Brief Fact Summary. The Petitioner, Dolan (Petitioner), applied for a permit to expand the size of her commercial building. The Respondent, City of Tigard (Respondent), approved the permit on the condition that Petitioner dedicate 10% of the total land area to the city for a bike path and drain.
Synopsis of Rule of Law. Generally, a required easement will result in a taking because it is a permanent physical invasion of the private property. But, no taking will result if the government can show that the requirement is roughly proportional to the impact of the development on the community.
Undoubtedly, the prevention of flooding along Fanno Creek and the reduction of traffic congestion in the Central Business District qualify as the type of legitimate public purposes we have upheld.View Full Point of Law
Issue. Does this specific required right-of-way easement amount to a taking?
Does an “essential nexus” exist between the “legitimate state interest” and the permit?
If so, then what is the required degree of connection between the easement and the projected impact of the proposed development?
The prevention of flooding is a legitimate interest especially since Petitioner plans to surface her parking lot and expand the amount of impervious surface in the flood plain. The same is true for the pathway because it serves a legitimate purpose of reducing traffic.
The requirement must be “roughly proportional” to the impact of the new development.
Dissent. The burden of demonstrating that the property owner has been unreasonably impaired should stay with the property owner. It is not the state’s responsibility to go beyond showing a rational, impartial reasoning for its land use specifications.
Discussion. The majority shuns the use of a strict “specific and uniquely attributable” test because it is too rigorous given the nature of the interests. On the other hand, it finds the “reasonable relationship” test is too easily confused with the low level of scrutiny required for the “rational basis” test. So, the majority chooses a compromise that is more closely akin to a rational relationship.