Transcript Religion and Regulation

Land Development
The Law of Physical Allotment
Land Subdivision
Brought to You By:
Keller 2003 - 2004
The Land Subdivision
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Land Development Regulation
 Rules for the physical development of
land are old – dating back to the 8th
Century
 When Great Britain and Spain first settle
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
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Why Have Land Development
Regulations?
 Order and efficiency in development
 The use of consistent & common development
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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
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Types of Land Development
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The site planning process
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Used as an intermediate and final stage in the
fine grained design of physical development
The platting process
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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
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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
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The Need For Consistency
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 Freda Mae Batts
Binford 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, PeeAir 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.
.
Zipper of the Day
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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
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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
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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
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Mansfield & Swett, Inc Town of
the Twsp. Of West Orange
 Facts
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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
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ShadowLawn
Thomas Edison’s home in West
Orange N.J. Located by
Shadowlawn near his movie
studio and lab
Glenmont
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The Developer Sues
 This is a constitutional attack on the
substantive due process of the subdivision
approval process
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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
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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
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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”
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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 thee value
of the nearby homes
 Held for Mansfield and Swett
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The Platting Process
 Land and Infrastructure/Economic
Studies
 The Sketch Plan
 The Preliminary Plat
 The Final Plat
 The Precise Plat
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Studies
Drainage
Traffic
Circulation
Soil
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Example Sketch Plan Informal
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Sketch Plan - Formal
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Preliminary Plat – With
Topography
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Final Plat
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The Subdivision/Development
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The Integrated Fabric of
Development
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Even Manufactured Homes
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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?
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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
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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
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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.
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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!
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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 reconsider and refused for
reasons other than non-conformance of public
dedications
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Moore v City of Lawrence,
1982
 Mr. Moore submitted a subdivision plat to the
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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
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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.
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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
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In Kansas At Least  The final plat must be approved by the
planning commission and:
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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
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Good Reasons For Standards
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Things To Avoid
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Two Reasons to Refuse
Dedications
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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?
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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.
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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
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The Next Step
 Between 1980 and 1984 seven homes were
built
 However, in 1982 the Town Board amended the
platting ordinance (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.
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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 vested and orders the Town to issue
permits to Ellington
 The case is appealed by the Town to the
Supreme Court of New York
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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?
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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:
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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
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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?
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Background
 Garipay proposes a preliminary plat of 49
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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
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Narrow, Winding Roads Are A
Problem
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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?
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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
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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
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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
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From the Town to the River
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Can You Guess What Happens
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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
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The Baker’s Plan
 In 1965 the Baker’s submit a preliminary
plan to development their 11 acres
 It is denied because:
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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
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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
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The Line
You might say the Planning Board crossed the line
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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
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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?
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How To Collect
The Exactions
The Developer’s
View
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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.
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Fair Share of Traffic Cost
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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
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The Construction Association
Sues
 The lawsuit against Palm Beach poses
three challenges
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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
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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
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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
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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.
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Round 3 – Tax Or a Fee?
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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
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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.
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Hollywood Incorporated v
Broward County - 1983
 The Florida Constitution gives charter
counties such as Broward all the home
rule powers of local self-government not
inconsistent with general law,
empowering the County government
with broad powers.
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The Issue
 Broward county intends to provide open space
and recreation by one the three methods:
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Dedicate three (3) acres for every one thousand
residents of the proposed subdivision;
Pay the amount of money equal to the value of
land that would have been dedicated;
Pay an impact fee according to a schedule in the
ordinance.
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The Program
 The county implemented a county park program with a
standard of three acres of developed county level
parkland per one thousand residents. This is on the low
side.
 The ordinance requires the funds collected to be
"expended within a reasonable period of time, for the
purpose of acquiring and developing land necessary to
meet the need for county level parks created by the
development in order to provide a system of county level
parks which will be available to and substantially benefit
the residents of the platted area.“
 The ordinance limits the use of these funds to acquiring
and developing new land for park purposes within fifteen
miles of the platted land.
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The Challenge
 Hollywood, Inc is a real estate development
corporation that paid a fee equal to the value of
the land that would be dedicated under the
second option of the ordinance. Later, they
sought declaratory and injunctive relief as well
as a refund of the fee, challenging the part of
the ordinance that requires, as a condition of
plat approval, the dedication of land or the
payment of a fee for use by the County in
acquiring and developing county level parks.
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The 1st Argument
 Hollywood asserts that Broward County
lacked the legal authority to adopt this
type of ordinance and that violates
fundamental constitutional rights
including due process and equal
protection and constitutes a taking
without compensation and is, in fact, an
illegal tax.
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Retroactive Impact Fees?
 The City of Key West v R.J.L.S Corp.
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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
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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
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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."
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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.
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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
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Exactions – Dedication of
Infrastructure
 Rohn v City of Visalia
Tulare Ave
McSwain Mansion
ROHN
Court Street
Can the City condition site
plan approval and a building
permit on 14% of Rohn’s
land for alignment of Court
Street?
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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.
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Layout
Court Street
Tulare Ave
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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
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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
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Rohn Submits A Site Plan
 The City presents a plan for street
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Court 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
To be
dedicated
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.
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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.
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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
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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.
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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.
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And More Exactions
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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.
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Widening
4 short plats
Sparks
 The Subdivision Review
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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
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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.
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The Sparkses Are Elated
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Mr. Sparkes says: “we kicked
butt”
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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.
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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
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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
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OH! Failure
Sparks moves out of town and
starts a new business
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Recent Manhattan “House of
the Week Awards”
The “Short Shaft Award”
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The “Good Taste Award”
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The “Pedestrian Access Award”
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At Law
 Should the County have approved the final plat or
should they have rescinded the preliminary plat
and required compliance with the 2 acre lots?
 It is clear that California Land Development Law
requires that the tentative subdivision map be in
accord with the existing comprehensive plan at
the time of its approval
 The court notes the Comp. Plan only required that
lots sizes in this area must range from .1 - .75
acres
 Rancho Del Dios’ lots averaged .6 acre
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