2000-04-20 Park Fee DedicationI
HINSHAW & CULBERTSON
APPLETON, WISCONSIN
BELLEVILLE, ILLINOIS
BROOKFIELD, WISCONSIN
CHAMPAIGN, ILLINOIS
CHICAGO, ILLINOIS
CRYSTAL LAKE, ILLINOIS
FT. LAUDERDALE, FLORIDA
JACKSONVILLE, FLORIDA
JOLIET, ILLINOIS
LISLE, ILLINOIS
MIAMI, FLORIDA
Michael C. Couri, Esq.
Couri & MacArthur
705 Central Avenue East
P.O. Box 369
St. Michael, MN 55367-0369
PIPER JAFFRAY TOWER
SUITE 3100
??? SOUTH NINTH STREET
MINNEAPOLIS, MINNESOTA 55402
612.337.3434
TELEF.AX. 612.334.8888
Thomas J. Radio
Direct: 612.334.2653
TRadio@hinshawlaw.com
Apri120, 2000
APR 2 1 2Q6n
MILWAUKEE, WISCONSIN
MUNSTER, INDIANA
PEORIA, ILLINOIS
PHOENIX, ARIZONA
ROCKFORD, ILLINOIS
ST. LOUIS, MISSOURI
SAN FRANCISCO, CALIFORNIA
SPRINGFIELD, ILLINOIS
TAMPA, FLORIDA
WAUKEGAN. ILLINOIS
Re: Mooney Addition -Developer's Agreement: Park Fee Dedication
Our File No.: 791894
Dear Mr. Couri:
The Mooney Development Corporation, Inc. has retained me to review the Developer's
Agreement proposed by the City of Albertville. Specifically, they have specifically asked me to
examine the proposed 10% park fee dedication requirement. Based upon my review of
Albertville's code, the facts of this proposed development, state law, and the federal constitution,
I have concluded that the 10% proposal is illegal, unconstitutional, unenforceable, and represents
an uncompensating taking of Mooney's property.
State Law Also Prohibits The Proposed Dedication.
Section 462.358, subd. 2b, of the Minnesota Statutes, allows cities to require a reasonable
portion of any proposed subdivision to be dedicated to the public and preserved for park
purposes. In Collis v. City of Bloomington, the Minnesota Supreme Court set forth a
reasonableness requirement underlying this requirement. The proposed 10% dedication is
unreasonable for a variety of reasons.
The values proposed far exceed those estimated in the city's park plan for average
and total dedications.
By being one of the first developers to pay into the park plan at such an exorbitant
rate, the Mooneys would be subsidizing subsequent developers.
The proposed retail operation would in no way create a demand for park facilities
in any understandable or reasonable way.
HC26DS2/ 4702/ 2656778.v 1 4!20/2000 A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
Michael C. Couri, Esq.
April 20, 2000
Page 2
The United States Constitution Prohibits The Proposed Dedication
The proposed 10% dedication violates the Fifth Amendment of the United States
Constitution. As interpreted by the United States Supreme Court, the Fifth Amendment prohibits
cities from exacting either land or cash dedications substantially unrelated to the underlying land
use. The Supreme Court has set out the following test:
Is there is a "substantial nexus" between the type or nature of the
dedication required and the burdens created by the development?
Is there is "rough proportionality" between the extent of the burdens or
problems created by the development and the dedication requirement?
Did the government adopt findings making "individualized" determination
as to these points that is specific to the development, at least to the extent
possible?
The proposed Albertville 10% cash dedication fails to satisfy any of these standards.
There is no substantial nexus between the park dedication and the burdens created by this
retail development. The patrons of the proposed development will most likely be visitors to the
community. It is highly unlikely that there will be any one moving into the city or using any of
the parks because of this development. Hence, there is no proof of any "substantial nexus"
between the required cash dedication and the burdens created by this development. Secondly,
there is no proportionality, let alone a rough proportionality, between the extent of the burdens or
problems created by the development and the dedication requirement. The proposed $48,000
dedication is twice that what is proposed under the assumptions used for the development of the
Albertville Park Plan. The fact that the fair market value of the property is high is a consequence
of its location and in no way creates a demand for or burden upon the Albertville park facilities.
