A Clean Fix for a Car Wash Traffic Mess

On the corner of Connecticut Avenue and Albemarle Street in the neighborhood of Van Ness, there is a consistent traffic hazard. Flagship Carwash is a thriving local business, amassing a long line of customers waiting through the intersection and down Albemarle Street from 8 a.m. to 8 p.m. almost every day. Drivers who do not know that they have ended up in a carwash line cause congestion, confusion, honking, and excessive noise. The blockage causes dangerous traffic issues and restricts access to the road by the public.

A simple solution is to redirect the line to the left of the carwash, in an adjacent empty lot. The building in that lot was recently demolished, and the developer does not yet have a building permit to begin new construction. So, the city could add a land use condition to the building permit, designating the alley between this lot and the carwash for the carwash line. However, the developer might challenge the condition as an unconstitutional taking of land.

The exactions doctrine, as applied in Dolan v. City of Tigard, is relevant here. In that case, a city conditioned approval of a private landowner’s building permit on the dedication of a portion of her property to help community issues of flooding and traffic. To determine whether the permit condition was constitutional regulation rather than an unconstitutional taking, the Court announced a two-part test. First, there must be an “essential nexus” between the condition and the government’s interest. Second, there must be “rough proportionality” between the condition and the impact of the proposed development, which is calculated by an “individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” If the permit condition meets both these tests, then it is constitutionally permissible and not a taking.

Here, the permit condition for a car wash alley likely passes the Dolan test, because it meets both the “essential nexus” and the “rough proportionality” prongs. First, there is an essential nexus between the permit condition and a legitimate government interest. The condition requested of the developer is to allocate a section of the property as an alley for the car wash line. This directly increases traffic safety by providing a legal alternative to the current hazardous takeover of an entire lane in a public road. Because the proposed solution directly addresses the traffic and safety concerns, there is an essential nexus between the condition and the government’s interest.

Second, there is rough proportionality between the condition and the impact of the proposed development. Here, the proposed development of a new residential building will likely increase the resident population in the area, which may worsen the already congested intersection. The condition directly addresses this increase in traffic by providing alternative space for the carwash line. The extent of the burden is the allocation of a narrow portion of land for an alley, which is not a significant portion of the property. Compared to the anticipated increase in traffic and congestion from the new building, the condition is not disproportionate to the development’s impact. Accordingly, this permit condition would likely be constitutional under the 5th Amendment Takings Clause.

Although a building developer may object to any condition that puts a limit on their property rights, it has long been understood that the government can limit certain property uses for the protection of general welfare. Local governments play a crucial role in promoting public safety and general welfare. This city has the power to proactively solve community problems through regulation and coordination of land use. Rather than simply taking legal action against the carwash, in which no efficient solution to the line location can be achieved, the city should exercise their powers to the fullest to achieve real change. A permit condition for this alley is the most effective way to fix a massive issue harming general welfare in the Van Ness community.

Dorothy Miller is a law student at the American University Washington College of Law.

Image: Dorothy Miller, available under the same Creative Commons license as this website.