makerofmaps, post: 418921, member: 9079 wrote: https://www.linkedin.com/pulse/your-planning-commission-taking-land-illegally-charles-whittenburg
they don't do that here, although they do require "park lands", so much that keeping them up has created a burden on the budgets.
There is case law available on this subject.
I believe it was in California; a restaurant owner was denied a building permit for expansion until a strip of land was dedicated for the continuation of a public jogging trail at the rear of the property. The owner sued and won. It was determined the municipality was wrongfully "requiring" dedications (payment) for approval of improvements that were otherwise to code. I'm sorry I cannot find the case at the moment.
Our local-yokels do the same. I have questioned it and until now only received cricket chirps in response. One source I read felt there was a clear difference between R/W dedicated for the travelling public or utilities and other "whims or desires" of an aggressive city council.
I personally feel it is an accepted form of illegal graft. I also thing we need to throw half the bums at city hall in jail. 😉
The City of Pittsburgh is trying stuff like this and zoning overlay districts, etc...
Supreme Court case: https://en.wikipedia.org/wiki/Dolan_v._City_of_Tigard speaks of this issue. Jp
A number of years ago, 60 Minutes ran a story pertaining to these types of things. Sorry, I don't remember how long ago exactly nor the location of the story. Perhaps someone else will.
In a community, the governing entity saw fit to change zoning regulations in order to call areas "blight" and take houses and land by emanate domain.If memory serves, businesses were allowed to move in. 60 Minutes made the rounds with the "powers that be" to their own houses and started asking questions. Apparently, those houses also fell into the "blight" category. But guess who got to keep their houses and land while other less fortunates were evicted. Some who had lived in those houses for decades.
paden cash, post: 418931, member: 20 wrote: There is case law available on this subject.
I believe it was in California; a restaurant owner was denied a building permit for expansion until a strip of land was dedicated for the continuation of a public jogging trail at the rear of the property. The owner sued and won. It was determined the municipality was wrongfully "requiring" dedications (payment) for approval of improvements that were otherwise to code. I'm sorry I cannot find the case at the moment.
Our local-yokels do the same. I have questioned it and until now only received cricket chirps in response. One source I read felt there was a clear difference between R/W dedicated for the travelling public or utilities and other "whims or desires" of an aggressive city council.
I personally feel it is an accepted form of illegal graft. I also thing we need to throw half the bums at city hall in jail. 😉
Are you thinking of the Dolan v City of Tigard (Oregon) case? It is a US Supreme Court decision that is cited often in nexus cases
The City of Chattanooga did it for years here and I used to argue with them. Then one day they sent a letter to all the surveyors to stop adding it. I had a convinience store client that was going to sue but then backed off. It made me mad.
clearcut, post: 418938, member: 297 wrote: Are you thinking of the Dolan v City of Tigard (Oregon) case? It is a US Supreme Court decision that is cited often in nexus cases
I believe I was, thanks for pointing that out. This old man's memory got a few of the details wrong....California? Oregon?...they're both not here in Oklahoma! 😉
The two important supreme court cases on this subject are known as Nollan/Dolan. They held that there must be a nexus and proportionality between what the government is asking for and what the developer wants to do. There is a legistlative exception to these requirments. Most subdivision regulations are created by local elected bodies, so they meet this exemption.The courts do not like to upend regulations passed by a local elected body if they can help it.
If the regulations don't meet the exemption they still usually will be approved by the courts. The nexus requirment is met, unless the required ROW is not on a route effected in anyway by the subdivision. The proportionality is met unless the request is something ridiculous like adding 100 feet to an existing 100 foot ROW for a two lot subdivision.
I am not trying to argue for or against anything here. I am just explaining how courts look at the issue.
Nollan v. California Coastal Commission may be the California case that you were thinking of Paden.
I've been on our county planning commission for 6 years. Roads are a problem here as most ROW's are to narrow to support continued development along them. The more houses you permit the greater the need for a safe road. So an owner wants to develop a new lot. The road is really not adequate from the primary road to the new lot. If you required that owner to upgrade the whole road and buy the ROW they couldn't do it. So its a two way street, the carrot and the stick. You require the landowner with the current permit request to dedicate JUST his portion of the long term needed ROW. So I suppose in a way its a taking but on the other hand the landowner is getting a new lot he can build on.
So its more complicated than it might show on the surface. In my county if we had to pay for the required ROW for every development on narrow roads what would happen is it would all just stop, the development wouldn't be approved as the county couldn't afford it. From my point of view if a landowner can't contribute to the well being of the whole community, improve the roads that serve him and others, then they are not all that desirable of community members.
