[00:00:00] Speaker 03:
Record.

[00:00:01] Speaker 03:
The next case is 24-5268, Kogap v. City of Medford.

[00:00:06] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:08] Speaker 00:
Brian Hodges for Appellant Kogap Enterprises.

[00:00:11] Speaker 00:
I'd like to reserve three minutes for rebuttal.

[00:00:13] Speaker 03:
Just keep your eye on the clock.

[00:00:15] Speaker 00:
This case asks whether the City of Medford can lawfully require Kogap to dedicate rights of way across their property and pay to build a new public road and part of a bridge

[00:00:28] Speaker 00:
without providing evidence showing that its demand bears an essential nexus and is roughly proportional to any impacts attributable to the proposed revision.

[00:00:38] Speaker 03:
Why doesn't it bear an essential nexus?

[00:00:41] Speaker 00:
That is the most complicated question in this case.

[00:00:44] Speaker 00:
We don't know precisely what the city is claiming the nexus to be.

[00:00:50] Speaker 00:
It has altered between

[00:00:51] Speaker 00:
increased traffic originating in new development to the east and south.

[00:00:57] Speaker 03:
But I think we're past that, right?

[00:00:58] Speaker 03:
Now aren't we down to traffic congestion?

[00:01:01] Speaker 00:
Yeah, traffic congestion.

[00:01:02] Speaker 00:
That seems to be the most common rationale.

[00:01:05] Speaker 00:
Well, it's because they didn't conduct a traffic study.

[00:01:09] Speaker 00:
The only traffic study on record is Kelly Sandow's study.

[00:01:13] Speaker 00:
which concluded that swapping the uses, the fast food with the strip style retail, actually would significantly reduce the amount of vehicle traffic along Garfield Street.

[00:01:25] Speaker 01:
I thought that study showed that it would increase over time.

[00:01:32] Speaker 01:
No, it didn't.

[00:01:34] Speaker 01:
There was a fight about how much it would increase.

[00:01:38] Speaker 01:
But I thought it was clear that the proposed development along there, not various changes, but the proposed development, would increase traffic along that street.

[00:01:49] Speaker 01:
It makes perfect sense, doesn't it?

[00:01:51] Speaker 01:
If there's no development there now and the street is there, there's going to be some increased traffic to serve the development once the development goes in, right?

[00:02:02] Speaker 00:
I think you're misunderstanding.

[00:02:04] Speaker 00:
The development was already permitted there.

[00:02:07] Speaker 00:
I understand.

[00:02:08] Speaker 00:
The retail.

[00:02:09] Speaker 03:
It's just a comparison between what is projected now versus what was projected under the previous approved plan in 2017.

[00:02:16] Speaker 03:
And so I think I understand Judge Herbert's point the same way.

[00:02:22] Speaker 03:
And I appreciate that there isn't a net projected increase in traffic between the previously approved plan, 2017 and now.

[00:02:31] Speaker 03:
But there is a net projection that it'll be more concentrated, right?

[00:02:35] Speaker 03:
More congestion.

[00:02:36] Speaker 00:
No, there is no expert study stating that it would be more congested.

[00:02:41] Speaker 00:
That is a conclusion that public works included in their staff report.

[00:02:46] Speaker 00:
What's wrong with that conclusion?

[00:02:47] Speaker 00:
Of course, well, there are two things that are wrong with their conclusion.

[00:02:50] Speaker 00:
First, the conclusion was based on a mistake, that at the time that they

[00:02:55] Speaker 00:
the Public Works recommended this condition, they misread or they read an earlier Sandow memo that had projected 634 new vehicle trips.

[00:03:07] Speaker 00:
That was fully mitigated in the 2017 PUD.

[00:03:11] Speaker 00:
That was corrected later.

[00:03:13] Speaker 00:
The City then admitted on the record and the City Council found that there would be no increase in traffic, yet they

[00:03:23] Speaker 03:
When you say traffic, do you mean trips or congestion?

[00:03:25] Speaker 00:
Trips, trips.

[00:03:27] Speaker 03:
I think we got past the no additional trips.

[00:03:30] Speaker 03:
I agree.

[00:03:31] Speaker 00:
Yeah, the conclusion that no increase in traffic would result in congestion is the type of conclusion that needs to be reached through an expert report.

[00:03:44] Speaker 00:
That's what the traffic impact analysis process is for.

[00:03:47] Speaker 00:
The city code requires, if it believes that there's going to be a significant

[00:03:51] Speaker 00:
Traffic impact the city code requires a traffic study addressing congestion So is your position with respect to the this is the first part of the Dolan test?

