Transcript Title

Land Development
The Law of Physical Allotment
Land Subdivision
Brought Brought
to You By:
to You By
The Land Subdivision
Also Allotment
The allotment of land
has physical, economic
and environmental
implication
Some are worried about elemental design to shape
behavior, privacy, and livability
Living With The Results
Land Development Regulation
• Rules for the physical development of land are old –
dating back to the 8th Century
• When Great Britain and Spain first settled America
they sent “regulations” for the development of
villages and towns in the colonies
• Land development is not zoning. It is the process of
land design form, infrastructure, amenities, and
services used to bring order to physical
development
Why Have Land Development
Regulations?
• Order and efficiency in development
• The use of consistent & common development standards
throughout a jurisdiction
• To establish exactions and allocate responsibility in the
provision of infrastructure and hold the community
harmless
• Consumer protection
• Preservation of natural resources
• Prevent harm to others
Types of Land Development
– The site planning process
» Used as an intermediate and final stage in the fine
grained design of physical development
– The platting process
• A plat (not a plot plan) is a map and precise plan
• The plat is a precise survey of a tract of land that contains
the necessary bearings, monuments, curves, and
notations necessary to locate any lot.
• Platting is also used to divide a tract of land into “lots”
rather than using a metes and bounds description
Early Development
• Land speculation was rampant in the U.S. from the very
beginning of settlement.
• Speculation became a serious concern when early 20th
Century towns began to expand from the limits of the
original town plan
• Speculators (developers and subdividers) used standards
for development that were inferior to those developed by
the host community
• Land development regulations evolved over a period of
20 – 30 years in the U.S. and were not guided by the exact
standards and models used in zoning
The Need For Consistency
Zipper of the Day
•
Freda Mae Batts Binford,
56, of Louisville, died
Tuesday at her home. She
was a native of Huntsville,
AL, and a member of
Sweet Leaf United Primitive
Baptist Church. She is
survived by several nieces
and nephews; a godson,
Pee-Air Binford; and other
relatives and friends.
Funeral services will be
held at 11 a.m. Saturday at
her church, 1814 Cedar St.,
with burial in Louisville
Cemetery. Visitation will be
from 6-9 p.m. Friday.
.
To Begin
• Last week, I stated this woman was the
ugliest woman I had ever seen. I have
since been visited by her sister . . . . and
now wish to withdraw that statement.
~Mark Twain
Was There A Euclid v Ambler for
Land Development Regulations?
• Not really! There has never been an federal appellant level
test of physical regulations
• Why? One of the reasons is the constitutional nature of
zoning versus subdivision
– Use of the land (zoning is burdened with numerous
constitutional protections)
– Land development has few protections other than the right to
a consistent procedure
– Land use is a right – but building is commodity
– Selling lots to the public is somewhat like selling used cars
Mansfield & Swett, Inc Town of
the Twsp. Of West Orange
• Facts
– A 4.5 acre plat is prepared and sent to the Planning
Commission for review
– The plat contains 19 lots and 2 streets and is know as
“Shadowlawn.”
– The projected sales price is $15,000 - $18,000 (in 1939)
– The Planning Commission disapproves the plat on the
basis that the proposed plan does not conform to the
“estate” nature of the vicinity (which were estate
homes on 4 – 5 acre tracts and 3 times the value)
– Does not conform to the wishes of the neighbors
– Too much density
ShadowLawn
Thomas Edison’s home in West
Orange N.J. Located by
Shadowlawn near his movie
studio and lab
Glenmont
The Developer Sues
• This is a constitutional attack on the substantive due
process of the subdivision approval process
– Tests the validity of the West Orange statute which
requires a precise plan even after the property is
zoned
– Mansfield – Swett claims that zoning powers are valid
but that subdivision is actually a planning process
where objective standards rule – not deliberations
• The trial court holds for the city and the developer
appeals to the N.J. Supreme Court
Legal Analysis
• The court distinguishes between planning and zoning.
