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1. Justice Street Vacation and AbandonmentPETITION TO ABANDON STREET TO: City of Kalispell, City Council FROM: Undersigned Property Owner DATE: July , 1995 RE: Street Vacation or Discontinuance The undersigned, being the owner of record of lots adjacent to the Easterly 30' of Kinshella Avenue fronting on Lots 5-6 of Liberty Village, hereby requests the City of Kalispell, Montana, to vacate or discontinue said street pursuant to Section 7-14-4114, MCA. 0. H. Whitescarver 0_ STATE OF MONTANA : ss County of Flathead ) On the ZaI.C. day of , 1995, before me, the undersigned, a Notary Public for the State of Montana, personally appeared O. H. WHITESCARVER, known to me to be the person whose name is subscribed to the within iand acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have he unto set my hand and of fixed my Notarial Seal the day and year fir t above wri/tt96. 0 Notary Public,St te.of Montana Residing My Commission Expires: y = a I'aatriek M. Springer ATTORNEY AT LAW P.O. BOX 1112 KALISPELL, MONTANA 59901 April 3 1995 Attn: Bruce Williams City of Kalispell P.O. Box 1997 Kalispell, Mt 59903-1997 Re: Whitescaver, O.H. Liberty Village Dear Mr. Williams: OFFICE: (406) 257-9777 HOME: (406) 257.4380 OF COUNSEL: LEONARD A. VADALA I have been asked by Mr. Whitescarver to review the record of the above -referenced subdivision, and the propriety of the provision requiring the developer to dedicate an additional thirty (30) feet of right-of-way for what might some day become Kinshella Street. This obviously became a necessity for the developer when the adjacent landowner would not participate. I understand that the City was aware of that problem, yet made it a condition of approval. I have had preliminary discussions with City Attorney Meier, and have reviewed most of the records of the city with respect to this subdivision. In addition, I have reviewed the current status of the law concerning regulatory taking and inverse condemnation arising out of the application of the "takng clause" of the Fifth Amendment to the United States Constitution, and Section 17 of Article II of the 1972 Montana Constitution. In addition, I have reviewed the financial impact of the dedication on the economic feasibility of the developers original plans. A recent U.S. Supreme Court case, Dolan v. CityofTigard (Or.), 114 S.Ct. 2309 (1994), would appear to be on point. The Court in Dolan found that a municipality violates the Federal Constitution when it requires a dedication of land as a condition to a land use permit, unless it makes an individualized determination that there is a roughly proportional relation, both in nature and extent, between the required dedication and the impact of the development. The Court put the burden of that determination on the municipality to show the extent of impact and to show the dedication would, rather than could, off -set that impact. I would suggest that such a determination was not properly made with respect to the Liberty Village 30-feet, and that there has been a wrongful taking. City of Kalispell/Whitescarver April 3, 1995 Page 2 I would welcome the opportunity to further discuss this matter with yourself and Mr. Neier prior to taking any other action in this matter. Mr. Whitescarver is interested in the return of the 30-foot dedicated strip so that the original plans can again be made feasible. If I do not hear from you within a reasonable time, I have been directed to pursue legal action to answer the questions raised by this Your attention to this matter is appreciated, and I look(forward-tp hearing fom you. Thank you. Very my ou s, V Patrick M. Spri ger Attorney at Law PMS:mp cc: O.H. Whitescarver William Janes Thomas, Dean & Hoskins Marquardt & McCallister Surveying Glen M. Neier i — R M o N111R11 Incorporated 1892 Telephone (406) 758-7700 Douglas Rauthe FAX (406) 758-7758 Mayor Post Office Box 1997 Zip 59903-1997 Bruce Williams City Manager City Council April 14, 1995 Members: Gary W. Nystul Ward 1 Mr. Patrick Springer. Cliff CollinsWard I Attorney at Law Post Office Box 1112 Barbara Moses Kalispell, MT 59903-1997 Wardle aarr Dear Mr. Springer: Ward 11 I am in receipt of your April 3, 1995 correspondence regarding Jim Atkinson Warden U.S. Supreme Court Case Dolan v. City of Tigard and its application to Whitescarver Liberty Village Subdivision. Lauren Granmo Ward III I am aware of the Dolan v. City of Tigard case and believe PamelaB. Kennedy that in light of the ruling, I have asked City Attorney Neier to review the Whitescarver record and provide me with his opinion concerning a wrongful taking of the 30 foot dedicated M. Duane Larson strip involved with the Liberty Village preliminary plat ward iv approval. I appreciate your client bringing this matter to our atten- tion, and we will work toward resolving this matter as soon as possible. Sincerely, 1-45 Bruce Williams City Manager BWlksk p.c.: Glen Neier Mayor and City Council Brian Wood John Parsons No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. -CONSTITUTION