Are Knoxville / Knox County guilty of extortion? You be the judge.

Betsy owns 3.5 acres of land in Knox County. She wants to add a screened-in porch onto the back of her house. She has saved for a long time to be able to afford this improvement, and is eagerly awaiting the day when she can enjoy evenings overlooking her quiet and expansive back yard. She hires a contractor to perform the work. The contractor informs her that she must obtain a building permit before he will begin work on her house. Betsy is anxious to get started. She goes to the Codes and Enforcement department with a simple plan, showing the addition, to ask for a building permit. The person at Codes and Enforcement looks her property up on the computer and notices that she was conveyed the property by deed, but there is no plat of record.

“You must have a plat of record,” she is told.

“How do I get that?” Betsy asks.

“First you must obtain a survey by a registered land surveyor. After the surveyor performs the survey, he will prepare a plat suitable for recording in the county Register’s office. The plat needs to be reviewed and approved by MPC before it can be recorded”

“Oh,” says Betsy. She is somewhat taken aback. “How long does this take?”

“Not long” the person at the desk replies, “It is a simple process.”

Betsy is unsure of herself and a little confused. She goes home and starts looking up the names of land surveyors in the phone book. It is around late spring or early summer. Surveyors are very busy this time of year. The first surveyor Betsy calls says that they are “swamped,” it will be three to four weeks before they can come out. She does not want to wait that long. She continues down the list in the phone book. She eventually talks to a surveyor who recommends another surveyor capable of doing a good job. She calls the recommended surveyor who says they can get to the job the same week.

“Whew!” exclaims Betsy. “How much will the survey cost?”

“About $1,200.00,” explains the surveyor.

Betsy is stunned and falls into silence. After a moment, she says, “But I only own 3.5 acres.”

“That’s true,” explains the surveyor, “but the cost of doing the survey also includes performing deed and records research, obtaining MPC staff approval, going to the planning commission meeting, getting the necessary signatures on the plat for approval, obtaining a recording set at the printing company, and recording the plat in the County Register’s office.”

“Oh, I didn’t realize it was so complicated,” Betsy says.

“Yes, it is.” The surveyor continues, “I also need to tell you that the estimate does not include any application fees, subdivision or zoning variances that may be required, and you will need to contact the health department on your own.”

“What subdivision or zoning variances? Why do I need to contact the health department?” Betsy is getting bewildered. She struggles to write down everything the surveyor tells her.

The surveyor explains that the property will have zoning setback lines. If a building violates any of these setback lines, a zoning variance will be required. This scenario will cost several hundred more dollars and may add three to six weeks to the time it takes to complete the process. He explains further that the health department will need to come out to inspect the existing drainfield and ensure that it is functioning properly. Why? Their signature is also required on the plat; they will not sign without doing the inspection. How much does the health department inspection cost? The surveyor explains that the health department’s fee schedule just went up. It was $40, but the fee has recently increased to $200.

The surveyor comes out in a few days as promised. After the survey is performed, it is determined that a detached garage is located 9.5 feet from the side boundary line. MPC requires a ten foot utility and drainage easement to be dedicated inside all boundary lines. This means the owner will need to request a subdivision variance to exempt the garage from the easement at an additional fee. This also means that the garage violates the county zoning ordinance. A zoning variance will be required. The surveyor will need to go to an additional meeting of the Board of Zoning Appeals (BZA).

A brief rundown of the fees involved follows:

The survey is now complete and it is time to prepare a plat for submittal to MPC. The surveyor asks to meet with Betsy to go over the findings. He explains about the need for the subdivision and zoning variances, and the additional fees involved.

“How long will all this take?” asks Betsy. The surveyor explains that the MPC application deadline is 32 days before the meeting. The deadline for the June meeting has just passed. “However, if you are really in a hurry, you can still get in on the June meeting if you are willing to pay a double fee to do so. This is called the ‘double fee, extended deadline,’” explains the surveyor. Betsy has had it with fees. She says to forget it; she will wait until the July meeting to be heard.

“Very well, we need to go before the BZA anyway and we can use the time to get that done. There is one final item I need to talk to you about,” the surveyor says.

“What’s that?” asks Betsy.

The surveyor goes on to explain that Knox County has developed what is called “The Major Road Plan.” All plats being recorded in Knox County must conform to this plan unless a variance is granted. (711 plats were recorded in the Knox County Register’s office in 2003). The surveyor continues to explain that Betsy’s deed description conveys property to within 20 feet from the center of the road. Betsy’s property is located on what has been designated a “Major Arterial Road.” The county requires a 100 foot right of way along this particular stretch of road, 50 feet from the centerline on each side. This means Betsy must give up an additional 30 feet of her property along its entire length adjacent to the road.

Betsy wants to cry. All I want to do is build a screened-in deck, she thinks to herself. Her project has been delayed two months, she has been charged $1,847 in unanticipated fees, and now she is being asked to give 30 feet of her property to the county.

“Are you sure this is necessary?” Betsy asks.

