Dudek v. Umatilla County
187 Or. App. 504, 69 P.3d 751, 2003 Ore. App. LEXIS 614 (2003)
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Rule of Law:
A development condition requiring a landowner to purchase property from third parties and then dedicate it as a public easement is an exaction of a real property interest. Such a condition, when imposed through a discretionary, case-by-case adjudicative process, is subject to the "rough proportionality" test established in Dolan v. City of Tigard.
Facts:
- Danny R. Smith owned a 20-acre property served by a 50-foot-wide private road easement, Jerico Lane.
- Jerico Lane was approximately 3,500 feet long and served 18 other properties in addition to Smith's.
- Smith applied to Umatilla County to partition his land into three residential lots, which would increase traffic on Jerico Lane by an estimated 15%.
- A Umatilla County Development Ordinance required that if a road serving a new partition serves four or more lots and is likely to see future development, the right-of-way must be widened to 60 feet and improved to county standards.
- To comply with the ordinance, Smith would have been required to acquire an additional 10 feet of right-of-way from adjacent property owners along the entire length of Jerico Lane and pay for road construction.
- Petitioners are persons who live near or on Jerico Lane and opposed the county's decision regarding Smith's application.
Procedural Posture:
- Danny R. Smith applied to Umatilla County for a partition permit.
- The county approved the partition, and petitioners (neighbors) appealed to the Land Use Board of Appeals (LUBA).
- In a prior proceeding, LUBA remanded the county's initial approval, directing the county to interpret its roadway ordinance.
- On remand, the county again approved the partition, finding that its road-widening ordinance applied but concluded it would be unconstitutional under the Dolan 'rough proportionality' test to enforce it.
- Petitioners appealed the county's decision on remand to LUBA.
- LUBA affirmed the county's decision, agreeing that the Dolan test was the correct legal standard to apply.
- Petitioners sought review of LUBA's decision in the Court of Appeals of Oregon.
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Issue:
Does the heightened scrutiny of the "rough proportionality" test from Dolan v. City of Tigard apply to a land-use development condition that (1) is imposed by an ordinance requiring a case-by-case, discretionary adjudication, and (2) requires the applicant to acquire a property interest from third parties and dedicate it for public access?
Opinions:
Majority - Deits, C. J.
Yes, the heightened scrutiny of the 'rough proportionality' test applies. The court held that the ordinance at issue was not a broadly applicable legislative enactment with a mechanical application. Instead, it required a discretionary, adjudicative process where the county had to assess individualized factors like 'development pressures in the area' and how many lots the road will serve. This case-by-case analysis creates the risk of governmental leveraging that the Dolan test was designed to prevent. Furthermore, the condition that Smith purchase property interests from his neighbors and then dedicate them for public access is not a mere monetary exaction; it is the functional equivalent of an exaction of a possessory interest in real property. Therefore, it is subject to heightened scrutiny under Dolan.
Analysis:
This decision refines the application of the Dolan 'rough proportionality' test by clarifying what constitutes a discretionary, adjudicative process versus a generally applicable legislative one. It establishes that the key factor is not whether an exaction is codified in an ordinance, but whether its application requires individualized assessment and discretion, creating a risk of singling out applicants. The holding also broadens the definition of a property exaction to include requirements to purchase land from third parties for dedication, preventing local governments from circumventing the Takings Clause through indirect means.