• The character of zoning is the dedication of particular uses to
designated districts designed to protect the public welfare
• Planning (as subdivision) is a term of broad meaning but is used
to designated the inherent authority of the town – in its building
and development – to resort to such measures as are necessary
to assure that the community has a common essential fabric.
• There can be no question that the power to properly plan and
design the community is constitutional
Approval
• The court finds that, unlike zoning, a large measure
of discretionary authority is vested in the City to
determine the standards for development
• HOWEVER
• This is not to say that the power can be used in an
arbitrary manner
• Land development regulations “are not written in
the context of advantage or detriment of a
particular neighbor or owner but the effect on the
entire community as a social, economic and
political unit”
Conclusion
• Although the density may be much higher than the
surrounding neighborhood, Shadowlawn is nevertheless an
area of stately brick homes in a well planned setting. If the
density is too great, then the Planning Commission may
modify it
• When surrounded by appropriate safeguards it will not
create abnormal traffic nor is there a reason to believe
that it will degrade the value of the nearby homes
• Held for Mansfield and Swett
The Platting Process
•
•
•
•
•
Land and Infrastructure/Economic Studies
The Sketch Plan
The Preliminary Plat
The Final Plat
The Precise Plat
Studies
Traffic Impact Analysis
Drainage
Topographical/Soils
Traffic
Facilities/Infrastructure
Storm
water Flow
Circulation
Analysis
Soil
Due
Diligence
Yadda Yadda
Example Sketch Plan - Informal
Sketch Plan - Formal
Preliminary Plat – Staff Review Copy
Preliminary Plat – With
Topography
Final Plat
The Subdivision/Development
The Integrated Fabric of
Development
Even Manufactured Homes
Vesting, Platting and
Approvals
• What is the relationship between the preliminary
and final plats?
• What is the obligation of government? The
obligation of the applicant?
• When does the right to vest occur in subdivision?
Youngblood v Bd. Of Supervisors
of San Diego County
• This case involves the Rancho Del Dios subdivision
• In 1974 the County approved a tentative plat for one acre lots
which was then permitted by the zoning ordinance and in accord
with the general plan
• Later that year the County amended the general plan for this
area calling for 2 acre lots
• Final plat approval was given in 1975 for the one acre lots on 274
acres. In 1978 the County rezoned the area for 2 acre lots
• Neighbors brought action for a mandamus to force the county to
rescind the plat and conform to the two acre lots
Youngblood - Reasoning
• The County – Since the lots are already platted and the
infrastructure is installed and sized to the scale of development,
the plat or any revisions do not have to conform to the current
plan.
• Youngbloods – The County has a duty to conform all densities
and lot sizes to the current plan. If necessary, potential buyers
can purchase two lots.
• The CA Supreme Ct. – Once a tentative plan is approved,
infrastructure is installed, and the final plat ready for signature, the
rights of the developer are vested
The Real Argument
• The opponents argue that even if the preliminary plat was
consistent with the Comp. Plan, the Commission should not
have approved the final plat because by this time the
requirements had changed
• Once the tentative map is approved, the developer often
must expend substantial sums to comply with the
conditions attached to that approval. These expenditures
will result in the construction of improvements consistent
with the proposed subdivision, but often inconsistent with
alternative uses of the land.
Conclusion
• “It is only fair to the developer and to the public interest to
require the governing body to render its discretionary
decision whether and upon what conditions to approve
the proposed subdivision when it acts on the tentative
map.” Approval of the final map thus becomes a
ministerial act once the appropriate officials certify that it
is in substantial compliance with the previously approved
tentative map
• Rancho Del Dios rules!
Governing Body Action
• State law requires that the PLANNING COMMISSION
approve the plat and the Governing Body endorse the
dedications
• Lawrence passed a home rule ordinance that gave the
City Council the authority to APPROVE plats
• Moore’s plat was reconsidered and refused for reasons
other than non-conformance of public dedications
Moore v City of Lawrence,
1982
• Mr. Moore submitted a subdivision plat to the City of
Lawrence
• The plat was found to be in conformance with the City’s
subdivision regulation
• The Planning Commission endorses the plat
• The Plat was sent to the Governing Body as required by
law
• The Governing Body defers the endorsement for 4 months
The Thought Plickens
• The city commission refuses to accept the
dedications because of an zoning issue with the
Moore’s
• The Lawrence ordinance requires endorsement
by the city before filing the final plat
• KS statutes vest the planning commission with the
task of approving or disapproving the plat.