[00:04:01] Speaker 01:
Yes step one your position is that they weren't they couldn't ask for anything No, that is not my my position is that they that Nolan and Dolan placed the burden as well as Oregon State now understand It's on this on this record could they ask for anything?

[00:04:18] Speaker 00:
Could they ask for anything on this record?

[00:04:20] Speaker 00:
No, because they did not identify any impacts attributable to the proposed revision.

[00:04:28] Speaker 00:
And because of that, when you move to the proportionality analysis, there's no quantification.

[00:04:34] Speaker 00:
They do say that this road is necessary to alleviate future offsite traffic.

[00:04:40] Speaker 00:
There's no apportioning of that traffic.

[00:04:42] Speaker 00:
The comparison model is just outright prohibited by Nolan.

[00:04:47] Speaker 00:
In Nolan, if you recall, at pages 840 to 41, the Supreme Court rejected the very same argument from the California Coastal Commission that had said, we have made the same demand for beachfront easement from other property owners as some sort of argument to legalize the demand that was being made against Mr. Nolan.

[00:05:11] Speaker 00:
The Supreme Court said that the fact that you demand

[00:05:15] Speaker 00:
Similar easements or similar dedications from other property owners has no bearing on nexus.

[00:05:21] Speaker 01:
But that's a step one.

[00:05:22] Speaker 00:
Yes.

[00:05:23] Speaker 01:
Okay, and I thought you'd move to step two, at least I'd like to.

[00:05:27] Speaker 00:
Okay, yes, yes, they are, but let me explain it.

[00:05:29] Speaker 00:
They're joined because if you don't have a nexus... We understand.

[00:05:34] Speaker 01:
We never get to step two if you don't have a nexus.

[00:05:35] Speaker 01:
Okay.

[00:05:36] Speaker 01:
So as to step two, and I must admit the case law is not particularly helpful on it,

[00:05:43] Speaker 01:
How do I conduct a rough proportionality analysis?

[00:05:47] Speaker 01:
In other words, what if the city had said, we want you to do something that costs $10,000, $1,000.

[00:05:55] Speaker 01:
I don't know what this project costs, by the way, and that's a separate issue.

[00:06:01] Speaker 01:
And we found that there was a nexus.

[00:06:04] Speaker 01:
How would we figure out whether that number

[00:06:06] Speaker 01:
Bora was roughly proportional.

[00:06:10] Speaker 00:
Yeah, courts have dealt with that.

[00:06:13] Speaker 00:
I cite the BAM case out of Utah, FP Development.

[00:06:18] Speaker 00:
Certainly, it's comparing apples to oranges when you're talking about vehicle trips and then, on this other hand, new pavement.

[00:06:26] Speaker 00:
But there are ways that they do that.

[00:06:28] Speaker 00:
They look at the whole system.

[00:06:29] Speaker 00:
They do a traffic impact analysis, look at the traffic system, and often they look at the cost of, say, we're just talking about Myers Lane.

[00:06:37] Speaker 00:
They look at the cost of improving Myers Lane look at all of these sources so look at existing the existing residences that would benefit and also look at the new development to the west and south of Cogap, and then it's rather easy to apportion if you I thought you thought we weren't supposed to look at to the projected development of Cogap oh

[00:07:00] Speaker 00:
Not when not when assessing the not when determining the dedication on Coke app itself, but in doing the proportionality analysis, they're supposed to quantify their findings, which would include apportioning when you have.

[00:07:14] Speaker 03:
I appreciate that, but I'm still looking for an answer to judge her with this question before I ask mine.

[00:07:20] Speaker 03:
How should we do it?

[00:07:21] Speaker 00:
Well, you don't you don't have to do it.

[00:07:23] Speaker 00:
The city has to do it.

[00:07:24] Speaker 00:
The city has a burden.

[00:07:25] Speaker 03:
I appreciate that.

[00:07:26] Speaker 03:
How do we review it?

[00:07:27] Speaker 03:
How should it have been done?

[00:07:28] Speaker 00:
First of all, doing a traffic impact analysis on their own.

[00:07:32] Speaker 03:
Every case has to have a traffic impact analysis.

[00:07:34] Speaker 00:
Well, that's what they do.

[00:07:35] Speaker 00:
I mean, that's what they do when they come up with it.

[00:07:38] Speaker 03:
You've asserted that repeatedly in your briefing.

[00:07:39] Speaker 03:
I'm just trying to figure out what your strongest support is, that they really have to have that.

[00:07:43] Speaker 03:
And since they don't have that, that they necessarily lose.

[00:07:47] Speaker 00:
Well, I'd say the strongest support is look at the BAM development case out of Utah.

