CONSTITUTIONAL LAW; TAKINGS; EXACTIONS. Under Dolan, a condition "exacted" by the government as a prerequisite to land development is unconstitutional unless some "rough proportionality" exists between the condition and the "impact" of the proposed development, but not all conditions are exactions - some are police power regulations that are valid unless they qualify as ordinary regulatory takings. Clark v. City of Albany, 904 P.2d 185 (Or. App. 1995). In this case an Oregon appellate court wrestled with the constitutionality, under the takings clause, of conditions to a proposed development after Dolan v. Tigard ___ U.S. ___, 114 S.Ct. 2309. After considering seven challenged conditions imposed by a city to a fast-food vendor's proposed development, the court remanded three for further analysis and gave its qualified approval for the rest.

The court noted that the case posed particular difficulty because of the project's stage of completion. Unlike the circumstances of Dolan, where the conditions and the proposed development were clearly defined, this case involved a city's preliminary land use approval prior to the issuance of a building permit. As a result, several conditions that the developer challenged were subject to future contingencies or were merely prerequisites to future phases of the application process.

The case was heard on cross appeals by the city and the developer from the Land Use Board of Review ("LUBR"), which had determined that two conditions, those requiring the developer to design and pay for improvements to an adjacent public road, qualified as "exactions" under Dolan. LUBR had therefore remanded to the city for further proceeding to determine "rough proportionality." LUBR had rejected the developer's challenges to the other conditions.

The appellate court affirmed LUBR's remand of the two conditions relating to improvements to an adjacent road, regarding the conditions which required the developer to make improvements "on and extending beyond the affected property, which will be available "for some public use," regardless of whether the developer retained title to the property. The court also concluded that the conditions were sufficiently ripe for adjudication, in that they required "present or proximate future action of a reasonably defined nature" in order for the developer to proceed. The court also agreed that Dolan did not apply to the city's requirement that the developer provide a method of turning a right-of-way into a non-driving or safe-driving area. The court defined the condition as a traffic regulation, not an exaction, and could therefore only be challenged as a regulatory taking, which the developer failed to raise.

The court qualified its approval of three other conditions upheld by LUBR, which collectively required the developer to provide a storm drainage plan with particular specifications. The court concluded that these "conditions" simply required to developer to show how it would comply with the city's storm drainage requirements. However, the court also noted that the way in which the city ultimately implements such conditions at a later time during the development approval process could alter the nature of the condition and require an analysis under Dolan.

Reversing LUBR, the court held that the final two conditions required a Dolan analysis. Under these conditions, the city required the developer to design a sidewalk and parking area to specifications, and to incorporate such specifications into a future application for a building permit. Because those conditions required "definitive action of a very specific nature" for the process to continue, the court held that Dolan applied.

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