“Well, you could request a variance to the regulation,” the surveyor explains, “but those requests are almost never granted unless you can prove a legitimate hardship. I think it would be wasting your time and further delaying your project.”

“What if I refuse to give up my property?” asks Betsy.

The surveyor explains that Betsy’s refusal to dedicate her property to the county means that the plat will be denied and, by extension, so will her building permit. Betsy will not be able to build her new deck. Betsy is very angry at this point. She is furious to be held hostage in this way. “Someone should do something about this,” she says, “It’s not right.” But in the end, she relinquishes because she feels absolutely powerless to do anything else.

Florence Dolan owns a plumbing and electric supply store located on Main Street in the Central Business District of the city of Tigard, Oregon. The store covers approximately 9,700 square feet on the eastern side of a 1.67-acre parcel, which includes a gravel parking lot. Fanno Creek flows through the southwestern corner of the lot and along its western boundary. The year-round flow of the creek renders the area within the creek’s 100-year floodplain virtually unusable for commercial development. The city’s comprehensive plan includes the Fanno Creek floodplain as part of the city’s greenway system.
Petitioner Dolan applied to the city for a permit to redevelop the site. Her proposed plans called for nearly doubling the size of the store to 17,600 square feet and paving a 39-space parking lot. The existing store, located on the opposite side of the parcel, would be razed in sections as construction progressed on the new building. In the second phase of the project, the petitioner proposed to build an additional structure on the northeast side of the site for complementary businesses and to provide more parking. The proposed expansion and intensified use are consistent with the city’s zoning scheme in the Central Business District.

The City Planning Commission (Commission) granted the petitioner’s permit application subject to conditions imposed by the city’s Community Development Code (CDC). The CDC establishes the following standard for site development review approval:
“Where landfill and/or development is allowed within and adjacent to the 100-year floodplain, the City shall require the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan.”

Thus, the Commission required that the petitioner dedicate the portion of her property lying within the 100-year floodplain for improvement of a storm drainage system along Fanno Creek and that she dedicate an additional 15-foot strip of land adjacent to the floodplain as a pedestrian/bicycle pathway. The dedication required by that condition encompasses approximately 7,000 square feet, or roughly 10% of the property. In accordance with city practice, the petitioner could rely on the dedicated property to meet the 15% open space and landscaping requirement mandated by the city’s zoning scheme. The city would bear the cost of maintaining a landscaped buffer between the dedicated area and the new store.

The petitioner requested variances from the CDC standards. Variances are granted only where it can be shown that, owing to special circumstances related to a specific piece of the land, the literal interpretation of the applicable zoning provisions would cause “an undue or unnecessary hardship” unless the variance is granted. Rather than posing alternative mitigating measures to offset the expected impacts of her proposed development, as allowed under the CDC, the petitioner simply argued that her proposed development would not conflict with the policies of the comprehensive plan. The Commission denied the request.

Writing for the majority, Chief Justice Rehnquist states:

The Takings Clause of the Fifth Amendment of the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides: “Nor shall private property be taken for public use, without just compensation.” One of the principal purposes of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred. Such public access would deprive petitioner of the right to exclude others, “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”

The city required that petitioner dedicate “to the City as Greenway all portions of the site that fall within the existing 100-year floodplain [of Fanno Creek] . . . and all property 15 feet above [the floodplain] boundary.” The city relies on the Commission’s rather tentative findings that increased storm water flow from petitioner’s property “can only add to the public need to manage the [floodplain] for drainage purposes” to support its conclusion that the “requirement of dedication of the floodplain area on the site is related to the applicant’s plan to intensify development on the site.”

The city made the following specific findings relevant to the pedestrian/bicycle pathway:

“In addition, the proposed expanded use of this site is anticipated to generate additional vehicular traffic thereby increasing congestion on nearby collector and arterial streets. Creation of a convenient, safe pedestrian/bicycle pathway system as an alternative means of transportation could offset some of the traffic demand on these nearby streets and lessen the increase in traffic congestion.”

The Chief Justice continues:

The question for us is whether these findings are constitutionally sufficient to justify the conditions imposed by the city on petitioner’s building permit. If petitioner’s proposed development had somehow encroached on existing greenway space in the city, it would have been reasonable to require petitioner to provide some alternative greenway space for the public either on her property or elsewhere. But that is not the case here. We conclude that the findings upon which the city relies do not show the required reasonable relationship between the floodplain easement and the petitioner’s proposed new building.

A number of state courts have taken a position requiring the municipality to show a “reasonable relationship” between the required dedication and the impact of the proposed development. Typical is the Supreme Court of Nebraska’s opinion in Simpson v. North Platte (1980), where that court stated:
“The distinction, therefore, which must be made between an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking property simply because at that particular moment the landowner is asking the city for some license or permit.”

Thus, the court held that a city may not require a property owner to dedicate private property for some future public use as a condition of obtaining a building permit when such future use is not “occasioned by the construction sought to be permitted.”

The city’s goals of reducing flooding hazards and traffic congestion, and providing for public greenways, are laudable, but there are outer limits to how this may be done. “A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”