Hill v. City of Portland

The width of the local street right-of-way must be sufficient to accommodate expected users, taking into consideration the characteristics of the site and vicinity, such as the existing street and pedestrian system improvements, existing structures, and natural features.

Petitioner appeals conditions set by city hearing officer. Petitioner seeks to divide 1.06 acre residentially-zoned land, located at SE 122nd Drive and SE 124th Ave, into three individual parcels to add a single-family dwelling on each. Current street width and improvements made between SE 122nd Drive and SE 124th Ave do not comply with city standards for right-of-way at PCC 33.654. Conditions for approval include dedication for right-of-way (or pay the Local Transportation Infrastructure Charge – LTIC) along with a street and storm sewer waiver of remonstrance to satisfy the storm-water management criteria.

On the first assignment of error, petitioner contends right-of-way condition is unconstitutional exaction of property under the 5th Amendment because the proposed use will have no impact on the land, removing any need for mitigation. Petitioner asserts a lack of essential nexus between the proposed development and the conditions set by the government. To defeat an exaction claim, the city must show an essential nexus between the proposed (legitimate) government interest and the means taken by the government in achieving those goals. Additionally, the level of government action must be roughly proportional to the impact of the individual.

LUBA confirmed a hearing officer’s decision stating “essential nexus” requirement was met. City declared a public utility/safety interest and provided reason to believe the right-of-way requirement would achieve the legitimate governmental interest. LUBA confirmed the dedication was roughly proportional to the government’s goal of promoting public safety and maintain public services/efficiency. First assignment of error denied.

On the second assignment of error, petitioner contends hearing officer’s application of law when determining street and storm sewer waivers of remonstrance for future improvements on right-of-way is a condition to partition and development. Hearing officer correctly determined a waiver of remonstrance, rather than requiring the petitioner to make future improvements himself. Waiver of exaction is not subject to constitutional analysis because it does not result in a loss of property. Second assignment of error denied. AFFIRMED.