2006 UT 2
AMENDED OPINION
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
B.A.M. Development, L.L.C.,
Nos. 20040365
a Utah limited liability
20040373
company,
Plaintiff, Respondent,
and Cross-Petitioner,
v.
Salt Lake County, a body
politic and a political
subdivision of the
State of Utah,
F I L E D
Defendant, Petitioner,
and Cross-Respondent.
January 10, 2006
---
Third District, Salt Lake
The Honorable Timothy R. Hanson
No. 980908157
Attorneys: Stephen G. Homer, West Jordan, for respondent
Donald H. Hansen, David E. Yocom, Salt Lake City, for
petitioner
Craig M. Call, Salt Lake City, for amicus Department
of Natural Resources
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1
In this land-use dispute, Salt Lake County sought to
exercise its police power to require B.A.M. Development, L.L.C.,
to dedicate property for the purpose of widening a major traffic
artery adjacent to a residential subdivision from which B.A.M.
sought County approval to build. The court of appeals held that
the process used to review the propriety of the County's land

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dedication requirements before both the Salt Lake County Board of
Commissioners and the trial court was flawed. It reversed the
trial court and remanded to remedy the errors. The court of
appeals also mandated that the review on remand be conducted
using the standards embodied in what has come to be known as the
Nollan/Dolan or "rough proportionality" test.
¶2
We granted certiorari to examine whether the court of
appeals correctly determined that the Nollan/Dolan test is the
proper tool to measure the lawfulness of the dedication of
B.A.M.'s property to the County. We affirm.
¶3
We also granted certiorari to review two procedural
issues, both of which are made moot by Senate Bill 60, which
amended Utah Code section 17-27a-801, effective May 2, 2005, and
details proper district court review of a county's land-use
decision. This section operates retroactively because these two
issues are procedural in nature.
FACTUAL AND PROCEDURAL BACKGROUND1
¶4
Salt Lake County Ordinance 15.28.010 requires
developers of land to dedicate property to the County to improve
public streets that abut the proposed development. Salt Lake
County has adopted a Transportation Master Plan to anticipate and
prepare for the long-term highway capacity needs of Salt Lake
County. The requirements imposed on developers under the
Ordinance are directly tied to the elements of the Transportation
Master Plan. In the parlance of takings clause jurisprudence, a
mandate like that created by the County's ordinance is a
"development exaction." We have defined development exactions as
"contributions to a governmental entity imposed as a condition
precedent to approving the developer's project." Salt Lake
County v. Bd. of Educ., 808 P.2d 1056, 1058 (Utah 1991) (internal
quotation marks and citations omitted).
¶5
B.A.M. Development, a Utah limited liability company,
requested and received preliminary approval from the Salt Lake
County Planning and Zoning Commission to develop a residential
subdivision on fifteen acres of land located at 7755 West and
3500 South in Salt Lake County, Utah. In its original proposed
subdivision plat, B.A.M. agreed, as a condition of development
approval, to set aside a forty-foot-wide strip of land for the
future widening of 3500 South. One year later, Salt Lake County
informed B.A.M. that, after consulting with the Utah Department

1 All factual and procedural history is taken from B.A.M. v.
Salt Lake County, 2004 UT App 34, ¶¶ 2-4, 27-34, 87 P.3d 710.
Nos. 20040365, 20040373
2

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of Transportation, it had concluded that the Transportation
Master Plan contemplated the eventual widening of 3500 South to
fifty-three feet at the site of B.A.M.'s subdivision. Based on
this information, the County revised the conditions imposed on
B.A.M. to approve its development to include the requirement that
B.A.M. dedicate an additional thirteen feet of its property to
the County.
¶6
B.A.M. objected to this additional demand because the
increased dedication would require reconfiguration of the
subdivision resulting in further development expense. The
planning and zoning commission turned away B.A.M.'s objection
without receiving evidence and continued to condition B.A.M.'s
license to build the subdivision on dedication of the fifty-
three-foot parcel for road expansion.
