Home Builders Assn. of Dayton & the Miami Valley v. Beavercreek - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Home Builders Assn. of Dayton & the Miami Valley v. Beavercreek, 89 Ohio St.3d 121,
2000-Ohio-115.]

HOME BUILDERS ASSOCIATION OF DAYTON AND THE MIAMI VALLEY ET AL.,
APPELLEES, v. CITY OF BEAVERCREEK, APPELLANT.
[Cite as Home Builders Assn. of Dayton & the Miami Valley v. Beavercreek
(2000), 89 Ohio St.3d 121.]
Municipal corporations -- Streets and highways -- Impact fee adopted by
ordinance that partially funds new roadway projects is constitutional, when.
An exaction fee adopted by ordinance that partially funds new roadway projects is
constitutional if it bears a reasonable relationship between the city's interest
in constructing new roadways and the increase in traffic generated by new
developments, and if a reasonable relationship exists, it must then be
demonstrated that there is a reasonable relationship between the impact fee
imposed on a developer and the benefits accruing to the developer from the
construction of new roadways.
(No. 98-2572 -- Submitted November 2, 1999 -- Decided June 14, 2000.)
APPEAL from the Court of Appeals for Greene County, Nos. 97-CA-0113
and 97-CA-0115.

In November 1993, appellant, city of Beavercreek, enacted Ordinance 93-62,
which imposes an impact fee on developers of real estate. The ordinance was
amended in December 1995 to increase the impact fee district area. See

Beavercreek Ordinance 95-66. The trial court found that the ordinance was
adopted to enable Beavercreek to recover the costs of constructing new roadways
made necessary by new developments within an impact fee district. This function
had, historically, been met by requiring developers to make improvements to the
public roadways immediately adjacent to their property. The payment of the
impact fee is intended to eliminate the requirement that the fee payer make actual
off-site road improvements. The ordinance is intended to assure that new
development bears a proportionate share of the cost of capital expenditures
necessary to provide roadways and related traffic facilities in the impact fee
district.

Beavercreek estimated the total cost of improvements necessitated by a one
hundred percent development of the impact fee district. Based on the Beavercreek
Land Use Plan, an estimate was prepared of residential, office, and commercial
development that is projected to occur within the impact fee district. An estimate
was also prepared projecting the number of automobile trips each type of
development would generate in the impact fee district. Beavercreek then
subtracted a percentage for pass-through traffic not generated by new development,
and in the 1995 amendment, for pass-by traffic for commercial development.
Beavercreek further subtracted another $6.6 million, which it determined would be

2

raised from other funding sources. The remainder was the amount to be financed
through the collection of impact fees from the developers of the impact fee district.

After the impact fee is collected, it is deposited into a separate trust fund
established by the city. Section 10(A), Beavercreek Ordinance 93-62. The fee
payer may appeal the amount of the fee, or any determination related to the impact
fee, to the Impact Fee Appeal Board. Section 17(B), Beavercreek Ordinance 93-
62.

The ordinance defines a list of projects that are exempt from payment of the
impact fee. The list includes construction of accessory buildings that will not
produce additional traffic, replacement of a destroyed building with one of similar
size and use, expansion of a single-family dwelling unit, expansion of any building
where the area of expansion is less than 1,500 square feet, and any governmental
property. Section 13(A), Beavercreek Ordinance 93-62.

The ordinance also creates a system of credits against the payment of impact
fees. The credits are designated as mandatory or permissive credits. Under the
ordinance, all required right-of-way dedications and/or roadway improvements
made by the developer, except for site-related improvements, shall be credited
against the impact fee. The developer may also obtain credits by offering nonsite-
related right-of-way dedications and/or to construct nonsite-related roadway

3

improvements if the developer follows the correct procedure, as indicated in the
Ordinance. Section 14(B), Beavercreek Ordinance 93-62.

The Beavercreek ordinance further provides that the funds generated from
the impact fees are to be used for capital improvements to and expansion of
roadways, administrative costs, and expenses related to the impact fee district, and
to pay obligations on debt instruments that were issued for the advanced provision
of capital improvements, if the impact fee could have been used for the particular
project that was financed by the debt instrument. The impact fees may be used
outside the impact fee district if the capital improvement is deemed beneficial to
the impact fee district and is contiguous to the impact fee district. The funds are
not to be used, however, for periodic or routine maintenance. Sections 11(A)
through (D), Beavercreek Ordinance 93-62.