[00:07:52] Speaker 00:
The Utah Supreme Court went into great detail as to how a local government can apportion a percentage of traffic infrastructure increases.

[00:08:04] Speaker 00:
And I just say this because it's done every day through things like traffic impact fees, where the government looks at the projected impacts

[00:08:14] Speaker 00:
And then it portions the responsibility.

[00:08:16] Speaker 03:
I appreciate that.

[00:08:17] Speaker 03:
But is there any, is that what you want me to look to support the proposition that the city of Medbert really had to do this type of study in order to meet its burden?

[00:08:29] Speaker 00:
Well, they have a burden of demonstrating that

[00:08:34] Speaker 00:
Look at Dolan itself in Dolan.

[00:08:36] Speaker 03:
They did do a traffic study the traffic study lots of cases where they've done one I'm just trying to figure out where does it say that they have to do one and if it hasn't really said that it's not necessarily This is not a smoking gun.

[00:08:47] Speaker 03:
It's not a trick question.

[00:08:48] Speaker 03:
I just can't find anything that tells me that they have to Well what they have to do that oh excuse me.

[00:08:54] Speaker 00:
I'm sorry.

[00:08:54] Speaker 03:
That's okay.

[00:08:55] Speaker 03:
Is any court said that?

[00:08:57] Speaker 00:
Not that they have to do a traffic study courts have approved a

[00:09:02] Speaker 00:
that methodology.

[00:09:04] Speaker 00:
FP Development searches the case law to find this evidence of a reliable and industry standard methodology can establish proportionality.

[00:09:16] Speaker 00:
Ultimately, I think the question you're asking though

[00:09:19] Speaker 03:
I asked my question, and I think you answered it, and I'm taking up too much of your time on this.

[00:09:22] Speaker 03:
So can I go on to the next point, please?

[00:09:25] Speaker 03:
Yes.

[00:09:26] Speaker 03:
I want to ask a specific question, please, about ER 104 and 105.

[00:09:29] Speaker 03:
This is the Maze and Associates report, and it says that the drive-through restaurant development is happening north of Garfield.

[00:09:38] Speaker 03:
Isn't it all south of Garfield?

[00:09:40] Speaker 00:
I'm sorry, what was it?

[00:09:41] Speaker 03:
Sure, ER 104, 105.

[00:09:44] Speaker 03:
I don't know if I'm looking at a typo or if I misunderstand.

[00:09:46] Speaker 03:
This says that the drive-through restaurant development is happening north of Garfield.

[00:09:51] Speaker 00:
North of Garfield, that is a different portion.

[00:09:54] Speaker 00:
That's not the portion that we are talking about.

[00:09:56] Speaker 03:
We're only looking at south.

[00:09:58] Speaker 00:
We're only looking at the south.

[00:09:59] Speaker 03:
Okay, I appreciate that.

[00:10:00] Speaker 00:
Yeah, and the north, by the way, was mitigated by a right in, right out turn lane.

[00:10:04] Speaker 00:
Which the city said not only, that's where the Chick-fil-A is.

[00:10:08] Speaker 00:
The city said not only will that mitigate, but that will improve the traffic flow on Garfield going the other direction.

[00:10:16] Speaker 03:
Why do we have such a gap in the record about what this is going to cost, what the city's exaction is projected to cost?

[00:10:24] Speaker 00:
We provided the evidence that the value of the property itself would be around $500,000.

[00:10:30] Speaker 00:
The property for the road extension?

[00:10:34] Speaker 00:
Yeah, for the roadway extension that would go over the right of way and that the bridge would be roughly 150 and Then the improvements would be another 150 or 200 depending on the it could be even more depending on the size of road they ultimately require these estimate is significantly lower and I couldn't tell whether the city's estimate includes the cost of Having to relocate and dedicate other land for parking lot

[00:11:01] Speaker 00:
No, the city's estimate, it also discounted the cost of construction because the city... I know about the cost of construction, but could you answer the first question?

[00:11:09] Speaker 03:
If you use the right-of-way to extend the road, you're going to have to use other land.

[00:11:16] Speaker 00:
The parking lot so my question the first question was did the city include the cost of the additional land that will have to be dedicated to the parking lot No, okay, and then you were trying to answer another well I just wanted to bring up that on the previous that their previous attempt to impose this exaction I know that the city that the city now claims it to cost around a hundred and fifty thousand with all of their discounts built in but on er 250 the previous

[00:11:44] Speaker 00:
when they tried to exact this roadway dedication before, they estimated the cost to be $700,000.

[00:11:49] Speaker 01:
Did the district court make any findings about that?

[00:11:55] Speaker 00:
No, no.