Its actually a hot item around here as some landowners have protested new development because they say the roads are not adequate and need to be widened (probably more to it than that). So the city and or county won't pay to do that, so we are faced with stopping all development in the area. THAT infringes on rights to development also but public safety can be a hard one to determine. Either way you are going to pay, if the public must purchase all ROW, even in front of new developments, then taxes are going to need be collected from who?
These are issues that can be tough for planning commissions, I've been involved in a bunch of them, we don't like takings. BUT if the road needs to be widened to support the future uses and development asking for the dedication is not really all that much to give, especially if approval is dependent upon it. Take your choice, dedicate for the road or stop your plans.
Are building setback lines also a type of taking in this context? The government agency could establish a building setback line large enough along the frontage to accommodate a future taking of real estate when it is needed and delineate the possibility of it on the plat. They likely prohibit direct access to said county road anyway. Or is that just a thing out west? The future real estate transaction between the lot owner and the government would be far less expensive if the area didn't have a house on it.
Title extends to the center of the road unless specifically written otherwise. A dedication is not a transfer of property. It merely gives the governing authority the right to use the property for r/w purposes only.
Louisville Planning Commission requires this as well. Deeds and condemnations transfers property. I have never seen a deed from a developer to the city or any governing authority unless there was a specific r/w take.
The problem is still that the planning commission never compensate any developer for their newly dedicated r/w.
My 0.02
mattsib79, post: 419001, member: 1138 wrote: Title extends to the center of the road unless specifically written otherwise. A dedication is not a transfer of property. It merely gives the governing authority the right to use the property for r/w purposes only.
Louisville Planning Commission requires this as well. Deeds and condemnations transfers property. I have never seen a deed from a developer to the city or any governing authority unless there was a specific r/w take.
The problem is still that the planning commission never compensate any developer for their newly dedicated r/w.
My 0.02
Here is how it works in Utah:
17-27a-607. Dedication of streets and other public places.
(1) A plat that is signed, dedicated, and acknowledged by each owner of record, and approved according to the procedures specified in this part, operates, when recorded, as a dedication of all streets and other public places, and vests the fee of those parcels of land in the county for the public for the uses named or intended in the plat.
(2) The dedication established by this section does not impose liability upon the county for streets and other public places that are dedicated in this manner but are unimproved.
mattsib79, post: 419001, member: 1138 wrote: Title extends to the center of the road unless specifically written otherwise. A dedication is not a transfer of property. It merely gives the governing authority the right to use the property for r/w purposes only.
Louisville Planning Commission requires this as well. Deeds and condemnations transfers property. I have never seen a deed from a developer to the city or any governing authority unless there was a specific r/w take.
The problem is still that the planning commission never compensate any developer for their newly dedicated r/w.
My 0.02
That may be true where you are but is not universal. Dedications on plats can either be fee dedications or easement dedications. Some localities let the developer choose which to do. The difference is that land encumbered by ab easment is still taxed. It is a reduced rate, but not 0$. The benifit is the owners still retain some rights that they give away if the dedication is fee, like cutting wood, picking berries, removing vehicles that are left to long, and somitimes critialy the area under an easement can be used to meet minium area requirments.
I think one of the dangers of this forum for unexperienced surveyors is reading statements that reflect the practice in a particular area that read like they are universal.
aliquot, post: 419140, member: 2486 wrote: That may be true where you are but is not universal. Dedications on plats can either be fee dedications or easement dedications. Some localities let the developer choose which to do. The difference is that land encumbered by ab easment is still taxed. It is a reduced rate, but not 0$. The benifit is the owners still retain some rights that they give away if the dedication is fee, like cutting wood, picking berries, removing vehicles that are left to long, and somitimes critialy the area under an easement can be used to meet minium area requirments.
I think one of the dangers of this forum for unexperienced surveyors is reading statements that reflect the practice in a particular area that read like they are universal.
That should be frequent disclaimer on every site like this...
aliquot, post: 419140, member: 2486 wrote: ..I think one of the dangers of this forum for unexperienced surveyors is reading statements that reflect the practice in a particular area that read like they are universal.
You're probably right aliquot, and I don't disagree. But I would hope by the time a person approached the practice of land surveying at a professional level they might have enough sense to realize free advice in this world isn't always gold....like I said, "I would hope...".
On a similar note, maybe we need placards at public swimming pools stating: Warning, leaving one's head underwater for a long time may result in injury or death. 😉