Finally, the city council certainly made no individualized determination, with findings of fact,
regarding the Mooney's development and the requested park fee. Even a cursory judicial review
of the proposed dedication will result in its being struck down.
As you are aware, I represent several cities similar in size to Albertville. Those cities
have limitations on their park land dedication to avoid exactly this type of unwarranted,
unjustifiable, and unconstitutional exaction of park dedication fees. Enclosed for your review
are the park land dedication requirements for the city of Minnetrista and city of Afton.
HC26DS2r 4702/ 3656778.vI 4/30/2000
IINSHAW & CULBERT,~. JN
APPLETON, WISCONSIN
BELLEVILLE, ILLINOIS
B ROOKFIELD, WISCONSIN
CHAMPAIGN, ILLINOIS
CHICAGO, ILLINOIS
CRYSTAL LAKE, ILLINOIS
FT. LAUDERDALE, FLORIDA
JACKSONVILLE, FLORIDA
JOLIET, ILLINOIS
LISLE, ILLINOIS
MIAMI, FLORIDA
Michael C. Couri, Esq.
Couri & MacArthur
705 Central Avenue East
P.O. Box 369
St. Michael, MN 55367-0369
PIPER JAFFRAY TOWER
SUITE 3100
222 SOUTH NINTH STREET MILWAUKEE, WISCONSIN
MINNEAPOLIS, MINNESOTA 55402 MUNSTER, INDIANA
PEORIA, ILLINOIS
612.333.3434 PHOENIX, ARIZONA
TELEFAX: 612.334.8888 ROCKFORD, ILLINOIS
ST. LOUIS, MISSOURI
SAN FRANCISCO, CALIFORNIA
SPRINGFIELD, ILLINOIS
TAMPA, FLORIDA
Thomas J. Radio WAUKEGAN, ILLINOIS
Direct: 612.334.2653
TRadio@hinshawlaw.com
April 20, 2000
Re: Mooney Addition -Developer's Agreement: Park Fee Dedication
Our File No.: 791894
Dear Mr. Couri:
The Mooney Development Corporation, Inc. has retained me to review the Developer's
Agreement proposed by the City of Albertville. Specifically, they have specifically asked me to
examine the proposed 10% park fee dedication requirement. Based upon my revi~°v;T of
Albertville's code, the facts of this proposed development, state law, and the federal constitution,
I have concluded that the 10% proposal is illegal, unconstitutional, unenforceable, and represents
an uncompensating taking of Mooney's property.
State Law Also Prohibits The Proposed Dedication
Section 462.358, subd. 2b, of the Minnesota Statutes, allows cities to require a reasonable
portion of any. proposed subdivision to be dedicated to the public and preserved for park , _
purposes. In Collis v. City of Bloomin on, the Minnesota Supreme Court set firth a
reasonableness requirement underlying this requirement. The proposed 10°/® dedication is
unreasonable for a variety of reasons.
The values proposed far exceed those estimated in the city's park plan for average
and total dedications.
By being one of the first developers to pay into the park plan at such an exorbitant
rate, the Mooneys would be subsidizing subsequent developers.
The proposed retail operation would in no way create a demand for park facilities
in any understandable or reasonable way.
HC26DS2/ 4702/ 2656778.v 14/20/2000 A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
Michael C. Couri, Esq.
Apri120, 2000
Page 2
The United States Constitution Prohibits The Proposed Dedication
The proposed 10% dedication violates the Fifth Amendment of the United States
Constitution. As interpreted by the United States Supreme Court, the Fifth Amendment prohibits
cities from exacting either land or cash dedications substantially unrelated to the underlying land
use. The Supreme Court has set out the following test:
Is there is a "substantial nexus" between the type or nature of the
dedication required and the burdens created by the development?
Is there is "rough proportionality" between the extent of the burdens or
problems created by the development and the dedication requirement?
Did the government adopt findings making "individualized" determination
as to these points that is specific to the development, at least to the extent
possible?
