Full opinion text
OPINION SUE WALKER, Justice. I. Introduction. In this development exaction case, the primary issue we must decide is whether the two-prong test articulated in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) applies to a municipality’s requirement that a developer construct and pay for offsite public improvements as a condition to plat approval for subdivision development. We conclude that the Dolan test applies to the public improvements development exaction in this case and that the exaction does not satisfy the Dolan test. We must also decide what is the proper measure of damages when a development exaction does not satisfy the Dolan test and whether a developer can recover attor-ne/s fees and expert witness fees under United States Code section 1988 if a state remedy adequately compensates the developer for any taking resulting from the development exaction. We hold that the proper measure of damages is the amoimt paid for the public improvements in excess of the amount roughly proportional to the consequences generated by the development minus any special benefits conferred on the development by the exaction. Applying this measure of damages, we hold that legally and factually sufficient evidence exists supporting the trial court’s damages award. We also hold that the developer cannot recover section 1988 expert witness fees and attorney’s fees if the state remedy provides adequate compensation because, in this circumstance, the developer’s federal takings claim is not ripe. Accordingly, we will affirm the trial court’s judgment in part and reverse and render in part. II. Background Facts. The Town of Flower Mound (“Town”) is a duly formed and validly existing home-rule city and a political subdivision of the State of Texas. In June 1994, the Town adopted its land development code. Section 4.04 of the land development code addresses standards for streets located within the Town. Section 4.04(b) requires all developers “to construct concrete streets according to the Engineering Standards Manual.” Section 4.04(o) sets out the requirements a developer must satisfy when developing a subdivision abutting a street that does not meet the Town’s minimum street design standards. Section 4.04(a) allows developers to apply for and the Town Council to grant exceptions to the street design standards. Stafford Estates Limited Partnership (“Stafford”) is a Texas limited partnership that purchased approximately 90 acres of vacant and unimproved land in the Town between 1994 and 1997 (“the Property”). The Property is generally located at the southeast corner of the intersection of two of the Town’s roads: McKamy Creek Road and Simmons Road. Between 1994 and 1997, Stafford applied for, and the Town approved, three phases of a residential subdivision on the Property known as Stafford Estates (“the Subdivision”). The Subdivision contains approximately 247 single-family lots. Phase I of the Subdivision abuts McKamy Creek Road, and Phases II and III abut Simmons Road. All three phases have vehicular access to and from both McKamy Creek and Simmons Roads. At the time Stafford acquired its interest in the Property, Simmons Road was an existing two-lane asphalt road, which was adjacent to the proposed Subdivision, but not part of the Property. Simmons Road was designated as a rural collector roadway on the Town’s thoroughfare plan. In December 1995, Stafford applied for record plat approval for Phase II of the Subdivision. As a condition to plat approval, the Town required Stafford to demolish the part of Simmons Road that abutted Phase II, replace it with a two-lane concrete road with three-foot concrete shoulders, and pay 100% of the cost of these improvements. The Town denied Stafford’s request for an exception from this requirement. In April 1997, Stafford applied for record plat approval for Phase III of the Subdivision. The town initially approved the record plat for Phase III without any obligation that Stafford improve Simmons Road. However, several weeks later at a preconstruction conference, the Town informed Stafford that Stafford would be required to improve the portion of Simmons Road, that abutted Phase III in the same manner as had been required for Phase II and to again bear 100% of the cost. At every administrative level within the Town, Stafford objected, unsuccessfully, to the Town’s requirement that Stafford construct and pay for 100% of the Simmons Road improvements. The Town’s land development code did not, however, require Stafford to sue to challenge this condition before receiving record plat approval, and Stafford did not sue before obtaining plat approval or constructing the improvements. III. Procedural History. In 1998, after completing construction of the Simmons Road improvements, Stafford sued the Town, contending that the plat approval condition was a taking without just compensation in violation of article I, section 17 of the Texas Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. Stafford later amended its pleadings to drop its Fourteenth Amendment claim and to assert an additional takings claim under section 1983 of the United States Code. Stafford’s amended pleading also sought attorney’s fees and expert witness fees under section 1988 of the United States Code. The liability phase of the trial was tried to the court based on stipulated facts, and the parties also stipulated that Stafford’s takings claims under the Texas Constitution, the Fifth Amendment, and section 1983 would be the claims tried during this phase. At the close of the liability phase, the trial court entered a judgment as to liability in Stafford’s favor on all three of its takings claims. The trial court then heard evidence on damages, expert witness fees, attorney’s fees, and costs and rendered a final judgment awarding Stafford damages, expert witness fees, attorney’s fees, and costs. This appeal followed. IV. Standards of Review. With the exception of the Town’s sufficiency challenges to the amount of Stafford’s damages award, the issues presented for our review are all questions of law. See Weingarten Realty Investors v. Albertson’s, Inc., 66 F.Supp.2d 825, 843 (S.D.Tex.1999) (holding that whether there has been a taking is a legal issue), aff'd, 234 F.3d 28 (5th Cir.2000); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928, 932-33 (Tex.1998) (holding that whether there has been a taking and whether federal takings claim is ripe are questions of law), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999); Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (stating that the correct measure of damages to be applied is a question of law). Accordingly, we will apply a de novo standard of review to the trial court’s legal conclusions on these issues. See Garner v. Long, 49 S.W.3d 920, 922 (Tex.App.-Fort Worth 2001, pet. denied); Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.