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Dolan v. City of Tigard

    Brief Fact Summary. A condition of a permit stated that the landowner had to convey property to the government.

    Synopsis of Rule of Law. When a city requires a landowner to convey some property to the city as a condition to obtaining a permit, there must be a rough proportionality between the burdens on the public that would result form granting the permit and the benefit to the public from the conveyance of land.

    Facts. Florence Dolan (Petitioner) owned a plumbing and electric supply store and wanted to redevelop the site. The City of Tigard (Respondent) issued her a permit to expand, but it was subject to the condition that Petitioner dedicate a part of her property to the city to be used as a pedestrian/bicycle pathway. The city justified their request because the pathway would help prevent some flooding that would occur from a nearby creek with the expansion and it would also offset some traffic demands. Petitioner says the dedication is a taking of her property.

    Issue. Does an impermissible taking of property occur when a city requires a landowner to convey property to the city in order to get a permit to redevelop property?

    Held. Yes.
    One purpose of the takings clause is to bar the government from forcing some people to bear public burdens, which should be borne by the public as a whole. Had the city simply required Petitioner to dedicate a strip of land along the creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred. Such public access would deprive Petitioner the right to exclude others.
    However, a land use regulation does not constitute a taking if it substantially advances legitimate state interests and does not economically viable use of his land.
    A determination must be made as to whether the essential nexus exists between the legitimate state interest and the permit condition exacted by the city. If the nexus exists, then a determination must be made as to the required degree of connection between the exactions and the projected impact of the proposed development. There must be a rough proportionality between the demands of the city and the impact of the proposed development.
    Here, the prevention of flooding and reduction of traffic are legitimate public purposes, and a nexus exists between preventing flooding and limiting development.
    But as for the rough proportionality test, 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. Here, the city has never explained why a public greenway, as opposed to a private one, was required in the interest of flood control. Petitioner has lost her ability to exclude others, which is one of the most essential sticks in the bundle of property rights. It is difficult to see why recreational visitors walking on the land is sufficiently related o the city’s legitimate interest in reducing flooding problems along the creek, and the city has not attempted to make any individualized determination to support this request.

    Dissent.
    (Justice John Paul Stevens) The rough proportionality test runs contrary to the traditional treatment of these cases and breaks considerable and unpropitious new ground. Petitioner’s acceptance of the permit, with its attached conditions, would provide her with benefits that may go beyond any advantage she gets from expanding her business. The analysis should focus on the impact of the city’s action on the entire parcel of private property. The inquiry should instead concentrate on whether the required nexus is present and venture beyond considerations of a condition’s nature only if the developer establishes that a concededly germane condition is so grossly disproportionate to the proposed development’s adverse effects that it manifests motives other than land use regulation on the part of the city.
    (Justice David Souter) The Court has places 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 constitutionally.

    Discussion. When the government enacts land regulations, there must be a close fit between the land use regulation and the objective sought to be fulfilled by the government.


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