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Dolan on Establishing 'Rough Proportionality'
<br />With respect to the pedestrian/bicycle
<br />pathway, we have no doubt that the city was
<br />correct in finding that the larger retail sales
<br />facility proposed by petitioner will increase
<br />traffic on the streets of the Central Business
<br />District. The city estimates that the proposed
<br />development would generate roughly435
<br />additional trips per day. Dedications for
<br />streets, sidewalks, and other public ways
<br />are generally reasonable exactions to avoid
<br />excessive congestion from a proposed prop-
<br />erty use. But on the record before us, the city
<br />has not met its burden of demonstrating that
<br />the additional number of vehicle and bicycle
<br />trips generated by petitioner's development
<br />reasonably relate to the city's requirement
<br />for a dedication of the pedestrian/bicycle
<br />pathway easement. The city simply found
<br />that the creation of the pathway 'could offset
<br />some of the traffic demand ... and lessen
<br />the increase in traffic congestion.'
<br />As Justice Peterson of the Supreme
<br />Court of Oregon explained in his dissent-
<br />ing opinion, however, '[t]he findings of fact
<br />that the bicycle pathway system 'could
<br />offset some of the traffic demand' is a far
<br />cry from a finding that the bicycle pathway
<br />system will, or is likely to, offset some of the
<br />traffic demand' (317 Or., at 127, 854 Red,
<br />at 447) (emphasis in original). No precise
<br />mathematical calculation is required, but
<br />the city must make some effort to quantify
<br />its findings in support of the dedication for
<br />the pedestrian/bicycle pathway beyond the
<br />conclusory statement that it could offset
<br />some of the traffic demand generated.
<br />—Dolan, ti4 S.Ct. 2309, 2321-22, 512 U.S. 374.
<br />395-96 (footnotes excluded)
<br />Denying applications without requiring or ac-
<br />cepting mitigation will not deter litigation and,
<br />in fact, may encourage it.
<br />Option 3: Stop Negotiating
<br />Another option would be to accept offers of
<br />mitigation, but not to respond to them or to ne-
<br />gotiate alternatives. After all, if your agency risks
<br />a Nollan/Dolan claim by suggesting mitigation
<br />options, the safest way to avoid one is to refuse
<br />to negotiate, right? Perhaps, but in reality, this
<br />benefits no one and sells planners and property
<br />owners short —neither desires litigation and,
<br />of course, most do not end up in litigation. The
<br />technical expertise needed to determine wheth-
<br />er a development has met the requirements of
<br />Nollan and Dolan are available and widely used
<br />and should be part of ongoing negotiations.
<br />Property owners benefit from open com-
<br />munication with their•public agencies and
<br />from understanding the rationale for an exac-
<br />tion needed to maintain the levels of public
<br />service existing residents enjoy. It seems,
<br />again, that cutting off all negotiation could
<br />deter good planning and actually create or
<br />exacerbate disputes.
<br />Option 4: Apply Nollon and Dolan to All
<br />Exactions and Discussions Related to
<br />Exactions
<br />The reality is that, in light of Koontz, local gov-
<br />ernments should reexamine existing protocols
<br />and standards to ensure that all discussions
<br />related to mitigation and exactions, whether
<br />ad hoc or legislatively adopted, are grounded
<br />in the principles of Nollan and Dolan. Here are
<br />some tips.
<br />Avoid open-ended, informal discussions
<br />without following established protocol and nex-
<br />us/proportionality standards. The question the
<br />majority leaves open in Koontz is at what point
<br />mitigation suggested by government becomes
<br />Voluntary Offers and
<br />Nollan/Dolan
<br />The question commonly comes of up
<br />whether a "voluntary" offer is subject
<br />to the Takings Clause and Nollan and
<br />Dolan. Legal arguments exist on both
<br />sides of this question. Relevant factors
<br />will include whether the application
<br />is pending or has been submitted,
<br />whether the facilities are being offered
<br />in response to a staff or board request,
<br />and whether the amount of mitigation
<br />was offered by the property owner or
<br />suggested by the government.
<br />In the end, the best planning ap-
<br />proach will continue to be to negotiate
<br />and implement regulations under the
<br />rubric of Nollan and Dolan. Why risk the
<br />success of a good project on the un-
<br />settled question of voluntariness?
<br />a "demand" that is sufficiently concrete to trig-
<br />ger scrutiny under Nollan and Dolan. The ma-
<br />jority regarded the point to have been settled
<br />by the lower courts but noted the issue may
<br />be addressed on remand. In any case, agency
<br />officials should avoid open-ended discussions
<br />or communications (including e-mails) that
<br />are not based on adopted protocol and nexus/
<br />proportionality standards or before enough
<br />information has been gathered to fully grasp
<br />the scope of the development and its public
<br />impacts. Otherwise a preliminary communica-
<br />tion could be misinterpreted as (or build into)
<br />a concrete governmental "demand." Of course,
<br />if the communications comply with Nollan and
<br />Dolan, the point likely is moot, which leads to
<br />the next point.
<br />Establish nexus/proportionality proto-
<br />cols and standards. With respect to the dedi-
<br />cations in Dolan, the Supreme Court said:
<br />"No precise mathematical calculation is re-
<br />quired, but the city must make some effort to
<br />quantify its findings in support of the dedica-
<br />tion ... beyond the conclusory statement
<br />that it could offset some of the traffic demand
<br />generated."
<br />Ensuring compliance with this standard
<br />could, in some cases, add costs for local
<br />government. However, in the case of ad hoc,
<br />discretionary exactions, a documented set of
<br />calculations likely will suffice. With most pub-
<br />lic facilities, this can be a fairly simple calcu-
<br />lation. With others, like housing mitigation,
<br />transportation, and environmental resources,
<br />the process and calculations will be a bit more
<br />complex. In the case of impact fees, concur-
<br />rency or adequate public facility programs,
<br />and other legislatively adopted tools, the
<br />technical bases for them are well established
<br />and the expertise readily available.
<br />Adopt procedures for negotiated or dis-
<br />cretionary exactions. Local government should
<br />formally document the process of requesting,
<br />evaluating, and providing mitigation alterna-
<br />tives for property owners. For example, proce-
<br />dures may specify:
<br />1. existing level of service standards and
<br />service areas for impacted public facilities
<br />and resources;
<br />2. a specific pre -application process;
<br />3. that mitigation, where needed, is limited to
<br />facility types impacted by the development
<br />(Nollan) and to only the development's propor-
<br />tionate share of new facility demand (Dolan);
<br />ZONINGPRACTICE 10.13
<br />AMERICAN PLANNING ASSOCIATION I page 6
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