-Waco 1997, pet. denied). We review the Town’s sufficiency challenges to Stafford’s damages award under the traditional no-evidence and insufficient evidence standards. See, e.g., Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996) (applying no-evidence standard of review); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965) (applying insufficient evidence standard of review). We will sustain a no-evidence challenge only when, considering only the evidence and inferences that tend to support the finding and disregarding all contrary evidence and inferences, the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999). We review a factual sufficiency challenge by examining all of the evidence to determine whether the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. Garza, 395 S.W.2d at 823. V. Waiver of Suit. In its fifth issue on appeal, the Town asserts that Stafford is barred from challenging the Simmons Road improvements as a condition to plat approval because Stafford did not sue to challenge the requirement before obtaining final plat approval from the Town. The Town contends that, because Stafford sought to receive the benefit of plat approval without first filing suit, Stafford has consented to the condition, has waived any challenge to it, and should be estopped from challenging it. The Town has not directed us to any Texas law that would require a landowner to sue to challenge a condition to plat approval before obtaining final approval of the plat. Instead, the Town relies on Minnesota and California cases in which the courts held that a developer must challenge the reasonableness of conditions to plat approval before obtaining final plat approval or the challenge is waived. See Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111, 122 (1973); Crystal Green v. City of Crystal, 421 N.W.2d 393, 394-95 (Minn.Ct.App.1988); Pfeiffer v. City of La Mesa, 69 Cal.App.3d 74, 76, 137 Cal.Rptr. 804 (Cal.Ct.App.1977); see also Trimen Dev. Co. v. King County, 65 Wash.App. 692, 829 P.2d 226, 228-29 (1992), aff’d, 124 Wash.2d 261, 877 P.2d 187 (1994). The rationale underlying these decisions is that, to allow for the orderly administration of municipal affairs, municipalities must be given an opportunity to change their plat requirements if the requirements are unreasonable rather than later being forced to pay monetary compensation to developers. See Crystal Green, 421 N.W.2d at 395; Pfeiffer, 69 Cal.App.3d at 78, 137 Cal.Rptr. 804. Each of these cases, however, pivots on a state statute or rule that either authorizes or requires a developer to challenge the plat requirement before filing the plat. In Crystal Green, the Minnesota Court of Appeals cited Minnesota Statutes section 462.361, outlining a judicial review procedure to be used by a person aggrieved by an ordinance, rule, regulation, decision, or order conditioning land use, for the proposition that Crystal Green should have challenged the plat requirement prior to final plat approval. Crystal Green, 421 N.W.2d at 394. In Selby Realty Co. and Pfeiffer, the California Supreme Court and Court of Appeals, respectively, cited California Code of Civil Procedure section 1094.5, providing an administrative mandamus procedure as the proper vehicle to challenge a condition in a budding permit rather than a post-compliance-with-the-condition lawsuit. Selby Realty Co., 109 Cal.Rptr. 799, 514 P.2d at 122; Pfeiffer, 69 Cal.App.3d at 76-77, 137 Cal.Rptr. 804. In Trimen Development Co., the Washington Court of Appeals cited RCW 58.17.180, authorizing judicial review of any decision approving or disapproving a plat if application for such review is made within thirty days of the plat decision, as the procedure controlling a challenge to a plat requirement instead of a post-compliance-with-the-requirement lawsuit. Trimen Dev. Co., 829 P.2d at 226. Texas, however, has no such statutes or rules. Instead, the Texas statutory scheme governing municipal regulation of subdivisions and property development—including plat approval—does not require a pre-approval challenge. See generally Tex. Loc. Gov’t Code Ann. §§ 212.001-.903 (Vernon 1999 & Supp. 2002). The legislature has severely curtailed the time in which an aggrieved party may seek judicial review of a municipality’s decisions concerning zoning and impact fees. See id. § 211.011 (Vernon Supp. 2002) (providing that petition for judicial review must be filed within ten days after date adverse zoning decision is filed in office of board of adjustment); id. § 395.077 (Vernon 1999) (providing that suit to contest impact fee must be filed within ninety days after date of establishment of impact fee). The legislature has also enacted legislation under which a land owner can sue to invalidate some governmental land-use regulations that may effect a taking of real property. See Tex. Gov’t Code Ann. §§ 2007.001-.045 (Vernon 2000); Daniel Anderson, The Texas “Takings” Statute: Ten Basic Facts to Know, 60 Tex. B.J. 12, 14-15 (1997). The deadline for filing this type of suit is also shortened, but this remedy is in addition to the other legal remedies available to the property owner. Tex. Gov’t Code Ann. § 2007.006(a). The legislature specifically exempted a municipality’s actions regulating in-city land use from the provisions of the Texas takings statute. Id. § 2007.003(b)(1) (providing that chapter 2007 is inapplicable to an action by a municipality except an action that imposes nonuniform regulations in the municipality’s extraterritorial jurisdiction); Anderson, 60 Tex. B.J. at 15 (recognizing that the Texas takings statute “does not apply to regulations enacted by cities at all, except for non-uniform regulations imposed by a city outside its city limits but within its extraterritorial jurisdiction”). The Texas Legislature could have placed procedural or substantive limitations on suits to challenge conditions imposed by a municipality for plat approval of developments within the municipality, but chose not to. Absent such a statute or rule requiring Stafford to sue to challenge the Simmons Road improvements condition before obtaining plat approval, we decline to impose such a requirement on Stafford. Further, we note that the Town initially approved the plat for Phase III without any condition that Stafford improve Simmons Road. Thus, as to the Simmons Road improvements abutting Phase III, Stafford could not have filed suit before plat approval. Finally, we note that Stafford did unsuccessfully object to the Simmons Road improvements condition at every administrative level within the Town. We overrule the Town’s fifth issue. VI. Applicability of the Dolan Test. A. What is the Dolan Test? An explanation of the Dolan test must begin with a very basic review of takings jurisprudence. The Fifth Amendment of the United States Constitution and article I, section 17 of the Texas Constitution prohibit the taking of private property—both real and personal, and including money—for public use without just compensation. See Village of Norwood v. Baker, 172 U.S. 269, 279, 19 S.Ct. 187, 190-91, 48 L.Ed. 443 (1898) (holding that assessing against property owner the cost of public improvements to road abutting owner’s property was a taking under Fifth Amendment to the extent assessment substantially exceeded value of special benefits caused by improvements); Haynes v. City of Abilene, 659 S.W.2d 638, 639 (Tex.1983) (holding taking occurred under article I, section 17 where assessment against property for cost of repaving abutting road was materially greater than special benefits conferred by new pavement); accord City of Houston v. Blackbird, 394 S.W.2d 159, 162 (Tex.1965); Hutcheson v. Storrie, 92 Tex. 685, 51 S.W. 848, 850 (1899). The prohibition