Conclusion
• The planning commission is responsible for
reviewing & approving all plats
• The governing body may refuse to accept
dedications only when such offers to dedicate
do not meet the technical requirements for
infrastructure development
In Kansas At Least • The final plat must be approved by the planning
commission and:
– Endorsed by the governing body
– The endorsement means that the proposed
dedications conform to the city’s standards
– Endorsement cannot be withheld for reasons unrelated
to physical and engineering standards
Good Reasons For Standards
Things To Avoid
Two Reasons to Refuse
Dedications
Ellington Const. V Hempstead
• So how long does a plat last?
• Where do old plats go?
• Do lots die – or do they age in place?
The Background
• Village Law provides for an exemption period of three
years after the filing of a subdivision plat during which an
amendment increasing lot area or dimension requirements
shall not "be applicable to or in any way affect any of the
lots shown and delineated on such subdivision plat“
• Prior to an increase in the applicable area and dimension
requirements, Ellington failed to complete his approved
subdivision to apply for building permits on all of the
proposed lots.
What Did Ellington Do?
• In 1975, the Town of Ramapo Planning Board accepted for
filing petitioner's "average density" subdivision plat. As a
condition of its "average density" approval, the town
required that 12.105 acres of the 33.522 acres in the
subdivision be irrevocably dedicated to it for parkland
purposes. The subdivision was approved to be developed
in two sections, the first to consist of nine lots and the
second of twenty-two lots.
• 3 months later the parkland was dedicated and Ellington
files the final plat the following month
The Next Step
• Between 1980 and 1984 seven homes were built
• However, in 1982 the Town Board amended the plat
(it did not change any lot or street arrangement)
• All seven homes were constructed in phase one –
phase two remained vacant but all its lots complied
with the Town’s requirements
• However, in 1984 the Town amended its ordinance
to make the minimum lot 35,000 sq ft. Phase I lots
were all 22,500 sq. ft.
The Saga Continues
• In 1986 Ellington seeks a building permit for Phase II
but is denied because he did not seek a permit
during the 3 year exemption period (Sept. 1975 to
1978)
• Ellington applies to the Board of Zoning Appeals for
an area variance but is denied
• Both the trial and the appeals court reversed the
BZA findings that the development rights were not
vested and order the Town to issue permits to
Ellington
• The case is appealed by the Town to the Supreme
Court of New York
Vesting Gets Complicated
• This is a question of statutory interpretation
• It ain’t simple
• On its face, the statute said that everything on the plat is exempt
for three years but it does not say how you get the exemption
• Do you have to apply for a building permit(s) – do you have to
apply for all the building permits?
• Do you have to construct all the homes within three years?
• Is it enough that you just install all the infrastructure?
So – What Gives
• The court says that the normal law will grant vested
rights once the final plat is approved and the
developer makes substantial investments
• The Town says – no way – you have to apply for
building permits – and you have to actually build
• The court concludes by using common sense:
–
–
–
You have to have your preliminary and final plat approved before
the change
When you made substantial improvements and expended $$$
sum of money you get vested rights
After this the 3 year rule does not apply
Garipay v Hanover
• Can you flat deny a preliminary plat?
• Put in another way – if the land is properly zoned
doesn’t the owner have a right to develop it
• What happens when you can’t get there from
here?
Background
• Garipay proposes a preliminary plat of 49 homes in the
Town of Hanover
• The road leading from the Town’s road network to the
subdivision is steep, winding, an inadequate to carry the
increased traffic. It is only 15 feet wide with no shoulders
• There are already 18 homes in the area
• The Planning Commission denies the preliminary plat
• The egg sucking contest begins
Narrow, Winding Roads Are A
Problem
Different Views
• The Planning Commission
says that this proposed
development is premature
• Garipay says how can it be
premature if there are
already 18 homes in the
area?
