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Curtis v. Town of South Thomaston
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Decision: 	1998 ME 63
Docket: 	Kno-97-608
Argued:	March 2, 1998 
Decided:	March 25, 1998



	[¶1]  Ervin L. Curtis and Christine H. Curtis appeal from the judgment
entered in the Superior Court (Knox County, Kravchuk, J.), contending that
the Town of South Thomaston's ordinance requirement that they grant an
easement to the Town for fire prevention purposes, as a condition for
subdivision approval, constitutes an unlawful taking and violates due process
and equal protection principles.  We disagree and affirm the judgment.
	[¶2]  In January, 1990, the Town enacted a Fire Protection Ordinance
that requires a developer of a subdivision to construct a 250,000 gallon fire
pond within 2,000 feet of any proposed development if no adequate water
supply exists.{1}  The ordinance also requires that a "right of way or
easement" be conveyed to the Town "to allow the Town to maintain and use
both the pond and hydrant pumping."{2}
	[¶3]  The Curtises purchased land in the Town in 1993 and three
years later submitted an application to the planning board seeking to
subdivide their land into four lots.  Their application did not provide for a
fire pond.  The Town approved the subdivision application subject to, inter
alia, fulfillment of the requirement that the final plan "depict location of fire
pond and access."  Curtis filed a timely appeal, pursuant to M.R. Civ. P. 80B,
and sought a declaratory judgment that the Fire Protection Ordinance was
unconstitutional on several grounds.  The Superior Court affirmed the
decision of the planning board conditioning approval of the subdivision on
construction of a fire pond and the grant of a dedicated easement.  This
appeal followed.
	[¶4]  The United States and Maine Constitutions provide that private
property cannot be taken for public use without just compensation.  U.S.
Const. amend V; Me. Const. art. 21.  The general takings rule is inapplicable,
however, when, as in this case, the government's physical occupation of
private property constitutes a requirement imposed on the land owner as a
condition for the government's approval of a land development application. 
See Nollan v. California Coastal Comm'n, 483 U.S. 825, 833 (1987).  We
review such a dedication requirement to ensure that it constitutes a lawful
exercise of the police power and not an attempt by the government to
"forc[e] some people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole."  Armstrong v. United
States, 364 U.S. 40, 49 (1960).
	[¶5]  The Supreme Court, in its decisions of Nollan v. California Coastal
Comm'n and Dolan v. City of Tigard, 512 U.S. 374 (1994), developed a two-
part procedure to determine when a land dedication requirement is
logically related in substance and scope to legitimate regulatory objectives
and thus a lawful exercise of the police power.  First, we determine whether
an essential nexus exists between the legitimate government interest and
the permit condition required by the government entity -- whether the
permit condition advances the same public aim as would the permit denial. 
See Nollan, 483 U.S. at 837; Dolan, 512 U.S. at 386.  Next, we determine
whether a rough proportionality exists between the conditions imposed and
the effects the proposed land use will have on the community.  See Dolan,
512 U.S. at 388.  The "rough proportionality" requirement cannot be
satisfied by a conclusory statement made by the government authority, id. at
396; it must be the product of a "determination that the required
dedication is related both in nature and extent to the impact of the
proposed development." Id. at 391.
 	[¶6]  In this instance, the Town could have rejected the subdivision
application because it did not provide "sufficient water . . . for the reasonably
foreseeable needs of the subdivision."  30-A M.R.S.A. § 4404(2) (1996). 
More specifically, the land that the Curtises wanted to develop lacked an
adequately proximate supply of water for firefighting purposes; there is no
public water system in the Town.  The Town therefore may impose a
requirement that would cure this deficiency; an essential nexus exists
between the Town's interest in public safety and the permit condition.   See
Nollan, 483 U.S. at 836 (coastal housing commission's power to forbid
construction of a house to protect a public interest includes the power to
impose a condition affecting property rights that serves the same end);  See
Ehrlich v. City of Culver City, 911 P.2d 429, 452 (Mosk, J. concurring) (Cal.
1996) (an "otherwise unconstitutional imposition of a public easement on
private property derives its constitutional legitimacy from the fact that a
prohibition on development is constitutionally justified").  
	[¶7]  The next determination we must make is whether a rough
proportionality exists between the ordinance's easement requirement and
the impact that the subdivision would have on the Town's ability to meet its
public safety responsibilities.  The ordinance reflects a legislative
determination that the Town's fire department can meet its public safety
duties only if it is provided access to fire ponds for training and
maintenance purposes.  Our inquiry into rough proportionality does not end
at this legislative determination, but we assign weight to the fact that the
easement requirement derives from a legislative rule of general applicability
and not an ad hoc determination made by the planning board at the time of
the pending application.  Cf. Dolan, 512 U.S. at  385 ("land use
regulations . . . involve[] essentially legislative determinations classifying
entire areas of the city, whereas here the city made an adjudicative decision
to condition petitioner's application for a building permit on an individual
parcel").  Because the Town's dedication requirement is a legislative rule,
this requirement more likely represents a carefully crafted determination of
need tempered by the political and legislative processes rather than a "plan
of extortion" directed at a particular land owner.  See Dolan, 512 U.S. at 387
(internal citations omitted).  
	[¶8]  Because the legislative nature of the exaction is but one factor in
our takings analysis, we also examine the requirement in practice.  The facts
of this case demonstrate that a more than sufficient proportionality exists
between the fire protection demands created by the subdivision plan and
the easement requirement designed to meet these demands.  The easement
required by the Town is no greater than necessary to provide adequate fire
protection to the subdivision contemplated by the Curtises; it ensures a
clear passage to the fire pond and maintenance of the hydrant located
	[¶9]  Finally, contrary to the Curtises' contention, the easement
requirement of the Town's Fire Protection Ordinance does not offend the
principles of equal protection or due process.
	The entry is:
Judgment affirmed.

Attorney for plaintiffs: Randal E. Watkinson, Esq., (orally) Strout & Payson, P.A. P O Box 248 Rockland, ME 04841-0248 Attorney for defendant: Frederick M. Newcomb, III, Esq., (orally) P O Box 1115 Rockland, ME 04841-1115
FOOTNOTES******************************** {1} The ordinance further provides that an applicant may be granted a waiver from the requirements of the ordinance "if there are already existing water supplies within the proposed development or within the distance requirements." {2} The Curtises do not challenge the ordinance's requirement that they construct the fire pond.