against uncompensated takings was “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960). Several different general categories of takings claims exist. See Wendie L. Kellington, New Takes on Old Takes: A Takings Law Update, SG021 ALIABA 511, 514-15 (2001); accord Dolan, 512 U.S. at 385-86, 114 S.Ct. at 2316-17 (implicitly recognizing three takings categories: a taking by physical invasion, a typical regulatory taking, and an unconstitutional conditions taking); Mayhew, 964 S.W.2d at 933 (recognizing two categories of takings: takings by physical invasion and regulatory takings). A physical taking may occur when the government authorizes an unwarranted physical occupation of an individual’s property. Mayhew, 964 S.W.2d at 933. A regulatory taking may occur when governmental land-use regulation deprives a land owner of all economically viable use of his land or when the land-use regulation does not substantially advance a legitimate state interest. See City of Monterey v. Del Monte Dunes, 526 U.S. 687, 698, 119 S.Ct. 1624, 1633, 143 L.Ed.2d 882 (1999) (categorizing the city’s repeated rejections for five-year period of nineteen plans submitted by developer as a “regulatory taking” by denial of all development); Agins, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d at 28 (holding zoning ordinance limiting construction on five-acre tract to five dwellings did not deprive owner of all economically viable land use, did substantially advance legitimate state interests, and therefore did not effectuate a taking); Mayhew, 964 S.W.2d at 935 (holding zoning ordinance requiring one-acre minimum lot size did not deprive owner of all economically viable land use, did substantially advance legitimate state interests, and therefore did not effectuate a taking); City of Glenn Heights v. Sheffield Dev. Co., 61 S.W.3d 634, 639 (Tex.App.-Waco 2001, pet. filed) (recognizing regulatory taking when zoning ordinance imposed temporary moratorium on development applications). In these cases, the application of the regulation itself or the governmental regulatory action purportedly effectuates a taking by impermissibly limiting a land owner’s desired use of or activity on his property in toto or partially for some reason not sufficiently related to a legitimate state interest. A distinct category of regulatory takings may occur when the government conditions the granting of permit approval, plat approval, or some other type of governmental approval on an exaction from the approval-seeking landowner. See, e.g., Dolan, 512 U.S. at 377, 114 S.Ct. at 2312 (involving city’s action in conditioning approval of Dolan’s building permit on her dedication of a portion of her property to city for flood control and traffic improvements); Nollan v. Cal. Coastal Comm., 483 U.S. 825, 827, 107 S.Ct. 3141, 3143, 97 L.Ed.2d 677 (1987) (involving California Costal Commission’s action in conditioning grant of the Nollans’ costal development permit to demolish and rebuild their house on their existing beachfront lot on their dedication of a public easement across their beachfront); Ehrlich v. City of Culver City, 12 Cal.4th 854, 50 Cal.Rptr.2d 242, 911 P.2d 429, 439 (1996) (recognizing that neither Nollan nor Dolan are conventional regulatory takings cases), cert. denied, 519 U.S. 929, 117 S.Ct. 299, 136 L.Ed.2d 218 (1996). In an exaction takings case, the landowner is not simply denied or restricted in some desired use of his property. Rather, in an exaction takings case, some action — the exaction — is required of the landowner as a condition to obtaining governmental approval. In exaction eases, the United States Supreme Court has formulated a two-part test for use in determining whether the exaction constitutes an impermissible taking. Dolan, 512 U.S. at 386, 114 S.Ct. at 2317. The reviewing court first determines whether an essential nexus exists between a legitimate state interest and the condition exacted by the government. Nollan, 483 U.S. at 836, 107 S.Ct. at 3148. If an essential nexus exists, the court must decide the required degree of connection between the exaction and the projected impact of the proposed land use. Dolan, 512 U.S. at 386-88, 114 S.Ct. at 2317-18. No precise mathematical calculation is required, but the government must make some sort of individualized determination that the exaction is roughly proportional in both nature and extent to the proposed impact of the proposed land use submitted for governmental approval. Id. at 391, 114 S.Ct. at 2319-20. The Dolan two-part test is required in exaction cases to prevent opportunistic takings by the government simply because a landowner is seeking some type of land-related governmental approval. Governmental permit or plat approval conditioned upon the landowner’s performance of an exaction has even been described as regulatory “leveraging.” Ehrlich, 50 Cal.Rptr.2d 242, 911 P.2d at 438. For example, in Nollan, the United States Supreme Court pointed out that it had “no doubt” a taking would have occurred had the State of California simply required the Nollans to grant a public easement across their property rather than conditioning the approval of the Nollans’ building permit on the grant of the easement. Nollan, 483 U.S. at 831, 107 S.Ct. at 3145. The State of California could not “take” or “leverage” the easement it wanted simply by conditioning a budding permit on the granting of the easement unless the required easement was closely connected to a legitimate state interest. Id. Additionally, the exaction or concession forced upon the landowner to obtain governmental approval of proposed land use must be roughly proportional to the effect or public consequences generated by the proposed land use. See Dolan, 512 U.S. at 386, 114 S.Ct. at 2317. This is the two-pronged Dolan test; that an essential nexus exist between the exaction and a legitimate state interest and that the exaction be roughly proportional to the public consequences of the requested land use. In this case, Stafford asserts that the Town’s conditioning of plat approval on the Simmons Road improvements constituted a taking. The Town contends in its first issue that the trial court erred in concluding that the Simmons Road improvements condition to plat approval was an unconstitutional taking under the Dolan rough proportionality standard. The Town asserts that the Dolan test applies only to (1) development exactions that require a dedication of real property as a condition of development approval and (2) adjudicative decisions not imposed pursuant to legislative standards. Because the Simmons Road improvements condition did not require a dedication of land and, according to the Town, did not involve an adjudicative decision, the Town contends that the Do-lan test has no application here. B. Does the Dolan Test Apply Only to Development Exactions That Involve the Dedication of Real Property? In support of its position that the Dolan test applies only to dedicatory exactions, the Town relies on the Supreme Court’s decision in City of Monterey v. Del Monte Dunes. As mentioned previously, Del Monte Dunes involved a complete denial of development, not alleged excessive development exactions. Consequently, the Supreme Court in Del Monte Dunes concluded that Dolan’s rough proportionality test “was not designed to address, and is not readily applicable to, the much different questions arising where ... the landowner’s challenge is based not on excessive exactions but on denial of development.” 