After the enactment of the ordinance, appellees, Home Builders Association
of Dayton and the Miami Valley ("HBA"), The Beerman Corporation, Midwest
Realty Management Company, and Barbara B. Weprin, Trustee (the latter three
will be collectively referred to as "Beerman"), filed complaints against the city of
Beavercreek, alleging that the impact fee ordinance is invalid under several
constitutional provisions. Beavercreek and HBA filed cross-motions for summary
judgment. The trial court granted partial summary judgment to Beavercreek.

4

The case proceeded to trial on two issues: (1) whether the ordinance violates
substantive due process and equal protection rights, and (2) whether the ordinance
constitutes an illegal taking without just compensation under the United States and
Ohio Constitutions. After a bench trial, the trial judge ruled that the ordinance is
constitutional on all grounds. On appeal, the Second District Court of Appeals
reversed the trial court's summary judgment decision, concluding that the
ordinance is constitutionally invalid because it does not contain a matching funds
provision. Although the court of appeals indicated that the lack of a matching
funds provision disposed of the issue, the court defined the test that should be used
to evaluate a regulatory takings challenge to the ordinance.

The case is now before this court pursuant to the allowance of a
discretionary appeal.
__________________

O'Diam, McNamee & Hill, L.P.A., Michael P. McNamee and Cynthia P.
McNamee, for appellee Home Builders Association of Dayton and the Miami
Valley.

Taft, Stettinius & Hollister, L.L.P., Thomas R. Schuck and Robert B. Craig,
for appellee Barbara B. Weprin, Trustee, The Beerman Corporation, and Midwest
Realty Management Company.

5

Calfee, Halter & Griswold, L.L.P., Mark I. Wallach and Julie A. Harris;
David L. Eubank, for appellant.

Christopher Senior, pro hac vice, urging affirmance for amici curiae,
National Association of Home Builders and International Council of Shipping
Centers.

Patricia S. Eshman, urging affirmance for amicus curiae, Ohio
Homebuilders Association.

Kelley, McCann & Livingstone, L.L.P., Thomas J. Lee and Renee B. Weiss,
urging reversal for amicus curiae, Cuyahoga County Law Directors' Association.

Barry M. Byron and Stephen L. Byron, urging reversal for amicus curiae,
Ohio Municipal League.
__________________

MOYER, C.J. The issue presented by this appeal is whether Beavercreek
Ordinance 93-62, as amended, which establishes a system of impact fees payable
by developers of real estate to aid in the cost of new roadway projects, is
constitutional. For the following reasons, we hold that the ordinance is
constitutional.

It is well established that "[m]unicipalities shall have authority to exercise
all powers of local self-government and to adopt and enforce within their limits
such local police, sanitary and other similar regulations, as are not in conflict with

6

general laws." Section 3, Article XVIII, Ohio Constitution; see, also, Cleveland v.
Shaker Hts. (1987), 30 Ohio St.3d 49, 51, 30 OBR 156, 158, 507 N.E.2d 323, 325.
This court has consistently held that Section 3 of Article XVIII, or the Home-Rule
Amendment, gives municipalities the authority to impose exactions, provided that
the municipality is not statutorily forbidden from doing so, and the exactions meet
constitutional standards. See, e.g., Cincinnati v. Cincinnati Bell Tel. Co. (1998),
81 Ohio St.3d 599, 693 N.E.2d 212, syllabus. The focus here is whether the
impact fee ordinance enacted by the city of Beavercreek violates either the United
States or Ohio Constitution.

In its decision, the court of appeals engaged in a comprehensive analysis
relating to the question of whether Beavercreek Ordinance 93-62 operates as an
impact fee or a tax. While the ordinance clearly adopted an impact fee, its
classification as an impact fee or a tax is not determinative for purposes of our
constitutional inquiry. Prior cases of this court that address the constitutionality of
impact fee ordinances did not find the label placed on an exaction in response to
new development to be dispositive. See Towne Properties, Inc. v. Fairfield (1977),
50 Ohio St.2d 356, 4 O.O.3d 488, 364 N.E.2d 289; State ex rel. Waterbury Dev.
Co. v. Witten (1978), 54 Ohio St.2d 412, 8 O.O.3d 410, 377 N.E.2d 505. Rather,
the important factor in determining the constitutionality of an ordinance is whether

7

the ordinance is unduly burdensome in application and not its label as a tax or an
impact fee.