Court’s View
• Under the statutory scheme used in New Hampshire
it is the the duty of the Planning Commission to judge
when services are inadequate to serve new,
proposed development
• If inadequate, the Planning Commission must make
this judgment and declare the subdivision to be
premature
• And yes, the Planning Commission may examine
“off-site” facilities to make this judgment rather than
just pure “on-site” facilities
Take Home Point
• A new development is not an island. It must be viewed
within the context of the whole community and must mesh
within the total pattern of infrastructure
Baker v Planning Board
• In 1935 Baker and wife grant the town of
Farmington an easement across their land
• Easement contains a drainage pipe with an
open ditch to conduct water from one part of
the town to its out-skirts
• Farmington builds a ditch across Baker’s land:
Water is collected into a drain scupper – then to
the river
From the Town to the River
Can You Guess What
Happens
Next
• Over the years the town develops in
the direction of the Baker’s property
• Within 25 years the construction of
two large parking lots overwhelms
the drainage capacity
• Baker’s land floods every time it rains
The Baker’s Plan
• In 1965 the Baker’s submit a preliminary plan to
develop their 11 acres
• It is denied because:
– Would need a sewer lift rather than a gravity tie into the
main sewer lateral
– If the town can no longer use the property as a detention
basin the downstream drainage system would be
overwhelmed
– Commission votes it down because the town cannot
stand the expense of the new drainage system
Court’s Finding
• “Obviously a planning board may not exercise its
authority to disapprove a plan so that a town
may continue to use the owner's land as a water
storage area and thereby deprive the owner of
reasonable use of it.”
• Meeting the public interest does not include
using the land of another for lack of community
ambition
The Line
You might say that the Planning Board crossed the
line
Keller’s View Of Subdivision
Review
Two things are sure to happen when
you wrestle with a pig
1. The pig will enjoy it
2. You are sure to get dirty
Exactions – Fees and Other
Give Me’s
• The core principle of subdivision review and approval is
that the local government should be held harmless
• This means that all new development must pay their way
and not shift the financial burden to the local government
as a whole
– What is a fair exaction?
– Are exactions only limited to on-site improvements or should the
developers pay all or part of the costs for off-site improvements?
– What forms of exactions are permissible? Is cash $$ in the form of
a fee OK to use?
How To Collect
The Exactions
The Developer’s
View
Homebuilder’s Association of
Palm Beach v Palm Beach, FL
This case involves the validity of a Palm Beach
County ordinance imposing an impact fee on new
development for the purpose of constructing roads
made necessary by the increased traffic generated
by such new development.
The ordinance requires any new land development
activity generating road traffic to pay its "fair share" of
the reasonably anticipated cost of expansion of new
roads attributable to the new development.
Fair Share of Traffic Cost
The Method
• The formula takes into consideration the costs of road
construction and the number of motor vehicle trips
generated by different types of land use
• A fee of $300 per unit for single family homes, $200 per unit
for multi-family, $175 per unit for mobile homes with other
amounts for commercial or other development, all subject
to annual review.
• Palm Beach is divided into 40 traffic zones and the fees go
into a trust fund for each zone to finance new road
construction
The Construction Association
Sues
• The lawsuit against Palm Beach poses three
challenges
– Whether Palm Beach County has authority to impose an
impact fee on new development for the construction of
public roads
– Whether the proposed ordinance violates the equal
protection clauses of the Constitutions of the United States
and State of Florida.
– Whether the ordinance imposes a regulatory fee or a tax
The Authority
• The Const Assoc says there is no special grant of power to enact
a fee for traffic
• The court says that the home rule power of counties to govern
themselves is broad. There is nothing in the general statute of the
state the forbids this
• There are statutes that allow the county to provide and regulate
arterial, toll, and other roads, bridges, tunnels and related
facilities; eliminate grade crossings; provide and regulate parking
facilities; and develop and enforce plans for the control of traffic
and parking.