526 U.S. at 703, 119 S.Ct. at 1635. The Del Monte Dunes holding is logical. If no exaction, i.e., no action or concession, is required of the landowner, a determination cannot be made about whether the action or concession bears an essential nexus to a legitimate state interest and is roughly proportional to the public consequences of the requested land use. Thus, the fact that the Supreme Court in Del Monte Dunes refused to apply the Dolan test to a complete-denial-of-development ease does not persuade us that the Dolan test does not apply to this development-exaction case. The Court in Del Monte Dunes also noted it had not extended the Dolan test “beyond the special context of exactions — land-use decisions conditioning approval of development on the dedication of property to public use.” Id. (emphasis added). The Town would have us construe this statement as a refusal by the Supreme Court to apply the Dolan test except to exactions requiring the dedication of land or an interest in real property. We interpret the Supreme Court’s comment, however, as contrasting exactions, albeit those involving a dedication of land, with denials of development and holding that the Dolan test does not apply to denials of development. The fact that the Supreme Court has not yet applied the Dolan test to a development exaction of fees or public improvements, as opposed to a dedication of land, does not mean that the Dolan test does not apply. Accordingly, we decline to globally limit the application of the Dolan test to only dedicatory exactions in the manner the Town urges based on the. quoted statement from the Del Monte Dunes opinion. See Benchmark Land Co. v. City of Battle Ground, 103 Wash.App. 721, 14 P.3d 172, 173 (2000, review granted) (rejecting proposition that Del Monte Dunes, a denial of development case, instead of an exactions case, prohibits application of Do-lan test to challenged monetary development exaction). Instead, we will consider whether the Dolan test should apply to the present facts based on existing case law. The Simmons Road improvements condition did not require Stafford to make a dedication of real property to the Town. The term “dedication” has been limited historically to real property interests. See Black’s Law Dictionary 421 (7th ed.1999) (defining “dedication” as “[t]he donation of land or creation of an easement for public use”); Scott v. Cannon, 959 S.W.2d 712, 718 (Tex.App.-Austin 1998, pet. denied) (“Dedication is the act of appropriating private land to the public for any general or public use.”); Fazzino v. Guido, 836 S.W.2d 271, 274 (Tex.App.-Houston [1st Dist.] 1992, writ denied) (“Dedication occurs when a land-owner sets apart his land for public use.”); Copeland v. City of Dallas, 454 S.W.2d 279, 282 (Tex.Civ.App.-Dallas 1970, writ ref'd n.r.e.) (“[D]edication is in the nature of a donation of one’s land to the public for a public use without consideration .... ”). Although Stafford used its private, personal property (money) for a public use (constructing the Simmons Road improvements), that use did not constitute a “dedication” of property as that term has been defined in the case law. Numerous courts have applied the Do-lan test to nondedicatory development ex-actions of fees or public improvements similar to the Simmons Road improvements condition. See, e.g., Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269, 1275 (8th Cir.1994) (remanding public improvements development exaction claim and indicating that Dolan standard should be applied on remand); Ehrlich, 50 Cal.Rptr.2d 242, 911 P.2d at 439 (holding that Dolan test applied to city’s purely monetary exactions imposed as a condition to approval of rezoning request); Home Builders Ass’n v. City of Napa, 90 Cal.App.4th 188, 108 Cal.Rptr.2d 60, 67 n. 5 (2001) (noting that Nollan/Dolan analysis applies whether governmental entity requires conveyance of property or payment of fee); Benchmark Land Co., 14 P.3d at 173 (holding that Nollan/Dolan test applied where development condition exacted money for repair of street adjoining, but outside of, development); Art Piculell Group v. Clackamas County, 142 Or.App. 327, 922 P.2d 1227, 1230 (1996) (applying Dolan test to condition of development that required ten-foot property dedication and partial improvement of street abutting proposed subdivision); Clark v. City of Albany, 137 Or.App. 293, 904 P.2d 185, 189 (1995) (holding that Dolan test applied to development exactions that required developer to improve public road and shoulder abutting proposed restaurant site), review denied, 322 Or. 644, 912 P.2d 375 (1996). But see Henry v. Jefferson County Planning Comm’n, 148 F.Supp.2d 698, 709 n. 142 (N.D.W.Va.2001) (refusing to apply Dolan test to use permit conditions that required public improvements to property, among other things, because conditions did not involve dedication of land for public use). Applying the Dolan test to development exactions that require the dedication of land, but not to exactions that require the payment of fees or the making of public improvements, would result in a bifurcated review of development exactions in situations in which a city conditioned development of a particular parcel on both types of exactions. Because both types of exac-tions involve conditional governmental land use approval and present the same opportunities for governmental “leveraging,” we believe the most workable solution is to subject both types of exactions to the same constitutional test. See, e.g., Art Piculell Group, 922 P.2d at 1230 (applying Dolan test to development exactions that required ten-foot property dedication and partial improvement of street abutting proposed subdivision). The Town cites numerous cases in support of its position that the Dolan test applies only to exactions that require a dedication of real property. These cases, however, are distinguishable because they involve categories or types of takings claims not present here, such as denial-of-development situations, impact fees, or other land-use regulations not involving an exaction. The Dolan test is intended to address: land use ‘bargains’ between property owners and regulatory bodies — those in which the local government conditions permit approval for a given use on the owner’s surrender of benefits which purportedly offset the impact of the proposed development. It is in this paradigmatic permit context — where the individual property owner-developer seeks to negotiate approval of a planned development — that the combined Nollan and Dolan test quintessentially applies. Ehrlich, 50 Cal.Rptr.2d 242, 911 P.2d at 438; accord Home Builders Ass’n, 108 Cal.Rptr.2d at 66. Accordingly, the fact that courts have refused to apply the Do-lan test in non-land-use bargain cases, such as in the cases cited by the Town, does not preclude application of the Dolan test when land-use bargains, such as the Simmons Road condition, are at issue. We hold that the trial court did not err in concluding that the Dolan test applies to the Simmons Road improvement condition even though it is a nondedicatory development exaction. C. Was the Town’s Simmons Road