In determining whether Beavercreek Ordinance 93-62 is constitutional, it is
necessary to first address the discussion by the court of appeals regarding the lack
of a matching funds provision in the Beavercreek ordinance. A matching funds
provision would require a city to contribute public funds to roadway projects in an
amount that bears some proportion to the fees collected from developers. The
court of appeals disposed of all issues before it by holding that Ordinance 93-62 is
unconstitutional because it does not require Beavercreek to contribute public funds
to the projects for which the impact fee is exacted. In support of this proposition,
the court of appeals cites our decisions in Towne Properties, State ex rel.
Waterbury Dev. Co., and the decision in Building Industry, Assn. of Cleveland &
Suburban Ctys. v. Westlake (1995), 103 Ohio App.3d 546, 660 N.E.2d 501, as
authority. Upon an analysis of Towne Properties and Waterbury, we conclude that
there is no requirement that an ordinance imposing an impact fee on developers of
real estate must contain a matching funds provision to be deemed constitutional.
In
Towne Properties, we were asked to determine the constitutionality of a
city ordinance that required anyone obtaining a building permit, registering a
mobile home pad, or installing manufactured residential units not requiring a
building permit to pay a fifty dollar fee. The ordinance was enacted to expand the

8

city's existing facilities in response to its growing population. The revenue
collected through the fee, plus an additional amount of public funds, was placed in
a special recreational fund created by the ordinance. In upholding the ordinance,
we observed that the ordinance was written so that developers paid their
proportionate share of the cost of the city's expansion projects, and that the city
contributes an equal amount to the fund. Towne Properties, 50 Ohio St.2d at 360,
4 O.O.3d at 491, 364 N.E.2d at 292. We did not hold that the matching funds
provision was the sole means by which the constitutionality of such an ordinance
was to be determined.
Likewise,
in
Waterbury, we invalidated an ordinance that imposed a water
tap charge and a park fee on new developments. The ordinance at issue did not
contain a matching funds provision. We, however, based our decision, not on the
lack of a matching funds provision, but on the fact that the fee imposed was higher
than the actual costs of connecting to a water line and the cost of park
development. Waterbury, 54 Ohio St.2d at 414-415, 8 O.O.3d at 412, 377 N.E.2d
at 506-507.

Contrary to the opinion of the court of appeals, the lack of a matching funds
provision in the Beavercreek ordinance is not constitutionally fatal. That is not to
say, however, that the presence or absence of a matching funds provision may not
be considered when determining the constitutionality of an impact fee. The

9

appropriate test is one that examines whether the fee is in proportion to the
developer's share of the city's costs to construct and maintain roadways that will
be used by the general public. See, e.g., Amherst Builders Assn. v. Amherst (1980),
61 Ohio St.2d 345, 347, 15 O.O.3d 432, 433, 402 N.E.2d 1181, 1183. A matching
funds provision is one factor that a court may take into account in determining this
balance.

When examining the Beavercreek ordinance, both the trial court and the
court of appeals addressed the plaintiffs' assertion that the ordinance produced an
illegal taking of property without just compensation in violation of the United
States and Ohio Constitutions. Each court, however, applied a different test to
determine whether the ordinance is constitutional.

The trial court used the dual rational nexus test, which is based on two
United States Supreme Court decisions, Nollan v. California Coastal Comm.
(1987), 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677, and Dolan v. City of Tigard
(1994), 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304, and a Florida case,
Hollywood, Inc. v. Broward Cty. (Fla.App.1983), 431 So.2d 606. The dual rational
nexus test requires a court to determine (1) whether there is a reasonable
connection between the need for additional capital facilities and the growth in
population generated by the subdivision; and (2) if a reasonable connection exists,
whether there is a reasonable connection between the expenditure of the funds
10

collected through the imposition of an impact fee, and the benefits accruing to the
subdivision. Hollywood, Inc., 431 So.2d at 611-612.

The court of appeals analyzed the Beavercreek ordinance using a test based
upon our decisions in Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 638
N.E.2d 533, and Goldberg Cos., Inc. v. Richmond Hts. City Council (1998), 81
Ohio St.3d 207, 690 N.E.2d 510. The test used by the court of appeals states that
an impact fee ordinance will be unconstitutional if it is clearly arbitrary and
unreasonable, having no substantial relation to the public health, safety, morals, or
general welfare, or if no reasonable connection exists between the fee and the
needs created by development. The issue of which test to apply in evaluating a
Takings Clause challenge to an impact fee ordinance is an issue of first impression
in this court. It follows that we must define the rule to be applied in determining
whether a developer is paying its proportionate share of a city's costs for making
improvements necessitated by the development of real estate.

