Morgan, J.
— Clark County (the County) conditioned its approval of a three-lot short plat on the landowner’s dedicating a right-of-way and building a road, curbs and sidewalks. The landowner objected. The resulting issue is whether the condition is a taking of private property without just compensation, or a proper exercise of the county’s police power.
Lance Burton owns a small parcel of land in unincorporated Clark County. It is 0.78 acre in area and trapezoidal in shape. It is zoned for residential lots of not less than 6,000 square feet each. Its boundaries are 305 feet long on the west; 100 feet on the north; 233 feet on the east; and 125 feet on the south. It adjoins a subdivision on the west; another subdivision on the north; a parcel of raw land on the east; and high-voltage electrical transmission lines on the south. The undeveloped parcel to the east is owned by one Maddux, but the record shows little else about it.
Two nearby streets are Northeast 65th Street and Northeast 20th Avenue. Northeast 65th Street generally runs east and west. Its eastern end deadends into Burton’s western boundary, forming what the county considers to be a temporary cul-de-sac. Northeast 20th Avenue generally runs north and south. Its southern end deadends into the northern boundary of Maddux’s parcel, a few feet east of Burton’s northeast corner. Since the mid-1980s, county
planners have wanted to connect the two roads by extending them across Burton’s property, and also across the northwest corner of Maddux’s property.
Figure 1 illustrates the area.
[[Image here]]
On May 5, 1994, Burton applied to short plat his parcel into three wedge-shaped residential lots. He proposed that each lot open onto the cul-de-sac at the east end of Northeast 65th Street. He did not want to dedicate right-of-way or build a road. Figure 2 illustrates his plan.
Before Burton submitted his application, he and the County informally discussed whether he would be required to connect Northeast 65th and Northeast 20th, and the effect such a connection would have on the lots he desired to create. The County suggested a reconfiguration, shown in Figure 3, that would give him three lots with the minimum 6,000 square feet each, yet still connect Northeast 65th with Northeast 20th:
[[Image here]]
Burton rejected this reconfiguration, in part because he thought the two southern lots would be smaller than other lots in the neighborhood, and thus hard to sell.
On June 28, 1994, the county planning director recommended approval of Burton’s application—but only if Burton would extend Northeast 65th Street across his property by dedicating a right-of-way and installing a road, curbs and sidewalks.
The planning director stated:
2. Before approval of the final plat, and except to the extent modified by the Director of Public Works or other duly authorized public official pursuant to law, the applicant shall make the following road dedications and improvements:
a. A 50 foot wide right-of-way shall be dedicated to the County through the site for the extension of N.E. 65th Street. This right-of-way shall be surveyed and designed to eventually connect with N.E. 20th Avenue.
b. N.E. 65th Street shall be built through the site with a 32 foot wide paved surface with curbs and sidewalks.
c. Plans and profiles shall be prepared by an engineer, licensed in the State of Washington, and submitted to the County for approval prior to road construction.[
]
Hereafter, we refer to these requirements as “the exacted road.”
Burton appealed" to the county hearing examiner who, on September 22, 1994, found an “essential nexus” between the exacted road and the county’s need for “street connectivity.” The examiner said:
The connectivity of streets is a legitimate County interest. Connectivity increases public safety by providing alternative means for access and egress. Connectivity also reduces trip distances and thereby helps reduce pollution, makes it easier for pedestrians and bicyclists to go from one point to another more directly, and provides for less isolation between neighborhoods. Therefore, there is an essential nexus between this street exaction and the need for street connectivity within the County, and in particular, within this area.[
]
The hearing examiner also found that the exacted road was roughly proportional to Burton’s development, because it was “the minimum necessary to allow the local street to go through.”
The examiner said:
. . . [T]he nature of this street dedication and improvement requirement is roughly proportional to the proposed three lot residential development because each of the three lots will directly benefit from the road. Residents will have better emergency access and police and fire safety will therefore be enhanced. Furthermore, this connection will reduce trip dis
tances because residents will now be able to travel north along 20th Avenue to reach 68th Street, instead of having to go west along N.E. 65th Street in order to access N.E. 68th Street.
The exaction is roughly proportional in scope to the proposed three lot partition because the road extension is the minimum necessary to allow the local street to go through. The County is merely requesting the extension of one local street directly through [the] property. This will serve the site and provide a connection for future development to the east. The County is not asking for multiple road connections, nor are they asking for the connection to occur in an indirect manner.[
]
Concluding that the county had made an “individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development,”
the examiner upheld the exaction of the road.
