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Dolan v. City of Tigard

    Brief Fact Summary. The City of Tigard conditioned the approval of Dolan’s building permit on the dedication of a portion of her property for flood control and traffic improvements.

    Synopsis of Rule of Law. Land use regulations are constitutional so long as they do advance a legitimate state interest and do not deny an owner economically viable use of his land. When a city conditions the owner’s right to develop his property on some “give back” by the owner, there must be a “rough proportionality” between the burdens on the public and the development would bring about, and the benefits to the public from the give back.

    Facts. Dolan owned a plumbing and electric supply store in the Central Business District. She wanted to double the size of the store and create more parking. Her plans were consistent with the city’s zoning scheme. The City granted the permit application subject to her dedicating the portion of her property lying within the 100-year floodplain for improvement of a storm drainage system along the creek and she would dedicate an additional 15-foot strip of land adjacent to the floodplain for a pedestrian/bicycle pathway. This would be 10% of her property. She could use that to meet the 15% open space requirement. The owner of a store wanted to expand. The city said that the owner could expand but the owner would need to deed to the public a 15-foot strip of land that would be used as a bike path. Dolan applied for variances because she argued that her proposed development would not conflict with the policies of the comprehensive plan. The City Planning Commission denied her request. Th
    e Commission’s decision was approved by the 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 Oregon Court of Appeals and the Oregon Supreme Court affirmed. Petitioner appealed.

    Issue. Do the permit conditions deprive Dolan of her property rights under the rubric of the Fifth Amendment?

    Held. Yes. Judgment reversed.
    The land use regulation in this case was not a limitation on the owner’s use of her property but a requirement that she deed portions of the property to the city in order to get a permit. 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 a public use based on the Fifth Amendment, in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit.
    A city may exact some forms of dedications as a condition for the grant of a building permit. There is a two step analysis to determine whether the essential nexus between the legitimate state interest and the permit condition exists. The first step is to decide if a nexus exists. Here there is little doubt that the conditions imposed were to prevent the flooding along the creek and reduce traffic congestion in the area. These are legitimate public concerns.
    The second step of the analysis is to determine the required degree of connection between the conditions and the projected impact of the proposed development. For this there must be a rough proportionality where the city must make some sort of individualized determination that the required condition is related both in nature and extent to the impact of the proposed development.
    In evaluating most generally applicable zoning regulations, the burden is on the party challenging the regulation to prove that it constitutes an arbitrary regulation of property rights. Here, the city made a decision to condition Petitioner’s application for a building permit on an individual parcel. In this situation the burden is on the City to prove that the individual parcel is required to further the legitimate public concern.
    Not building on the floodplain alone would have probably confined the pressures on the creek created by the new development. However, that was not the only condition attached to the concern about flooding. The City also wanted a bicycle path and to use the property for its Greenway system. It is difficult to see how recreational visitors using the floodplain easement are sufficiently related to the City’s legitimate interest in reducing flooding problems along the creek. The city has not attempted to make any individualized determinations to support this part of the request.
    The City must make some effort to quantify its findings in support of the conditions for the pedestrian/bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated by expanding the store. The City identified no special benefits conferred on Petitioner and has not identified any special quantifiable burdens created by her new store that would justify the particular dedications required from Petitioner which are not required from the public at large.
    The City had a legitimate interest, their means were loosely connected with their goals, but upon closer examination, the nexus was not connected sufficiently enough to warrant the Dolan losing her right to exclude people from her property. Unlike PruneYard where the court required the mall owner to allow the public in because public was generally allowed inside, this recreational easement on the Greenway is different in character from the exercise of state protected rights of free expression and petition.

    Dissent. Justice Stevens, Blackmun, Gingsburg, and Souter dissenting:
    The analysis should focus on the impact of the City’s action on the entire parcel of the property. Limiting the owner’s right to exclude others is a significant infringement upon property ownership. However, the restrictions on the right do not in itself constitute a taking and do not do so in any event unless they unreasonably impair the value of the property (PruneYard). The correct inquiry is whether there is a required nexus and then the owner must show that the conditions are grossly disproportionate to the proposed development’s adverse effects.
    A prediction on how much a bike path would impact traffic is nothing more than an estimate. It is assumed that the bike path would offset traffic and it should not matter how much. The Court cannot micromanage state decisions of this kind. The Court is imposing a novel burden of proof on a City implementing an admittedly valid comprehensive land use plan.
    Dolan has no right to be compensated for a taking unless the City acquires the property interests that she has refused to surrender. Since no taking has occurred there is no infringement of her constitutional right to compensation. Also, even if Dolan were to surrender the property, she would be compensated because she could get the benefit of the building permit. The discretionary benefit the City has offered is no less valuable than the property interests that Dolan can retain or surrender at her option.
    Justice Souter: The City of Tigard never sought to justify the public access portion of the dedication as related to flood control. It merely argued that whatever recreation uses were made of the bike path and one foot edge on either side were incidental to the permit condition requirement. That is why the Court unsurprisingly finds a recreation area to be unrelated to flood control. The Court decides that because the bike path could, instead of unequivocally would, impact traffic, that it is not sufficiently connected.
    The Court has placed the burden of producing evidence of relationship on the City, despite the usual rule in cases involving the police power that the government is presumed to have acted in a constitutional manner.

    Discussion. Nollan said that if the government imposes a condition on a permit, then there has to be an essential nexus. There has to be an actual tight fit between the means and the ends. The purpose has to be legitimate. Dolan further defined Nollan and said the burden or intensity of this condition has to be proportional to the problem created. Dolan argued that she did not contribute to the runoff problem or flooding issues as much as she was being restrained. Dolan had to designate some part of the property for a bike path but the amount of traffic reduced would not be proportional to the amount of land set aside and the imposition of this condition.


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