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OPINION
When it comes to making developers construct roads or road improvements not in their development, the case law gets fairly complicated but is actually reasonably well defined. Case law is what you get when an issue goes to court; judges make a ruling and that ruling then sets the tone for future similar situations. Just to be clear, roads, signs, signal lights, etcetera inside a development are constructed and paid for by the development. Even major roads like the extension of Fountain Mesa and Fontaine, both of which will be 4 lane major collectors, are being constructed by the respective developers, even though existing neighborhoods will benefit as well. Back to what we call “off site improvements”. When you start asking for off site improvements two court cases come up pretty quickly, Nollan versus California Coastal Commission and Dolan versus The City of Tigard. While neither one of these deal directly with off site improvements, they set up the criteria public officials are bound by. • There must be an “essential nexus”. In other words, requiring turn lanes to be added to an existing road to get traffic in and out of a development is allowable but requiring a developer to add an additional lane to the interstate is not. • There must be “rough proportionality”. Even though the new development will be contributing a small percentage to an adjacent road system we can not require the developer to upgrade the entire system. Which brings us to what we call the “just say no option”. If it is determined the existing roads will not safely handle the new traffic we can deny the project. For the skeptics out there, this really does happen. Potential developments are often shelved at early assistance meetings with staff. Some make it to the Planning Commission where they are voted down, and since all decisions can be appealed to the commissioners, we see a few. Several proposals have been denied the past 7 years, during my time on the Planning Commission and then as a County Commissioner. However, the developer can “volunteer” to provide additional offsite improvements. The “voluntary improvements” can range from a traffic signal on Bradley where traffic from the new development a block away warranted requiring a signal, even though the development contributes a small portion of the traffic. In another case, a two lane road will be widened to four lanes between two major roads as traffic increases. It can also include placing funds in escrow to pay for all or part of an improvement such as turn lanes or traffic signals a significant distance from the site. We try to be polite; we always ask the developers if they agree to what we want before we make it a condition of approval. If they decline we vote accordingly.
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