Burton appealed to the Board of County Commissioners, which affirmed. Burton then appealed again to the superior court, which ruled that the county had “failed to make an individualized determination that [the exacted road] related both in nature and extent to the impacts from the proposed development, as required to demonstrate ‘rough proportionality’ under the holding in
Dolan v. City of Tigard,
512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994).”
The court concluded that the exacted road was an unconstitutional taking of private property; that the road-related conditions should be “reversed and deleted” from the plat; and that the case should be “remanded for proceedings and determination consistent with this [o]rder.”
The parties then returned to the hearing examiner. He
held more hearings, during which the county presented a new staff report, dated April 16, 1996, asserting that Burton’s proposed development would generate an additional thirty auto trips per day on nearby roads. On July 31, 1996, the examiner held that “a court of law . . . has found that the proposed dedication and improvement required by the County road standards is not roughly proportional to the impact caused by the development,” and that
[planning staffs additional analysis submitted during the remand merely demonstrates that the proposed street extension would not be dissimilar or disproportionate to the cost of improvements required to serve similarly sized lots in other subdivisions in the neighborhood. This is
not
the relevant comparison for purposes of the rough proportionality test in
Dolan.
The comparison under
Dolan
must be between the impacts caused by the proposed development and the nature and extent of exaction that is being imposed. For this reason, the Hearings Examiner reject[s] staffs supplemental findings because they fail to justify [the exacted road].[
]
Based on these holdings, the hearing examiner entered an order approving Burton’s short plat without the exacted road.
The County appealed to the Board of County Commissioners, which reversed the examiner’s order and re-exacted the road. Burton then appealed a second time to the superior court, which reversed the Board and reinstated the examiner’s order approving the plat without the exacted road.
I.
The main issue is whether the federal Takings Clause prohibits the County from exacting a road without just compensation. The Takings Clause appears in the Fifth Amendment to the United States Constitution. It provides that private property shall not be taken for public use without just compensation.
Its purpose is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
It applies to the States through the Fourteenth Amendment’s Due Process Clause.
The government may “take” private land
for public use with or without formal condemnation proceedings.
The nature of its conduct may be a physical act such as invading and occupying the land;
a legislative act such
as enacting a statute, ordinance or regulation;
or a quasi-judicial act such as denying or conditioning a development permit.
The effect of its conduct may be to prevent the landowner, permanently or temporarily,
from exclusively possessing the land;
from using the land in
any
economically productive way;
or from using the land in some, but not all, economically productive ways.
At present, it appears that the party claiming a taking has the burden of showing governmental conduct that will constitute a taking, if not justified as a valid exercise of the police power.
Even though the Government may “take” private land with or without formal condemnation proceedings, it can justify its conduct as a proper exercise of its police power if it shows that it is merely restricting, but not eliminating, the use of such land.
As the United States Supreme Court
has stated, “ ‘[A]ll property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community, and the Takings Clause [does] not transform that principle to one that requires compensation whenever the State asserts its power to enforce it.’ ”
As the Nebraska Supreme Court has similarly stated, “ ‘In the exercise of the police power, public authority is empowered to require everyone so to use and enjoy his own property as not to interfere with the general welfare of the community in which he lives.’ ”
Assuming that a claimant has shown governmental conduct that will be a taking if not justified, the government bears the burden of justifying its conduct as a proper exercise of the police power, at least when its conduct is quasi-judicial in nature.
In two recent cases, the United States Supreme Court has considered whether governmental conduct was a proper exercise of the police power. In the first case,
Nollan v. Cal
ifornia Coastal Commission,
the Nollans acquired a California oceanfront lot located between Faria County Park, a public beach to the north, and the Cove, a public beach to the south. The lot was divided into two parts by an eight-foot-high seawall; its upland part was bounded by a road on the east and the seawall on the west, while its beach part was hounded by the seawall on the east and the Pacific Ocean on the west. The lot’s upland part was the site of a dilapidated bungalow, which the Nollans wanted to replace with a modern three bedroom house. When they sought the necessary permit, however, the California Coastal Commission required that they dedicate an easement for public use across the beach part of their lot. The purpose of the easement, according to the initial report of the Commission’s staff, was to “make it easier for the public to get to Faria County Park and the Cove.”
The Nollans appealed to the superior court, arguing that they could not be forced to dedicate a public easement along the beach, “absent evidence that their proposed development would have a direct adverse impact on public access to the beach.”
