B.A.M. v. Salt Lake County

2008 UT 74
AMENDED OPINION
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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B.A.M. Development, L.L.C., 	No. 20070137
a Utah limited liability company,
Plaintiff and Appellant,
v.
Salt Lake County, a body politic
and political subdivision of the 	F I L E D
State of Utah,
Defendant and Appellee. 	October 24, 2008
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Third District, Salt Lake
The Honorable Timothy R. Hanson
No. 980908157
Attorneys: 	Stephen G. Homer, West Jordan, for plaintiff
Lohra L. Miller, Donald H. Hansen, Salt Lake City,
for defendant
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WILKINS, Justice:
¶1 	Appellant B.A.M. Development alleges that the trial
court incorrectly applied the “rough proportionality” analysis
from Dolan v. City of Tigard, 512 U.S. 374 (1994), in examining
whether an exaction required of the developer by Appellee Salt
Lake County was an unconstitutional taking. 	We hold that the
trial court did not apply the correct analysis, and thus reverse
and remand.
BACKGROUND
¶2 	In 1997, B.A.M. Development (B.A.M.) sought approval
from Salt Lake County to build a residential development. 	The
County informed B.A.M. that approval was conditioned upon B.A.M.
expanding the current width of the major road bordering the
proposed development (3500 South) from seventeen feet “half-
width” (approximately 34 feet in total width) to 40 feet half-
width. 	Later, in accordance with changes to the County’s master

No. 20070137 	2
traffic plan, the County told B.A.M. that it would be required to
increase the street to 53 feet half-width. 	This additional
exaction of 13, B.A.M. alleges, represents an unconstitutional
taking.
¶3 	After appealing the County’s decision through
administrative channels, B.A.M. sued the County, seeking either
to escape the exaction or to receive just compensation for the
alleged taking. 	After losing in the trial court, B.A.M. appealed
to the court of appeals and then to this court.
¶4 	In a prior decision on this same case, this court held
that the trial court should use the “rough proportionality”
analysis in Dolan v. City of Tigard, 512 U.S. 374 (1994), to
determine whether the exaction was an unconstitutional taking.
B.A.M. Dev., L.L.C. v. Salt Lake County, 2006 UT 2, ¶ 46, 128
P.3d 1161. 	On remand, the trial court again denied B.A.M.’s
claims. 	B.A.M. now appeals from that decision.
ANALYSIS
¶5 	The dispute between the parties is whether the trial
court correctly applied the “rough proportionality” analysis from
Dolan v. City of Tigard, 512 U.S. 374 (1994). 	Whether the proper
analysis was applied is a mixed question of law and fact. 	In
this case, because “the legal concept is easily defined” and
because the case involves important constitutional property
concerns, the standard of review is correctness. 	State v. Levin,
2006 UT 50, ¶¶ 23-24, 144 P.3d 1096 (“Discretion is most
confined--and the standard of review is nondeferential--when the
legal concept is easily defined by appellate courts or when
appellate courts erect strict fences for policy reasons.”).
¶6 	In Dolan, the United States Supreme Court held that a
municipally required exaction must be roughly proportionate to
the impact of the development; otherwise, the exaction is an
unconstitutional taking in violation of the Fifth Amendment.
See Dolan, 512 U.S. at 391 (“We think a term such as ‘rough
proportionality’ best encapsulates what we hold to be the
requirement of the Fifth Amendment.”). 	The Dolan analysis
requires a court to examine two factors, the exaction and the
development’s impact, and to determine whether the two are in
rough proportionality. 	In this case, both parties effectively
agree that one of those factors--the impact of the development--
is a 3.04% increase in traffic along 3500 South. 	The parties

1 For example, the County argues that the exaction is
roughly proportionate to the impact because the exaction
represents, alternatively, 1.89% of the total land of the
development, 2.22% of the developers’ available lots, 1.38% of
the total area of the road after widening, or 2.01% of the total
expanded area of the road. 	B.A.M., on the other hand, argues
that the exaction is grossly disproportionate to the impact
because the exaction results, alternatively, in a 300% increase
in the road’s carrying capacity, a 300% increase in the road
width, or a payment of 100% of the road improvement costs.
2 See, e.g., Banberry Dev. Corp. v. S. Jordan City, 631 P.2d
899, 902-05 (Utah 1981).
3 	No. 20070137
disagree on the other factor, however, as well as whether the two
are roughly proportionate. 1
¶7 	A closer examination of Dolan clarifies how to
determine whether the two factors are roughly proportionate. 	In
Dolan, the Court looked first to how the states had approached
the issue of exactions as unconstitutional takings. 	See id. at
389-91. 	After examining various approaches, the Court stated
that the “reasonable relationship” test, then being used in Utah 2
and the majority of other states, was “closer to the federal
constitutional norm” than the other tests. 	Id. at 391. 	The
Court explained, however, that it would not “adopt it as such,
partly because the term ‘reasonable relationship’ seems
confusingly similar to the term ‘rational basis’ which describes
the minimal level of scrutiny under the Equal Protection Clause
of the Fourteenth Amendment.” 	Id. 	Instead, the Court held,
“[w]e think a term such as ‘rough proportionality’ best
encapsulates what we hold to be the requirement of the Fifth
Amendment.” 	Id.
¶8 	Of course, the Court did not mean rough proportionality
at all. 	While 1 to 1 is a proportion, so is 1 to 1000, as any
fifth grade student will be happy to tell you. 	Any two numbers,
measured by the same units, form a proportion. 	So to be roughly
proportional literally means to be roughly related, not
necessarily roughly equivalent, which is the concept the Court
seemed to be trying to describe. 	The proportion of 1 to 1.01 is
roughly equivalent, while the proportion of 1 to 3 is not, for
example. 	Unfortunately, by using the phrase “rough
proportionality,” the Court has engendered vast confusion about
just what the municipalities and courts are expected to evaluate
when extracting action or value from a land owner trying to

