Art Piculell Group v. Clackamas County

• Decision Date: 31 July 1996
• Docket Number: No. 95-092,95-092
• Parties: ART PICULELL GROUP, Petitioner, v. CLACKAMAS COUNTY, Respondent. LUBA; CA A92128.
• Court: Oregon Court of Appeals

Page 1227

922 P.2d 1227

142 Or.App. 327

ART PICULELL GROUP, Petitioner, v. CLACKAMAS COUNTY, Respondent.

LUBA No. 95-092; CA A92128.

Court of Appeals of Oregon.

Argued and Submitted April 18, 1996.

Decided July 31, 1996.

Jeff H. Bachrach, Portland, argued the cause for petitioner. With him on the brief were Timothy V. Ramis, G. Frank Hammond and O'Donnell, Ramis, Crew, Corrigan & Bachrach, Portland.

Michael E. Judd, Chief Assistant County Counsel, argued the cause for respondent. With him on the brief was Clackamas County Counsel.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ. DEITS, P.J.

Petitioner applied to Clackamas County for approval of a subdivision. The county granted the application, subject to conditions, including the dedication and road improvement condition that is involved in this case. Petitioner appealed to LUBA, arguing that the condition violates the Takings Clause of the Fifth Amendment, as construed in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). LUBA affirmed. Petitioner seeks review, and we reverse.

Subject to supplementation as the context requires, we take the facts from LUBA's opinion:

"Petitioner applied to the county for approval of a 19-lot subdivision bordering Summers Lane, a county maintained road. Eighteen of the lots are south of Summers Lane. Lot 19, at the west end of the proposed subdivision is north of Summers Lane. At that west end, Summers Lane traverses the proposed subdivision for approximately 130 feet. East and west of the proposed subdivision, Summers Lane is fully developed, or has been approved for full development, as a 60-foot right-of-way, with a 36-foot pavement width. Where Summers Lane borders the proposed subdivision, it is partially improved, with a 40-foot right-of-way.

"The proposed subdivision is not dependent exclusively on Summers Lane for access. However, there is evidence that 81% of the traffic from the proposed subdivision will use Summers Lane. In addition, traffic from an adjoining subdivision will have access to Summers Lane through this subdivision development.

"In approving the proposed subdivision, the county hearings officer originally required, as a condition of approval, full street improvement of Summers Lane (60-foot right-of-way and 36-foot pavement width) along the entire length of the subdivision, which would match the road's full development at either end of the subdivision. Petitioner appealed the imposition of that condition to LUBA. After the appeal was filed, the Supreme Court issued its decision in Dolan v. City of Tigard, US 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). The county subsequently requested and was granted a voluntary remand to reconsider the challenged condition.

"After an additional hearing on remand, the hearings officer reapproved the subdivision, and modified the challenged condition [1A] to require a 10-foot property dedication and two-thirds street improvements along the eastern four-fifths of the subdivision (that portion which borders Summers Lane only on the south) and full street improvements along the western 130 feet of the proposed subdivision (that portion which is traversed by Summers Lane).

"Petitioner again appeals the imposition of that condition." (Footnote omitted.)

Petitioner argues that both the hearings officer and LUBA misapplied Dolan's legal tests in a number of ways, and that, contrary to LUBA's holding, the hearings officer's findings failed to satisfy Dolan. We have, to some extent, provided an overview of Dolan in Clark v. City of Albany, 137 Or.App. 293, 904 P.2d 185 (1995), rev. den. 322 Or. 644, 912 P.2d 375 (1996), J.C. Reeves Corp. v. Clackamas County, 131 Or.App. 615, 887 P.2d 360 (1994), and Schultz v. City of Grants Pass, 131 Or.App. 220, 884 P.2d 569 (1994). Before turning to the specific issues presented in this case, we will again discuss Dolan generally.

Dolan deals with the question of when and whether a condition of development that affects a property interest in certain ways, and that a governmental body attaches to a developmental approval, constitutes a taking. To avoid being one, the condition must have an "essential nexus" to a legitimate governmental interest and must be related in its nature and extent to the impacts of the development. The test that Dolan establishes for that relationship is one of "rough proportionality" between the condition and the developmental impacts. ¹ The rough proportionality test was chosen by the Court over the "reasonable relationship" test that had been followed in Oregon and many other jurisdictions, as well as other tests that were respectively more or less favorable than either the reasonable relationship or the rough proportionality test is to the party asserting a taking. We said in J.C. Reeves Corp. that "[t]he Supreme Court strongly indicated in Dolan that it did not view the new 'rough proportionality' test to be a radical departure from the 'reasonable relationship' standard." 131 Or.App. at 620, 887 P.2d 360. Although petitioner here argues otherwise, we adhere to our view that the legal standard in Dolan does not differ sharply from the one that was previously applied in this state.