¶7
B.A.M. appealed the planning and zoning commission's
decision to the Salt Lake County Board of Commissioners. It
contended that the County's demand for the additional thirteen
feet of property amounted to an unconstitutional taking.2 B.A.M.
requested that the Board find that the "uncompensated dedication
and improvement of the additional roadway constitute[d] an
unconstitutional `taking,' not reasonably justified by the actual
impact created by the proposed development." The Board conducted
no hearing on B.A.M.'s appeal, nor did it take evidence or issue
legal or factual findings. It nevertheless affirmed the
Commission's decision that the additional thirteen-foot strip was
a lawful exercise of the County's police power and not a taking.
¶8
Dissatisfied with this outcome, B.A.M. filed a
complaint in district court. In B.A.M.'s view, the dedication
should have been tested under the more demanding "rough
proportionality" standard created by the United States Supreme
Court to assess whether a property exaction imposed by a

2 The court of appeals majority concluded that B.A.M. had
preserved for appeal only its objection to the County's claim to
the additional thirteen feet of its property. In doing so, it
affirmed the trial court's conclusion that B.A.M. had never
objected to the initial forty-foot exaction in its administrative
appeals before the planning and zoning commission or the Board.
Judge Orme dissented from this view, believing that in light of
the undeveloped state of the record the court of appeals should
interpret more generously B.A.M.'s contentions that it had
properly challenged the entire scope of the County's proposed
property exaction. We did not grant certiorari on this question,
however, and therefore limit our review to the thirteen-foot
supplemental exaction.
3
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government as a condition to authorizing a property owner's
desired use of land amounted to a regulatory restriction on the
use of its land that required no compensation, or amounted to a
taking for which B.A.M. was entitled to compensation. Dolan v.
City of Tigard, 512 U.S. 374 (1994); Nollan v. Cal. Coastal
Comm'n, 483 U.S. 825 (1987).
¶9
The district court refused to apply the rough
proportionality test. It reasoned that because the mandated
dedication of property was made pursuant to an ordinance of
general application, it fell outside the ambit of the rough
proportionality test which, it concluded, applied only to
"adjudicative" exactions that by their nature carried the risk of
extortionate governmental conduct. The district court then
affirmed the Board's conclusion that the thirteen-foot strip was
not a taking. B.A.M. appealed to the Utah Court of Appeals.
¶10
The court of appeals' majority addressed two issues:
whether the district court erred when it heard evidence on
B.A.M.'s appeal and whether the thirteen-foot exaction was a
taking.
¶11
Viewing the first issue as one of statutory
interpretation, the court of appeals held that the district court
was limited to reviewing the record made before the County--there
was none--and erred when it took evidence. Based on this
procedural defect, and because without the district court record
there was no record at all to explain the basis for the denials
of B.A.M.'s objections, the court of appeals remanded the matter
to the district court. The court of appeals instructed the
district court to find that the Board had acted arbitrarily and
capriciously when it failed to hear B.A.M.'s appeal and to direct
the appropriate county agency to grant B.A.M. an administrative
hearing on its claim that the County's exaction was an
unconstitutional taking.
¶12
As the discussion that follows will explain more fully,
statutory modifications to the procedures governing judicial
review of administrative land-use decisions enacted after we
granted certiorari have displaced the court of appeals analysis
and holding on the procedural issue.
¶13
The court of appeals also held that on remand the
reviewing agency must apply the rough proportionality test. The
court of appeals majority appeared to conclude that its
determination that the County had imposed a development exaction
on B.A.M. was sufficient reason to apply the rough
proportionality test. Although Judge Orme's dissent would also
have mandated application of the rough proportionality test, he
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correctly noted that it was by no means clear that the rough
proportionality test must be applied to every development
exaction. Nollan and Dolan did not satisfactorily define the
class of exactions that would be subject to rough proportionality
scrutiny. Within the general category of exactions, some, like
zoning and other traditional land-use regulations, would not be
required to undergo rough proportionality review. As the Dolan
court explained:
Th[ose] sort of land use regulations . . .
however, differ in two relevant particulars
from the present case. First, they involved
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.
Second, the conditions imposed were not
simply a limitation on the use petitioner
might make of her own parcel, but a
requirement that she deed portions of the
property to the city.