Improvement Condition an Adjudicative Exaction Decision? The Town argues that the Dolan test does not apply to the Simmons Road improvements condition because sections 4.04(a) and (o) of the Town’s land development code are legislatively created standards governing the Town’s street improvement requirements. In Dolan, the Supreme Court ruled that a city’s decision placing development exactions on a building permit, based on the city’s application of its community development code, was an adjudicatory decision, not a legislative one. 512 U.S. at 377-78, 391 n. 8, 114 S.Ct. at 2313, 2320, n. 8. But the Supreme Court left open the question of whether the Do-lan test applies to legislatively enacted, uniformly applied, development exactions, such as impact fees. Id. at 385, 114 S.Ct. at 2316. Currently, that issue is unsettled. See, e.g., Richard Duane Faus, Exactions, Impact Fees, and Dedications Local Government Responses to Nollan/Dolan Takings Law Issues, 29 Stetson L.Rev. 675, 693-701 (2000) (recognizing a “nationwide split of authority” on whether the Dolan test applies to legislatively enacted, uniformly applied impact fees); Inna Reznik, The Distinction Between Legislative and Adjudicative Decisions in Dolan v. City of Tigard, 75 N.Y.U.L.Rev. 242, 264, 267 (2000) (arguing it is “prohibitively difficult and unrealistic to draw a line between legislative and adjudicative decisions” and recommending a “functional approach, with a focus on the nature of the decision”). We are not called upon to decide here whether the Dolan test applies to legislatively enacted, uniformly applied ex-actions. We simply hold that the Dolan test applies to the Simmons Road improvements condition to plat approval in this case because the condition was largely the result of an adjudicative decision related to Phases II and III of the Subdivision that was required because the Town does not uniformly apply sections 4.04(a) and (o) of its land development code. In Texas, the decision to approve or deny a plat is a quasi-judicial function. See City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex.1985); Woodson Lumber Co. v. City of College Station, 752 S.W.2d 744, 747 (Tex.App.-Houston [1st Dist.] 1988, no writ). This is because in deciding whether to approve or disapprove a proposed plat, a city’s planning commission must interpret and construe the city plan, applicable ordinances, and state statutes to determine whether the plat complies with these regulations. See City of Round Rock, 687 S.W.2d at 303. Indeed, the Town stipulated that it exercised discretion in denying Stafford’s application for an exception to the street standards set out in section 4.04(o) of its land development code. In addition, the Town stipulated that it has excepted other developers from the requirements of section 4.04(o) on a project-by-project basis, pursuant to the authority granted by section 4.04(a). Specifically, the Town stipulated: • The Town engineer permitted the developer of the Landing Subdivision to escrow one-half of the cost of constructing improvements to the portion of Wichita Trail abutting that subdivision, and the developer was not required to comply with the requirements of section 4.04(o). • The Town permitted the developer of Immel Estates to overlay asphalt on the portion of High Ridge Road abutting the subdivision and, pursuant to section 4.04(a), did not require the developer to ■ comply with the requirements of section 4.04(o). • The Town did not require the developer of the Wright Estates Subdivision, which abuts a portion of Simmons Road that Stafford improved, to reimburse Stafford for any portion of the costs Stafford incurred in constructing the Simmons Road improvements. These facts demonstrate, as the Town also stipulated, that the Town has enforced or eased the requirements of section 4.04(o) on a project-by-project basis. Finally, the Town stipulated that the plat for Phase III of the Subdivision was initially approved without the Simmons Road improvements condition. It was not until several weeks later, at a preconstruction conference, that the Town informed Stafford it would be required to improve the portion of Simmons Road that abutted Phase III. We cannot perceive how this decision can be characterized as other than an adjudicative, or even ad hoc, decision. It is the imposition of land use conditions in individual cases, authorized by a permit scheme which by its nature allows for both the discretionary deployment of the police power and an enhanced potential for its abuse, that constitutes the sine qua non for application of the ... standard of scrutiny formulated by the court in Nollan and Dolan. Ehrlich, 50 Cal.Rptr.2d 242, 911 P.2d at 439. The stipulated facts establish that the Town selectively conditions plat approval on compliance with sections 4.04(a) and (o) to some, but not all, developers. It is this adjudicative, selective enforcement of sections 4.04(a) and (o) that triggers the Dolan analysis, not whether sections 4.04(a) and (o) were legislatively enacted. See Schultz v. City of Grants Pass, 131 Or.App. 220, 884 P.2d 569, 572-73 (1994); see also Dolan, 512 U.S. at 385, 114 S.Ct. at 2316 (contrasting “essentially legislative determinations classifying entire areas of the city,” which are not subject to the Dolan test, with adjudicative decisions that concern individual parcels); Ehrlich, 50 Cal.Rptr.2d 242, 911 P.2d at 443-44 (noting that a lesser standard of scrutiny may be applied to legislatively formulated development assessments imposed on a broad class of property owners, “because the heightened risk of the ‘extortionate’ use of police power to exact unconstitutional conditions is not present”). The Town cites three cases to support its position that the Dolan test does not apply to “generally applicable legislative ordinances such as the Town’s street improvement requirements.” See Home Builders Ass’n v. City of Scottsdale, 187 Ariz. 479, 930 P.2d 993, 1000 (1997), cert. denied, 521 U.S. 1120, 117 S.Ct. 2512, 138 L.Ed.2d 1015 (1997); Arcadia Dev. Corp., 552 N.W.2d at 286; Parking Ass’n of Ga., Inc. v. City of Atlanta, 264 Ga. 764, 450 S.E.2d 200, 203 n. 3 (1994), cert. denied, 515 U.S. 1116, 115 S.Ct. 2268, 132 L.Ed.2d 273 (1995). Because the cases relied upon by the Town do involve uniformly applied, legislatively enacted exactions, as opposed to the nonuniformly applied exaction here, they are factually distinct from the present case and are not controlling. See Home Builders Ass’n, 930 P.2d at 1000 (holding that Dolan did not apply to water resources development fee that was imposed on all new developments within city because impact fee was the result of a generally applicable legislative decision); Arcadia Dev. Corp., 552 N.W.2d at 286 (refusing to apply Dolan test to city ordinance requiring all mobile home park owners who closed their parks to pay residents’ relocation costs because ordinance was a citywide regulation); Parking Ass’n of Ga., Inc., 450 S.E.2d at 203 n. 3 (holding that Dolan test did not apply to municipal regulation requiring landowners to install landscaping and trees in surface parking lots with three or more spaces because regulation was the result of legislative determination applicable to many landowners). We hold that the Dolan test applies to the Simmons Road improvements