The city of Imperialville developed a comprehensive plan in 1991 which requires property owners in the area zoned Central Business District to comply with a 15% open space and landscaping requirement, which limits total site coverage, including all structures and paved parking, to 85% of the parcel.  A transportation study identified congestion in the Central Business District as a particular problem.  In response, the city adopted a plan in 1991 for a pedestrian/bicycle pathway intended to encourage alternatives to automobile transportation for short trips.  The zoning code requires that new development facilitate this plan by dedicating land for pedestrian pathways where provided for in the pedestrian/bicycle pathway plan.  The city pays for maintaining the pathway.  That same year the city also adopted a Drainage Plan. The Drainage Plan noted that flooding occurred in several areas along Willow Creek, including areas near petitioner's property. The Drainage Plan also established that the increase in impervious surfaces associated with continued urbanization would exacerbate these flooding problems. To combat these risks, the Drainage Plan suggested a series of improvements to the Willow Creek Basin, including channel excavation in the area next to Ms. Smith’s property.  Other recommendations included ensuring that the floodplain remains free of structures and that it be preserved as greenways to minimize flood damage to structures.  The city maintains the greenways.

In 1995, Ms. Smith bought a plumbing and supply store that covers approximately 9,700 square feet on the eastern side of a 1.67 acre parcel, which includes a gravel parking lot. Willow Creek flows through the southwestern corner of the lot and along its western boundary.  The property is within the creek's 100 year floodplain and the city's comprehensive plan includes the Willow Creek floodplain as part of the city's greenway system.  She applied to the city for a permit to redevelop the site. Her proposed plans called for nearly doubling the size of the store to 17,600 square feet, and paving a 39 space parking lot. The existing store, located on the opposite side of the parcel, would be razed in sections as construction progressed on the new building. In the second phase of the project, she proposed to build an additional structure on the northeast side of the site for complementary businesses, and to provide more parking. The proposed expansion and intensified use are consistent with the city's zoning scheme in the Central Business District.

The City Planning Commission conditioned approval of Ms. Smith’s application to expand her store and pave her parking lot upon her compliance with dedication of land (1) for a public greenway along Willow Creek to minimize flooding that would be exacerbated by the increases in impervious surfaces associated with her development and (2) for a pedestrian/bicycle pathway intended to relieve traffic congestion in the City's Central Business District.  Ms. Smith appealed the Commission's denial of her request for variances from these standards to the Land Use Board of Appeals (LUBA), alleging that the land dedication requirements were not related to the proposed development and therefore constituted an uncompensated taking of her property under the fifth amendment. 

Suppose you work in the City Attorney's office.  The Chairperson of the LUBA is concerned about this appeal.  This is the first of what may be a series of appeals to the city’s policy and practice of obtaining land for a public greenway and a pedestrian/bicycle path?  The chairperson of the LUPA has asked you whether the city's policy poses any legal problems.  The chairperson also fears that Ms. Smith will take legal action if she loses her appeal and is looking for your legal opinion on the merits of her appeal.  Do you think the situation is a taking?  Why or why not?  What are your recommendations to the LUBA?  Be sure to include case law to support your finding and recommendations? 

This assignment should take the form of memo.  It is limited to 3 single-spaced, 12 point font pages, with 1 inch margins and must be in a standard memo format (most word processing software has templates).  The reason that a memo format is required is that it is the standard means of communication in the world of business and government.  Thus, this assignment will help develop your ability to analyze policy questions and to think, act, and communicate more effectively about environmental issues and problems.

Your memos will be evaluated based on your analysis of the problem, the organization of your ideas, your ability to properly apply the theories, concepts, and legal precedents discussed in class and the quality of your writing (e.g., spelling, grammar, punctuation, etc.).  Your goal is to write as clearly, concisely, and directly as possible.  Elegance of style, while desirable, is a secondary consideration.  Short declarative sentences often convey ideas equally well; convoluted grammar confuses things and often leads to misunderstandings.  Remember that you are trying to convey your ideas to people who have infinite demands on their time.  A simple, direct style economizes on time.