Burton v. Clark County
| Decision Date | 10 July 1998 |
| Docket Number | 21866-6-II,Nos. 20372-3-I,s. 20372-3-I |
| Parties | Lance BURTON, a Washington resident, Appellant, v. CLARK COUNTY, a municipal corporation; and the Board of County Commissioners, a Clark County agency, Respondent. Lance BURTON, a Washington resident, Respondent/ Cross-Appellant, v. CLARK COUNTY, a municipal corporation; and the Board of County Commissioners, a Clark County agency, Appellant/ Cross-Respondent. |
| Court | Washington Court of Appeals |
Mark Alan Erikson, Vancouver, for Appellant/Cross-Respondent.
Christopher Horne, Clarke Co. Deputy Pros. Atty., Vancouver, for Respondent/Cross-Appellant.
Clark County (the County) conditioned its approval of a three-lot short plat on the landowner's dedicating a right-of-way and building a road, curbs and sidewalks. The landowner objected. The resulting issue is whether the condition is a taking of private property without just compensation, or a proper exercise of the county's police power.
Lance Burton owns a small parcel of land in unincorporated Clark County. It is 0.78 acre in area and trapezoidal in shape. It is zoned for residential lots of not less than 6,000 square feet each. Its boundaries are 305 feet long on the west; 100 feet on the north; 233 feet on the east; and 125 feet on the south. It adjoins a subdivision on the west; another subdivision on the north; a parcel of raw land on the east; and high- voltage electrical transmission lines on the south. The undeveloped parcel to the east is owned by one Maddux, but the record shows little else about it.
Two nearby streets are Northeast 65th Street and Northeast 20th Avenue. Northeast 65th Street generally runs east and west. Its eastern end deadends into Burton's western boundary, forming what the county considers to be a temporary cul-de-sac. Northeast 20th Avenue generally runs north and south. Its southern end deadends into the northern boundary of Maddux's parcel, a few feet east of Burton's northeast corner. Since the mid-1980's, county planners have wanted to connect the two roads by extending them across Burton's property, and also across the northwest corner of Maddux's property. 1 Figure 1 illustrates the area.
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
On May 5, 1994, Burton applied to short plat his parcel into three wedge-shaped residential lots. He proposed that each lot open onto the cul-de-sac at the east end of Northeast 65th Street. He did not want to dedicate right-of-way or build a road. Figure 2 illustrates his plan.
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Before Burton submitted his application, he and the County informally discussed whether he would be required to connect Northeast 65th and Northeast 20th, and the effect such a connection would have on the lots he desired to create. The County suggested a reconfiguration, shown in Figure 3, that would give him three lots with the minimum 6,000 square feet each, yet still connect Northeast 65th with Northeast 20th:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Burton rejected this reconfiguration, in part because he thought the two southern lots would be smaller than other lots in the neighborhood, and thus hard to sell.
On June 28, 1994, the county planning director recommended approval of Burton's application--but only if Burton would extend Northeast 65th Street across his property by dedicating a right-of-way and installing a road, curbs and sidewalks. 2 The planning director stated:
2. Before approval of the final plat, and except to the extent modified by the Director of Public Works or other duly authorized public official pursuant to law, the applicant shall make the following road dedications and improvements:
a. A 50 foot wide right-of-way shall be dedicated to the County through the site for the extension of N.E. 65th Street. This right-of-way shall be surveyed and designed to eventually connect with N.E. 20th Avenue.
b. N.E. 65th Street shall be built through the site with a 32 foot wide paved surface with curbs and sidewalks.
c. Plans and profiles shall be prepared by an engineer, licensed in the State of Washington, and submitted to the County for approval prior to road construction.[ 3
Hereafter, we refer to these requirements as "the exacted road."
Burton appealed to the county hearing examiner who, on September 22, 1994, found an "essential nexus" between the exacted road and the county's need for "street connectivity." The examiner said:
The connectivity of streets is a legitimate County interest. Connectivity increases public safety by providing alternative means for access and egress. Connectivity also reduces trip distances and thereby helps reduce pollution, makes it easier for pedestrians and bicyclists to go from one point to another more directly, and provides for less isolation between neighborhoods. Therefore, there is an essential nexus between this street exaction and the need for street connectivity within the County, and in particular, within this area.[ 4
The hearing examiner also found that the exacted road was roughly proportional to Burton's development, because it was "the minimum necessary to allow the local street to go through." 5 The examiner said:
... [T]he nature of this street dedication and improvement requirement is roughly proportional to the proposed three lot residential development because each of the three lots will directly benefit from the road. Residents will have better emergency access and police and fire safety will therefore be enhanced. Furthermore, this connection will reduce trip distances because residents will now be able to travel north along 20th Avenue to reach 68th Street, instead of having to go west along N.E. 65th Street in order to access N.E. 68th Street.
The exaction is roughly proportional in scope to the proposed three lot partition because the road extension is the minimum necessary to allow the local street to go through. The County is merely requesting the extension of one local street directly through [the] property. This will serve the site and provide a connection for future development to the east. The County is not asking for multiple road connections, nor are they asking for the connection to occur in an indirect manner. 6
Concluding that the county had made an "individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development," 7 the examiner upheld the exaction of the road.
Burton appealed to the Board of County Commissioners, which affirmed. Burton then appealed again to the superior court, which ruled that the county had "failed to make an individualized determination that [the exacted road] related both in nature and extent to the impacts from the proposed development, as required to demonstrate 'rough proportionality' under the holding in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994)." 8 The court concluded that the exacted road was an unconstitutional taking of private property; that the road-related conditions should be "reversed and deleted" from the plat; and that the case should be "remanded for proceedings and determination consistent with this [o]rder." 9
The parties then returned to the hearing examiner. He held more hearings, during which the county presented a new staff report, dated April 16, 1996, asserting that Burton's proposed development would generate an additional thirty auto trips per day on nearby roads. On July 31, 1996, the examiner held that "a court of law ... has found that the proposed dedication and improvement required by the County road standards is not roughly proportional to the impact caused by the development," and that
[p]lanning staff's additional analysis submitted during the remand merely demonstrates that the proposed street extension would not be dissimilar or disproportionate to the cost of improvements required to serve similarly sized lots in other subdivisions in the neighborhood. This is not the relevant comparison for purposes of the rough proportionality test in Dolan. The comparison under Dolan must be between the impacts caused by the proposed development and the nature and extent of exaction that is being imposed. For this reason, the Hearings Examiner reject[s] staff's supplemental findings because they fail to justify [the exacted road].[ 10
Based on these holdings, the hearing examiner entered an order approving Burton's short plat without the exacted road.
The County appealed to the Board of County Commissioners, which reversed the examiner's order and re-exacted the road. Burton then appealed a second time to the superior court, which reversed the Board and reinstated the examiner's order approving the plat without the exacted road.
The main issue is whether the federal Takings Clause prohibits the County from exacting a road without just compensation. The Takings Clause appears in the Fifth Amendment to the United States Constitution. It provides that private property shall not be taken for public use without just compensation. 11 Its purpose is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." 12 It applies to the States through the Fourteenth Amendment's Due Process Clause. 13
The government may "take" private land 14 for public use with or without formal condemnation proceedings. 15 The nature of its conduct may be a physical act such as invading and occupying the land; 16 a legislative act such as enacting a statute, ordinance or regulation; 17 or a quasi-judicial act such as denying or conditioning a development permit. 18 The effect of its conduct may be to prevent the landowner, permanently or temporarily, 19 from exclusively possessing the land; 20 from using the land in any economically productive way; 21 or from using the land...
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