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Dolan v. City of Tigard

    Brief Fact Summary. Dolan (Petitioner) owned a plumbing and electric supply store. The Petitioner sought to double the size of the existing store and pave a parking lot. The City Planning Commission granted the permit for expansion with the condition that land be set aside for a public greenway to minimize flooding and bike path to relieve traffic.

    Synopsis of Rule of Law. In order to impose a condition on the development of property, the condition must be rationally related to the government’s purpose in regulating and also must be roughly proportionate to that government purpose.

    Facts. The creek that flows through the southwest corner of the parking lot was within the city’s comprehensive plan as part of a drainage plan / Greenway system. The permit condition required 10 % of the property to be used for improvement of a storm drainage system along the creek. The commission found the bike-path requirement would facilitate access to the store’s bike rack and offset traffic.

    Issue. Whether the permit conditions were an uncompensated taking because the requirements were not related to the proposed development.

    Held. The court applied the following two-part test and found the conditions were an uncompensated taking.
    Is there an essential nexus between the legitimate state interest and the permit condition created by the city? Here, this requirement was met since there was an obvious relationship between preventing flooding and development and between reducing traffic congestion and development. Development of an expanded parking lot and larger store would impact both problems.
    Are the conditions on development “roughly proportionate” to the government’s justifications for regulating? Proportionality was a reasonableness test. First, the condition that land be set aside for a public Greenway was unreasonable. Such a condition took away the owner’s right to exclude others, which was unnecessary to address the flooding problem. A private Greenway could suffice. The Petitioner also did not meet its burden of establishing the actual ability of the bike path to offset traffic. Without showing that bike path was a necessary solution to the traffic congestion, the Commission could not reasonably require the bike path to be constructed.

    Discussion. The City Planning Commission failed to justify the proportionality of the required conditions to the harm that the development would cause. The nature and extent of the construction’s impact must be determined and the condition must be limited to that nature and extent, even though no precise calculation is needed. The City Planning Commission went too far in requiring public easement over Greenway space when a private Greenway space could also have been a solution for flooding. If on the other hand, the permit sought to infringe on presently existing public Greenway space, then the Commission might reasonably require the establishment of new public Greenway space as a condition.


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