• The Association loses round 1
Equal Protection
• The Const Assoc says that our position is that since anyone can
drive a vehicle over any of these roads, regardless of whether he
lives in the zone or has paid the impact fee, there is too great a
disparity between those who pay and those who receive the
benefit
• The court says “use your head” since it is sufficient if the
improvements constructed with the fees imposed bear a
reasonable relationship to the needs created by the subdivision.
• But, says the Const Assoc., the fair share ordinance isn’t fair
because some Palm Beach communities decided not to adopt it
Is It Fair
• The fact that an impact fee is payable on land located in
the county whereas it would not be payable on nearby
land in a municipality which has opted out does not
offend equal protection. Unequal or different charges or
fees assessed in incorporated and unincorporated areas,
like different hours for retail liquor sales and other areas of
regulation which may lack uniformity, are not improper
where such legislation is otherwise a valid exercise of
governmental power.
Round 3 – Tax Or a Fee?
This Is Important
• Revenue raising by government takes two forms
– A tax – where the amount of funds generated do not have to be
proportionate to the need
– A fee – where the amount of money raised must be proportionate
to the need
• When you collect a tax you can spend it on anything.
When you levy a sales tax you can pay salaries, buy
donuts for meetings, or hats for police
• When you levy a fee it must be spent on the specific need
that created the fee. You can’t spend road fee money to
catch stray dogs
Conclusion – It Is A Fee!
• The ordinance is well crafted by a specific study
• It recognizes that the rapid rate of new development will require
a substantial increase in the capacity of the county road system.
• The cost of construction of additional roads far exceeds the fair
share fees imposed by the ordinance by about eighty-five
percent. The formula for calculating the amount of the fee is not
rigid and inflexible, but rather allows the person improving the
land to determine their fair share by furnishing his own
independent study of traffic and economic data in order to
demonstrate that his share is less than the amount under the
formula set forth in the ordinance.
Retroactive Impact Fees?
• The City of Key West v R.J.L.S Corp.
What Happened?
• In the August of 1981 Key West issued building permits for
76 condo units to R.L.J.S. – all units were pre-sold
• In 1983 the City issued permits for 92 additional units and
40 were pre-sold. R.J.L.S. paid $19,400 in sewer connection
and permit fees when they obtained these permits
• In the Spring of 1984 the City issued the certificates of
occupancy for the first 76 units
• In late 1984 the City enacted separate impact fees for
sewer, solid waste, and traffic
The New Fees
• The purpose of these ordinances was to allocate to new residents
of the City 'a fair share of the cost of new public facilities',
specifically those . . . dealing with sewer and solid waste
treatment and those capital improvements necessitated by
increased traffic on account of new development in the City
• Fees would be collected when the occupancy permit was issued
• R.J.L.S. would not pay the fees and Key West refused to issue the
certificates
The Trial Court
• "The timing in this case is particularly significant to the Court in
that it makes virtually impossible any chance of the developer
citizen being able to pass on the impact fee. Because the
Plaintiffs' rights in their building permit had already vested, Key
West could not retrospectively impose fees that amount to a
personal punishment to him. Such interference with the Plaintiffs'
vested rights to complete construction in accordance with the
terms of the building permits, constitutes a due process violation
and are therefore unconstitutional."
The Appeals Court
• In principle we see nothing wrong with transferring to the new
user of a municipally owned water or sewer system a fair share of
the costs new use of the system involves.
• The developers say the doctrine protects them because after
receiving the building permit, they reasonably believed that they
knew of all the expenses that they would have to pay, and in
reliance on this set prices for the units. They claim that the City's
subsequent assessment of impact fees after the units were sold
retroactively denied them the force and effect of the building
permit and violated their vested rights.
Conclusions
• The court finds that “Vested rights involve a change of mind or
broken promise, the imposition of different requirements after the
start of construction. Because the building department approved
plans and issued a building permit, there is no reason to believe
that the city council would not enact impact fees where needed
• No constitutional right of the developer was offended by the
municipalities action …” without a contractual agreement, one
cannot assume that additional taxes or fees will be imposed
Exactions – Dedication of
Infrastructure
• Rohn v City of Visalia
Tulare Ave
McSwain Mansion
Can the City condition site
plan approval and a building
permit on 14% of Rohn’s
land for alignment of Court
Street?