OF THE UNITED STATES, AMENDMENT V A11I i I I GoveriftIffientson the Tak iProperta- . i im t !P71.1 �. Are Standinf-I Anthony W. Crowell ocal governments have the critical responsibility of regu- lating land use and development to maintain public health and safety, ensure environmental protection, and achieve local economic stability. While the Supreme Court has recognized this integral function, it has horri- fied local governments and environmentalists alike with its recent trilogy of decisions —Dolan v. City of Tigard (1994), Lucas v. South Carolina Coastal Council (1992), and Nollan v. California Coastal Commission (1987)--regarding regulatory takings. Equally horrifying to these interests is the momentum that property rights advocates are gaining in their move to strong-arm state and federal agencies to abide by their interpretation of the Fifth Amendment to the United States Constitution. The Supreme Court has broadly interpreted the Fifth Amendment Takings Clause to mean that the govern- ment may take private property to effectuate a legitimate public purpose provided that it justly compensates the owner. If the public purpose test is not met, the govern- ment may not expropriate the property. Regulatory takings arise when government action to regulate private land use for the public good has a nega- tive impact on the ability of owners to use their property. Currently, there are two categories of regulatory takings: takings that involve physical invasion of the property, as in Dolan and Nollan, and takings that result in denial of all economically beneficial use of the land, as in Lucas. I 4 ten!! 199 0 This article addresses the impact that the Court's most recent deci- sion, in Dolan v. City of Tigard, will have on local government land use regulations and planning. It also looks at the efforts that property rights advocates have taken to get federal takings legislation passed that would codify constitutional property rights. Count Calls for Necessary Roughness Last summer, in a five -to -four opin- ion that reflected the Supreme Court's ideological rift regarding lim- its for local government land use reg- ulation, a conservative majority in Dolan v. City of Tigard held that the constitutional property rights of Flo- rence Dolan, a plumbing and electri- cal supply store owner, had been violated when Tigard, Oregon (pop- ulation 30,000), sought to condition Dolan's request for a permit to rede- velop her downtown commercial site. Dolan proposed to demolish her existing plumbing store to construct a new and larger 17,600-square-foot facility, along with another smaller structure and a paved parking lot. Pursuant to Tigard's Community De- velopment Code, Dolan's request was granted with two stipulations. First, she was required to transfer the title for a portion of her land —a green - way within the 100-year floodplain along Fanno Creek —to the city for improvement of a storm drainage sys- tem. Second, she was required to dedicate an adjacent 15-foot strip of land for a pedestrian and bike path. Tigard officials argued that in- creased floodplain controls were nec- essary because the paved parking lot would augment drainage into the creek. The city also reasoned that the pedestrian and bike path could offset some of the traffic demand on nearby streets and lessen the in- crease in downtown traffic conges- tion that would be caused by Dolan's business expansion. The aggregated dedications, amounting to 7,000 square feet, or roughly 10 percent of the total 1.67 acre site, could be used to satisfy the city's 15-percent open space requirement for developed parcels. Dolan requested a variance from the requirements but it was denied. She appealed to Tigard's Land Use Board of Appeals (LUBA), which af- firmed the city planning commis- sion's decision. Dolan then invoked her Fifth Amendment constitutional rights and filed a suit claiming that the city's dedication requirements were unrelated to her proposed de- velopment, constituting an uncom- pensated taking of her property. Both the Oregon Court of Ap- peals and Oregon Supreme Court af- firmed the LUBA decision. The Supreme Court granted Dolan's peti- tion for review in order to resolve a question left open by its 1987 deci- sion in Nollan v. California Coastal Commission regarding the required "degree" of connection between spe- cific land use or dedication require- ments (known as exactions) imposed by the city and the projected impacts of the proposed development. In Nollan, the petitioners applied for a permit to tear down an existing beaelifront bungalow to build a new one. The California Coastal Commis- sion required that the Nollans grant the public lateral access across the beachfront of their new private resi- dence to comply with a state regula- tion giving the public visual access to the beach. The Supreme Court reaf- firmed that local governments may legitimately invoke their land use powers to impose conditions on de- velopment as well as to prohibit de- velopment entirely. However, the Court held