The tests applied by the trial and appellate courts derived from ordinances
that did not impose impact fees. The underlying bases of the "dual rational nexus"
test, the Nollan and Dolan cases, for instance, dealt with land use exactions that
forced property owners to dedicate a certain portion of their land to public use.
See Dolan, 512 U.S. at 377-378, 114 S.Ct. at 2313, 129 L.Ed.2d at 312; Nollan,
483 U.S. at 828, 107 S.Ct. at 3143-3144, 97 L.Ed.2d at 683. The Gerijo test was a
11

response to ordinances that reclassified the zoning of land. See Gerijo, 70 Ohio
St.3d at 224, 638 N.E.2d at 535.

Although impact fees do not threaten property rights to the same degree as
land use exactions or zoning laws, there are similarities. Just as forced easements
or zoning reclassifications can inhibit the desired use of property, an unreasonable
impact fee may affect the manner in which a parcel of land is developed. Further,
impact fees are closer in form to land use exactions than to zoning laws. Both
forced easements and impact fees, while imposing a condition on the use of land,
do not necessarily deny a landowner his or her intended use of the land. Zoning
laws, to the contrary, may alter the classification of the land and, therefore, could
deny the owner's intended economic use of the property.

As discussed in the trial court's comprehensive opinion, courts have
formulated several tests that can be applied in evaluating a Takings Clause
challenge to an impact fee ordinance. These tests vary in the level of scrutiny with
which the ordinance will be viewed. It is our opinion that the appropriate test is
one that balances the interests of the city and developers of real estate without
unduly restricting local government. In developing the appropriate test, we have
reviewed the most compelling methodologies.

In some states, an impact fee ordinance will be held constitutional if there is
a reasonable relationship between the exaction and the proposed development.
12

See, e.g., Associated Home Builders of Greater East Bay, Inc. v. City of Walnut
Creek (1971), 4 Cal.3d 633, 94 Cal.Rptr. 630, 484 P.2d 606. This reasonable
relationship test allows local governments to act with almost unfettered discretion.
While impact fees are a common means of financing public construction projects
associated with new development, local governments should be subject to a higher
degree of scrutiny than that afforded by the reasonable relationship test.

Other states hold that an impact fee ordinance is constitutional if the
exaction is specifically and uniquely attributable to the needs of the development.
See, e.g., Pioneer Trust & Sav. Bank v. Village of Mt. Prospect (1961), 22 Ill.2d
375, 176 N.E.2d 799. Under this test, the local government must demonstrate that
its exaction is directly attributable to the specifically created need. Id. at 379-380,
176 N.E.2d at 801-802. Otherwise, it is a confiscation of private property
exercised under the shield of the police power. Id. This test affords property
owners the greatest level of protection, but it leaves local governments with little
discretion to enact legislation.

A third test, the dual rational nexus test, is based on the Nollan and Dolan
cases, and Hollywood, Inc. This test applies a middle level of scrutiny that
balances the prospective needs of the community against the property rights of the
developer. Municipalities must be given the ability to reasonably address
problems that are not subject to precise measurement without being subject to
13

unduly strict review. Banberry Dev. Corp. v. South Jordan City (Utah 1981), 631
P.2d 899. It is our opinion that the dual rational nexus test balances both the
interests of local governments and real estate developers without unnecessary
restrictions. The trial court applied this test, and it is also the test we adopt for
evaluating the constitutionality of an impact fee ordinance when a Takings Clause
challenge is raised.

The dual rational nexus test places the burden on the city of Beavercreek. In
determining the constitutionality of Beavercreek Ordinance 93-62, therefore, the
city must first demonstrate that there is a reasonable relationship between the city's
interest in constructing new roadways and the increase in traffic generated by new
developments. Cf. Dolan, 512 U.S. at 386, 114 S.Ct. at 2317, 129 L.Ed.2d at 317.
If a reasonable relationship exists, it must then be demonstrated that there is a
reasonable relationship between the impact fee imposed by Beavercreek and the
benefits accruing to the developer from the construction of new roadways. Cf.
Dolan, 512 U.S. at 391, 114 S.Ct. at 2319-2320, 129 L.Ed.2d at 320. We believe
this test will adequately balance the interests of local governments with those of
property owners. The first prong of the test decides whether the ordinance is an
appropriate method to address the city's stated interests, and the second prong
assures that the city and developers are paying their proportionate share of the cost
14

of new construction. See Amherst, 61 Ohio St.2d at 346-349, 15 O.O.3d at 432-
435, 402 N.E.2d at 1182-1184.

