Brief Fact Summary. In this case Dolan (Petitioner) challenges the decision of the Supreme Court of Oregon, which held that the City of Tigard could condition the approval of her building permit on the dedication of a portion of her property for flood control and traffic improvements.
Synopsis of Rule of Law. No 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.
Facts. Petitioner owns a plumbing and electrical supply store on Main Street in Tigard, Oregon. Fanno Creek flows through the southwestern corner of the lot, and the year round flow of the creek places the area within the Fanno Creek 100-year floodplain. The building on the lot is presently 9,700 square feet. Oregon enacted a comprehensive land use management program in 1973. The program required cities in Oregon to adopt comprehensive land use plans, which were consistent with the statewide planning goals. The City of Tigard made its land use law the Community Development Code and required, after a transportation study, new development to facilitate a plan for pedestrian/ bicycle paths by dedicating land for same. Also, Tigard adopted a Master Drainage Plan, which noted that flooding had been a problem in several areas along Fanno Creek, including areas near Petitioner’s property. The Master Drainage Plan found that the increased urbanization had increased impervious areas and that
continued urbanization would exacerbate these problems. It suggested a series of improvements in the Fanno Creek Basin, including channel excavation near Petitioner’s property. Other recommendations included ensuring that the floodplain remain free of structures and that it be preserved as greenways. It also found that those who directly benefited, as well as those indirectly benefited should share the cost of these improvements. Petitioner applied to the city for a permit to redevelop her site. The plans were to nearly double the size of the store to 17,600 square feet and paving a 39-space parking lot. The City Planning Commission required that Petitioner dedicate the portion of her property lying with the 100-year flood plain for improvement of a storm drainage system and that Petitioner dedicate an additional 15-foot strip of land adjacent to the floodplain as a pedestrian/ bicycle path. Petitioner requested variances. Those were denied. The Commission’s decision was approved by t
he Tigard City Council. Petitioner appealed the decision to the Land Use Board of Appeals (LUBA) on the ground that the city’s dedication requirements were not related to the proposed development, and that, therefore, the requirements were a taking within the meaning of the Fifth Amendment. LUBA found a reasonable relationship between the proposed development and the requirements imposed. The Court of Appeals of Oregon and the Supreme Court of Oregon affirmed. Petitioner appealed.
Issue. Were the requirements placed on Petitioner as a condition of her permit to rebuild on her property reasonably related to the redevelopment?
Held. No. Reversed.
Under the doctrine of “unconstitutional conditions,” the government may not require a person to give up a constitutional right, here the right to receive just compensation when property is taken for public use, in exchange for a discretionary benefit conferred by the government when the property sought has little or no relationship to the benefit.
This case will decide the required degree of connection between the exactions and the projected impact of the proposed development. The “reasonable relationship” test is the appropriate test, but the court adopts the “rough proportionality” test since its terminology best encapsulates the requirement under the Fifth Amendment.
No 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.
The court found that the findings upon which the city relies did not show the required reasonable relationship between the floodplain easement and the petitioner’s proposed new building. The court also found that the city had to make some effort to quantify its findings in support of the dedication for the pedestrian/ bicycle path beyond the statement that it could offset some of the increased traffic generated.
Dissent. Both of the dissents essentially find fault with the majority’s shifting of the burden of proof to the governmental entity seeking to uphold the regulation. The dissents would not abandon the traditional presumption of constitutionality in favor of the government.
Discussion. The property owner does not have nearly the resources of the governmental entity whose regulation is being challenged. The governmental entity can perhaps better afford to commission land use studies, which tend to buttress their regulations.