Daily Development for
Tuesday, January 12, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

CONSTITUTIONAL LAW; TAKINGS; EXACTIONS: County is not justified in conditioning zoning approval on the dedication of a road to connect two existing streets when the county has no plans to complete such a connection and indicates no timetable for doing so.

Burton v. Clark County, 958 P.2d 343 (Wash. App. Div. 2 1998).

Plaintiff sought to have his property subdivided into three lots slightly smaller than those required by county ordinances. The county required as a condition of its approval that plaintiff dedicate a roadway which eventually would be intended to connect Northeast 65th Street to Northeast 20th Avenue. Plaintiff did not want to allow such a roadway, and fought the decision of the zoning board. Among the plaintiff's complaints was that the zoning board cited certain problems caused by not having Northeast 20th Avenue and Northeast 65th Street connected, and noted these problems would be solved if these streets were connected. However, the zoning board did not ever propose to undertake the additional taking across adjacent private property necessary to connect these roads, nor did it ever describe a plan for completing this road. Instead, the taking required as a condition of zoning approval would simply extend 65th Street closer to 20th Avenue, but not to actually connect the two streets.

The Court of Appeals of Washington noted that it viewed Nollan and Dolan and their Washington progeny to stand for at least four propositions. First, when the government conditions a landuse permit it must identify a public problem or problems that the condition is designed to address. Second, the government must show that the development for which the permit is sought will create or exacerbate the identified public problem. Third, the government must show that the proposed condition tends to solve, or at least alleviate, the identified public problem. Fourth, the government must show that the solution to the identified public problem is "roughly proportional" to that part of the problem that is created or exacerbated by the proposed development.

It is on the third proposition that the county failed. The court noted that the county identified problems (namely various traffic problems caused by the failure of Northeast 20th Avenue and Northeast 65th Street to connect) which the proposed development would exacerbate. However, the county's proposed solution (namely the dedication of the road) would not tend to solve or alleviate the identified problems. This is because this dedicated road would still not connect Northeast 20th Avenue and Northeast 65th Street unless and until additional property was taken. The Washington Court of Appeals pored over the record, but found no reference in the zoning board decision to a plan for the taking of additional property. Therefore, the Washington Court of Appeals held that the county was unjustified in requiring the dedication and thus held on behalf of the plaintiff.

Comment: In the editor's experience, the exaction here is not an uncommon tactic that planning agencies use. The lawyers for the landowner did a good job of raising useful arguments here, but a savvy Washington planning office can address the problem simply by devising some sort of "action plan" to acquire additional land in the future. The plan can be in perfect good faith, but the reality is that actual implementation of such plans will be dependent upon many facts and circumstances that have yet to materialize. So the net effect of the opinion may be simply to kill more trees to generate more paper for more plans.

But the opinion does provide a toehold for landowner's lawyers in those situations where these exactions are made and inadequate planning has occurred.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1 - 6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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