[00:11:56] Speaker 01:
So let's assume we had to get to phase two.

[00:11:59] Speaker 00:
Yeah.

[00:11:59] Speaker 01:
Shouldn't we send it back to figure out what this project actually costs?

[00:12:04] Speaker 01:
I mean, if it cost $10, you wouldn't be here.

[00:12:07] Speaker 01:
I hope.

[00:12:08] Speaker 01:
Obviously, yeah.

[00:12:09] Speaker 01:
And if it cost $10 million, they'd have a very difficult time defending it.

[00:12:14] Speaker 01:
And one of my problems is on this record, I just don't know what it's going to cost.

[00:12:19] Speaker 00:
The record, unfortunately, is closed.

[00:12:23] Speaker 00:
these statements.

[00:12:24] Speaker 00:
I think that the one figure that we have agreement on.

[00:12:26] Speaker 01:
The record is closed, but the judge made no findings.

[00:12:29] Speaker 00:
Yes, the judge made no findings.

[00:12:30] Speaker 02:
Let me ask a version of this question.

[00:12:32] Speaker 02:
You said $500,000.

[00:12:34] Speaker 02:
That amount is how much the land that would be used by the road would cost.

[00:12:39] Speaker 02:
That's the fair market value of the land.

[00:12:41] Speaker 02:
That's what you're saying.

[00:12:42] Speaker 00:
Yes, that was the fair market value of the land as zoned.

[00:12:46] Speaker 02:
The fair market value of the land that would be occupied by the road?

[00:12:50] Speaker 00:
Yes.

[00:12:50] Speaker 02:
Or the easement?

[00:12:51] Speaker 03:
yes that's a lot of money for a little tiny easement excuse me that's a lot of money for a little tiny easement it is it's valuable property and yeah oh forgive me were you done with your answer i am done thanks you want to reserve your time you're down to two minutes oh yes thank you i'll reserve my time okay we'll hear from the city's council please

[00:13:14] Speaker 05:
Thank you, Your Honors.

[00:13:14] Speaker 05:
May it please the court, Hannah Harding, on behalf of the city of Medford.

[00:13:19] Speaker 05:
There's a lot of questions that I would like to answer and weigh in on, but I think I want to start with what we see as the crux of the issue here.

[00:13:28] Speaker 05:
Case laws told us over and over again there's no mathematical formula.

[00:13:31] Speaker 05:
And what COGAP wants the courts to decide is that zero new trips equals zero impact on traffic.

[00:13:39] Speaker 05:
And that is a fundamental disagreement of the city.

[00:13:42] Speaker 03:
But I think we're past that.

[00:13:42] Speaker 03:
I think that there's a right, I tried to put that aside and I think council agreed.

[00:13:47] Speaker 03:
There's an indication.

[00:13:48] Speaker 03:
There'll be more congestion and the city has a legitimate concern about the congestion We appreciate that and we appreciate that.

[00:13:54] Speaker 03:
This is a typo about Development on north of Garfield.

[00:13:58] Speaker 03:
I think we know where it's located, but why?

[00:14:00] Speaker 03:
How do we how would we even even if I give you step one right that there's legitimate concern there?

[00:14:07] Speaker 03:
How do we do a proportionality analysis without knowing what this is going to cost?

[00:14:11] Speaker 05:
well

[00:14:12] Speaker 05:
That is a complicated question to answer.

[00:14:15] Speaker 05:
The rough proportionality, like case law said, is we compare certain kinds of things to other kinds of things.

[00:14:22] Speaker 05:
We really don't have super clear guidance on how to do a rough proportionality analysis.

[00:14:25] Speaker 01:
Nor do we have a record that demonstrates what those things are.

[00:14:31] Speaker 01:
I mean, that's sort of my problem.

[00:14:33] Speaker 01:
I mean, the district court didn't say, well, I am comparing apples to oranges, but here are the apples and here are the oranges.

[00:14:41] Speaker 01:
Didn't say anything about it, did it?

[00:14:44] Speaker 05:
I don't know that I fully understand that question.

[00:14:46] Speaker 01:
Well, so let's assume, tell me how one would conduct a rough proportionality analysis, and tell me how this record would allow us to determine whether that analysis was good, bad, or indifferent.

[00:14:59] Speaker 05:
Yes.

[00:15:03] Speaker 05:
Council was correct that the two are tied.

[00:15:06] Speaker 05:
You can't really go on to rough portionality until you do the essential nexus and determine that there is a connection between the condition imposed and the impacts of the property.

[00:15:16] Speaker 05:
And then we go on and we say, okay, we take those impacts and we compare them to what the exaction will do.