The proposed Albertville 10% cash dedication fails to satisfy any of these standards.
There is no substantial nexus between the park dedication and the burdens created by this
retail development. The patrons of the proposed development will most likely be ~~isitors to the
community. It is highly unlikely that there will be any one moving into the city or using any of
the parks because of this development. Hence, there is no proof of any "substantial nexus"
between the required cash dedication and the burdens created by this development. Secondly,
there is no proportionality, let alone a rough proportionality, between the extent of the burdens or
problems created by the development and the dedication requirement. The proposed $48,000
dedication is twice that what is proposed under the assumptions used for the development of the
Albertville Park Plan. The fact that the fair market value of the property is high is a consequence
of its location and in no way creates a demand for or burden upon the Albertville park facilities.
Finally, the city council certainly made no individualized determination, with fi~kdings of fact,
regarding the Mooney's development and the requested park fee. Even a cursory judicial review
of the proposed dedication will result in its being struck down.
As you are aware, I represent several cities similar in size to Albertville. Those cities
have limitations on their park land dedication to avoid exactly this type of unwarranted,
unjustifiable, and unconstitutional exaction of park dedication fees. Enclosed for your review
are the park land dedication requirements for the city of Minnetrista and city of Afton.
HC26DS2/ 4702/ 2656778.v 14/20/2000
MINNETRISTA CITY CODE
(1) Proposed industrial parcels shall be suitable in area and dimensions to the types of
industrial development anticipated;
(2) Street rights-of--way and pavement shall be adequate to accommodate the type and. volume
of traffic anticipated to be generated thereupon;
(3) Special requirements may be imposed by the city with respect to street, curb, gutter, and
sidewalk design and construction;
(4) Special requirements may be imposed by the city with respect to the installation of public
utilities, including water, sewer. and stormwater drainage;
(5) Every effort shall be made to protect adjacent residential areas from potential nuisance
from a proposed commercial or industrial subdivision, including the provision of extra
depth in parcels backing up on existing or potential residential development and provisions
for a permanentk landscaped buffer strip when necessary;
(6) Streets carrying nonresidential traffic, especially truck traffic, shall not normally be
extended to the boundaries of adjacent existing or potential residential areas.
(Ord. No. 92, § 1(92.491(2)), 8-21-78)
PARKS, PLAYGROUNDS, AND OPEN SPACE
21-130. Required
Pursuant to Minnesota Statutes, section 462.38, subd. 2b, the city requires all subdividers as a
prerequisite to approval of a final subdivision plat or development of any land previously divided by plat,
metes or bounds or any other means, to convey to the city or dedicate to the public use for park,
playground, open space, stormwater holding areas and ponds a reasonable portion of the land hoeing platted
or developed as hereinafter specified, the portions to be approved by the city or in lieu thereof the
subdivider shalt at the option of the city pay to the city, for use in the acquisition, development or
maintenance of public parks, pla~~grounds or, and debt retirement in connection with land previously
acquired for such public purposes, an equivalent amount in cash based upon the undeveloped land value.
The form of contribution (cash or land, or anv combination thereof) shall be decided by the city council
based upon need and conformance ~z~ith the comprehensive municipal plan.
(Ord. No. 92, § 1(92.500(1. )), 8-21-78)
State law reference(s)--Authority to require dedication of land for public use, MeS. § 462.38,
subd. 2b.
s~~. No. ~ 1314
SUBDMSIONS
21-131. Administrative procedures
The city council shall establish such administrative procedures as they may deem necessary and
required to implement the provisions of this chapter.
(Ord. No. 92, § 1(92.500(11)), 8-21-78)
21-132. Dedicated land requirements
Any land to be dedicated as a requirement of this chapter shall be reasonably adaptable for the
above public purposes. Factors used in evaluating the adequacy of proposed dedicated areas shall include
size, shape; topography, drainage, geology, tree cover, access and location.