that in the absence of any direct relationship or nexus between the imposed condition on the Nol- lans' property and the concerns that the commission sought to address re- sulted in a taking. The public ease- ment condition was invalidated. By applying the Nollan test to the specific facts in Dolan, the Supreme Court found legitimacy in the city's desire to alleviate traffic congestion and prevent flooding, and it deemed that an essential nexus existed be- tween those public interests and Regulatory Takings: All Economically Beneficial Use Test Although the majority in Dolan did not cite Lucas v South Carolina Coastal Council in the drafting of their rough proportionality test, Lucas estab- lished a new category of compensable regulatory takings. In this rase, David Lucas, a developer, sought a permit to build on beachfront property he owned. However, because of amendments to South Carolina's Bachfront Management Act (BMA) that were adopted after Lucas purchased the land, any development that would promote beach erosion was prohibited. The Supreme Court held that "where the state seeks to sustain regulation that deprives Iand of all economically beneficial use ... it may resist compensation only if the logically an- tecedent inquiry into the nature of the owner's estate shows that the pre- scribed use interests were not part of his title to begin with." The majority stressed that its categorical rule applied only to regula- tory takings where there is a total loss of value or a loss of 100 percent of the value of the real property. In such cases, the land owner is due com- pensation. Because the BMA rendered Lucas' property useless, he was awarded $1.2 million. Today, David Lucas is a leader in the property rights movement heading a national activist group called the Council on Property Rights. 995 1 Public management 5 QUALITY T H R O U G H SELECTION For over 18 years, Stanard & Associates has helped fire departments to select and pro- mote only the most qualified individuals. Our content valid, job -related tests allow you to identify candidates with the basic skills, knowledge, and ability to meet the rigorous demands of the fireservice industry. Let us help you identify quality candidates through the use of our: • National Firefighter Selection Test (NFST) • National Firefighter Selection Test/Emergency Medical Services (NFST-EMS) • Physical Ability Tests • job Analysis • Customized Examinations • Personality Evaluations Our Programs meet all Federal and A.D.A. Guidelines. HELPING YOU SELECT THE BEST & Associates, Inc M W. Washington St. Suite 1000 Chicago, IL 60606 1-800-367-6919 Dolan's permit conditions. The Court's more difficult task, however, was to determine whether the degree of exactions demanded by the city's permit conditions bore the required relationship to the projected impact of Dolan's proposed development to pass constitutional muster. Writing for the majority, Chief Jus- tice Rehnquist noted that state courts have approached the question of de- gree in various ways. He pointed out that some states require 'very gener- alized statements" to establish the necessary connection between the re- quired dedication and the impact of the proposed development, while others have required that there be a "reasonable relationship." Still other states have taken a hard-line approach and imposed a "very exacting correspondence" test requiring local governments to show direct proportionality between the exaction and the public interest. Finding the hard-line approach to be too stringent and the generalized ap- proach too lax, Rehnquist found that the reasonable relationship test was closest to the federal constitutional norm, although the Court did not explicitly adopt it as such. Because the term reasonable rela- tionship creates confusion with the term rational basis, which is used as a test for questions of 14th Amend- ment Equal Protection, the Court chose rough proportionality as the name for the troublesome test that local governments must employ when con- ditioning property development. Al- though the Court made clear that its rough proportionality test does not require a precise mathematical calcu- Avoiding the Takings Trap: A Checklist for Local Governments ✓ Fifth Amendment Takings Clause. Local governments may take private property to effectuate a legitimate public purpose provided that they compensate the owner. ✓ Regulatory Takings. Those takings that involve physical invasion of the property or result in a denial of all economically beneficial use of the land. A. Local governments have the burden of showing a rough propor- tionality between the required dedication and the public interest. They also must make some individualized determination of the re- lationship between the exaction and the impact of the proposed project. B. Local governments must show a reasonable relationship, a nexus, between the public interest and conditions imposed on private property. C. Local governments must compensate property owners if a regula- tion deprives them of all economically beneficial use of their land. ✓ Legislative Actions. - A. Federal: Local governments should monitor federal legislative ini- tiatives that may have spill -over effects on their states. B. State: Local governments in Mississippi should secure a copy of the state's takings compensation law. Local governments in Delaware, Idaho, Indiana, Missouri, Tennessee, Utah, Washington, and West Virginia should secure a copy of their state's takings assessment law. Finally, local governments should continually monitor their state legislatures for any development of takings legislation. 