[00:15:23] Speaker 05:
I think it's appropriate to compare what the benefits to the property are.

[00:15:25] Speaker 05:
I think it's appropriate to compare what we've, in this case, we're saying traffic congestion.

[00:15:32] Speaker 05:
And I do want to point out that I don't believe it's a typo about north of Garfield Street.

[00:15:37] Speaker 05:
Where the exaction is, is south of Garfield Street.

[00:15:40] Speaker 05:
We have concerns about congestion south of Garfield Street.

[00:15:43] Speaker 05:
But in the application, the 2022 PUD revision, the zone swap, which the zone is not at issue, the zoning was granted, what it did is it allowed COGAP to put a Chick-fil-A at the corner of where Garfield Street goes.

[00:15:57] Speaker 03:
Oh, that's the drive-through restaurant development, different drive-through.

[00:16:00] Speaker 03:
Correct, correct.

[00:16:00] Speaker 05:
So now we have a Chick-fil-A

[00:16:02] Speaker 05:
a Panera, we got Jamba Juice, we have Annie's, and whether you're going to Chick-fil-A, going north, or you're going into south, you're taking Garfield Street.

[00:16:12] Speaker 02:
Help me understand when you say congestion.

[00:16:14] Speaker 02:
Where is the congestion going to take place?

[00:16:17] Speaker 02:
Is it going to take place on Garfield?

[00:16:19] Speaker 02:
Is it going to take place south of Garfield?

[00:16:21] Speaker 02:
Where are we talking about that congestion that you're trying to alleviate?

[00:16:25] Speaker 05:
The city's anticipating that the congestion will take place on Garfield Street.

[00:16:28] Speaker 02:
And so how will that be alleviated by a bridge that will take the traffic, if the traffic wants to go there, on Myers Lane?

[00:16:40] Speaker 02:
Because as I look at the maps that I've seen, Myers Lane is a tiny little thing that goes through some residential areas, comes across the bridge, and then comes back up to Garfield.

[00:16:52] Speaker 02:
If I'm understanding this correctly, the only way I'm ever going to do that instead of just say on Garfield is if the traffic on Garfield is absolutely stopped.

[00:17:01] Speaker 02:
Is there something that tells me that that's going to happen?

[00:17:04] Speaker 02:
That the traffic on Garfield is going to be that bad because of this development and therefore this will be a feasible alternative route?

[00:17:11] Speaker 05:
Well, Your Honor, Myers Lane is planned to be extended to run completely parallel to Garfield Lane.

[00:17:16] Speaker 05:
So right now it does, you're correct.

[00:17:18] Speaker 05:
It's a tiny development that then goes back up to Garfield.

[00:17:21] Speaker 05:
But the plan, and these are approved plans, they're not speculation, is to extend Myers Lane and there's additional residential developments that are going to be developed.

[00:17:29] Speaker 02:
And who's going to do that extension on Myers Lane?

[00:17:33] Speaker 04:
Well, those aren't built yet, but... Who owns that property at the moment?

[00:17:37] Speaker 04:
COGAP does, Your Honor.

[00:17:39] Speaker 04:
So all that land, so here's... Well, at least some of the developments.

[00:17:42] Speaker 05:
I don't know that they own all of it.

[00:17:43] Speaker 05:
There's a lot of residential developments going on, but I know the main one along Garfield is also owned by COGAP.

[00:17:48] Speaker 02:
So here's the end, comes down to the little bridge, and then it goes along, rolls that way, and it continues along that way.

[00:17:54] Speaker 02:
That property is owned by COGAP?

[00:17:56] Speaker 02:
Correct, Your Honor.

[00:17:57] Speaker 02:
And they anticipate developing that, how do we know?

[00:18:01] Speaker 05:
It has actually already been approved for development of these residential lots.

[00:18:05] Speaker 05:
It's been adopted into City of Medford's comprehensive plan to develop all of those neighboring properties to the south and west of the Stewart Meadows development into residential properties.

[00:18:17] Speaker 02:
And have you done any study that tells us what the traffic is likely to be once that's happened?

[00:18:23] Speaker 02:
I'm not aware of that, Your Honor.

[00:18:25] Speaker 02:
Because I'm trying to figure out what studies we have in front of us now

[00:18:28] Speaker 02:
that talk about the traffic impact of what's currently being proposed.

[00:18:33] Speaker 02:
I mean, my problem is we don't have a lot of studies, and at least as we have the existing patterns here, I'm not convinced that there's going to be a lot of traffic over that little bridge.

[00:18:44] Speaker 05:
And, Your Honor, there might not be.

