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• subject of Attorney Barkett's appeal. The road paving and escrowing requirements have two essential objectives: to ensure that projects with larger traffic attraction/generation characteristics have paved access and to ensure that fairshare contributions are made for the eventual paving of roads in areas where development is allowed but roadways are currently sub -standard. These standards have been in effect since the mid -1980's and have not been revisited since 1990. As structured, these regulations appear to be constitutional. Mr. Barkett's appeal, however, alleges that these regulations are unconstitutional "as applied" • Appeal Issues Since 1990, court decisions have changed the way that certain types of regulatory "exactions" can be applied to development approvals. The previously cited Dolan v. City of Tigard 1994 U.S. Supreme Court case is one such case, and the application of that decision is still being played out across the country. That court decision requires that governmental exactions applied to a project be "roughly proportional" to the project's impacts. In this case, the "roughly proportional" issue will be adequately addressed if the assessment project is approved; however, there is no guarantee of assessment project approval. Also, there is a timing problem since Mr. Chesnut cannot control the Length of time involved in completing the assessment process and paving. In analyzing the Barkett appeal, staff considered several issues. First, there is an issue as to whether a paving condition constitutes an exaction subject to the rough proportionality rule. Second, there is an issue of what items of proportionality must be considered if it is deteinrined that the Dolan test applies. Regarding the first issue, there is no Florida caselaw that resolves that question. Generally, exactions have been defined as required land dedications or other property takings, but not off- site development requirements. While Oregon courts have determined that off-site improvements required as a condition of development approval constitute exactions and are subject to the Dolan test, no Florida case has resolved that issue. For purposes of this analysis, the assumption can be made that the paving requirement does constitute an exaction and is subject to the Dolan test. Application of the Dolan test in this case involves deteiiiiining whether the exaction (cost of the paving) is roughly proportional to the project s impacts. Those impacts could be measured by vehicle trips attracted to the site or front footage of the property. The proportionality measurement would then be the percentage of the improvement cost that would be incurred by the developer to meet the condition compared to the percentage of the development's impact on the roadway which is the subject of the condition. With Chesnut, the worst case manner in which the condition could be met would be by Chesnut paving 12`h Avenue S.W. at his expense from Oslo Road to his access point (Alternatively, Chesnut could get the road paved through an assessment project, either forced or voluntary, or through a non -assessment paving project undertaken with other property owners on 12`h Avenue S.W. These alternatives would result in Chesnut paying his proportionate share or less for the FEBRUARY 19, 2002 -47- 1 66 •