https://www.tri-cityherald.com/news/local/article235889252.html
So an admission first: I have to be careful about what I say here, as I said in the title the plaintiff is a former client of mine, and the defendant (city) is a current client. So any opinion you might read between the lines here is purely coincidental, as for the record I have no opinion to offer here.
Background first: as it says in the article, little old lady is interested in remodeling her house, city says she must improve the road frontage on her property as a part of her building permit.
Not in the article: the right of way in question is a former freeway offramp, that was conveyed from the state DOT to the city about 15 years ago when they made some major improvements to the freeway & interchange. The city has connected it to a nearby (newer) street, as a secondary access to some commercial property nearby (including my office) and as a secondary access to about 50 residential properties. Other than some minor new paving to connect to other streets, and some re-striping for 2 way traffic, it's largely unchanged since the DOT repaved it in --I think-- the late 80's. She has frontage on this right of way but because it was limited access until a relatively recent time frame, she doesn't use it to access her property.
What the article doesn't tell you: when the city said she must improve her frontage, --someone somewhere-- told her that she could dodge that requirement by subdividing the property so that the parcel containing the house no longer had frontage on that right of way. That's when she called me. I told her from the start that the city would require the same improvements as a condition of approval for the short plat, but she wanted to soldier on based on the advice she got --somewhere--. Fortunately my dad did some right of way work for the city when they acquired the former offramp, and one of the other partners had done a boundary survey across the street from her, so I had something to base a short plat on without any field work. I totally cheesed together a short plat drawing based on the other stuff we had in the area plus aerial imagery, because I knew it was going nowhere. It wasn't drawn on a napkin, but let's just say it wasn't my best work, but it was good enough for application and didn't cost her an arm and a leg (I have no desire to rip anyone off). Unfortunately she still had to pay an application fee and get a title report, so she was out some cash but could have been worse. As expected, guess what the conditions of approval included: improve same right of way to city standards.
I heard nothing about it for the last year until I saw this article today. I hope she's not still getting bad advice, other than that I'll offer no opinion, but I'm curious to hear what my surveyor brethren think.
So you are saying the city took a one lane road, turned it into two way access for lands of others and now wants the abutting owner to pay for road improvements that are needed for others and not herself. When the city accepted the right of way, the abutter had no legal access to same and it was the city's obligation to improve it to a two way street. The homeowner has no need for a second access and no obligation to pay for improvements that benefit others. When the state tendered the right of way, the access was very likely wider than the city requirements for a street and since the abutting landowner has underlying rights to right of ways?ÿ some part of that right of way should have been returned to the abutters. For the city to retain those excess lands is a taking from the landowners and the city does in fact owe compensation under condemnation laws.
It appears that a part of Fowler Street has been improved, by the city? It also appears the city has excess right of way. I estimate she could subdivide her parcel into 6 new lots at a minimum, which would justify the expense, by that is not what she wants to do. To force her for a minimal addition plus at a cost exceeding the value of the addition is overreaching.
Paul in PA
Wow. Here in Oregon all you have to do is whisper "Dolan" to over reaching planners and they run like scalded dogs. However, in Dolan they were asking for an additional right-of-way dedication for a pedestrian path. I'm not sure if that's the case here. Still, full frontage road improvements for an addition to a private residence seems like highway robbery (pun intended). Dolan v. City of Tigard wikipedia entry: https://en.wikipedia.org/wiki/Dolan_v._City_of_Tigard
There is also The "Nollan" case from California ( https://en.wikipedia.org/wiki/Nollan_v._California_Coastal_Commission ), which also concerned a condition for a public dedication. These two U.S. Supreme Court cases are usually considered by planning departments to see if their conditions in a planning decision "pass the Dolan/Nollan test". Apparently your jurisdiction thought it does. Hopefully the case won't have to climb the judicial ladder and bankrupt that gal.
The entire thing sounds like a joke and the city should forget the requirement.?ÿ Seems like in a case like this the city should wave any requirement.?ÿ What city requires the street be improved to get a building permit??ÿ Never heard of such a thing.
I hope the lady wins, and wins big.?ÿ Many cities have gone too far in trying to rob their citizens.?ÿ?ÿI've seen "requirements" that would make many cringe.?ÿ The latest being that a seller being told by the city that he cannot sell his undeveloped land unless he first subdivides it.
Such disgusting practices reminded me of this Bing Crosby song:
Oh, give me land, lots of land under starry skies above
Don't fence me in
Let me ride through the wide open country that I love
Don't fence me in
Let me be by myself in the evenin' breeze
And listen to the murmur of the cottonwood trees
Send me off forever but I ask you please
Don't fence me in
told by the city that he cannot sell his undeveloped land unless he first subdivides it.
What? Wow!
The first thing that comes to mind is; Why? Did they offer up any viable explanation, for telling them what they can and cannot do in relationship to selling their property? What makes them think they can even do something like this?
WOW!
The building designer should have been aware of the code before they went to the trouble of what they did.?ÿ
12.10.020 Street improvements for existing improved property.Share
Whenever a building permit application is made for alterations or repairs to an existing building or structure on residential or commercial property within the city, the person seeking such a permit shall install improvements as required in RMC 12.10.010, except that the requirements for installation of such improvements shall be waived if one of the following criteria is met:
A. The total alterations or repairs to an existing residential building or structure are less than 50 percent of the assessed valuation as determined by the Benton County assessor;
?ÿ
This section of code impacts those structures that have low value such as one-bedroom houses more than what would be a higher value structure. Perhaps the construction could be phased to 1. inclose the carport into a garage and 2. convert said garage to a bedroom which lowers the improvement costs below what the existing structure is worth.?ÿBut I am sure that smarter people than I have considered this option.?ÿ
?ÿ
?ÿ
?ÿ
Cities can have a variety of seemingly insane requirements in their code.?ÿ But, it's their code.?ÿ This is where local knowledge and expertise comes in.?ÿ The professional who prepare the application should of been aware of this requirement, if not immediately, certainly prior to commencing with any substantial work and most definitely prior to making the application with the City.
Road improvements are typically tied to new land use actions such as subdivision work.?ÿ I have never seen one tied to building permits.?ÿ But, if it's in the code its in the code and you have to work with it.
My feeling is that the City is going to lose that one.?ÿ I see the value of the requirement in commercial developments, but not in residential, and certainly not in this case where she may have frontage, but no intention of using it.
?ÿ
Lawers age going to make a bunch of money on this, and she is going to be delayed for years in her addition.
?ÿ
What I would do??ÿ If you have stupid rules, then I work around your stupid rules.?ÿ I would have 3 projects valued at $49,999 and dodge their requirement, and be done with the matter.