[00:18:46] Speaker 05:
The City of Medford's point wasn't that Meyer's Lane connection was going to solve all of the problems.

[00:18:52] Speaker 05:
It is that... Well, is it going to solve any problem?

[00:18:55] Speaker 05:
Well, it has the potential to take some of the burden off of Garfield Street,

[00:18:58] Speaker 05:
for those that are coming from those residential developments.

[00:19:01] Speaker 02:
The residential developments that haven't taken place yet.

[00:19:04] Speaker 05:
Correct, but they are planned.

[00:19:07] Speaker 01:
So if we figure out, if we get to this roughly proportional part of the analysis, why is the bridge, why is the requirement of the bridge roughly proportional to the current problem?

[00:19:20] Speaker 01:
I understand the improvement of the road, et cetera.

[00:19:25] Speaker 01:
But I don't understand why, if we're looking at the current time, the bridge is a roughly proportional solution.

[00:19:33] Speaker 05:
Well, it's the only connection that can be made in that area within the urban growth boundary.

[00:19:39] Speaker 05:
There's no other place that we can put another local street connection to take burden off of.

[00:19:43] Speaker 01:
I know, but given the amount of traffic or congestion that you expect, which is

[00:19:50] Speaker 01:
You know, we might be able to quantify.

[00:19:52] Speaker 01:
We know the number of cars and trips.

[00:19:55] Speaker 01:
Do you really need a bridge to deal with those few trips?

[00:19:59] Speaker 05:
The city's position is that yes.

[00:20:00] Speaker 01:
Of course it is.

[00:20:02] Speaker 01:
But I'm asking why.

[00:20:04] Speaker 03:
This is where I get concerned about the cost of the bridge where we don't really have a traffic study.

[00:20:08] Speaker 03:
The city's position is based on what exactly?

[00:20:11] Speaker 05:
Well, I think you made a point earlier that there's no case law that says we have to do a traffic study.

[00:20:16] Speaker 05:
But we have to figure out that there's a proportionality.

[00:20:19] Speaker 03:
I understand.

[00:20:19] Speaker 03:
I realize that.

[00:20:20] Speaker 03:
I'm sorry.

[00:20:20] Speaker 03:
Yeah, that's OK.

[00:20:21] Speaker 03:
We're trying to do our job here.

[00:20:22] Speaker 03:
And this is a tough one, because we don't know what this is going to cost.

[00:20:27] Speaker 03:
Correct.

[00:20:27] Speaker 03:
And we're not really sure why it's necessary.

[00:20:29] Speaker 05:
Well, the reason we don't know why it's going to cost is because the city gave co-gap options.

[00:20:34] Speaker 05:
They don't have to do it as a public road.

[00:20:36] Speaker 05:
It can be an interior access road.

[00:20:37] Speaker 05:
It can be a private road.

[00:20:39] Speaker 05:
In the city's point of view, the parking lot that was there, you don't have to have a road going straight from Anton to Myers Lane.

[00:20:46] Speaker 05:
You can have an entry to the parking lot.

[00:20:48] Speaker 05:
You can drive around the parking lot, and you just need a connection there.

[00:20:52] Speaker 05:
I think the reason there's such a discrepancy on how much this is going to cost is because when we impose this condition, we were hoping that COGAB would come back and tell us this is how we'll build it, this will be the cost, but instead they appealed.

[00:21:05] Speaker 05:
So we don't actually know the plans for how that will be built.

[00:21:08] Speaker 03:
It seems to be a theme today of people not talking to each other and coming to court instead and just making that observation.

[00:21:13] Speaker 03:
So, and I don't mean to be flip, but it's a tough record for us.

[00:21:17] Speaker 03:
So what is your best shot?

[00:21:19] Speaker 05:
My best shot in terms of what is rough, how is it roughly proportional, is that when we do consider the costs, if we agree 700,000 is how much this is going to cost, the impacts that are potential, when we're talking about drive-through restaurants, people usually are using these during kind of two set times during the day, lunchtime and dinner.

[00:21:43] Speaker 05:
So if we have three concentrated, three or four concentrated to an area that weren't there before, before the traffic was going to go around the whole development, now it's more concentrated to this one area.

[00:21:54] Speaker 05:
And at peak times, lunch and dinner, there could be congestion on Garfield Street every single day.

[00:22:00] Speaker 05:
So in a way to alleviate that is connecting this other portion so that we have a local street to take some of the pressure off of Garfield Street.

[00:22:09] Speaker 05:
When you're talking about congestion in an area every single day and the cost to alleviate that is $700,000, I think that's a proportional request.

[00:22:19] Speaker 02:
Now, do you have any study that... I'm coming back to my own sort of practical thing.

