Dressel v. City of Tigard

Under Dolan v. City of Tigard, if the subject property can be physically developed without further land use review, some level of exactions may be appropriate. In the absence of any ability to physically develop the property without further land use review, no exactions pass constitutional scrutiny.

Intervenor applied to partition its 20-acre parcel into two 10-acre lots and proposed a condition requiring intervenor to record an Equitable Servitude providing that the Tigard Development Code (TDC) street tree standard would be addressed prior to obtaining an occupancy permit for commercial or institutional development, prior to final plat approval for residential development or, if compliance is not practicable, by paying a fee. The subject property is within the River Terrace Plan District (TRPD). Under TDC 18.640.010, the purpose of the RTPD is to ensure that public facilities are available in advance of or concurrent with “development.” Under TDC 18.30.020.B(50), “development” includes partitions. Despite these provisions, the city imposed the condition and approved the partition. This appeal followed.

In the eighth assignment of error, petitioners argue the Equitable Servitude is insufficient to establish compliance with the street tree standard because it guarantees no public process in the future, meaning the standard might never be applied. Because the Servitude itself provides that future development will require additional land use approval with notice and opportunity for public comments, and because the city found that future development would require public process regardless of the Servitude, LUBA concludes this argument provides no basis for reversal or remand. Petitioners also argue the city erred in relying on the Servitude because intervenor’s performance is based on a future land use application that may never occur. Because, if no physical development ever occurs, there would be no basis on which to find rough proportionality under Dolan v. City of Tigard, LUBA concludes this argument provides no basis for reversal or remand, either. The eighth assignment of error is therefore denied.

In the seventh assignment of error, petitioners argue the city’s findings are inconsistent in part because they (1) state that the Equitable Servitude is not necessary to establish criteria other than the street tree standard while also stating that it establishes compliance with the TDC’s residential density, infrastructure extension, and access standards, and (2) state that the city could not require dedication of rights-of-way but that it could require dedication of sewer easements shown on intervenor’s plans. Because the city concluded the Servitude was only necessary to establish compliance with the street tree standard, but that it provided additional assurance that other standards would be met, and because the city can accept the voluntary dedication of easements by intervenor, LUBA concludes the findings are not inconsistent. The seventh assignment of error is therefore denied.

In the second assignment of error, petitioners argue the city erred in failing to consider the potential benefits that street trees would provide to the subject property in determining rough proportionality under Dolan. While LUBA agrees with petitioners that development allowed outright may be considered in evaluating rough proportionality, even though physical development is not part of an application, LUBA concludes nothing requires the city to impose exactions at any stage in order to ensure necessary facilities are in place at the appropriate time. Although the purpose statement at TDC 18.640.010 requires public facilities in advance of or concurrent with development, that provision also states that it is not a distinct approval criterion, but that it merely guides and informs the interpretation and application of other provisions. Because the city was not required to impose exactions at the partition stage, the second assignment of error is denied, and the city’s decision is AFFIRMED.