Court Street
Court Street
ROHN
Background
• Court Street runs north and south and intersects Tulare
Avenue, which runs east and west. The portion of Court
Street south of Tulare Avenue is skewed to the east; it does
not line up perfectly with the continuation of Court Street
as it crosses Tulare to the north. It appears that this
imperfect intersection came into existence during the
original planning development of the area.
•The City presents a plan for street
alignment that represented a
dedication of 14% of Rohn’s land or
3,401 sq ft. of Rohn’s 24,259 sq. ft.
Rohn’s Property
• Rohn owns real property at the southeast corner of Court
Street and Tulare Avenue. A single family residence was on
the property and it was zoned for either single or
multifamily residences. Rohn applied to the city for an
amendment to the general plan to change the land use
designation from residential to professional administrative
offices. The owners intended to convert the house to an
office building.
• During this process the house was placed on the State
Register of Historic Places
Plan Amendment
• The Planning Commission and the City Council approved
a change from multi-family housing to office buildings on
the property. Both hearings mentioned the condition that
Rohn must dedicate land to complete the street realignment
• Rohn applied for a special permit and it was granted by
the Historic Preservation Advisory Board and the City
Council. The zoning was conditioned on the dedication of
land for Court Street improvement
Rohn Submits A Site Plan
To be
dedicated
Court Street
Court Street
• The City presents a plan for street alignment
that represented a dedication of 14% of
Rohn’s land or 3,401 sq ft. of Rohn’s 24,259
sq. ft.
• Rohn files suit before the district court The
court finds that there was no reasonable
relation between the required dedication
and the use for which the building permit
was requested given the amount of new
traffic generated
Appeals Court
• A dedication involves the uncompensated transfer of an interest
in private property to a public entity for public use. A regulatory
body may constitutionally require a dedication of land as a
condition of development, and such a requirement is not viewed
as an act of eminent domain
• If the applicant must donate property for a public use that bears
no relationship to the benefit conferred on the applicant or the
burden imposed on the public, there is a taking of property.
Conversely, if there is such a rational relationship, the
requirement of dedication of property . . . is a validly imposed
condition.
Analysis
• The disagreement in this case is whether there is a
sufficient nexus or relationship between the condition
imposed and respondents' proposed conversion
• The city argues that the required nexus exists because
Rohn’s project imposes a greater traffic burden and
creates the need for the street widening and realignment.
• The city contends that as long as there is some nexus, the
amount of property required for dedication is unlimited.
Conclusion
• There is no substantial nexus between the dedication condition
and the alleged traffic burden created by the conversion
• The record disputes that the change in use of the property
will impose a significant traffic burden in the area or the
city's streets in general
• The staff findings concluded that the conversion of the
property would impose no significant traffic problems in
the area
• The planning report acknowledged that conversion of the
property, and others in the area, to professional use would
decrease the potential traffic that could result if the zoning
remained the same and apartments were built
So – What Happens?
• The dedication required by the Site Plan Review was not based
on any traffic problems, but as a means of implementing the
connection and the long-awaited realignment of Court Street at
its intersection with Tulare Avenue
• Therefore, it is neither proportionate to the impact of
development nor does it form a rational nexus to the need for
dedication.
Too Bad, So Sad For the City
• “The record indicates that the city viewed the landowners'
application for rezoning and site plan review as the "hook" it
needed to acquire this property for nothing, even though the
reasons for the dedication existed long before the conversion of
the McSwain Mansion was proposed.”
• The "hook," however, is unavailable. As in Nollan, the city may
proceed with its general traffic plan, but if it wants 3,400 square
feet of respondents' property for a street project lacking any
relation to the proposed conversion, it must pay for it.
And More Exactions
City of Key West v R.J.L.S. Corp
• Does a municipality's assessment of
developmental impact fees upon the
developer of a condominium apartment
building violate any constitutionally
protected right of the developers where
such fees are assessed after a building
permit has been issued and the developers
have sold a substantial number of the
building units?