The next stage of Dolan is where significant departures from past practices do begin. First, it clearly places the "burden" of demonstrating rough proportionality on the governmental body imposing the condition, rather than leaving the burden on the applicant, although the burden is on the applicant in virtually all other contexts in the quasi-judicial land use decisional process. We noted in J.C. Reeves Corp.:

"[A]lthough the [C]ourt spoke in terms of a 'burden' resting on the body imposing the conditions rather than on the applicant, the requirements for findings under Oregon's land use decisional scheme may often amount to the practical equivalent of a burden of articulation on local bodies that does not differ materially from what Dolan requires." 131 Or.App. at 620, 887 P.2d 360.

Although that statement is correct, as far as it goes, it needs some amplification. Findings of the traditional kind may serve as the vehicle for the governmental demonstration of rough proportionality but, when so used, they are not subject to the traditional standards for findings at either the local level or on review. Contrary to the usual purely adjudicative role of findings, Dolan effectively places the burden on the factfinder to articulate and substantiate the requisite facts and legal conclusion when, as here, findings are used as the device for the governmental demonstration and determination of rough proportionality.

The third feature of Dolan--its requirements concerning the specificity of the demonstration--is the most significant change from prior takings law. As we said in J.C. Reeves Corp.:

"[Dolan ] required considerable particularity in local government findings that are aimed at showing the relationship between a developmental condition and the impacts of development. * * *

"The greatest obstacle that Dolan poses to the affirmability of * * * findings inheres in the specificity that it requires." 131 Or.App. at 618, 620, 887 P.2d 360.

The Court said in Dolan that "[n]o precise mathematical calculation is required," but there must be an "individualized determination" and "some effort to quantify [the] findings." 512 U.S. at ----, ----, 114 S.Ct. at 2319, 2322. It is unclear where on the continuum the Court intended to locate the line between precise mathematical calculation and quantification, and the issues in this case do not require us to identify its exact location.

In addition to the foregoing overview of Dolan, a second preliminary matter requires discussion, i.e., the manner by which we review LUBA's decisions in cases that are subject to Dolan. The question in such cases is whether the local decisionmaker has carried its burden of demonstrating "rough proportionality." Although there are substantial factual aspects involved in it, that question is ultimately one of law. J. C. Reeves Corp., 131 Or.App. at 620, 887 P.2d 360. Accordingly, when faced with an assignment that LUBA erred by holding that a local government's findings do or do not establish rough proportionality, our analysis must eventually focus on the local findings themselves. That is not to say that an evaluation of LUBA's reasoning cannot be of assistance to us in answering the question. However, as with all legal questions that are presented to us in reviewing decisions by LUBA under ORS 197.850, the answer is for us to give, without applying any deferential review standard. Reusser v. Washington County, 122 Or.App. 33, 857 P.2d 182, rev. den. 318 Or. 60, 865 P.2d 1296 (1993).

We return to the specifics of this case. The county hearings officer found, inter alia:

"6. The cost to this developer from the requirements of Condition No. 1(a) relate potentially both to the requirement to dedicate land for public use and the actual costs of the required road improvements. As to the land dedication, the Hearings Officer notes that the preliminary plat proposes the dedication of 10 additional feet of right-of-way from the eastern boundary of the plat to the westerly terminus of the existing Summers Lane. Although this dedication is required by dedication [sic ], it is proposed by the applicant. The additional required right-of-way dedication does not impose any cost in terms of the development of this property. ZDO 1012 provides that the determination of allowed density shall not deduct more than 15 percent for roadways. Dedicated public roads within this plat, excluding Summers Lane dedications, account for at least 15 percent. The approved preliminary plat proposed to create 19 residential lots. The maximum number of lots permitted under the ZDO is 24. The required Master Plan for redevelopment of Lot 19 shows the creation of two additional lots. The difference between the lots proposed and the number...