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Click here for the full text of this decision FACTS:The Town of Flower Mound’s Land Development Code requires that a subdivision developer improve abutting streets that do not meet specified standards, even if the improvements are not necessary to accommodate the impact of the subdivision. Accordingly, the town conditioned its approval of Stafford Estates Limited Partnership’s development of a residential subdivision on Stafford’s rebuilding an abutting road. Stafford rebuilt the road and then sued the town to recover the cost. The district court held that the condition imposed on Stafford’s development was a taking without compensation in violation of Article I, �17 of the Texas Constitution, the Fifth Amendment to the U.S. Constitution, and the federal Civil Rights Act of 1871, and awarded Stafford the cost of improvements not necessitated by increased traffic from the subdivision. The district court also awarded Stafford expert witness fees and attorneys’ fees under the federal Civil Rights Attorney’s Fees Awards Act of 1976. The court of appeals reversed the award of expert witness fees and attorney fees and otherwise affirmed. HOLDING:Affirmed. The court considers the town’s argument that this action is barred because Stafford did not sue until after it had rebuilt Simmons Road and obtained final approval of its development plan. The town concedes that no statute, rule or Texas case supports its argument but nonetheless insists that post-approval actions like Stafford’s must be barred as a matter of public policy as courts in other states have done. The court finds the town’s arguments unconvincing. No limitation barring Stafford’s suit exists, and the court declines the invitation to create one. The court restates the rule of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), generally as follows: conditioning government approval of a development of property on some exaction is a compensable taking unless the condition 1. bears an essential nexus to the substantial advancement of some legitimate government interest and 2. is roughly proportional to the projected impact of the proposed development. The court agrees with the California Supreme Court’s decision in Ehrlich v. City of Culver City, 911 P.2d 429 (Cal.), cert. denied, 519 U.S. 929 (1996). For purposes of determining whether an exaction as a condition of government approval of development is a compensable taking, the court sees no important distinction between a dedication of property to the public and a requirement that property already owned by the public be improved. The Dolan standard should apply to both. The court agrees with the U.S. Supreme Court’s refinement of the “reasonable connection” analysis to Dolan’s two-part “essential nexus”/ “rough proportionality” test. City of College Station v. Turtle Rock Corp., 680 S.W.2d 802 (Tex. 1984). Local government is constantly aware of the exactions imposed on various landowners for various kinds of developments. It is also aware of the impact of such developments on the community over time. For these reasons, the court agrees with the Supreme Court that the burden should be on the government 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.” The town has failed to show that the required improvements to Simmons Road bear any relationship to the impact of the Stafford Estates development on the road itself or on the town’s roadway system as a whole. On this record, conditioning development on rebuilding Simmons Road with concrete and making other changes was simply a way for the town to extract from Stafford a benefit to which the town was not entitled. The exaction the town imposed was a taking for which Stafford is entitled to be compensated. Inasmuch as the town does not challenge the court of appeals’ damages analysis, its judgment must be affirmed. 42 U.S.C. �1988(c) authorizes recovery of expert witness fees in some federal civil rights actions but not in an action under �1983. Thus, Stafford is not entitled to recover expert witness fees. Section 1988(b) authorizes an award of attorney fees to the prevailing party in an action under 42 U.S.C. �1983. The court of appeals held in part that Stafford cannot recover attorney fees because it has not prevailed on its 1983 claim. The court agrees. OPINION:Hecht, J., delivered the court’s opinion.

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