512 U.S. at 385.
¶14
At the time we granted certiorari, we had not had
occasion to establish whether the rough proportionality test
should be applied to all development exactions or just to those
that are imposed through an adjudicative decision. As we shall
see, just as legislative action undertaken after we granted
certiorari shapes the outcome of the procedural issues we
consented to take up on certiorari review, so the enactment of a
statute making the rough proportionality test applicable to
exactions generally influences substantially our answer to the
question of whether the test should be applied here.
¶15
When reviewing cases under certiorari jurisdiction, we
apply a standard of correctness to the decision made by the court
of appeals rather than the trial court. Brigham City v. Stuart,
2005 UT 13, ¶ 7, 122 P.3d 506 (Utah 2005).
ANALYSIS
¶16
Two procedural issues are before us for review: (1)
whether the district court was limited to review of the
administrative record; and (2) whether section 63-90a-4 of the
Utah Code permits review regardless of the state of the
administrative record. We conclude that both are answered by the
5
Nos. 20040365, 20040373

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text of Utah Code section 17-27a-801 (Supp. 2005), which was
enacted after we granted certiorari.
I. RETROACTIVE APPLICATION OF SECTION 17-27a-801 SUPPORTS THE
DISTRICT COURT'S DECISION TO TAKE ADDITIONAL EVIDENCE
¶17
The court of appeals majority concluded that under Utah
Code section 17-27-1001(3)(a), the district court was limited to
determining whether the Board had acted arbitrarily or
capriciously in denying B.A.M.'s takings claim based on the
administrative record, even where there was none. At that time,
section 17-27-1001(3) read:
(3)
(a) The [district] court shall:
(i) presume that land use decisions and
regulations are valid; and
(ii) determine only whether or not the
decision is arbitrary, capricious, or
illegal.
Utah Code Ann. § 17-27-1001(3)(a) (2001) (emphasis added).
¶18
However, when B.A.M. appealed the Board's decision to
the district court, the court chose to take evidence. Its
decision to do so was understandable since without doing so the
court would have no information upon which to base its conclusion
as to the arbitrary, capricious, or illegal nature of the action.
Grounded, however, in a plain language parsing of section
1001(3)(a), the court of appeals concluded that the district
court exceeded its discretion by taking evidence. This result,
albeit based on a defensible reading of the statute's text,
required the court of appeals to remand the case back to the
district court for a determination as to which appropriate body
should review the case.
¶19
This procedural quandary has since been resolved by
Utah Code section 17-27a-801, passed by the Utah Legislature in
2005. Section 17-27a-801 gives clear direction to a district
court reviewing a land-use decision that "[i]f there is no
record, the [district] court may call witnesses and take
evidence." This law became effective on May 2, 2005, well after
B.A.M. went through the channels of legal review to arrive at
this court. However, based on this court's jurisprudence
regarding retroactive application of legislation, we conclude
that section 17-27a-801 applies retroactively to B.A.M.'s appeal
from the Board's decision.
¶20
Generally, legislation is not given retroactive effect.
Utah Code section 68-3-3 codifies this principle, stating that
Nos. 20040365, 20040373
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"no part of these revised statutes is retroactive, unless
expressly so stated." Utah Code Ann. § 68-3-3 (2004). In
addition, we recently stated that "as a general rule,
`retroactivity is not favored in the law.'" Goebel v. Salt Lake
City S. R.R. Co., 2004 UT 80, ¶ 39, 104 P.3d 1185 (quoting Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)). However,
as we made clear in Goebel, the rule against retroactivity
applies only where a statute implicates substantive laws. By
contrast, "statutes that do not `enlarge, eliminate, or destroy'
substantive rights can be applied retroactively." Id. (quoting
Moore v. Am. Coal Co., 737 P.2d 989, 990 (Utah 1987)).
¶21
In this case, the retroactive application of section
17-27a-801 does not "enlarge, eliminate or destroy" substantive
rights. Id. Rather, the statute endeavors to improve the
quality and integrity of judicial review of land-use decisions.
It is a statute aimed at discovering, evaluating, and preserving
substantive rights by improving judicial procedures. Thus, it is
a statute that may be applied retroactively. We therefore
conclude that the district court did not exceed its discretion by
taking evidence on B.A.M.'s appeal. We next turn to the second
procedural issue that we consented to review.
