CHAMBER OF COMM. v. City of Lincoln City

• Decision Date: 08 December 1999
• Docket Number: LUBA No. 98-153; CA A107266
• Citation: 991 P.2d 1080,164 Or. App. 272
• Parties: LINCOLN CITY CHAMBER OF COMMERCE and Oregonians in Action Legal Center, Petitioners, v. CITY OF LINCOLN CITY, Respondent.
• Court: Oregon Court of Appeals

991 P.2d 1080

164 Or. App. 272

LINCOLN CITY CHAMBER OF COMMERCE and Oregonians in Action Legal Center, Petitioners, v. CITY OF LINCOLN CITY, Respondent.

(LUBA No. 98-153; CA A107266)

Court of Appeals of Oregon.

Argued and Submitted October 26, 1999.

Decided December 8, 1999.

David J. Hunnicutt, Tigard, argued the cause and filed the brief for petitioners.

Christopher P. Thomas, City Attorney, argued the cause and filed the brief for respondent.

KISTLER, Presiding Judge, and DEITS, Chief Judge, and ARMSTRONG,¹ Judge.

DEITS, C. J.

Petitioners seek review of LUBA's decision affirming the City of Lincoln City's enactment of amendments to its zoning ordinance (LCZO) that petitioners contend are facially unconstitutional. We affirm.

The challenged amendments to LCZO 4.300 and LCZO 4.310 were adopted in 1998. As amended, LCZO 4.300 provides, in material part:

"(1) No building permit shall be issued for the addition, alteration, or repair, within any twelve month period exceeding fifty (50) percent of the assessed value or market value, whichever is greater, of an existing building or structure, or for a new building or structure in connection with any permitted or conditional use within any zone as described in this ordinance, and no site plan approval shall be granted for development for which site plan review is required under Section 4.310, unless and until:

"(a) The applicant submits, as part of a building permit application, a site plan drawn to scale showing the nature, size, and location of [proposed buildings, improvements, access, utilities, easements, and drainage facilities, and existing utilities, easements, drainage facilities, and existing lot lines]; and

"(b) The applicant agrees:

"(i) To install curbs and gutters along adjacent streets not having curbs and gutters, and also to pave the roadways from the curbs to 12 feet beyond [the] centerline of unpaved or partially unpaved streets contiguous to the property to be developed * * *; and, if existing rights-of-way for streets contiguous to the property are not adequate in width * * * to dedicate right-of-way to the City sufficient to allow streets that are adequate in width;

"(ii) To dedicate to the City utility easements five (5) feet in width along rear lot lines, or along front lot lines as required by the City;

"(iii) To dedicate easements for drainage purposes, and provide storm water detention, treatment, and drainage features and facilities * * *;

"(iv) To install sidewalks five (5) feet in width along boundaries contiguous with streets, within existing right-of-way if adequate in width; and, if existing easements are not adequate in width, to deed easements to the City sufficient to allow sidewalks five (5) feet in width;

"* * * * *

"(2) If the applicant intends to assert that it cannot legally be required, as a condition of building permit or site plan approval, to provide easements or improvements at the level otherwise required by this section, the building permit or site plan review application shall include a `rough proportionality' report, prepared by a qualified civil or traffic engineer, as appropriate, showing:

"(a) The estimated extent, on a quantitative basis, to which the improvements will be used by persons served by the building or development, whether the use is for safety or convenience;

"(b) The estimated level, on a quantitative basis, of improvements needed to meet the estimated extent of use by persons served by the building or development;

"(c) The estimated impact, on a quantitative basis, of the building or development on the public infrastructure system of which the improvements will be a part; and

"(d) The estimated level, on a quantitative basis, of improvements needed to mitigate the estimated impact on the public infrastructure system."

Under the 1998 amendments, LCZO 4.310(5)(g) contains essentially the same requirements as LCZO 4.300(2), but it applies only to site plan review proceedings. Unlike the other proceedings to which LCZO 4.300 applies, those proceedings are also subject to LCZO 4.310(8)(d)(ii), which provides that proposed developments that do not comply with the ordinance requirements may either be disapproved or approved "subject to such conditions as are necessary" to achieve compliance with the ordinance.

LCZO 4.300(1) was not materially changed by the 1998 amendments. Their principal purpose was to enact LCZO 4.300(2) and LCZO 4.310(5)(g) in their present form. The city's findings explained that, standing alone, the dedication and "exactions" requirements of LCZO 4.300(1),

"as applied to particular buildings or developments, may exceed what the city legally can require, due to constitutional `takings' limitations."

The city's apparent concern was that the LCZO 4.300(1) provisions could in some instances run afoul of the holding in Dolan v. City of Tigard, 512 U.S. 374, 391, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), that, to satisfy the Takings Clause of the Fifth Amendment, dedication and similar developmental conditions must be at least "roughly proportional" in "nature and extent to the impact of the proposed development," and that the governmental body imposing the condition must make an "individualized determination" and justification for its imposition.

Petitioners argue, however, that LCZO 4.300(2) and LCZO 4.310(5)(g) are facially inconsistent with Dolan and, therefore, are facially unconstitutional. Petitioners assert that Dolan places the "burden of proof" on governmental bodies to demonstrate rough proportionality. Consequently, according to petitioners, the new ordinance requirement that applicants submit rough proportionality studies has the effect of reallocating the burden of proof to the applicants instead of the governmental bodies, in contravention of Dolan. Petitioners maintain that the impermissible reallocation extends to both the initial "burden of production" and to the "burden of persuasion."

In considering a facial challenge to the constitutionality of legislation, the question before us is whether the legislation is capable of any constitutionally permissible applications. See Benson v. City of Portland, 119 Or.App. 406, 850 P.2d 416,

rev. den. 318 Or. 24, 862 P.2d 1304 (1993). If it is, then it is susceptible to constitutional challenge only on an "as applied" basis and cannot be declared invalid on its face. See Cope v. City of Cannon Beach, 317 Or. 339, 855 P.2d 1083 (1993).

Petitioners' argument depends on the assumption that the United States Supreme Court's opinion in Dolan was concerned with the "burden of proof" in the conventional evidentiary and adversarial sense. As LUBA noted, however:

"Neither Dolan nor Oregon cases applying Dolan use the term `burden of proof.' Dolan speaks of the burden `to justify the required dedication.' 512 U.S. at 391 n. 8 . J.C. Reeves Corp. [v. Clackamas County, 131 Or.App. 615, 887 P.2d 360 (1994),] equates that burden to the `burden of articulation' imposed by Oregon's requirement that land use decisions be supported by findings. 131 Or.App. at 620 . Art Piculell Group [v. Clackamas County, 142 Or.App. 327, 922 P.2d 1227 (1996),] characterizes the local government's task as the burden `to articulate and substantiate the requisite facts and legal conclusions[.] 142 Or.App. at 331 ."

Indeed, the only place in the Dolan majority opinion where the Court came anywhere close to using the term "burden of proof" or its analogs was in a footnote responding to one of the dissenting opinions. 512 U.S. at 391 n. 8, 114 S.Ct. 2309. More fundamentally, the fact that Dolan was not concerned with the types of "burdens" that are allocated among the parties in the adversary process is illustrated by the fact that what the Court was reviewing, to determine whether the city had satisfied its burden of justification, were...