(Ord. No. 92, § I(92.~00(2)), 8-21-78)
21-133. Standards for determination
The parks and recreation commission shall develop and recommend to the city council for adoption
standards and guidelines for determining which portion of each such development should reasonably be
required to be so conveyed or dedicated. Such standards and guidelines may take into consideration the
zoning classification to be assigned to the land to be developed, the particular use proposed for such land,
amenities to be provided and factors of density and site development as proposed b_y the subdivider. The
parks and recreation commission shall further recommend changes and amendments from time to time to
such standards and guidelines to reflect changes in the usage of land which may occur, changes in zoning
classifications and concepts and changes in planning and development concepts that relate to the
development and usages to which land may be put.
(Ord. No. 92, § 1(92.00(3)), 8-21-78)
21-134. Parks and recreation commission recommendation.
The parks and recreation commission shall. in each case, recommend to the cit<~ co~~ncil the total
area and location of such land that the parks and recreation commission feels should be so €;onveyed or
dedicated within the development for the above public purposes.
(Ord. No. 92, § 1(92.00(4)), 8-21-78)
21-135. Minimum area of dedicated land
Subdividers shall be required to dedicate to the city for park, pla~•ground and other public purposes
as a minimum that percentage of gross (and area or equivalent market value in cash as sct out below:
Supp. No. 7 131 S
MINNET'RISTA CITY CODE
(1) Residential.
The greater of:
(1) proposed dwelling units per acre, or
(2) the zoned density
From But less than Percentage of land or
equivalent market
value
in cash to be dedicated Number of acres
per dwelling unit
0 ~~ 1 2.~ More than 10
0.1 0.2 2.~ More than a
0.2 0.~ 5 More than 1
1 2 10 1
2 3 11 1/2
3 4 12 1/3
4 ~ 13 l/4
~ 6 14 1/~
6 7 l~ 1/6
(2) Commercial and industrial. Dedication requirements: five percent (5%)
(3) Mazimttm Payments. In no event shall the cash payment exceed four thousand seven
hundred dollars 04,700) per dwelling unit or zoned density. This figure is based on the
actual cost of park and trail development distributed over the service area for each type of
Supp. Vo. 7 1316
SUBDMSIONS
park improvement. Development costs as of August 30, 1997, are used. This maximum
figure shall be reviewed every two (2) years to ensure that it remains consistent with park
development costs.
(Ord. No. 92, § 1(92.500(12)), 8-21-78; Ord. No. 161, § 1, 8-6-90)
21-136. Development of land previously platted
If the land has already been previously subdivided, the requirements of this chapter shall apply at
the time of the issuance of a building permit for the primary structure.
(Ord. No. 92, § 1(92.00(13)), 8-21-78)
21-137. Future subdivisions
Any land which is further subdivided, divided, or resubdivided subsequent to August 21, 1978
shall be subject to the requirements of the ordinance then in effect concerning dedication of land for public
purposes, and credit shall be given for any charges previously imposed upon that land if the subdivider can
prove that fees were previously paid. In no event shall the city be liable for any payment which may be due
because of a subsequent reduction in the applicable percentage of land or equivalent market value in cash
to be dedicated.
(Ord. No. 92, § 1(92.00(14)), 8-21-78)
21-138. Cash contribution in lieu of lands
(a) In those instances where a cash contribution is to be made by the subdivider in lieu of a
conveyance or dedication of land for the above public purposes, the planning department shall recommend
to the city council the amount of cash the planning department feels should be contributed, which
recommendation shall be based upon the fair market value of the equivalent undeveloped land that would
otherwise have been conveyed or dedicated.
(b) In this section fair market value means the undeveloped land value to be detecrnix~ed as of the
time of preliminary plat application in accordance with the following:
(1) The planning department shall recommend to the city council as to the fair market value,
after consultation with the subdivider;
(2) The city council after reviewing the planning department's recommendation, may agree
with the planning department or the subdivider, as to the fair market value. If agreement is
not reached in this matter. then the fair market value shall be determined in accordance
with one (1) of the following:
Supp. No. 7 1 J 17
MINNETRISTA CITY CODE
a. Fair market value as determined by the city council based upon a current appraisal
submitted to the city by the subdivider at his expense. The appraisal shall be made
by appraisers who are approved members of SREA or MAI, or equivalent real
estate societies;
b. If the city disputes such appraisal amounts, it may obtain an appraisal of the
property by a qualified real estate appraiser whom the city council selects and,
which appraisal may be accepted by the city as being an accurate appraisal at fair
market value. The cost of the appraisal shall be paid by the subdivider.