II. APPLICATION OF SECTION 63-90a-4 SUPPORTS THE DISTRICT
COURT'S DECISION TO RECEIVE EVIDENCE
¶22
Section 63-90a-4 describes the appeals process for
challenges to alleged takings. It reads:
(1)
Each political subdivision shall enact
an ordinance that:
(a) establishes a procedure for review
of actions that may have constitutional
taking issues; and
(b) meets the requirements of this
section.
(2)
(a)(i) Any owner of private property
whose interest in the property is
subject to a physical taking or exaction
by a political subdivision may appeal
the political subdivision's decision
within 30 days after the decision is
made.(ii) The legislative body of
the political subdivision, or an
individual or body designated by
them, shall hear and approve or
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Nos. 20040365, 20040373

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reject the appeal within 14 days
after it is submitted.
(iii) If the legislative body
of the political subdivision fails
to hear and decide the appeal
within 14 days, the decision is
presumed to be approved.
(b) The private property owner need
not file the appeal authorized by
this section before bringing an
action in any court to adjudicate
claims that are eligible for
appeal.
(c) A property owner's failure to
appeal the action of a political
subdivision does not constitute,
and may not be interpreted as
constituting, a failure to exhaust
available administrative remedies
or as a bar to bringing legal
action.
Utah Code Ann. § 63-90a-4 (2004).
¶23
B.A.M. argues that because section 63-90a-4 permits a
property owner to bypass all administrative appeals and seek
judicial review of an adverse land-use decision, it must
logically supersede an interpretation of section 17-27-1001 that
would bar a district court from taking evidence when judicial
review is sought after a property owner has pursued
administrative relief.
¶24
The County concedes this point, but insists that we
should not review this issue because B.A.M. did not preserve it.
Our order granting certiorari expressly designated the possible
application of section 63-90a-4 to B.A.M.'s land-use appeal as an
issue that we would take up. While it may be possible to imagine
circumstances under which we might reconsider a grant of
certiorari on an issue we later conclude was not properly
preserved, that is not the case here, and we take up the issue on
its merits.
¶25
Whatever those merits may have been at the time we
granted certiorari, they have been overtaken by the enactment of
Utah Code section 17-27a-801 and its unambiguous grant of
authority to district courts to take evidence in land-use
appeals. This provision complements section 63-90a-4 and
eliminates the conflict that may have existed between section 63-
90a-4 and section 17-27-1001.
Nos. 20040365, 20040373
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¶26
We therefore reverse the court of appeals' holding that
the district court erred when it received evidence.
¶27
We turn now to the final issue upon which we granted
certiorari review: whether the Nollan/Dolan heightened-scrutiny
rough proportionality test applies where an alleged taking
results from a uniform land-use scheme rather than an ad hoc
site-specific adjudicative decision.
III. THE DOLAN ROUGH PROPORTIONALITY TEST APPLIES TO THE
REQUIRED DEVELOPMENT EXACTION
¶28
When we granted certiorari in this matter, the question
of whether the Nollan/Dolan rough proportionality test applies to
a development exaction that results from a uniform land-use
scheme rather than an ad hoc site-specific adjudicative decision
was one of first impression. Once again, however, the
legislature has intervened by codifying the policy decision to
require rough proportionality treatment of all development
exactions, both those emanating from the application of uniform
land-use provisions like Ordinance 15.28.010 and from individual
adjudicative decisions. Utah Code Ann. § 17-27a-507 (Supp.
2005). Effective in May 2005, the statutory iteration of the
rough proportionality test states:
A county may impose an exaction or exactions
on development proposed in a land use
application provided that:
(1) an essential link exists
between a legitimate governmental
interest and each exaction; and
(2) each exaction is roughly
proportionate, both in nature and
extent, to the impact of the
proposed development.
Id.
¶29
With the enactment of this statute, our first
impression resolution of the question before us is likely to be
our last. The legislature has acted to define the scope of the
rough proportionality test for exactions imposed after May 2005.