Agreeing, the superior court remanded for a hearing on that issue. On remand, the Commission found that “the new house would increase blockage of the view of the ocean” from the street; that the new house would “prevent the public ‘psychologically . . . from realizing a stretch of coastline exists nearby that they have every right to visit;’ ” and that the new house would “burden the public’s ability to traverse to and along the shorefront.” Based on these findings, the Commission concluded that it could and should exact from the Nollans, without compensation, “additional lateral access to the public beaches in the form of an easement across their property.”
The Nollans appealed through the state court system
and ultimately to the United States Supreme Court. That Court found no “essential nexus” between the exacted easement and any public problem created or exacerbated by the new house. Thus, it concluded that the Commission could not exact the easement without compensation.
In the other case,
Dolan v. City of Tigard,
Dolan operated a 9,700 square-foot store with a gravel parking lot. The store was located on 1.67 acres in the central business district of Tigard, Oregon. A creek traversed the site’s southwest corner and western boundary. Dolan applied for a permit to double the size of her store, pave a 39-space parking lot, and build another commercial building for rental to complementary businesses. The city refused the necessary permits unless Dolan would dedicate (a) the creek’s floodplain for use as a drainage and flood control area; (b) the creek’s floodplain for use as a public recreational area; and (c) “an additional 15-foot strip of land adjacent to the floodplain as a pedestrian/bicycle pathway.”
Dolan appealed, claiming “that the city . . . has not identified any ‘special quantifiable burdens’ created by her new store that would justify the particular dedications required from her which are not required from the public at large.”
After various proceedings in the state court system, the case reached the United States Supreme Court. That Court posed the question, “[W]hat is the required degree of connection between the exactions imposed by the city
and the projected impacts of the proposed
development.”
It then answered by saying:
We think the “reasonable relationship” test adopted by a majority of the state courts is closer to the federal constitutional norm than either of those previously discussed. But we do 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. We think a term such as “rough proportionality” best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination
that the required dedication is related both in nature and extent to the impact of the proposed
development.[
]
Applying this answer, the Court upheld as a valid exercise of the police power the floodplain easement for purposes of drainage and flood control. It struck, as not “roughly proportional,” the floodplain easement for purposes of public recreation and the additional 15-foot easement for a pedestrian/bike path.
In our view,
Nollan, Dolan,
and their Washington progeny stand for at least four propositions. First, when the government conditions a land-use permit, it must identify a public problem or problems that the condition is designed to address. If the government can identify only a private problem, or no problem at all, the government lacks a “legitimate state interest” or “legitimate public purpose[]” in regulating the project.
Thus, the
Nollan
Court characterized a “condition for abridgement of property rights through the police power” as “a ‘substantial advanc[ing]’ of a legitimate state interest.”
The
Dolan
Court said that to evaluate Dolan’s takings claim, it had to “determine whether the ‘essential nexus’ exists between the ‘legitimate state interest’ and the permit condition
exacted by the city.”
And this court previously said, about an easement exacted solely to allow the commercial development of private land:
[T]he exaction serves no public interest, let alone a reasonable one. The public has no interest in the commercial development of the Berg/Carlson property, and it is manifestly unreasonable for Kitsap County to exact a commercial access easement to this commercially land-locked parcel. . . .[
]
Second, the government must show that the development for which a permit is sought will create or exacerbate the identified public problem.
This is the same as to say that there must be a relationship (nexus) between the development and the identified public problem; that the necessary relationship will exist if the development will create or exacerbate the identified problem; but that the necessary relationship will not exist if the development will not adversely impact the identified public problem. Thus, the
Nollan
Court rejected an easement that would have improved public access to the beach, even though the Commission’s staff report said improved public access was needed, because the Nollans’ project, replacing a bungalow with a new house, would not make the identified public problem, lack of public access, any worse than before.
Similarly, the
Dolan
court rejected Tigard’s exaction of a floodplain easement that would have enhanced the public’s recreational opportunities, even though such opportunities were needed, because Dolan’s project, a larger retail outlet,
would not make the identified public problem, the public’s lack of recreational opportunities, any worse than before.