condition and that the condition effected a taking unless it satisfies the Dolan test. We overrule the portion of the Town’s first issue that complains the Dolan test is not applicable to the Simmons Road improvements condition. D. Does the Dolan Test Apply To Article I, Section 17 Takings Claims? In its third issue, the Town asserts that the trial court erred by concluding that there was a taking of Stafford’s property under article 1, section 17 of the Texas Constitution. The Town asserts that the Dolan test is inapplicable to a takings claim under the Texas Constitution and that Stafford did not plead or prove a taking of its property under the Texas Constitution. The United States Constitution sets the floor for constitutional protections; state constitutions establish the ceiling. LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex.1986). State constitutions cannot subtract from the rights guaranteed by the federal constitution, although they can provide additional rights for their citizens. See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980); Davenport v. Garcia, 834 S.W.2d 4, 15 (Tex.1992). The Supreme Court has held that the Dolan test “best encapsulates what we hold to be the requirement of the Fifth Amendment.” Dolan, 512 U.S. at 391, 114 S.Ct. at 2319. Thus, at a minimum, article I, section 17 of the Texas Constitution affords Texas citizens the right to have adjudicative development exactions scrutinized under the Dolan standard. To the extent that the “reasonable connection” test adopted by the Texas Supreme Court in City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 806-07 (Tex.1984) requires a less rigorous review of development exac-tions, it has been superseded by the Dolan test. See Dolan, 512 U.S. at 391, 114 S.Ct. at 2319 (citing City of College Station opinion, but refusing to adopt “reasonable relation” test, despite it being closer to federal constitutional norm than other tests adopted by state courts). The Town also contends that Stafford did not plead a taking under the Texas Constitution because “the only cause of action fairly pleaded was Stafford’s contention that the Simmons Road Improvements did not meet the rough proportionality standard under Dolan.” The Dolan rough proportionality standard is not a cause of action; it is a legal standard courts use in determining whether certain types of land-use regulations have effected a taking. A development exaction effects a taking, when it does not satisfy the Do-lan test. See infra at 31-32, 40. Texas follows a “fair notice” pleading standard, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant at trial. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex.2000). “A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim.” Id. at 897 (quoting Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982)); see also Tex.R. Civ. P. 47 (providing that a pleading setting forth a claim for relief must contain a short statement of the cause of action sufficient to give fair notice of the claim involved, a statement that the damages sought are within the jurisdictional limits of the court, and a demand for judgment). A pleading that gives adequate notice will not fail merely because the draftsman named it improperly. See CKB & Assoc., Inc. v. Moore McCormack Petro., Inc., 809 S.W.2d 577, 586 (Tex.App.-Dallas 1991, writ denied) (op. on reh’g). Stafford alleged in its petition: • The Town conditioned plat approval of Phases II and III of the Subdivision upon Stafford constructing and paying for 100% of the Simmons Road improvements; • The Town made no individualized determination that this condition was related in nature and extent to the impact of the Subdivision on the Town’s roadway system; • Stafford’s request for an exception to the plat approval condition was denied, Stafford paid for 100% of the improvements, and it was not reimbursed for any part of the cost of the improvements, despite its repeated requests to the Town for reimbursement; • The Town’s actions constituted a taking of Stafford’s property for a public use without adequate compensation, in violation of article I, section 17 of the Texas Constitution and the Dolan proportionality requirement; and • Stafford sought a judgment against the Town for a sum within the trial court’s jurisdiction for the taking of Stafford’s property. The Town did not specially except to Stafford’s pleadings, and the parties expressly agreed to a trial on Stafford’s article I, section 17 takings claim. When a party fails to specially except, courts should construe the pleadings liberally in favor of the pleader. See Horizon/CMS Healthcare Corp., 34 S.W.3d at 897. Applying all of these principles, we hold that the allegations in Stafford’s pleadings were sufficient to plead the taking of its property under the Texas Constitution. We overrule the part of the Town’s third issue that contends the Dolan test does not apply to a takings claim under the Texas Constitution and that Stafford did not plead a taking of its property under the Texas Constitution. VII. Taking Without Adequate Compensation. In its first, third, and fourth issues, the Town asserts the trial court erred by concluding that a taking occurred because Stafford failed to establish a taking under the Dolan test. The Town argues that Stafford presented no evidence that the Simmons Road improvements condition did not substantially advance a legitimate governmental interest and that no evidence exists that the Simmons Road improvements were not roughly proportional to the nature and extent of the Subdivision. As we have previously discussed, an adjudicative development exaction effects a taking when it either fails to substantially advance a legitimate governmental interest (Nollan), or when it is not roughly proportional to the public consequences created by the proposed development (Dolan). See Dolan, 512 U.S. at 386, 114 S.Ct. at 2317; Nollan, 483 U.S. at 836, 107 S.Ct. at 3148. A. Burden of Proof. The burden of proof usually rests on the party challenging a land-use regulation. See Dolan, 512 U.S. at 391 n. 8, 114 S.Ct. at 2320 n. 8; City of College Station, 680 S.W.2d at 806-07. However, where, as here, a city makes an adjudicative decision to condition development of an individual parcel of land on the exaction of certain benefits from the developer, the burden of proof rests on the city. See Dolan, 512 U.S. at 391 n. 8, 114 S.Ct. at 2320 n. 8. Consequently, the Town bore the burden of proving that the Simmons Road improvements condition satisfied the two-pronged Dolan test. B. Application of The Dolan Test to the Present Facts. 