Because the degree of scrutiny applied to a development exaction
affects directly whether a governmental entity will have an
obligation to pay compensation for the exaction, section 17-27a-
507 implicates substantive rights and is, therefore, not eligible
to be applied retroactively.
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Nos. 20040365, 20040373

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¶30
Although section 17-27a-507 is not available for
retroactive application to this case, it is nevertheless pivotal
in our analysis. We begin this analysis, however, by providing a
brief review of the genesis of the rough proportionality test to
better understand the contours of the debate over its application
that continues in jurisdictions that, unlike Utah, have not
achieved resolution through statutory enactments.3
¶31
The Fifth Amendment guarantees that "private property
[shall not] be taken for public use, without just compensation."
U.S. Const. amend. V. This promise binds the states through the
Fourteenth Amendment. Chicago, Burlington & Quincy R.R. Co. v.
Chicago, 166 U.S. 226, 234 (1897). The Utah Constitution
reinforces the protection of private property against
uncompensated governmental takings in article I, section 22.
Utah Const. art. I, § 22.
¶32
Two categories of takings are the progenitors of
development extractions: physical takings and regulatory
takings. The United States Supreme Court has fashioned markedly
different analytical formulas for each. As its name implies, a
physical taking occurs when a governmental entity physically
invades or occupies private property as a result of which the
property is made available for use by others. Nollan v. Cal.
Coastal Comm'n, 483 U.S. 825, 831-32 (1987). Physical takings
without just compensation are unconstitutional "without regard to
whether the action achieves an important public benefit or has
only minimal economic impact on the owner." Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-35 (1982).
¶33
Regulatory takings, by contrast, occur when a
governmental entity intrudes to limit the use of private property
while not physically seizing it. Yee v. City of Escondido, 503
U.S. 519, 532, 539 (1992). As we noted earlier, zoning
regulations are a typical form of regulatory taking. Unlike
physical takings, regulatory takings do not always trigger an
obligation to compensate the property owner. The Supreme Court
has assigned no set formula to determine whether a regulatory
taking is unconstitutional. Lucas v. S.C. Coastal Council, 505
U.S. 1003, 1015 (1992). Although there is no set formula, the
Court has "examined the taking question by engaging in
essentially ad hoc, factual inquiries that have identified
several factors--such as economic impact of the regulation, its

3 An ably rendered and more comprehensive summary of takings
jurisprudence is incorporated within Judge Orme's dissent in the
court of appeals' decision. B.A.M., 2004 UT App 34, ¶¶ 35-43, 87
P.3d 710.
Nos. 20040365, 20040373
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interference with reasonable investment-backed expectations, and
the character of the government action." MacDonald, Sommer &
Frates v. Yolo County, 477 U.S. 340, 349 (1986) (internal
quotation and citation omitted). Each regulatory taking stands
on its own and must be examined individually to determine whether
the regulation is "so onerous that its effect is tantamount to a
direct appropriation or ouster." Lingle v. Chevron, U.S.A. Inc.,
___ U.S. ___ (2005), 125 S. Ct. 2074, 2081.
¶34
Development exactions are the progeny of physical and
regulatory takings. As such, they share certain features of each
form of taking, but, like any offspring, struggle to fashion
their own identity. Exactions are conditions imposed by
governmental entities on developers for the issuance of a
building permit or subdivision plat approval. Salt Lake County
v. Bd. of Educ., 808 P.2d 1056, 1058 (Utah 1991). They may
"serve more than a single development" and "may take the form of:
(1) mandatory dedication of land for roads, schools or parks, as
a condition to plat approval, (2) fees-in-lieu of mandatory
dedication, (3) water or sewage connection fees, and (4) impact
fees." Id. (citations omitted). In these respects, exactions
take on the likeness of regulatory takings. By contrast,
exactions resemble physical takings in the sense that they
typically require the permanent surrender of private property for
public use.
¶35
The task of deciding how to gauge whether a particular
exaction has inherited more features from its physical or
regulatory takings progenitor and thus, whether an exaction is an
unconstitutional taking, was undertaken by the Supreme Court in
Nollan and Dolan. A brief retelling of these cases will bring us
to the creation of the rough proportionality test and provide
context for the perplexing "legislative/adjudicative" application
dichotomy that the rough proportionality test spawned.