(3) The determination of fair market value of the undeveloped land by the planning department
planning department, city council, or designated appraisers, shall be determined as of the
time of preliminary plat application as tong as there is final plat approval «ithin the time
limits as set forth in this chapter. The time of preliminary plat approval is utilized because
the nature of the subdivision, its probable population, lot size, and other relevant factors
are known. If an extension on the time limits in this chapter is approved by the city
council, the fair market value shall be determined as of the time of the approval of that
extension. In determining the fair market value as of time of preliminary plat application,
or the extension thereof; the factors to be included in the analysis shall include any and all
factors which are generally accepted and used by approved members of SREA or MAI or
equivalent real estate appraisal societies.
(Ord. No. 92, § 1(92.00(5), (6)), 8-21-78; Ord. No. 97, §§ 1, 2, 6-18-79)
State law reference(s)--Cash contributions in lieu of land, M.S: § 462.38, subd. 2b.
21-139. Lands designated for public use on official map or comprehensive land use plan
Where a proposed park, playground or other recreational areas, proposed school site, or. other
public ground that has been indicated in the comprehensive municipal plan is located in whop or in part
within a proposed subdivision, such proposed public site shall be designated as such and s Rou{d be
dedicated to the city, school district, or other proper govemmental unit. If the subdivider chases not to
dedicate an area in excess of the land required under this section hereof for such proposed public site, the
city council shall not be required to act to approve or disapprove the plat of the subdivision for a period of
ninety (90) days after the subdivider meets all the provisions of this chapter in order to permit the city
council, school board, or other appropriate governmental unit to consider the proposed plat and to take the
necessary steps to acquire, through purchase or condemnation, all or part of the public site proposed under
the comprehensive land use plan or similar master plans.
(Ord. No. 92, § 1(92.00(7)), 8-21-78)
Supp. No. 7 1 3 1 8
AFTON CODE
§ 12-1269
Sec. 12-1269. Violation and penalties.
Any person who violated any of the provisions of this article, or who sells, or offers for sale any
lot, block or tract of land herewith regulated before all the requirements of this article have been complied
with shall be guilty of a misdemeanor, and upon conviction thereof be subj ect to fine and/or imprisonment.
Each day that a violation is permitted to exist shall constitute a separate offense.
(Code 1982, § 305.1102)
Sec. 12-1270. Park and open space dedication.
(a) Purpose. The City Council recognizes that it is essential to the health, safety, and the
welfare of the residents of this City to provide for preservation of land for parks, playgrounds, scenic vistas,
wetlands, groundwater, stream courses, watersheds, water bodies, shoreline, wild life habitat, other natural
azeas, public open space, and trails, and also finds that the value and attractiveness of residential and
industrial developments to land owners, developers, purchasers, employers, and employees is significantly
enhanced by the presence of such park and open space amenities.
The City Council also finds that it is appropriate that each subdivision within the City contribute
toward the City's pazks, playgrounds, open spaces, and trails in proportion to the burden it will place upon
the Citys park and open space system. Therefore, this park and open space dedication requirement is
established to require new developments at the time of subdivision to contribute toward the City's park and
open space system in rough proportion to the relative burden they will place upon that system, and:
(1) To develop a limited number of major public green spaces which shall retain the natural
and scenic features of the land and serve as a wilderness environment for City residents
to enjoy, and
(2) To create multiple use, non-motorized trails along roads or as a link between vazious
points of interest and public facilities where such trails would enhance the recreational
opportunities for residents and provide a safe alternative means of travel within the City,
and
(3) If future development creates a need for a neighborhood park in each ward, Land may be
acquired for that purpose pursuant to this article only after adoption of a comprehensive
park plan by the City Council; and
(4) To preserve and conserve natural resources, wildlife habitat, surface water and
groundwater resources.