[00:22:23] Speaker 02:
I'm picturing myself as wanting to go dinner and have a dinner at Chick-fil-A.

[00:22:29] Speaker 02:
I'm going to stay on Garfield Street unless it's really blocked.

[00:22:33] Speaker 02:
I mean, if it's just kind of slow, I'm going to stay on Garfield Street.

[00:22:36] Speaker 02:
The only way I'm going to dip down and go through that tiny little Rose Lane and then across that bridge and then back up is that it's really awful on Garfield Lane.

[00:22:45] Speaker 02:
Do you have a study that's going to tell me that Garfield Lane is going to get that backed up at dinnertime?

[00:22:49] Speaker 05:
I don't have a study for that, Your Honor.

[00:22:50] Speaker 05:
No.

[00:22:51] Speaker 05:
No.

[00:22:51] Speaker 05:
A lot of this was practical considerations.

[00:22:54] Speaker 05:
We have traffic engineers on staff that looked at Sandow's traffic study.

[00:22:59] Speaker 05:
There was no need for us to do our own.

[00:23:01] Speaker 05:
We generally agreed with their math.

[00:23:03] Speaker 05:
We just disagreed with the premise that zero new trips compared to the prior applications.

[00:23:08] Speaker 05:
Because you're correct, this is green space before this.

[00:23:10] Speaker 05:
There was nothing there.

[00:23:11] Speaker 05:
And prior to 2017, that area south of Garfield wasn't even part of the PUD.

[00:23:16] Speaker 05:
And so there are new trips being created with the development.

[00:23:22] Speaker 05:
It's just how those trips are going to be concentrated and where they're going to go in and out.

[00:23:26] Speaker 03:
But the 2017 plan was approved.

[00:23:29] Speaker 03:
Correct.

[00:23:29] Speaker 03:
And this is not an increased number of trips over the 2017 plan.

[00:23:32] Speaker 03:
Correct.

[00:23:32] Speaker 03:
And the 2017 plan didn't require this exaction.

[00:23:38] Speaker 03:
No.

[00:23:38] Speaker 03:
To extend Myers Lane and build a bridge, right?

[00:23:40] Speaker 05:
It didn't.

[00:23:40] Speaker 05:
It required the building of Anton Drive.

[00:23:43] Speaker 05:
Right.

[00:23:44] Speaker 05:
And in that situation, the city gives COGAP

[00:23:47] Speaker 05:
The parameters, the way to build it, but they're not overviewing all the construction for it.

[00:23:53] Speaker 05:
And at that time, we didn't know what was going to go into the area around there.

[00:23:56] Speaker 05:
They since changed that with the revision.

[00:23:58] Speaker 03:
I only have one more question, but my colleagues might have more.

[00:24:01] Speaker 03:
Are the new, forget Chick-fil-A, because I think Chick-fil-A is already there, right?

[00:24:06] Speaker 03:
It's been built, yes.

[00:24:07] Speaker 03:
So whatever it is that Judge Fletcher is going to eat dinner at, this new one, is that going to be built along Anton Drive?

[00:24:15] Speaker 05:
Where are these where the restaurants plan to go in so the restaurants that I'm aware of have actually all been built?

[00:24:22] Speaker 05:
Oh, they have yes, yes, but there is still more development to happen along Anton Drive And there's that little space between Anton Drive and Myers Lane neighborhood.

[00:24:32] Speaker 03:
Yep, I'm looking at lots there Okay, your briefing talks about additional development.

[00:24:36] Speaker 03:
It's not fast food restaurants that haven't already been built.

[00:24:39] Speaker 03:
It's not the it's not the drive bins and

[00:24:41] Speaker 05:
So in the briefing, we're talking about additional development because at the time of the application, they hadn't been built, but because this was an approval with conditions, they were allowed to build, but then they appealed the conditions.

[00:24:55] Speaker 05:
So when we started this, Chick-fil-A wasn't there, Panera,

[00:25:00] Speaker 05:
Panera SPAC was anticipated, the architecture.

[00:25:06] Speaker 03:
I understand why the briefing overlapped.

[00:25:08] Speaker 03:
Now the chronology is plain.

[00:25:10] Speaker 03:
Thank you.

[00:25:11] Speaker 01:
I do have a question.

[00:25:12] Speaker 03:
Go right ahead.

[00:25:13] Speaker 01:
Surprisingly.

[00:25:16] Speaker 01:
I'm trying to figure out the procedural history here.

[00:25:19] Speaker 01:
They made an application to the city.

[00:25:23] Speaker 01:
The application was, we would like you to approve a development plan, right?