¶36
The Nollans wanted to rebuild their beach house.
Nollan, 483 U.S. at 828-29. They obtained agency approval for
the project conditioned on their dedication of a public easement
across their beach to permit the public to pass between two
public beaches that flanked the Nollans' property. Id. The
Court invalidated the dedication. Id. at 841. The Court found
the agency's interest in preserving the public's visual access to
the beach to be legitimate and conceded that the presence of the
Nollans' rebuilt dwelling would impair visual access and create a
"psychological barrier" to public use of the beach. Id. at 838.
The easement was, however, unrelated to the legitimate interests
of the agency. Id. at 837. It did not have anything to do
either with visual access or with overcoming any psychological
barrier created by the loss of visual access. Id. The exaction
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failed, therefore, because it could not claim an "`essential
nexus'. . . between the `legitimate state interest' and the
permit condition exacted by the [agency]." Dolan v. City of
Tigard, 512 U.S. 374, 386 (1994) (quoting Nollan, 483 U.S. at
837) (explaining the Nollan test and its application in Dolan).
¶37
The Nollan "essential nexus" test established a middle
ground between the lenient standard employed to assess pure
regulatory takings and the rigorous per se takings treatment of
physical takings. There remained unanswered, however, the
question of how much a governmental entity could constitutionally
require a developer to forfeit in relationship to the impact the
developers proposed use would have on the governmental interest
that justified the exaction. The Supreme Court answered this
question in Dolan. 512 U.S. 374.
¶38
Ms. Dolan applied for a building permit to expand her
plumbing and electrical supply store and to pave the parking lot.
Id. at 379. The city conditioned the issuance of the permit on
the dedication of both a fifteen-foot strip of land, to be used
as a bicycle and pedestrian path, and an additional parcel
located within the flood plain to be used as a "greenway." Id.
at 379-80. The city justified the pathway dedication by citing
evidence that the expanded store would increase traffic and
defended the "greenway" parcel as a legitimate method to mitigate
the increased water flow to an adjacent creek that would be
generated by the paved parking lot. Id. at 381-82.
¶39
The Supreme Court had no difficulty agreeing that the
city's conditions satisfied the Nollan "essential nexus"
standard. Id. at 389. It then turned its attention to measuring
the scope of the exactions against the impact of Ms. Dolan's
project. The standard of measure adopted by the Supreme Court
was rough proportionality. Id. at 389-91. Its elements included
the imposition of a burden on the governmental entity to make
"some sort of individualized determination that the required
dedication is related both in nature and extent to the impact of
the proposed development." Id. at 391. The city's proposed
exactions of Ms. Dolan's property failed the test. Id. at 388-
95. The Supreme Court concluded that while the city's interest
in mitigating water flow was a legitimate governmental interest,
it could be adequately realized by restricting Ms. Dolan's use of
her property rather than by requiring her to dedicate it to
public use. Id. at 392-93. Similarly, the Supreme Court
rejected the city's contention that the pathway would offset
traffic demand as too speculative to warrant a surrender of land.
Id. at 395.
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¶40
The rough proportionality test as extracted from Nollan
and Dolan has two components: first an inquiry into the presence
of an "`essential nexus'. . . between the `legitimate state
interest'" and the land dedication requirement and second, "some
sort of individualized determination that the required dedication
is related both in nature and extent to the impact of the
proposed development." Dolan, 512 U.S. at 386, 391 (quoting
Nollan, 483 U.S. at 837-38).
¶41
Our legislature borrowed verbatim the Supreme Court's
formulation of the rough proportionality test to create the text
of section 17-27a-507, which states:
A county may impose an exaction or exactions
on development proposed in a land use
application provided that:
(1) an essential link exists between a
legitimate governmental interest and
each exaction; and
(2) each exaction is roughly
proportionate, both in nature and
extent, to the impact of the proposed
development.
Utah Code Ann. § 17-27a-507 (2005).