0 April 1885 iv M r �t Is rl A 'I- e a d- rt Ie al ,n- U- its of •u- IC lation, it held that local government planners now must bear the burden of making some sort of -individual- ized determination that the required dedication is related both in nature and extent to the impact of the pro- posed development." Using the new test, the Court de- termined that the city had failed to make an individualized determina- tion as to why a public greenway, as opposed to a private one, was neces- sary in the interest of flood control. It held that Tigard's floodplain re- quireanent was unconstitutional. Re- garding the pedestrian and bicycle pathway, the Court found that the re- quirement could offset some traffic demand, but Tigard would have to make some effort to quantify its find- ings in support of the dedication. The Supreme Court then reversed the Oregon Supreme Court's deci- sion and remanded the case back to Tigard for action that was consistent with its opinion. Like the decisions in Nollan and Lucas (see box on page 5), Dolan creates confusion and leaves many questions unanswered. The most un- certainty probably stems from the Court's intentionally ambiguous term rough proportionality. While sounding broadly consistent with re- sponsible planning, the term begs the question of how rough "rough" can be. Depending on the level at which a local government already conducts planning impact studies, planning budgets may not be drastically af- fected by this new requirement. But local planning commissions and gov- erning bodies will have to exercise more caution when developing land use regulations or formulating land dedication requirements. Local gov- ernments must be able to justify land use planning decisions under closer scrutiny and with more site -specific precision than has been required to date. In turn, this may save local gov- ernments money on future legal ser- vices. Tigard spent at least $100,000 to respond in the Supreme Court alone. Property Rights Advocates Take to the Hill The decisions in Dolan, Lucas, and Nollan are by no means an automatic trigger for congressional action. But it appears that the 104th Congress is heeding the call of property rights advocates who have mobilized to push for the passage of takings legis- lation. It is rare, at a time when local governments are protesting to Capi- tol Hill about burdensome environ- mental regulations and pushing for the adoption of unfunded mandate reforms, risk assessments, and cost/benefit analyses, that environ- mentalists, who oppose such mea- sures, and local governments agree on a legislative debate. But they have found common ground opposing property rights advocates who insist that governmental regulation, espe- cially environmental regulation, has gone too far in impacting the viabil- ity of private property. Among many arguments, advocates claim that any decrease in property value due to governmental regulation constitutes a compensable taking. Although several takings bills were introduced in the last Congress to es- tablish, among other things, a Private Property Owners' Bill of Rights, the concerns of property rights advo- cates are receiving heightened atten- tion in the House Republican Con- tract with America. At the time this article was written, H.R. 9, the job Creation and Wage Enhancement Act of 1995, introduced by Represen- tatives Bill Archer (R Texas) and Billy Tauzin (D-La.), included the first of several legislative takings measures in the 104th Congress. H.R 9 would mandate that the federal government compensate pri- vate property owners when a measur- able limitation or condition is im- posed by a federal agency on the use of property that would be a lawful QUALITY T H R O U G H SELECTION For over 18 years, Stanard & Associates has helped large and small departments to select and promote thousands of individuals with the basic skills and personality charac- teristics necessary for a successful career in law enforcement. Let us help you identify quality candidates through the use of our: • National Police Officer Selection Test (POST) • Customized Examinations • Physical Ability Tests • Job Analysis • Personality Evaluations Conducted By Licensed Police Psychologists Our Programs meet all Federal and A.D.A. Guidelines. HELPING YOU SELECT THE BEST & Associates, Inc. 309 W. Washington St. suite 1000 Chicago, IL 60606 1-800-367-6919 :885 I Public Management 7 The Battle Fallout on Tigard As this article was researched, Tigard