[00:25:30] Speaker 01:
And you said fine with this condition, at least for purposes of this litigation.

[00:25:36] Speaker 01:
If we were to find that the condition were illegal under the Dolan tests, what status quo are we returning to?

[00:25:48] Speaker 01:
Could you then turn down their application?

[00:25:52] Speaker 05:
No, the application has been granted.

[00:25:53] Speaker 01:
I thought it was granted subject to this condition.

[00:25:56] Speaker 05:
It was, but my understanding of the case law and the procedures is that COGAP is suing for damages.

[00:26:05] Speaker 05:
So they want compensation.

[00:26:06] Speaker 05:
I think they have to build it no matter what.

[00:26:09] Speaker 05:
That's my understanding.

[00:26:11] Speaker 05:
I'm not sure.

[00:26:11] Speaker 01:
OK, that's helpful.

[00:26:13] Speaker 01:
I'll ask your friend this, too.

[00:26:15] Speaker 01:
Because it seemed to me that otherwise, if they were just trying to strike the condition, you would still have the ability to say later, OK,

[00:26:23] Speaker 01:
We approve it, but here's a different condition that might meet.

[00:26:27] Speaker 01:
Only if they did another PUD revision and we went through the... I couldn't figure out why a developer would be fighting if it delayed their development.

[00:26:37] Speaker 01:
Now I understand.

[00:26:38] Speaker 01:
Okay, good.

[00:26:39] Speaker 03:
Any other questions?

[00:26:41] Speaker 01:
Good.

[00:26:43] Speaker 03:
Thank you.

[00:26:44] Speaker 03:
Did you want to have any closing remarks?

[00:26:46] Speaker 05:
Other than I do believe that the district court got this one correctly and I understand that the record is confusing it is long that this has been going on for a very long time and Ultimately the city's goal here is to just make construction or encourage construction that makes sense And and it's good for all the citizens of this city.

[00:27:05] Speaker 05:
Thank you.

[00:27:05] Speaker 00:
Thank you Okay a couple of quick points just to clarifying some of the facts I

[00:27:14] Speaker 00:
One and this the question whether who owned the future development properties is beyond this record, but cocap only owns some of the property there are other developers that own property.

[00:27:25] Speaker 03:
Are you talking now about property to the West?

[00:27:27] Speaker 00:
Yes, property to the South and West of the PUD.

[00:27:31] Speaker 00:
The statement that there's no other place for the Myers Lane connection is not true.

[00:27:35] Speaker 00:
Myers Lane.

[00:27:35] Speaker 00:
currently connects about 800 feet west of Anton Drive and they could use that to develop the Myers Lane bypass as well.

[00:27:46] Speaker 02:
Here's a legal question for you and I think you and I are likely to disagree.

[00:27:50] Speaker 02:
I think your position is we don't get to consider, as it were, cumulative impacts of various proposals.

[00:28:00] Speaker 02:
We have to consider them in isolation one by one when we're dealing with these questions.

[00:28:05] Speaker 00:
Actually, surprisingly, we agree.

[00:28:07] Speaker 00:
Nolan, I believe it's footnote four, stated that you can look at cumulative impacts.

[00:28:15] Speaker 00:
But the analysis later, you still have to be able to apportion.

[00:28:18] Speaker 00:
You still need to show that the proposed development will contribute to those.

[00:28:25] Speaker 00:
And then when it comes to proportionality, you have to apportion responsibility.

[00:28:29] Speaker 02:
I see.

[00:28:30] Speaker 02:
And can we do this in terms of anticipated development?

[00:28:34] Speaker 00:
Yes.

[00:28:35] Speaker 02:
So it's not legally forbidden to the city to look at the development that would take place if Rose Lane continues, is it, if Myers Lane continues out through the property that's currently undeveloped?

[00:28:52] Speaker 00:
No, and state case law says the same thing, that they can consider it, but with the caveat that you still need to show that the Stewart Meadows contributes, has impacts that contribute to the

[00:29:05] Speaker 00:
that problem and also then you have to apportion it according to all of the other sources of traffic impact.

[00:29:13] Speaker 02:
I see.

[00:29:13] Speaker 02:
But your point would still remain, we need a study to look at that and we don't have that study.

[00:29:17] Speaker 00:
Exactly.

[00:29:18] Speaker 00:
I'm out of time.

[00:29:19] Speaker 00:
With that, we ask that you reverse the district courts.

[00:29:23] Speaker 03:
Thank you.

[00:29:23] Speaker 03:
We'll take that matter under advisement and go on to the last case on the calendar.

[00:29:26] Speaker 03:
Thank you both.