Southernmost Point in the
Continental U.S.
Condo Project Site
Background
• In August 1981, Key West approved the developers'
community impact statement and site plan.
• Several months later, the City issued a building permit for
76 units, all of which had been sold.
• In October 1983, the developers obtained a building
permit for 92 additional units, some 40 of which were
already sold.
• The developers paid $ 19,400 in sewer connection and
permit fees when they obtained this second permit.
Three Years Later
• In the spring of 1984, the City issued certificates of occupancy for
the first 76 units. Thereafter, during a one-year period beginning in
late 1984, the City enacted ordinances imposing separate
impact fees for sewers, solid waste, and traffic.
• The purpose of these ordinances was "to allocate to new
residents of the City 'a fair share of the cost of new public
facilities', specifically those . . . dealing with sewer and solid
waste treatment and those capital improvements necessitated
by increased traffic on account of new development in the City.“
•
Each of the ordinances provided that "no certificate of
occupancy shall be issued" until any applicable impact fee was
paid.
R.J.L.S is. … …
• The developers refused to pay the three
impact fees, the City denied their request
that certificates of occupancy be issued for
the additional 92 units in the development.
Were Development Rights
Vested? The Trial Court
• There must be an opportunity to pass the fees to the
ultimate user who causes the impact on the community is
necessary for the law to meet constitutional muster.“
• The developers were not afforded such an opportunity
and, second, that the City attempted to retrospectively
apply the fees after the developers' rights in the building
permit had vested.
Florida Supreme Court
• The law requires that the fees be fairly applied to
“new users” that will burden the system
• The law does not require the city to pass these
fees directly to individuals
• The burden is on the person who requests the
permit, rather than the ultimate user
Conclusion
• "Appellants' attempt to use a vested rights principle
to gain immunity from unforeseen taxes is virtually
without precedent, and if followed to its logical
conclusions, would shield any lawful business from
newly enacted taxes if that business had made any
sort of irrevocable commitments, either financial or
contractual, in commencing operations in that
municipality.
• The imposition of a new tax, or the increase in the
rate of an old one, is simply one of the usual hazards
of the business enterprise
A Few Interesting Statistics
• Population 2004 – 25,478
• Housing Units
- 13,306
• The census reports that 57% of the wage&
hour employees lack housing
• The median income is twice as
high as Florida’s median
• Median value of housing unit
is $368,533
Sparks v Douglas County
• The Sparkses filed 4 minor plat applications
• Each plat would contain 4 lots
• The planning director reviewed the plat applications and
determined the streets bordering the plats were deficient
in right of way width by county standards and thus would
not accommodate future construction of street
improvements. The director also determined that 32nd
Street did not meet fire code requirements for safe access.
Widening
4 short plats
Sparks
 The Subdivision Review
County Road
Committee approved the plats
subject to certain conditions. Each
plat had to dedicate a certain
amount of right-of-way – ranging
from 5’ to 25’ for road widening
purposes
Actions
• The Sparkses appealed to several local
administrative review bodies but the conditions were
upheld
• The district court also held that the streets were
deficient in size and capability and upheld the
conditions for dedication
Circuit Court of Appeals
• The Court of Appeals reversed the trial court in a split
decision.
• The majority determined there was no evidence that
residential development of the Sparkses' properties would
have an adverse impact which would necessitate
widening the adjacent roads. The court concluded that
requiring dedication of rights of way as a condition for plat
approval was an unconstitutional taking.
The Sparkses Are Elated
Mr. Sparkes says: “we kicked
butt”
%20of%20Olympia%20v%20Drebick%20_%20impact%20fee,%20growth%20management%
Washington Supreme Court
• As a prerequisite for development permission, a regulation
may require a landowner to dedicate property rights for
public use if the regulatory exaction is reasonably
calculated to prevent, or compensate for, adverse public
impacts of the proposed development
• Using the Dolan Rule - No precise mathematical
calculation is required, but the city must make some sort of
individualized determination that the required dedication
is related both in nature and extent to the impact of the
proposed development.