1. Essential Nexus. In examining an exaction takings challenge, the reviewing court must first determine whether an essential nexus exists between the legitimate state interest impacted by the landowner’s proposed land use and the concession exacted from the landowner. Dolan, 512 U.S. at 386, 114 S.Ct. at 2317; Nollan, 483 U.S. at 836, 107 S.Ct. at 3148. Stafford contends that no nexus exists between the Simmons Road improvements condition and the identified state interests sought to be addressed by the improvements. We begin by determining whether a legitimate state interest is at issue here. When the Town imposed the condition to plat approval, Simmons Road was a two-lane asphalt road in good repair that had been constructed within the previous twelve months. Stafford was required to demolish the existing two-lane asphalt road and to replace it with a two-lane cement road with three-foot shoulders. At trial, the Town offered the following justifications for imposing the Simmons Road improvements condition: better sight distances for drivers along Simmons Road, which would allow traffic entering and exiting the Subdivision to have more time to see approaching vehicles; an additional degree of safety provided by the shoulders; safer access points for drivers along Simmons Road; better traffic flow along Simmons Road; and long-term durability that would increase the life expectancy of the road and reduce the necessity for and cost of repairs. Thus, the Town asserted two purported legitimate state interests: safety on, and durability of, Simmons Road. It is undisputed that the Subdivision would generate additional traffic on and around Simmons Road. Stafford’s expert testified that the Subdivision would generate about 750 vehicle trips per day. The Town’s expert, Terry Morgan, explained that the Town required the first developer in an area to make all the improvements to an abutting roadway because the increase in traffic caused by the development raised immediate safety concerns. Morgan admitted, however, that except for long-term durability, these objectives could have been accomplished just as effectively by improving the existing asphalt road rather than by demolishing it and replacing it with a concrete road. He also conceded that the long-term durability requirement was not intended to address immediate safety concerns, but another of the Town’s experts testified that concrete was required because it was more durable than asphalt, so that fewer road repairs would be necessary. We believe protecting the public— both residents and nonresidents of the Subdivision — from the dangers created by increased traffic on a public road due to the development of the Subdivision is a legitimate state interest. See, e.g., Tex. Loc. Gov’t Code Ann. § 211.004 (Vernon 1999) (providing that zoning regulations must be designed to lessen street congestion and promote the general welfare); id. § 212.010 (providing for plat approval if plat conforms to municipality’s plan for current and future streets and plan for the extension of municipality and its roads, streets, and public highways); Tex. Civ. Prac. & Rem.Code Ann. § 101.0215(a)(3)-(4) (Vernon Supp.2002) (providing that street construction and maintenance are among governmental functions of a municipality); see also Mayhew, 964 S.W.2d at 934 (noting that protecting residents from the ill effects of urbanization is a legitimate state interest). We also believe that the Town possesses a legitimate state interest in the durability of its roads. By providing longer lasting public roads, the Town reduces the necessity for and costs of repairs. We next address whether the Simmons Road improvement condition bears an essential nexus with these two legitimate state interests expressed by the Town. See Nollan, 483 U.S. at 837, 107 S.Ct. at 3148. We hold that an essential nexus exists between the Town’s expressed legitimate state safety interests and the condition to plat approval because shoulders on roads, better sight distances, safer driver access points, and the capacity for better traffic flow are all measures designed to improve safety on Simmons Road. Indeed, Stafford does not contend these improvements would not increase public safety, but only complains that they should have been asphalt rather than concrete. Stafford asserts, however, that the demolish-and-repave-with-concrete portion of the Simmons Road improvements condition bears no essential nexus to any legitimate state interest. In Nollan, Justice Scalia explained that when the government’s land-use regulation is conditioned on an unrelated exaction, the only purpose for the otherwise legitimate land-use regulation is to obtain from the landowner a desired extraction or concession that the government would otherwise be required to pay for. Nollan, 483 U.S. at 837, 107 S.Ct. at 3148-49. Thus, if the condition substituted for the land-use prohibition “utterly fails” to further the end advanced as the justification for the prohibition, a taking has occurred. Id. Overlaying Justice Scalia’s analysis on the present facts, we must determine whether the Town’s demolish-and-repave-with-concrete Simmons Road improvement condition “utterly fails” to further the end advanced by the Town (durability of its roads) as the justification for denying Subdivision plat approval unless this condition was met. We cannot say that the demolish-and-repave-with-concrete aspect of the Simmons Road improvement condition to plat approval “utterly fails” to advance the legitimate state interest of road durability. Thus, we hold that the demolish-and-repave-with-concrete aspect of the Simmons Road improvement condition satisfies the first, essential nexus prong of the Dolan test. 2. Rough Proportionality. We must now determine whether the degree of the Simmons Road improvements — both the requirement of the improvements and the requirement that they be concrete rather than asphalt — bears the required relationship to the projected impact of the Subdivision on the Town’s roadway system, specifically Simmons Road. See Dolan, 512 U.S. at 377, 114 S.Ct. at 2312. To satisfy this prong of the Dolan test, the Town must demonstrate that it made some sort of individualized determination that the required Simmons Road improvements were related in both nature and extent, i.e., roughly proportional, to the impact of the Subdivision on Simmons Road. See id. at 391, 114 S.Ct. at 2319-20. Stafford contends that the Town was required to make this individualized determination before imposing the improvements as a condition to plat approval. The Town’s expert also testified that Dolan requires such a determination before issuance of the exaction. The parties stipulated that the Town made no individualized determination that its requirement for construction of the Simmons Road improvements was “roughly proportional” to the impact of Phases II and III upon the Town’s roadway system before requiring Stafford to construct the improvements and bear 100% of the construction cost. The Dolan opinion states simply that “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.” Id. We question how a municipality could determine that a development exaction would pass constitutional muster without first engaging in some sort of pre-exaction analysis. Nonetheless, the Dolan court did not indicate that failure to make a rough proportionality analysis before imposing a development exaction was, alone, fatal to the constitutionality of the exaction, and at least one court has afforded a municipality a postexaction opportunity to justify the exaction under the rough proportionality standard. See Ehrlich, 50 Cal.Rptr.2d 242, 911 P.2d at 433 (remanding cause for additional proceedings “[bjecause the city may be able to justify the imposition of some fee under the recently minted standard of Dolan ”). Accordingly, we decline to hold that the timing of a city’s individualized determination is dispositive of a takings claim governed by the Dolan test. Instead, we will consider