Posted by: Patricia Salkin | February 28, 2008

Portland’s Condition of Sidewalk Dedication May Constitute a Taking Requiring Compensation

As an outgrowth of the smart growth movement, the healthy/active living movement and efforts to slow climate change, many municipalities are developing and adopting programs designed to result in more sidewalks to make communities walkable. See, http://www.smartgrowth.org/about/principles/principles.asp?prin=4&res=1024 The challenge of course, is who is going to pay for these sidewalks?  Sidewalks are an expensive proposition for already squeezed municipal budgets, so many local governments attempt to condition the granting of permits on the provision of sidewalks or fees in lieu thereof.  This condition must first pass the test for takings under the Nollan and Dolan exactions analysis.  In addition, localities need to consider whether it is even appropriate to condition certain permits on the provision of sidewalks since it may make no sense to require this infrastructure in stretches where the resulting sidewalks do not connect to existing sidewalks.            

The federal District Court in Oregon ruled this week that with respect to Portland’s requirement of land for sidewalks as a condition of building permits (consistent with the City’s Pedestrian Design Guide, an element of the City’s Pedestrian Master Plan) on the Plaintiff’s two lots, one amounted to an unconstitutional taking of property for which a trial on compensation was appropriate, and the second might amount to a taking.   With respect to the first lot, the City required the owner to dedicate an additional six feet of easement for a sidewalk, enabling the expansion of the current sidewalk area from six feet to 12 feet.  For the second lot, where a 10 foot-wide sidewalk already existed, the City required a two foot dedication as the City intended to use that land to provide space for a six-foot wide “unobstructed pedestrian zone (sidewalk), a planting strip, which provides a buffer for pedestrians from the roadway and street trees.”             

The District Court set out to apply a three-part inquiry in these types of exactions cases under Garneau v. City of Seattle, 147 F.3d 802 (1988).  As to the first inquiry, the Court determined that the government imposition of the exaction does constitute a taking since it involves a demand by the City that it be granted permanent physical occupation of some portion of the Plaintiff’s land.  The second and third inquiries “seek to determine whether the government may shield itself from a takings claim through the use of its police powers.” The government has the burden of proving both an “essential nexus” between the exaction and the burdens imposed by the development, and “rough proportionality” between the condition imposed and the social harm caused by the proposed development. With respect to the first property and the six foot easement, the Court concluded that the record reveals genuine issues of material fact on whether this sidewalk dedication (which included requiring the Plaintiff to move the existing six foot sidewalk as well) has an essential nexus to the proposed development.  The Court expressed questions regarding the need for a planting strip and street trees and a frontage zone.  The Court also questioned the impact of increased site trips on pedestrians, bicyclists and vehicles, as well as whether the exaction would affect emergency vehicle access, utility location, or increased sidewalk area for outdoor seating or advertising.   As a result, the Court said that there should be a trial on the taking and, if one is found, then the issues of damages will be addressed.  As to the second parcel and the two foot sidewalk dedication, the Court concluded that since no reasonable jury could find a reasonable nexus between the exaction and the impact of the proposed development, the Plaintiff is entitled to summary judgment on the issue of takings.      

Skoro v. City of Portland, 2008 WL 490642 (D. Or. 2/21/2008).


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