3 See, e.g., Sparks v. Douglas County, 904 P.2d 738, 742
(Wash. 1995) (stating that an exaction must be “reasonably
calculated to prevent, or compensate for, adverse public impacts
of the proposed development” (citation and internal quotation
marks omitted)); Burton v. Clark County, 958 P.2d 343, 354 (Wash.
Ct. App. 1998) (“[T]he government must show that its proposed
solution to the identified public problem is ‘roughly
proportional’ to that part of the problem that is created or
exacerbated by the landowner’s development.”).
No. 20070137 	4
improve real property. 	In this instance, rather than adopting
the name chosen by the United States Supreme Court, we will use
the more workable description of rough equivalence, on the
assumption that it represents what the Dolan Court actually
meant.
¶9 	After deciding on what to call the analysis, the Court
explained what it entailed: 	In order for an exaction to be
constitutional, a municipality must make some determination “that
the required dedication is related both in nature and extent to
the impact of the proposed development.” 	Id. (emphases added).
The Dolan analysis thus has two aspects: first, the exaction and
impact must be related in nature; second, they must be related in
extent.
¶10 	A court engaging in a Dolan analysis must first
determine, therefore, whether the nature of the exaction and
impact are related. 	One method that other courts have adopted to
determine this relationship is to look at the exaction and impact
in terms of a solution and a problem, respectively. 3 	We agree
that the impact is the problem, or the burden that the community
will bear because of the development. 	The exaction should
address the problem. 	If it does, then the nature component has
been satisfied.
¶11 	The second component of the Dolan analysis is whether
the exaction and impact are related in extent. 	This requirement
implies that both the exaction and the impact should be measured
in the same manner, or using the same standard. 	The most
appropriate measure is cost--specifically, the cost of the
exaction and the impact to the developer and the municipality,
respectively. 	The impact of the development can be measured as
the cost to the municipality of assuaging the impact. 	Likewise,
the exaction can be measured as the value of the land to be
dedicated by the developer at the time of the exaction, along
with any other costs required by the exaction. 	Our trial courts

4 As the Court noted in Dolan, exact equality between
the factors is unnecessary. 	Dolan v. City of Tigard, 512 U.S.
374, 391 (1994) (“No precise mathematical calculation is
required 	. . . .”); see also Banberry, 631 P.2d at 904 (“Precise
mathematical equality ‘is neither feasible nor constitutionally
vital.’” (quoting Airwick Indus., Inc. v. Carlstadt Sewerage
Auth., 270 A.2d 18, 26 (N.J. 1970))).
5 	No. 20070137
are very adept at figuring out costs in similar situations, and
are more than capable of adjudging the cost of each factor in
this context.
¶12 	After determining the cost to each party, the final
step of the extent component of the Dolan analysis is simple:
The trial court must determine whether the costs to each party
are roughly equivalent. 4 	Because each factor is measured the
same way, in dollars, this calculation should be very simple.
If the two sums are about the same, they are roughly equivalent
for this purpose.
¶13 	With this framework in mind, applying the Dolan
analysis becomes a relatively straightforward task. 	First, the
trial court must determine whether the exaction and impact are
related in nature--or whether the solution (the exaction)
directly addresses the specific problem (the impact). 	Second,
the trial court must determine what the cost of dealing with the
impact would be to the County, absent any exaction; what the cost
of the exaction would be to the developer; and whether the two
costs are roughly equivalent. 	The trial court, despite a valiant
effort to divine the application of Dolan’s “rough
proportionality” test, did not correctly apply the Dolan analysis
because it failed to compare respective costs of the exaction and
impact to the parties.
CONCLUSION
¶14 	The Dolan analysis, properly applied, asks whether the
imposition on the community of a proposed development is roughly
equal to the cost being extracted to offset it. 	We hold that the
trial court applied the Dolan analysis incorrectly, and we
reverse and remand the trial court’s decision for further
proceedings consistent with this opinion.
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No. 20070137 	6
¶15 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Judge McHugh concur in Justice Wilkins’
opinion.
¶16 	Justice Nehring does not participate herein; Court of
Appeals Judge Carolyn B. McHugh sat.