dissenting.
I dissent in this case for the second time. The supreme court granted a petition for review of our previous opinion and then remanded the case to us for reconsideration of our opinion in light of Dolan v. City of Tigard, 512 U.S. -, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). The majority concludes that because the Scottsdale development fee ordinance is a legislative determination affecting the entire city, the ruling in Dolan does not affect the prior majority opinion in this matter.
I have a different view of the application of Dolan to the facts of this case. In my previous dissent I agreed with the majority that deference should be afforded a municipality’s determination of the reasonable amount of a development fee. I disagreed with the standard of review the majority applied to the trial court’s determination of a “beneficial use” to the new subdivisions. I said that the *249trial court should (as was done in this case) independently review the proposed expenditure and determine if it will result in a “beneficial use” to the new developments as required by the enabling statute. To facilitate this review, plans must exist in sufficient detail to enable the trial court to reasonably conclude that the expenditure will result in a “beneficial use.”
The first requirement of Dolan is that an “essential nexus” must exist between a legitimate state interest and the permit condition. See Nollan v. California Coastal Comm’n, 483 U.S. 825, 837, 107 S.Ct. 3141, 3148, 97 L.Ed.2d 677 (1987). If the “essential nexus” exists, then it must be decided whether the exactions demanded by the permit conditions bear the required relationship to the projected impact of the proposed development. This is essentially the same requirement as imposed by A.R.S. section 9-463.05(B)(4): “The amount of any development fees assessed pursuant to this section must bear a reasonable relationship to the burden imposed upon the municipality to provide additional necessary public services to the development.” This comports with the second part of the Dolan test. In deciding this question Dolan held that the necessary connection required by the Fifth Amendment is “rough proportionality.” Dolan, 512 U.S. at ---, 114 S.Ct. at 2319-20. The Dolan Court went on to say that “[n]o precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” This is essentially the reasonable relationship test adopted by the majority of the state courts.
In its original opinion the majority in this case applied a deferential standard of review to the municipality’s determination of the cost of future water supplies. I agreed with that standard of review and stated that this type of factual determination is best resolved through the political process at the legislative level. The majority did not revisit this standard of review in its supplemental opinion but holds that “[bjecause Scottsdale’s development fee ordinance is more akin to a land-use regulation than a tax, we conclude that it is subject to the Takings Clause.” I agree.
The majority in its supplemental opinion, holds that Dolan does not apply to this ease because the Dolan Court said that a land-use regulation ordinarily would not violate the Takings Clause if it “ ‘substantially advancefs] legitimate state interests’ and does not ‘den[y] an owner economically viable use of his land.’ ” 512 U.S. at-, 114 S.Ct. at 2316 (quoting Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980)). The majority then distinguishes the fact that in Dolan the extent of the conditions to be placed upon the grant of a building permit were not specific, whereas the Scottsdale ordinance specified the amount of the fee to be charged for each type of development. The majority believes that because the Scottsdale ordinance specifies standardized fees, the ordinance does not permit a “Dolan-like ad hoc, adjudicative determination.” The majority has to agree however, that a monetary fee is subject both to a takings analysis, and to a Dolan analysis. See Ehrlich v. City of Culver City, — U.S. -, 114 S.Ct. 2731, 129 L.Ed.2d 854 (1994). The majority then leaps the chasm to its conclusion: “Because we find that Scottsdale’s development fees involve a legislative, rather than adjudicative, determination, we conclude that Dolan does not control the outcome of this case.” The majority decides that because the fee ordinance is a legislative determination affecting the entire city, Dolan does not impact the prior majority opinion in this matter. I must dissent from this conclusion.
In our original opinion I dissented because I concluded that the application of the funds created by the development fees to the specific water projects proposed by the city violated a different element, the “beneficial use” requirement imposed by A.R.S. section 9-463.05(B)(1). The Dolan court held that the city must quantify its finding beyond a conclusory statement that the dedication could offset some of the traffic demand generated by the development. Likewise Scottsdale has made the conclusory determination that the development fee will be used to increase the city’s water supply without specifying *250how that will be done. Scottsdale offers mere fanciful suggestions such as Planet Ranch, Water Factory 21, and buying water from the San Carlos Apache Tribe.
The Dolan court began by saying: “We granted certiorari to resolve a question left open by our decision in Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), of what is the • required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development.” Dolan, 512 U.S. at-, 114 S.Ct. at 2312. The Dolan court went on to say that:
In evaluating petitioner’s claim, we must first determine whether the ‘essential nexus’ exists between the ‘legitimate state interest’ and the permit condition exacted by the city. Nollan, 483 U.S. at 837, 107 S.Ct. at 3148. If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development.
Id. at-, 114 S.Ct. at 2317. The question is, simply stated, does the fee result in a beneficial use to the development charged or not? The issue presented in this case is narrow: will- the city’s expenditure of funds in the manner proposed reasonably result in a beneficial use to the new subdivisions? This question does not require determinations of policy or weighing of benefits to the general public as the police power issue does.
At trial in this case, the plaintiff established by a preponderance of the evidence that the proposed expenditure will not reasonably provide a beneficial use. Furthermore, the findings of the trial court below demonstrate that the second prong of the Dolan test, “rough proportionality” was not met in this case either because there was no showing that any water would ever be produced as a result of the fee imposed. On appeal, this court is bound by the trial court’s finding of this fact unless it is demonstrated to be clearly erroneous.
Scottsdale’s plan for development of future water resources is almost nonexistent. The trial court found that the projects conceptually described in the plan are most likely not going to produce water. Therefore the trial court concluded that there would be no beneficial use to these developments in the foreseeable future. There is ample evidence in the record to support this finding of the trial court and therefore it should be affirmed. Absent beneficial use to the development, the city’s imposition of a development fee to fund the proposed projects cannot be upheld on the basis of A.R.S. section 9-463.05. Dolan v. City of Tigard supports this holding. I would therefore affirm the trial court.