In analyzing the Beavercreek ordinance, we conclude that the test is
satisfied. As an initial matter, the city of Beavercreek has a legitimate
governmental interest in constructing a new transportation infrastructure in the
impact fee district to meet increased traffic needs, an interest that neither party
challenged. In order to satisfy the first prong of the test, Beavercreek must show
that there is a need for roadway improvements by demonstrating a reasonable
relationship between the burden created by the development and the need for the
new roadway improvements. To prove that a reasonable relationship exists,
Beavercreek must demonstrate that the methodology used to determine the need
for roadway improvements funded by the impact fee is based on generally
accepted traffic engineering practices. See, e.g., Northern Illinois Home Builders
Assn. v. DuPage Cty. (1993), 251 Ill.App.3d 494, 190 Ill.Dec. 559, 621 N.E.2d
1012.

The trial court received testimony and other evidence from numerous
witnesses in support of the plaintiffs and the defendant that described the
methodology used by the city of Beavercreek in enacting the impact fee ordinance.
The witnesses generally agreed that the methodology used to develop a
proportionate and reasonable impact fee should consist of several steps. First, the
15

city should develop a comprehensive plan for creating impact fee districts and
addressing the needs within those districts. As part of this comprehensive plan, an
impact fee ordinance should contain a provision that provides for a review and
update of its terms on a regular basis to accommodate changes in, inter alia, traffic
engineering standards, changes in the need for roadway developments, and receipt
of additional revenues by the city.

Second, the city should establish an inventory of existing roadway facilities
to determine whether these facilities meet the standards set forth by the ordinance
for addressing traffic needs. Third, the municipality must determine the cost of
new facilities needed to accommodate new development. Finally, the municipality
should reduce the cost to be paid by impact fees by the amount of credits the
municipality will receive, and by roadway use not associated with new
development.

The trial court, in weighing the evidence, determined that the methodology
was reasonable, and that a reasonable relationship existed between the city's need
to construct new roadways and the traffic generated by new development. The
court of appeals, to the contrary, held that when reviewing the evidence, the trial
court placed too much weight on some factors, and not enough weight on other
factors. In the opinion of the court of appeals, the trial court's factual
16

determination of reasonableness was erroneous, and a better methodology could be
envisioned by the appellate court.

The role of a court in reviewing the constitutionality of an impact fee
ordinance is not to decide which methodology provides the best results. Given that
impact fee ordinances are not subject to precise mathematical formulation,
choosing the best methodology is a difficult task that the legislature, not the courts,
is better able to accomplish. Rather, a court must only determine whether the
methodology used is reasonable based on the evidence presented.

When reaching a factual determination, the trial court is in the best position
to evaluate the testimony of witnesses and the evidence presented. See State v.
Hawkins (1993), 66 Ohio St.3d 339, 344, 612 N.E.2d 1227, 1231; In re Lieberman
(1955), 163 Ohio St. 35, 38, 56 O.O. 23, 24, 125 N.E.2d 328, 330. Further, a
reviewing court will not disturb factual findings of the trial court unless those
findings are against the manifest weight of the evidence. State ex rel. Shady Acres
Nursing Home v. Rhodes (1983), 7 Ohio St.3d 7, 7 OBR 318, 455 N.E.2d 489.
Based on this record, we find that there is competent, credible evidence to support
the judgment of the trial court, and its factual conclusions should not have been
disturbed by the court of appeals. See Seasons Coal Co. v. Cleveland (1984), 10
Ohio St.3d 77, 80, 10 OBR 408, 411, 461 N.E.2d 1273, 1276.
17

Once a reasonable relationship is found to exist between the city's need to
construct new roadways and the traffic generated by new development, the second
prong of the test requires Beavercreek to demonstrate a reasonable relationship
between the fee imposed on a developer and the benefits accruing to the developer.
This portion of the test addresses whether the developer and the city are paying
their proportionate shares of the costs necessary to construct new roadways. When
evaluating this prong, a court should consider the actual costs of constructing new
roadways, the formula used to determine the fee, the fee paid by a particular
developer, the city's contribution, road improvements made directly by developers,
the length of time between the payment of the fee and new roadway construction
projects, whether the roadway projects are site-specific to the new development,
and any other criterion that bears on the reasonableness of the fee.

