of property is the Eighth Circuit Court of Appeals' decision in Christopher Lake Development Company v. St. LOuis County. Christopher Lake Dev. Co. v. St. Louis CounW, 35 F.3d 1269 (8th Cir. 1994). In this case, the court applied the U.S. Supreme Court case ruling in Dolan v. City of Tigard to strike down a county drainage system requirement. Id.__:. The Supreme Court's Dolan case consists of a three part test: (1) does the condition seek to promote a legitimate state interest? (2) does an essential nexus exist between the legitimate state interest and the condition? .and (3) does a required degree of connection exist between the exactions and the projected impact of the development? Dolan, 512 U.S. at 374. In Christopher Lake Development Company, the county had granted the owner of £orty-two acres preliminary development approval for two residential communities on the condition that the owner provide a drainage system for an entire watershed. Christopher Lake Dev. Co., 35 b'.3d at 1274. In its decision, the Eighth Circuit applied part one of the Dolan test (public purpose) by stating that "even assuming the legitimacy of the County's purpose in requiring a drainage system, the application of the Criteria may violate the equal protection clause." Id___:. The court applied the second part of the Dolan test ("essential nexus") and opined that "[a]lthough the County's objective to prevent flooding may be rational, it may not be rational to single out the [developer] to provide the entire drainage system." Id_~. The court then applied the third part of the Dolan test and found such a requirement by the County was disproportionate t© the drainage system problems resulting from the proposed· development, stating "[f]rom our review of the record, the County has forced the [developer] to bear a burden that should fairly have been allocated throughout the watershed area. 'A strong public desire to improve the public condition will not warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.'" Id__:. at 1275. The court also stated that for purposes of a takings analysis, that it saw little difference between a requirement that a developer convey title to the part of the property that is to serve a public propose and a requirement that the developer itself make improvements on the affected and nearby property and make it available for the same purpose. Id__~. The developer was allowed by the court to recoup the portion of its expenditures in excess of its pro rata share. Id___:. The proposed amendment is very similar to the Christopher Lake Dev. Co. case and therefore is unconstitutional as it does not satisfy the Dolan test. Although requiting a petitioner to pay for the smfitary sewer and water extension may be a legitimate public purpose and may satisfy part one of the Dolan test, the second prong of the test is not satisfied as it may not be considered rational to single out a petitioner to provide the entire sanitary sewer and water for areas' outside of the petilioner's property. The third part of the Dolan test is also not satisfied as the requirement would CI.L-262978vl RA125-9