whether the Town established in the trial court that the Simmons Road improvements were in substance roughly proportional to the impact, or negative public consequences, of the Subdivision. To make this determination, we must first consider the projected impact of the Subdivision on the Town’s roadway system, specifically Simmons Road. Stafford put on evidence concerning the increases in traffic that would be generated by the Subdivision. One of Stafford’s experts testified that a traffic study was prepared in the manner uniformly accepted by traffic industry professionals and that he had rechecked the study to confirm the accuracy of the study’s trip calculations. Stafford’s traffic study evidence showed that the Subdivision would produce about 750 vehicle trips per day, or about 18% of the total average traffic on the improved portion of Simmons Road. Stafford’s evidence also showed that the Subdivision would generate approximately 21% of the traffic on an affected portion of McKamy Creek Road and another 4% of the traffic on a different portion of Simmons Road. Moreover, it is reasonable to assume that traffic increases caused by a development would be heaviest near the development itself, so that the Subdivision would not generate a larger percentage of traffic elsewhere in the Town. The Town did not put on any evidence to show how much additional roadway traffic the Subdivision would create. Terry Morgan, the Town’s expert, did testify, however, that the Town had assessed — but not collected — maximum road impact fees against the Subdivision based on a mathematical estimate of the amount of impact each dwelling unit of the Subdivision would have on the Town’s roads. The mathematical formula for this estimate was contained in the Town’s road impact fee ordinance. Morgan opined that the maximum amount of road impact fees that could be assessed against the Subdivision could be used to determine whether the improvements condition was roughly proportional to the impact the Subdivision would have on the Town’s roadway system. Morgan testified that the maximum amount of impact fees assessed against the Subdivision under the Town’s road impact fee ordinance was about $3,560 per dwelling unit. Morgan also testified, and the parties stipulated, that Stafford had already paid road impact fees of $1,140 per lot for each of the 247 lots in Phases I, II, and III of the Subdivision. The record shows that section (f) of the Town’s road impact fee ordinance set the maximum amount of fees that could be assessed under the ordinance against a single-family dwelling at $3,559.65. Section (g) of the ordinance set the maximum amount of fees that could be collected for a single-family dwelling at $1,140. See Tex. Loo. Gov’t Code Ann. § 395.016(d) (Vernon 1999) (providing that a city must assess impact fees before or at the time of recordation of a subdivision plat, but may collect the fees when the plat is recorded, when the development is connected to water or sewer services, or when a building permit or certificate of occupancy is issued). Stafford put on evidence, and the parties stipulated on the record during the damages trial, that the Simmons Road improvements cost $484,303.79. Morgan testified that the maximum road impact fees assessed against the Subdivision under the road impact fee ordinance was approximately $879,000 and that the Town had collected about $280,000, the maximum collectible amount, from Stafford in impact fees. Morgan opined that the approximately $600,000 difference between the amount assessed and the amount collected could be used to measure the effect of the Subdivision’s impact on the Town’s roads and that this amount was roughly proportional to the amount of money Stafford had paid to construct the Simmons Road improvements. We decline to adopt the Town’s position that the formula of maximum assessable impact fees minus legally collectible impact fees equals the impact of the development for purposes of the Dolan test’s rough proportionality prong. An impact fee may only be imposed to pay the cost of constructing the capital improvements or facility expansions that are identified in a city’s capital improvements plan. See Tex. Loc. Gov’t Code Ann. §§ 395.012(a), 395.013(1) (Vernon 1999). A municipality is prohibited from using impact fees to construct or expand capital improvements not identified in the city’s capital improvements plan. See id. § 359.013(1). The parties stipulated that Simmons Road is not on the Town’s impact fee capital improvements plan. The Town’s maximum assessable impact fees minus legally collectible impact fees formula improperly converts noncollectible impact fees into a measurement justifying an equal amount of improvements not on the Town’s capital improvements plan. Moreover, the effect of the Town’s formula would be to require Stafford to improve Simmons Road because of the projected impact the Subdivision will have on the need for constructing or upgrading other roads in the Town that are on its capital improvements plan. A development exaction must be sufficiently connected to the projected impact of the development. Dolan, 512 U.S. at 377, 391, 114 S.Ct. at 2312, 2319-20. Stated another way, the exaction must be designed to rectify adverse public consequences generated by the development itself. We fail to grasp how requiring a developer to improve an existing road that is not on a city’s capital improvements plan is in any way related to the impact a development will have on roads that are on the city’s capital improvements plan. Thus, we decline to adopt the Town’s proposed formula in determining whether the Town satisfied the second, rough proportionality prong of the Dolan test. On this record, the Town has not met its burden of demonstrating that the additional traffic generated by the Subdivision bears a sufficient relationship to the requirement that Stafford demolish a nearly new, two-lane asphalt road that was not in disrepair and replace it with a two-lane concrete road. Undoubtedly, the additional traffic (750 trips per day) generated by the Subdivision will increase wear and tear and create additional safety concerns on the Town’s roads and Simmons and McKa-my Creek Roads in particular. But the Town has not explained why demolishing the asphalt road and replacing it with a cement road, as opposed to improving the asphalt road, was required because of the Subdivision’s impact. To the contrary, the Town’s experts admitted that all of the Town’s safety objectives could have been accomplished just as effectively by simply improving the asphalt road. The Town likewise has not explained how the Subdivision’s impact created a specific need for a more durable surfacing of Simmons Road. Consequently, the Simmons Road improvement condition requiring Stafford to demolish a portion of Simmons Road, to repave it with concrete, and to bear 100% of the costs, fails the second, rough proportionality prong of the Dolan test. The deficiency of this aspect of the Simmons Road improvements condition under the rough proportionality standard is aptly demonstrated by a review of Dolan itself. One of the legitimate governmental interests in Dolan was controlling flood hazards. Dolan, a store owner, applied for a building permit to double the size of her store and to increase the size