(b) ~iequired. Pursuant to M.S.A. § 462.358, subd. Zb., the City shall require all subdividers
as a prerequisite to final approval to convey to the City or dedicate to the public use for parks, playgrounds,
open spaces, and trails, a reasonable portion of the land being subdivided as hereinafter specified. Land
selected by the developer for dedication under this section shall be reasonably adaptable to the use
intended, ai a location convenient to people to be served thereby, and subject to the review by City
Commissions and approval of the City Council. Should the City choose not to accept the land proposed by
the developer as reasonably adaptable for the purposes stated above, the City may require:
(1) The developer shall pay to the City a cash equivalent based upon the undeveloped land
value as described in subsection (f) of this section; or
(2) The City, at its option, may designate a reasonably adaptable portion within- the
subdivision for dedication.
(Ord. No. 1997-13, 9/22/98)
(c) Administrative. procedures. The City Council shall establish such administrative
procedures as it may deem necessary to implement the provisions of this section.
CD 12:204
LAND USE
§ I2-1271
(d) Dedicated land requirements. Any land to be dedicated as required in this section shalt be reasonably
adaptable fnr the above stated public purposes. When land is so dedicated, the City shall accept dedication only
upon a finding that the land is suitable for the public purposes stated herein. in terms of size, shape, Bade,
topography, drainage, geology, tree cover, access, location and any other factc~s the City deems reasonable for the
public purpose served. -
(e) - Planning Ccunmissicn recommendation. The Planning Conrmnssion, a8.e< crs~sultation with the Parks,
Recreation & Open Space Commission, Natural Resources & Groundwater Co®rnission, and Design Review &
Heritage Preservation C,ommnssion, shall recommend to the City Council the total area and Iocatioaa of land in each
subdivision to be dedicated for parks, open space and related purposes.
(f) Minimum area of dedicated land. Subdividers shall be required to dedicate to the City for park, open
space or related purposes as a minimum, the percentage of gross land area or cash equivalent as set out below:
(1) Residential.:
Minor Subdivisions and parcels created after the effective date of this Ordinance -Ten percent
(10%) of the Washington County Assessor's average fair market value for a five' acre parcel, in the
2;oning District in which the parcel is located, far each buildable parcel created.
Major Subdivision (Plats) -Ten percent (10%) of alI the land which comprises the subdivision or
ten percent (10%) of the Washington County Assessor's average fair market value for all the land which
comprises the subdivision.
(2) Conimercial/IndustrYal: $1500/acae for all the land whic3i comprises the subdivision_
(Ord 1997-18, 3/23/99)
(g) Determination of Need and Reasonableness of Park Dedication. For each subdivision, the City Council
will make a particularized darcrmination as to the need for the required land a cash dedication resulting from the
subdivision and the reasonableness of the amount of the required land or ~ dedicaticai.
(h) Payment oaf cash contnlxitions. Cash contnbutions, when made, shall be paid at the time ofi final approval,
or, at a later time under terms agreed upon in a development a~eement. Delayed payment shall include interest at a
rate set by the City.
(i) Deposit of cash contributions. Cash c~ntn'butions shall be deposited by the City directly in the City's
restricted Park, Open Space & Natural Resources Fund and shall be used only far purposes au;~erl by state law.
~7 Previously created lots: Lots created prior to the date of the ordinance from which his sec~~on was
derived shall be subject to a Park, Open Space ~ Natural Resource. Dedication fee in the araiourA% of X500.00 per lot,
to be collected at the time a building permit is issued.
(Code 1982, § 305.1209) Cross refereace(s}--Parks and recreation, ch. 16.
(Ord No. 1997-5, 3-17-98)
(Ord No. 1997-13, 9/22198)
Sec. 12-127L Conflicting provisions.
In the event of cmnflicting provisions in the text of this article oar between this article and othc~ City ordinances,
the more restrictive shall apply. --
(Code 1982, § 304.401(04))
Secs.12-1272.-12-1325. Reserved..
CD12:205