¶42
Both Nollan and Dolan arose from discretionary
adjudicative proceedings as distinguished from exactions imposed
pursuant to generally applicable land-use regulations. It is
this distinction, rather than the content of the rough
proportionality test itself, that is at the nub of the issue
before us. The County insists that, at least with respect to
exactions mandated before the effective date of section 17-27a-
507, the rough proportionality test applied only in circumstances
akin to those present in Nollan and Dolan. Because the exactions
sought from B.A.M. resulted from the non-discretionary
application of Ordinance 15.28.010, a rough proportionality
inquiry was unwarranted.
¶43
As correctly noted by Judge Orme in his dissent, courts
and scholars are unanimous in their assessment that the scope of
the Nollan/Dolan analysis is unsettled. 2004 UT App 34, ¶ 57.
Some land-use decisions fall neatly within the
legislative/adjudicative categorical framework. Most do not.
One frequently cited scholarly treatment on the topic notes that
"[i]n reality, the discretionary powers of municipal authorities
exist along a continuum and seldom fall into the neat categories
of a fully predetermined legislative exaction or a completely
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Nos. 20040365, 20040373

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discretionary administrative determination as to the appropriate
exaction." Inna Reznik, The Distinction Between Legislative and
Adjudicative Decisions in Dolan v. City of Tigard, 75 N.Y.U. L.
Rev. 242, 266 (2000).
¶44
Justice Thomas echoed this point when he observed:
It is hardly surprising that some courts have
applied Tigard's rough proportionality test
even when considering a legislative
enactment. It is not clear why the existence
of a taking should turn on the type of
governmental entity responsible for the
taking. A city council can take property
just as well as a planning commission can.
Moreover, the general applicability of the
ordinance should not be relevant in a takings
analysis. If Atlanta had seized several
hundred homes in order to build a freeway,
there would be no doubt that Atlanta had
taken property. The distinction between
sweeping legislative takings and
particularized administrative takings appears
to be a distinction without a constitutional
difference.
Parking Ass'n of Ga. Inc. v. City of Atlanta, 515 U.S. 1116
(1995) (Thomas, J., joined by O'Connor, J., dissenting from
denial of certiorari).
¶45
This court has yet to lend its voice to the unruly
judicial chorus on this issue. We would be ill-advised to choose
whether to adopt or apply the legislative/adjudicative model
based solely on our judgment concerning which side of the debate
has the more persuasive case. This is because our legislature
has spoken directly to the question.
¶46
The general proscription against retroactive
application of laws with substantive effect has little or no
relevance where the statutory enactment fills a void or resolves
an unsettled question upon which we have taken no position.
Knowing as we do that the legislature intended to apply the rough
proportionality test to all exactions, irrespective of their
source, commencing on the effective date of section 17-27a-507,
we are hard pressed to find a reason to assume that the
legislative view of the proper scope of the rough proportionality
test would have been different before section 17-27a-507 went
into effect. In an environment in which the policy choice
reflected in the decision to apply the rough proportionality test
Nos. 20040365, 20040373
14

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to all exactions would not upend any reasonable expectation on
the part of a governmental entity that its exactions would escape
rough proportionality scrutiny, we do not hesitate to align the
law applicable to this case to that later embraced by the
legislature. Accordingly, we hold that the rough proportionality
test governs the County's exaction of B.A.M.'s property.
CONCLUSION
¶47
We have concluded that the district court properly
received evidence over two days relating to the proportional
impact of the County's proposed exactions on B.A.M.'s property
interests and the proposed B.A.M. development on the traffic
demands placed on 3500 South. As a result of this holding, the
trial record is available to draw upon when conducting the rough
proportionality inquiry that we have determined to be necessary
to a proper adjudication of B.A.M.'s property rights.
¶48
Although Judge Orme would have conducted a rough
proportionality review in conjunction with the direct appeal of
the district court's decision, we conclude that it would be
improper for us to follow his lead. We decline to do so because
we were not asked nor did we consent to undertake certiorari
review of the merits of B.A.M.'s takings claim. For this reason,
we remand to the court of appeals with instructions to remand
this matter to the district court for the purpose of conducting a
rough proportionality review. This review may take into account,
but is not limited to, the record previously developed in the
district court.
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¶49
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring's
opinion.
15
Nos. 20040365, 20040373

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