Protect Your Property From Exactions: Act on the Local Level
By Alan M. Sorem
Saalfeld Griggs PC
The Oregon Supreme Court has recently reduced protections from unlawful state and local exactions previously granted to Oregonians by the United States Supreme Court decision in Dolan v. City of Tigard. An exaction is a land use or building permit condition of approval (like requiring the applicant to construct a new signalized intersection) that requires a property owner to forfeit real property, personal property, money, or a combination of the three in order to receive permission to use his or her property in an otherwise lawful manner. Property owners are exposed to unlawful government demands when they apply for building or land use permits because the local or state government can force them to either accept a denial of their application or give the government the demanded money or real property. Former Oregon Supreme Court Justice Edwin Peterson explained the problem of exactions in this manner:
I am convinced that [the City of] Tigard decided that it needed a pedestrian/bicycle pathway and a flood control greenway easement along Fanno Creek. One way of getting these, free of cost, is by requiring all owners who propose to change the use of their property to convey the easements to the city. That is what happened in this case. Dolan, 317 Or. 110, 129-30 (1993).
On September 23, 2010, the Oregon Supreme Court ruled that the protections in Dolan no longer apply to Oregonians outside the scope of real property dedications. While our courts refuse to protect property owners from unfair exactions, local governments still have an opportunity to foster development in our communities and affirm that our cities and counties remain “open for business.”
Along with the Marion & Polk Home Builder’s Association, Salem Chamber of Commerce, and Strategic Economic Development Corporation (SEDCOR), we have requested the City of Salem and Marion County consider adopting the following text amendment as a part of their current development code updates:
Conditions of approval may only be imposed on land use decisions when deemed necessary to ensure compliance with the applicable standards and criteria. Any conditions attached to approvals shall be directly related to the impacts of the proposed use or development and shall be roughly proportional in both the extent and amount to the anticipated impacts of the proposed use or development. Findings in the land use approval shall indicate how the required dedications, improvements, or other conditions of approval are roughly proportional to the impact.
The adoption of the above text would maintain the current planning practices in our local communities that have been in place for over 15 years.
The City of Bend, Coos County, and Clatsop County have already adopted similar language in their respective development ordinances. If our local governments join these jurisdictions, they will ensure our community remains competitive with other communities inside and outside of Oregon that provide property owners and developers the needed cost predictability for their projects. Developers and property owners recognize they must pay their “fair share” for their impacts on public services, but they must not be forced to pay for disproportionate and unrelated exactions.
If you would like to find out more about supporting the efforts to add the text amendment that will protect your real property, please contact a member of our Real Estate and Land Use Group.