These holdings are consistent with the fundamental purpose of the Takings Clause, which is
not
to bar government from requiring a developer to deal with problems of the developer’s own making, but which
is
“to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Third, the government must show that its proposed condition or exaction (which in plain terms is just the government’s proposed solution to the identified public problem) tends to solve, or at least to alleviate, the identified public problem. In other words, the government must show a relationship (nexus) between the proposed solution and the identified problem, and such relationship cannot exist unless the proposed solution has a tendency to solve or alleviate the identified problem. Thus, the
Nollan
Court rejected the exaction of an easement along the beach, even though the Nollans’ new house would exacerbate the inability of passersby to see the ocean from the road, because allowing people to walk on the beach had no tendency to restore the view from the road. Interestingly, however, the
Nollan
Court would have allowed the exaction of “a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere,”
because an exaction of that type would have tended to restore the view from the road. The
Dolan
Court likewise rejected the
exaction of an easement for a pedestrian/bike path, because the fact-finding administrative tribunal had failed to find that such an easement
would
have (as opposed to
could
have) a tendency to solve or alleviate traffic congestion. Both cases represent the idea that government acts arbitrarily and irrationally, and thus outside the scope of its police power, when it mandates a solution (i.e., a condition or exaction) that has no tendency to solve the identified problem.
Fourth, the 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. Thus, as already seen, the
Dolan
Court posed the question, “[W]hat is the required degree of connection between [1] the exactions imposed by the city and [2] the projected impacts of the proposed development.”
It answered by saying that the required connection was a “reasonable relationship” best described by the term “rough proportionality,” and that the government “must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”
The Washington Supreme Court ruled similarly in
Sparks v. Douglas
County,
where it noted that a regulatory exaction must be “reasonably calculated to prevent, or compensate for,
adverse public impacts of the proposed development.
”
The purpose, once again, is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole,”
while at the same time leaving government free to require a developer to rectify public problems insofar as the developer has created such problems.
When combined, these four propositions boil down to two relationships: a relationship between the project and the identified public problem, and a relationship between the identified public problem and the proposed solution to that problem. The required relationship between project and problem is shown by establishing the first and second propositions set forth above, while the required relationship between problem and solution is shown by establishing the third and fourth propositions set forth above. The ultimate goal is to show that the proposed condition or exaction (i.e., the proposed solution to an identified public problem) is reasonably related to all or part of an identified public problem that arises from (i.e., is created or exacerbated by) the development project. Unless the government makes this showing, it lacks a “legitimate state interest” or a “legitimate public purpose” in imposing the condition or exaction.
We assume that the government may sometimes rely on the future as well as the present when attempting to establish these relationships.
At a minimum, however, it may not rely on the future unless the record furnishes a basis
for inferring what the foreseeable future holds.
Thus, in
Unlimited v. Kitsap
County,
where the county wanted to exact an easement in favor of a parcel known as the Berg/ Carlson property, we rejected the exaction because the county “intends to hold the exacted property until some undefined future time when Randall Way can be extended to connect with other, as yet unbuilt, roads,”
and because “[tjhere is no expectation that the Berg/Carlson property is to be developed at the same time as Unlimited’s development, or, for that matter, any time soon.”
And in
Simpson v. North
Platte,
a case cited in
Dolan,
the Nebraska Supreme Court rejected a similar exaction. The
Simpson
landowners wanted to construct a fast-food restaurant, but the city would not issue the necessary permits unless they dedicated a right of way through their land. “[N]one of the real estate for [the road] ha[d] been acquired by the City nor [was] there any indication as to when, if ever, such real estate [would] be acquired by the City.”
Rejecting the easement, the court stated:
[N]o project was immediately contemplated whereby the street would be constructed nor is there any evidence regarding what the particular project would involve. Furthermore, there is no evidence to indicate that the construction of the project . . . would create such additional traffic as to require going forward with the proposed street project. As the evidence indicates, no other adjacent property owner would be required to dedicate any land for a public street unless a building permit is sought, nor would any other land now be acquired for a public street in the area. It is difficult, if not impossible, to see how this is
anything more than a ‘land banking’ operation which is clearly in violation of Neb. Const. art. I, section 21.[
]
Turning to the facts of this case, we address two questions: (1) Does the record show a reasonable relationship between project and problem? (2) Does the record show a reasonable relationship between problem and solution?
We can quickly dispose of the relationship between project and problem. The county identifies three problems that it claims Burton’s project will exacerbate. It emphasizes traffic circulation, for it wants to minimize “pocket neighborhoods” that lack access to adjoining neighborhoods. It also identifies, as related problems, traffic congestion and emergency vehicle access. The last, emergency vehicle access, has various facets, including (a) whether police and fire personnel can quickly reach the homes Burton intends to build, and (b) whether fire trucks responding to one of the homes can quickly turn around if called to another emergency elsewhere.
