Life After Dolan: Will it Ever Be the Same?
| Jurisdiction | United States,Federal |
| Citation | Vol. 24 No. 1 Pg. 59 |
| Pages | 59 |
| Publication year | 1995 |
1995, January, Pg. 59. Life After Dolan: Will It Ever Be the Same?
On June 24, 1994, the U.S. Supreme Court handed down its decision in Dolan v. City of Tigard.(fn1) The decision contains much of interest to lawyers and planners. It creates a new standard by which exactions must be judged---one of "rough proportionality"---and reverses the traditional presumption of validity accorded to governmental land use decisions imposing exactions.
While the decision requires detailed study by all local government lawyers and planners to ensure that standards and procedures are brought into line with the demands of the opinion, there is likely to be little change in the exactions imposed on developers in Colorado. What will change is how exaction decisions are documented and how they are handled in the event of judicial review.
The concept that developers of property should dedicate land necessary for streets, sidewalks and alleys within their developments has long been accepted in Colorado and other states.(fn2) In addition, the use of special assessment districts to provide for paving of streets, curb and gutter construction, water facilities and other amenities of urban life has been based on the theory that those receiving the benefits of the improvements should pay the cost of those improvements.(fn3) In other parts of the United States, exactions have been more commonly associated with the process of subdivision approval. A mechanism for conditioning plat approval on dedication of land and on construction of public improvements was included in the Standard City Planning Enabling Act, published by the Department of Commerce in 1928.(fn4)
Over the years, courts in many states have considered exaction and impact fee schemes and have developed three general tests for determining their validity: the "reasonable relationship" test, the "rational nexus" test and the "specifically and uniquely attributable" test.(fn5) The most lenient is the reasonable relationship test that has been used in California.(fn6) It requires only that the development contribute to the general public need for the property or improvements being demanded by the governmental entity.
The specifically and uniquely attributable test is most commonly associated with Illinois.(fn7) It requires that the need for the property or improvements be created by, and only by, the development under consideration.
The rational nexus test, which is used in the majority of jurisdictions, was first articulated in Jordan v. Village of Me-nomonee Falls.(fn8) It requires that the exactions imposed on new developments be proportional to the need for new services and facilities created by the development.
The Colorado Supreme Court adopted the rational nexus test in Bethlehem Evangelical Lutheran Church v. City of Lakewood,(fn9) although it did not identify it as such. The case arose out of the Church's desire to construct a gymnasium at the adjoining Bethlehem Lutheran School. The Lakewood Municipal Code required that a building permit applicant construct or dedicate property "necessitated" by the proposed construction. Lake-wood conditioned the building permit approval on construction of certain street, curb and gutter, and sidewalk improvements and on the dedication of strips of land for adjacent street widening.
The church objected and filed a complaint for C.R.C.P. 106 review and declaratory judgment. It claimed that the ordinance did not have adequate standards and that the required exactions constituted takings prohibited by the Fourteenth Amendment to the U.S. Constitution and Article II, § 25 of the Colorado Constitution. The district court ruled for the Church, and the Colorado Supreme Court overturned.
The Colorado Supreme Court adopted a "reasonableness" standard. The Bethlehem Lutheran court noted that there was evidence on the record before the Lakewood Planning Commission that the construction of the gymnasium would create traffic impacts, and that cities have broad authority to regulate streets and traffic. The court then found that it was appropriate to require construction of public improvements where the proposed construction "reasonably necessitates" those public...
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