So Who Made This
Determination?
•
•
•
•
•
•
The Planners did
The Subdivision Review Committee did
The Douglas County Regional Planning Commission did
The Board of County Commissioners did
The Trial Court Did
The appeals court may not substitute its findings for those
of the trial court unless such findings are so wide of the
mark as to constitute an arbitrary and unreasonable
finding
Decision
• The Sparkse’ concede that a "nexus“ exists between requiring
dedication of rights of way and the County's legitimate interest in
promoting road safety.
• The pivotal issue is whether the exactions demanded by Douglas
County are roughly proportional to the impact of the Sparkses'
proposed developments The Sparkses also claim there is no way
to truly measure the impact of development
• Reversed – The Degree of connection is sufficient to permit the
conditions on platting to remain
OH! Failure
Sparks moves out of town and
starts a new business
Olympia – Proportionate Tax?
City of Olympia v Drebick 2004
• In 1998, John Drebick sought a building permit to
build a new commercial office building near the
City's boundary
• The building was to have four stories and 54,698
square feet.
• The City granted the permit on the condition
that Drebick help to improve the City's roads by
paying a traffic impact fee.
The Washington Impact Fee
Law
• a) Impact fees - Shall only be imposed for system
improvements that are reasonably related to the new
development;
(b) Shall not exceed a proportionate share of the costs of
system improvements that are reasonably related to the
new development; and
(c) Shall be used for system improvements that will
reasonably benefit the new development.
Estimating the Fee
• The City calculated the fee by estimating
– (1) the total square footage of all new commercial office
space likely to be built within the city's boundaries and
– (2) the cost of all road improvement projects that such space
would necessitate within the city's boundaries. It then divided
(1) into (2) to obtain an average rate per square foot that
each new office building should pay toward all of the City's
road improvement projects, regardless of any particular
building's traffic-related impacts.
Applying the Fee
• Multiplying this average rate ($ 2.95 per square
foot) times the number of square feet in
Drebick's specific development (54,698) resulted
in a fee of $ 161,359 which Drebick paid under
protest.
The Protest
• Drebick appealed to the City's hearing examiner.
• He argued in part that the City could not impose an
impact fee that exceeded the individualized trafficrelated effects of his specific project and that those
effects would be fully mitigated by a payment of about $
29,000
• The City countered that it was imposing an excise tax not
a regulatory fee, and thus it could impose such a tax
without regard to the individualized impacts of Drebick's
specific project
Trial Court
• The court held that the City's assessment was
"analogous to" a tax and thus that the City did
not have to show a "proportional nexus"
between its assessment and the traffic-related
effects of Drebick's specific project.
When Dedications Are
Appropriate – The Appeal
• Is it is permissible to require the payment of a development
impact fee as a condition of issuing a building or land use
permit depends on four principles:
– (1) the government must identify a public problem or
problems that the condition is designed to address;
– (2) the government must show that the proposed
development will create or exacerbate the identified public
problem (i.e., there must be a nexus between the
development and the identified public problem);
Principles Continued – (3) the government must show that its proposed
condition or exaction tends to solve or at least alleviate
the identified public problem (i.e., there must be a
nexus between the proposed solution and the
identified public problem);
– and (4) the government must show that its proposed
solution to the identified public problem is roughly
proportional to that part of the problem that is created
or exacerbated by the proposed development.
But, The Washington Statute
Requires Specificity
• A local ordinance enacting impact fees shall include a
schedule of impact fees which shall be adopted for each
type of development activity that is subject to impact
fees, specifying the amount of the impact fee to be
imposed for each type of system improvement. The
schedule shall be based on a formula or other method of
calculating such impact fees.“
• This language speaks to the amount to be assessed and
collected from each type of development activity for
each type of system improvement. It does not, however
speak to the amount that any particular project is to pay.
Conclusion
• The Washington Supreme Court finds that
the law requires an “individualized” method
of accounting for the impact fee
• Found for the developer. The dragon is slain