Community Participation Organization 4M v. City of Tigard

Under the Nollan and Dolan “rough proportionality” test, where a local government’s code requires a through-street for a residential development but the development will likely generate very few additional vehicle trips in the area and the cost of constructing such a road would be “devastating” for the project, the local government does not err in concluding the required street is not roughly proportional. In that instance, the local government is not forced to require the street be built and pay just compensation, and it may a) decline to apply the street requirement at issue to the application, b) consider only the project as proposed and not any alternatives, and c) find that designating the required street as “private” instead of “public” is still an exaction because the public will be required to use the street regardless of its designation.

Petitioner appealed the City’s approval of a site design and review application for a four-story assisted living and memory care facility. The local code required dedication of a public street unless physical constraints or “strict adherence” to another standard in the code precluded the street’s construction. The City found the required street was precluded by another section of its code that codified the “rough proportionality” test of Nollan and Dolan, requiring dedication of land only when “directly related to and roughly proportional to the impact of the development.” The City concluded the street was not roughly proportional to the impact of the proposed development because the traffic generated by a facility where few of the residents were likely to drive did not support the City’s interest in a through-street. The City approved the application’s use of a cul-de-sac instead, and Petitioner appealed.

On appeal to LUBA, Petitioner made two assignments of error, and LUBA focused on the first, that the City erred in deciding that a connecting street was precluded (but not a cul-de-sac) because: 1) the applicant was required to but failed show it was physically impossible to extend the street; 2) it was impossible to tell if the through-street was roughly proportional because no alternative designs were submitted; 3) designating the street as “private” and not “public” would resolve the rough proportionality issue; 4) the City was obligated to require the through-street and pay compensation if it was not roughly proportional; and 5) there was not substantial evidence that street dedication would not be roughly proportional.

“Under Nollan and Dolan, the Fifth and Fourteenth Amendments permit the government to exact a dedication of private property as a condition of approval of a land use permit if the government demonstrates (1) a nexus between a governmental interest that would furnish a valid ground for the denial of the permit and the exaction of property, and (2) that the nature and extent of the exaction are roughly proportional to the effect of the proposed development . . . [T]he first element of the Nollan/Dolan framework—the ‘nexus’ element—requires the city to demonstrate ‘(1) what interests would allow the city to deny plaintiffs partition, and (2) how the exaction would serve those interests.’” Hill v. City of Portland, 293 Or. App. 283, 284 (2018) (citing Brown v. City of Medford, 251 Or. App. 42, 47 (2012)). “While the easement technically may not be held by the county, it serves the county's property access and travel purposes. As such, the fact that a required 'public' easement remains in private hands does not insulate the county's requirement for the easements from the Takings Clause[.]” Dudek v. Umatilla County, 187 Or. App. 504 (2003). “Under Nollan and Dolan, the government may choose whether and how a permit application is required to mitigate the impacts of a proposed development[.]” Koontz v. St. Johns River Water Mgmt. Dist., 570 US 595, 606 (2013).

LUBA found Petitioner’s first subassignment of error provided no basis for remand or reversal because the City was not required to consider the provision Petitioner cited, nor did the City rely on that provision in deciding that the cul-de-sac was permitted. As to the second subassignment, LUBA noted that the City properly applied the rough proportionality standard only to the proposed project and that the test did not depend alternatives or require them to be analyzed. As to the third subassignment, LUBA agreed with the City that because the street would still be required to allow public use even if it were designated as “private,” it would be an exaction regardless. As to the fourth subassignment of error, LUBA cited Koontz, stating that the City was not obligated to require the street be built and pay just compensation when it was not roughly proportional, but rather the City had the discretion to decide whether the problematic standard would be applied. Finally, LUBA found there was testimony in the record regarding the few vehicle trips likely to be generated by the project, and that the cost of creating the road instead of using the necessary land for the residential development was “devastating” and would “end the project.” LUBA concluded this was evidence a reasonable person would rely on and denied the fifth subassignment of error.

Affirmed.