BUTTLER, P. J.
The City of Tigard appeals the decree of the trial court declaring that the City’s Ordinance No. 77-26, as amended, is unconstitutional in that it violates the equal protection clause of the Fourteenth Amendment. We reverse.
On March 11, 1977, the City passed Ordinance No. 77-26,
imposing what it characterized as "a system development charge [SDC] * * * to implement the
installation, construction and extension of extra-capacity street facilities and traffic control devices * * The ordinance states that the charge shall be made "to properties which create additional needs for those facilities.” The rate schedule for the SDC provides for
a flat fee per mobile home space and per unit in multifamily residences, and a flat rate per parking space required by zoning code for commercial, industrial and institutional properties. For single family residences, the rate is graduated according to the proposed purchase price of the house.
The SDC is collected through the building permit system and is payable upon application for a building permit. Under the ordinance, money so collected is segregated in a dedicated fund to be used for no purpose other than those activities necessary to the installing, constructing and extending extra capacity street facilities as defined in the ordinance. The funds must be expended "in accordance with a capital improvements program to be adopted and reviewed annually by the City Council.”
It is apparent from the foregoing summary of the relevant provision of the ordinance that while it purports to impose the burden of the change "upon all lands within the City of Tigard according to the demands which proposed development of said lands will place upon the collector and arterial street system,” the schedule of charges does not adhere strictly to the stated intention. It is difficult to envisage a relationship between the purchase price of a single family home and the burden which the construction of that home will have on arterial or collector streets. It is this lack of reasonable relationship which persuaded the trial judge that the ordinance ran afoul of the equal protection clause.
As we view the ordinance, however, there are two questions: (1) whether there is a rational basis for the imposition of the charge only on newly developed land, and if so, (2) whether there is a rational basis for the schedule of charges imposed.
Our review of the ordinance is limited to the minimal scrutiny test applicable to legislation in the areas of economics and social welfare.
See Dandridge
v. Williams,
397 US 471, 90 S Ct 671, 24 L Ed 2d 663 (1970). That test requires only that there be some rational basis for the classification made by the statute, and "[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
McGowan v. Maryland,
366 US 420, 426, 81 S Ct 1101, 81 S Ct 1153, 81 S Ct 1218, 6 L Ed 2d 393 (1961). As noted in
New Orleans v. Dukes,
427 US 297, 303-4, 96 S Ct 2513, 49 L Ed 2d 511 (1976):
"* * * the judiciary may not sit as a superlegisla-ture to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines * * * in the local economic sphere it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.”
The ordinance may not be invalidated simply because the classifications made are imperfect; the City is not required to "choose between attacking every aspect of a problem or not attacking the problem at all,”
Dandridge v. Williams,
397 US 471, 487 (1970). Those who attack the legislation have the burden of proving the unreasonableness of the classifications made therein.
See Williams v. Schrunk,
19 Or App 165, 527 P2d 1 (1974).
I
The SDC is a method employed by the City to produce revenues and the City properly views it as a tax.
"Where taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.”
Lehnhausen v. Lake Shore Auto Parts Co.,
410 US 356, 358 (1973). (Footnote omitted.)
See also Kahn v. Shevin,
416 US 351, 94 S Ct 1734, 40 L Ed 2d 189 (1974). The purpose of the tax,
generally, is to improve and extend arterial and collector streets as the pressure of increased population may require. On the face of it, imposing the tax burden on property as it is developed is not without reason because it may be assumed that increased automobile traffic will follow, thereby requiring increased capacity of the streets to handle it.
A closely analogous case is
Ivy Steel and Wire Co., Inc. v. City of Jacksonville,
401 F Supp 701 (MD Fla 1975). That case involved a city ordinance requiring payment of a water pollution control charge by all persons connecting to the Jacksonville sewer system after a specified date. It was not a connection charge or a use charge, but a means of raising revenue, much like the SDC involved in the ordinance at issue here. It was upheld against challenge on equal protection and due process grounds. The court there found that the City of Jacksonville was growing rapidly and that
<<* * * City Council may well have determined that it was fiscally sound to impose the costs of the accelerated expansion, renewal and improvement of the sewer system onto those who were creating the immediate need for these increased expenditures, namely those who were connecting to the system for the first time. Such a determination is certainly enough to uphold this ordinance.” 401 F Supp at 705.
Plaintiffs in that case argued, as do plaintiffs here, that the ordinance unfairly required one group of persons to pay for the benefit and exempted another group who also receive some benefit. That factor, however, did not render the ordinance unconstitutional. Finding the charge much like a tax, the court quoted from
San Antonio School District v. Rodriguez,
411 US 1, 93 S Ct 1278, 36 L Ed 2d 16 (1973):
"* * * jsj0 scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny
lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.” 411 US at 41. (Footnote omitted.)
See also Olsen v. State ex rel Johnson,
276 Or 9, 554 P2d, 139 (1976).
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BUTTLER, P. J.
The City of Tigard appeals the decree of the trial court declaring that the City’s Ordinance No. 77-26, as amended, is unconstitutional in that it violates the equal protection clause of the Fourteenth Amendment. We reverse.
On March 11, 1977, the City passed Ordinance No. 77-26,
imposing what it characterized as "a system development charge [SDC] * * * to implement the
installation, construction and extension of extra-capacity street facilities and traffic control devices * * The ordinance states that the charge shall be made "to properties which create additional needs for those facilities.” The rate schedule for the SDC provides for
a flat fee per mobile home space and per unit in multifamily residences, and a flat rate per parking space required by zoning code for commercial, industrial and institutional properties. For single family residences, the rate is graduated according to the proposed purchase price of the house.