Each identified problem is public, as opposed to private. Moreover, each will be exacerbated by Burton’s project to at least a slight degree. Burton’s project will bring more residents to the neighborhood and generate about 30 vehicle trips per day on neighborhood roads. This means an increase in the need for adequate traffic circulation in and out of the neighborhood; in the congestion on neighborhood roads (with or without better circulation); and in the likelihood that police and fire units will be called to and from the neighborhood in emergency situations. The record shows a reasonable relationship between project and problem.
The relationship between problem and solution requires more attention. The reason is that the record shows nothing about when, if ever, the road being exacted from Burton will extend across the Maddux’s parcel and connect with Northeast 20th Avenue. To ascertain the results of that omission, we discuss (a) the effects of the exacted road
when and if it ever connects with Northeast 20th Avenue; (b) the effects of the exacted road if it never connects with Northeast 20th Avenue; and (c) the factual question of when, if ever, the exacted road will connect with Northeast 20th Avenue.
When and if the exacted road connects with Northeast 20th Avenue, it will tend to alleviate the identified public problems. Traffic will be able to circulate to the east as well as to the west; not all traffic will have to use the roads to the west; police and fire vehicles will be able to enter the neighborhood from either direction; and fire trucks will be able to exit the neighborhood without needing to turn around. Moreover, the exacted road will tend to alleviate the identified public problems in a way that is “roughly proportional” to the project’s effect on those problems. Even though Burton’s project will exacerbate the identified problems to only a small degree, the exacted road is only a small part of the solution to those problems, which is the creation of an overall street grid as the area changes from rural to urban.
If the road never connects with Northeast 20th Avenue, it will lack any tendency to solve or alleviate any of the identified public problems. It will not better traffic circulation, for traffic will not be able to circulate to the east and north. It will not lessen traffic congestion, because all traffic, including that generated by the development, will still be forced to use the roads to the west. It will not improve police and fire ingress, because all emergency vehicles will still have to come from the west. It will not improve fire truck egress, for it will deadend at Burton’s eastern property line with a temporary stub not much different from the one that exists today at Burton’s west property fine. It will, in short, be a road to nowhere.
The crucial question, then, is this: If the exacted road is built across Burton’s parcel, when, if ever, will it extend across Maddux’s parcel and connect with Northeast 20th Avenue? Like any other question of fact, it may be answered
directly or circumstantially.
It is not answered here, however, because the record is devoid of
any
evidence from which to infer when, if ever, the exacted road will cross Maddux’s parcel and connect with Northeast 20th Avenue. One county staff report said only that the exacted road “shall be surveyed and designed to
eventually connect
with N.E. 20th Avenue.”
(Emphasis added.) Another county staff report said only that Northeast 65th Street was intended “for
eventual connection
with NE 20th Avenue.”
(Emphasis added.) The county’s public works director found only that Burton should build the exacted road “so that it can
eventually connect
to NE 20th Avenue.”
The hearing examiner did
not
find that the exacted road would
ever
connect with Northeast 20th Avenue, much less
when
it might connect, although he did find that “a future street plan has not been adopted for this area.”
The Board of Commissioners found only that the exacted road was needed “for
potential future connection
to NE 20th Avenue.”
(Emphasis added.) Even taken in the light most favorable to the county, none of this evidence provides a basis for reasonably inferring that the exacted road will connect with Northeast 20th Avenue in the foreseeable future; and, without such an inference, the exacted road lacks any tendency to solve or even alleviate the public problems that the county identifies. We conclude that the county has failed to bear its burden of showing that the
exacted road is a reasonable exercise of its police power, and that the examiner was correct when, after he heard the case on remand, he approved the plat without the exacted road.
II.
Another issue is whether the county violated Burton’s right to substantive due process. We need not reach this issue, because Burton’s federal takings claim is dispositive.
In passing, we observe that the ideas inherent in the federal Takings Clause may be the same as those in the “three-prong test” that determines whether a regulation violates substantive due process.
III.
The last issue is whether Burton is entitled to
damages and reasonable attorney’s fees. He is not, because he never alleged a claim for damages or reasonable attorney’s fees in any of his pleadings.
Moreover, he initially sought a writ of certiorari, and in that type of action the superior court may not entertain a claim for damages or fees that the tribunal below lacked jurisdiction to award.
The parties’ remaining arguments lack merit or need not be reached.
We affirm the examiner’s order approving the plat without the exacted road.
Seinfeld and Hunt, JJ., concur.
Review denied at 137 Wn.2d 1015 (1999).