As previously mentioned, a matching funds provision may be used to
measure a city's contribution in determining whether the fee imposed on a
developer of real estate is proportional to the city's cost. A matching funds
provision, however, is not the only permissible way in which a city can make a
contribution to a roadway development project. For instance, the Beavercreek
ordinance establishes a system of mandatory and permissive credits against the
payment of impact fees. Under the ordinance, a developer shall receive a credit for
all required right-of-way dedications or improvements made directly by the
18

developer. Section 14(B), Beavercreek Ordinance 93-62. The developer may also
obtain credits by offering nonsite-related right-of-way dedications or
improvements. Section 14(C), Beavercreek Ordinance 93-62. In effect,
Beavercreek makes a contribution by transferring a portion of the cost to construct
new roadway projects, which otherwise would have been paid by the developer
through a higher impact fee, back to the city through a system of credits.

With regard to the system of credits, the plaintiffs argue that the Beavercreek
ordinance is constitutionally flawed because the city has no obligation to apply
credits within a specific period of time and, therefore, developers will pay a
disproportionate share of the costs of new roadway projects. The lack of a specific
time limit for the application of credits due under the ordinance is not facially
unconstitutional. Further, as noted by the trial court, the appellees have not
presented any evidence that the ordinance as applied to any particular developer is
unconstitutional. That is not to say, however, that an as-applied challenge to the
ordinance for failure to issue credits within a reasonable time would not be
sustained. Much as the presence of a matching funds provision is one factor in
determining the reasonableness of an impact fee ordinance, so too is the manner in
which a municipality applies credits owed to developers.

The trial court reviewed volumes of evidence relating to the methodology
and functioning of the Beavercreek ordinance. The trial court, in reviewing this
19

evidence, found that the fees were reasonable and that a reasonable relationship
existed between the fee paid and the benefits accruing to developers. We find this
conclusion to be supported by competent, credible evidence contained in the
record, and these factual conclusions should not have been disturbed by the court
of appeals. See Seasons Coal Co., supra, 10 Ohio St.3d at 80, 10 OBR at 411, 461
N.E.2d at 1276.

We conclude that Beavercreek Ordinance 93-62, as amended, is not
constitutionally flawed due to its lack of a matching funds provision. We further
hold that the Beavercreek ordinance does not constitute an illegal taking of the
plaintiffs' property without just compensation in violation of the United States and
Ohio Constitutions. Accordingly, the judgment of the court of appeals is reversed,
and the judgment of the trial court is reinstated.
Judgment reversed.

DOUGLAS, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.

RESNICK and PFEIFER, JJ., dissent.

COOK, J., dissents.
__________________

PFEIFER, J., dissenting. The majority states that the ordinance's
"classification as an impact fee or a tax is not determinative for purposes of our
constitutional inquiry." I beg to differ. According to Section 2, Article XII of the
20

Ohio Constitution, "Land and improvements thereon shall be taxed by uniform rule
according to value." See State ex rel. Park Invest. Co. v. Bd. of Tax Appeals
(1964), 175 Ohio St. 410, 25 O.O.2d 432, 195 N.E.2d 908; State ex rel. Park
Invest. Co. v. Bd. of Tax Appeals (1972), 32 Ohio St.2d 28, 29, 61 O.O.2d 238,
238, 289 N.E.2d 579, 580. Most of the existing infrastructure in Beavercreek and
other cities and towns was paid for by the city or town. Here, however,
Beavercreek is attempting to force developers to pay for improvements or
additions to infrastructure as a quid pro quo for developing a site, even when the
improvements or additions occur beyond the property lines of the development.
This strikes me as a tax, and, since it is not applied uniformly, as an
unconstitutional tax.

Alternatively, if it is necessary to formulate a test to evaluate a Takings
Clause challenge to an impact fee ordinance, I would favor a stricter test than that
put forth by the majority. I would hold that "an impact fee ordinance is
constitutional if the exaction is specifically and uniquely attributable to the needs
of the development."

Finally, the ordinance at issue does not meet the second part of the
majority's dual rational nexus test, which requires that there be a reasonable
relationship between the impact fee imposed and the benefits accruing to the
developer. Even though this is an incredibly light standard, it is not clear that
21

developers will receive any benefit. After all, Beavercreek is not obligated to
contribute any of its own money and the impact fee money alone is insufficient to
pay for the entire cost of the roadway improvements. How can there be a
reasonable relationship between certain impact fees and uncertain benefits? I
would hold that the dual rational nexus test formulated by the majority is not met.

I would affirm the judgment of the court of appeals.

RESNICK, J., concurs in the foregoing dissenting opinion.
__________________

COOK, J., dissenting. I respectfully dissent. I would affirm the judgment of
the court of appeals by adopting the reasoning from Part II of its opinion.
22