The SDC is collected through the building permit system and is payable upon application for a building permit. Under the ordinance, money so collected is segregated in a dedicated fund to be used for no purpose other than those activities necessary to the installing, constructing and extending extra capacity street facilities as defined in the ordinance. The funds must be expended "in accordance with a capital improvements program to be adopted and reviewed annually by the City Council.”
It is apparent from the foregoing summary of the relevant provision of the ordinance that while it purports to impose the burden of the change "upon all lands within the City of Tigard according to the demands which proposed development of said lands will place upon the collector and arterial street system,” the schedule of charges does not adhere strictly to the stated intention. It is difficult to envisage a relationship between the purchase price of a single family home and the burden which the construction of that home will have on arterial or collector streets. It is this lack of reasonable relationship which persuaded the trial judge that the ordinance ran afoul of the equal protection clause.
As we view the ordinance, however, there are two questions: (1) whether there is a rational basis for the imposition of the charge only on newly developed land, and if so, (2) whether there is a rational basis for the schedule of charges imposed.
Our review of the ordinance is limited to the minimal scrutiny test applicable to legislation in the areas of economics and social welfare.
See Dandridge
v. Williams,
397 US 471, 90 S Ct 671, 24 L Ed 2d 663 (1970). That test requires only that there be some rational basis for the classification made by the statute, and "[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
McGowan v. Maryland,
366 US 420, 426, 81 S Ct 1101, 81 S Ct 1153, 81 S Ct 1218, 6 L Ed 2d 393 (1961). As noted in
New Orleans v. Dukes,
427 US 297, 303-4, 96 S Ct 2513, 49 L Ed 2d 511 (1976):
"* * * the judiciary may not sit as a superlegisla-ture to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines * * * in the local economic sphere it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.”
The ordinance may not be invalidated simply because the classifications made are imperfect; the City is not required to "choose between attacking every aspect of a problem or not attacking the problem at all,”
Dandridge v. Williams,
397 US 471, 487 (1970). Those who attack the legislation have the burden of proving the unreasonableness of the classifications made therein.
See Williams v. Schrunk,
19 Or App 165, 527 P2d 1 (1974).
I
The SDC is a method employed by the City to produce revenues and the City properly views it as a tax.
"Where taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.”
Lehnhausen v. Lake Shore Auto Parts Co.,
410 US 356, 358 (1973). (Footnote omitted.)
See also Kahn v. Shevin,
416 US 351, 94 S Ct 1734, 40 L Ed 2d 189 (1974). The purpose of the tax,
generally, is to improve and extend arterial and collector streets as the pressure of increased population may require. On the face of it, imposing the tax burden on property as it is developed is not without reason because it may be assumed that increased automobile traffic will follow, thereby requiring increased capacity of the streets to handle it.
A closely analogous case is
Ivy Steel and Wire Co., Inc. v. City of Jacksonville,
401 F Supp 701 (MD Fla 1975). That case involved a city ordinance requiring payment of a water pollution control charge by all persons connecting to the Jacksonville sewer system after a specified date. It was not a connection charge or a use charge, but a means of raising revenue, much like the SDC involved in the ordinance at issue here. It was upheld against challenge on equal protection and due process grounds. The court there found that the City of Jacksonville was growing rapidly and that
<<* * * City Council may well have determined that it was fiscally sound to impose the costs of the accelerated expansion, renewal and improvement of the sewer system onto those who were creating the immediate need for these increased expenditures, namely those who were connecting to the system for the first time. Such a determination is certainly enough to uphold this ordinance.” 401 F Supp at 705.
Plaintiffs in that case argued, as do plaintiffs here, that the ordinance unfairly required one group of persons to pay for the benefit and exempted another group who also receive some benefit. That factor, however, did not render the ordinance unconstitutional. Finding the charge much like a tax, the court quoted from
San Antonio School District v. Rodriguez,
411 US 1, 93 S Ct 1278, 36 L Ed 2d 16 (1973):
"* * * jsj0 scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny
lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.” 411 US at 41. (Footnote omitted.)
See also Olsen v. State ex rel Johnson,
276 Or 9, 554 P2d, 139 (1976). The SDC imposed by the City of Tigard is subject to the same analysis. Imposition of a charge on new construction to pay for improvements to streets which it may reasonably be assumed will be burdened by increased traffic is not without a rational basis.
We conclude, therefore, that it passes constitutional muster.
II
The varied rate structure for single family residences also meets the constitutional test. Legislation may have more than one purpose, and that appears to be the case with the ordinance challenged here. Not only did the city desire to raise revenue to improve collector and arterial streets as undeveloped property was developed, it also desired, in imposing the SDC, to encourage reasonably priced single family housing. While the ordinance is not a model of clarity or logical organization, it states explicitly the basis upon which it was determined that the graduated fee schedule was appropriate:
"In accordance with the city’s adopted Housing Policies and Housing Assistance Plan which generally seeks to encourage the provision of a range of housing types and costs, the City Council hereby determines that it is in the interest of the City to assist and encourage the development of reasonably priced single family housing * * *.”
While the difference in the SDC for houses with a purchase price over $60,000
may not be of great
significance, we cannot say that the determination by the City Council that the graduated fee schedule would contribute to their stated goal is without any basis in reason.
Accordingly, the decree of the trial court is reversed.
Reversed.