was reviewing its codes and plan- ning to update them accordingly. Most significant is that the city will be taking a different approach in its application review process. Liz Newton, Tigard's community involvement coordinator, notes, "The city will be more careful about the applications they take in." A major difference will be that the city will ask property owners to pro- pose how they will manage such potential problems as stormwater drainage before applying to the city for approval to develop land. This way, the city can decide whether a developer's proposal meets community standards before imposing a condition that could have devastating ramifi- cations such as those in Dolan v. City of Tigard. When this was written, the Dolans' had yet to request a building per- mit. However, they have filed a separate civil suit against the city for mon- etary damages resulting from lost business. The subsequent suit is being handled by Tigard's insurance company. use but for the agency action and when that limitation results in a re- duction in the value of property equal to 10 percent or more. Whether the 10-percent requirement is met would be determined by calcu- lating any decrease in fair market value (FMV) of the property by com- paring its FMV before the agency ac- tion to its FMV after the action was implemented. The bill also provides for arbitration procedures and re- quires a stay of agency action pend- ing resolution of the property owner's claim. The concept embed- ded in H.R. 9 (the loss of property value of 10 percent or more must be compensated) could change existing case law under Lucas, which requires compensation only if all economi- cally beneficial use of the land is di- minished in the pursuit of a legiti- mate governmental interest. Senate Minority Leader Bob Dole (R-Kan.) has introduced a bill similar to an executive order issued by Presi- dent Reagan in 1988. This bill would require the federal government to prepare takings impact analyses simi- lar to environmental impact state- ments for all proposed regulations. Dole's proposal resembles the assess- ment -type takings provision he of- fered last term in the Senate's bill to reauthorize the Safe Drinking Water Act. The takings assessment language was a factor in the failure of the House and Senate to reach a com- promise before the term ended. Supporters of the measures assert that their real objective is not to get compensation but to discourage gov- ernment agencies from imposing regulations that could encumber the use of private property. While the mining, timber, oil, agri-business, and real estate development indus- tries would benefit greatly from the proposals, state, local, and environ- mental interests have been warning lawmakers about adverse impacts. State attorneys general have as- serted that regulatory agencies would be saddled with an extremely costly and virtually impossible bureaucratic task that could inhibit agencies re- sponsible for protecting the public welfare from acting at all. The Na- tional Wildlife Federation declared that such legislation would under- mine federal regulatory programs in- cluding wetlands conservation, en- dangered species protection, and pollution prevention. Similarly, the American Planning Association con- tends that the proposed measures constitute an attack on the legitimacy of local land use planning and zon- ing regulations that support impor- tant state and local objectives. In ef- fect, the bills could place fair hous- ing, civil rights, historic preservation, and clean air and water, flood con- trol, and other environmental laws in jeopardy. Opponents also fear that in order to compensate affected property owners, new taxes would have to be levied, federal programs cut, or the federal budget deficit increased. At this time, it is unclear whether a reg- ulatory agency would be required to compensate a landowner from its annual appropriations or from an agency judgment fund typically used to pay claims against the fed- eral government. Although the compensation and assessment measures would only apply to the federal government if passed, long-term state and local gov- ernment environmental plans as well as annual budgets would face poten- tial devastation if property rights ad- vocates push state legislatures to act. Since 1991, compensation bills like H.R. 9 have been introduced in 23 states. So far, the only one that has been adopted is a Mississippi law that applies to forestry land and requires compensation if a devaluation of 40 percent or more occurs. Takings as- sessment laws similar to the Dole pro- posal have passed in eight states since 1991, including Delaware, Idaho, Indiana, Missouri, Tennessee, Utah, Washington, and West Vir- ginia. Local governments should monitor new developments in their state legislatures as well as on the fed- eral Ievel. MM Anthony W. Crowell is ICMA's munici- pal policy analyst, Washington, D.C., and a J.D. candidate at The American University. Mark Your Calendar for ICMA's 1995 Annual Conference September 17-20 April 1895