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A former client of mine is suing the city  

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David Baalman
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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.

9 Replies
Paul in PA
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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  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

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Mike Berry
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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.

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David Livingstone
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The entire thing sounds like a joke and the city should forget the requirement.  Seems like in a case like this the city should wave any requirement.  What city requires the street be improved to get a building permit?  Never heard of such a thing.

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Brian Allen
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I hope the lady wins, and wins big.  Many cities have gone too far in trying to rob their citizens.  I've seen "requirements" that would make many cringe.  The latest being that a seller being told by the city that he cannot sell his undeveloped land unless he first subdivides it.

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