Dolan v. City of Tigard

DOLAN v. CITY OF TIGARD

Certiorari to the Supreme Court of Oregon.

No. 93-518. Argued March 23, 1994 — Decided June 24, 1994.

317 Ore. 110, 854 P. 2d 437, reversed and remanded.

REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and GINSBURG, JJ., joined, post, p. 396. SOUTER, J., filed a dissenting opinion, post, p. 411.

David B. Smith argued the cause and filed briefs for petitioner. Timothy V. Ramis argued the cause for respondent. With him on the brief were James M. Coleman and Richard J. Lazarus. Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Schiffer, James E. Brookshire, and Martin W. Matzen.

The report occupies pages 374 through 414 of volume 512 of the United States Reports. The opinion of the Court begins at page 377 and ends at page 396; the dissenting opinion of Justice Stevens begins at page 396 and that of Justice Souter at page 411.

[512 U.S. 374] “The City Planning Commission of respondent city conditioned approval of petitioner Dolan's application to expand her store and pave her parking lot upon her compliance with dedication of land (1) for a public greenway along Fanno Creek to minimize flooding that would be exacerbated by the increases in impervious surfaces associated with her development and (2) for a pedestrian/bicycle pathway intended to relieve traffic congestion in the city's Central Business District. She appealed the commission's denial of her request for variances from these standards to the Land Use Board of Appeals (LUBA), alleging that the land dedication requirements were not related to the proposed development and therefore constituted an uncompensated taking of her property under the Fifth Amendment. . . . Both the Oregon Court of Appeals and the Oregon Supreme Court affirmed.”

[512 U.S. 374] “Held: The city's dedication requirements constitute an uncompensated taking of property. Pp. 383-396.”

[512 U.S. 374] “(a) Under the well-settled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. In evaluating Dolan's claim, it must be determined whether an ‘essential nexus’ exists between a legitimate state interest and the permit condition. Nollan v. California Coastal Comm'n, 483 U. S. 825, 837. If one does, then it must be decided whether the degree of the exactions demanded by the permit conditions bears the required relationship to the projected impact of the proposed development. Id., at 834. Pp. 383-386.”

[512 U.S. 374] “(b) Preventing flooding along Fanno Creek and reducing traffic congestion in the district are legitimate public purposes; and a nexus exists between the first purpose and limiting development within the creek's [512 U.S. 375] floodplain and between the second purpose and providing for alternative means of transportation. Pp. 386-388.”

[512 U.S. 375] “(c) In deciding the second question — whether the city's findings are constitutionally sufficient to justify the conditions imposed on Dolan's permit — the necessary connection required by the Fifth Amendment is ‘rough proportionality.’ 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 proposed development's impact. This is essentially the ‘reasonable relationship’ test adopted by the majority of the state courts. Pp. 388-391.”

[512 U.S. 375] “(d) The findings upon which the city relies do not show the required reasonable relationship between the floodplain easement and Dolan's proposed building. The Community Development Code already required that Dolan leave 15% of her property as open space, and the undeveloped floodplain would have nearly satisfied that requirement. However, the city has never said why a public, as opposed to a private, greenway is required in the interest of flood control. The difference to Dolan is the loss of her ability to exclude others from her property, yet the city has not attempted to make any individualized determination to support this part of its request. The city has also not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by Dolan's development reasonably relates to the city's requirement for a dedication of the pathway easement. The city must quantify its finding beyond a conclusory statement that the dedication could offset some of the traffic demand generated by the development. Pp. 392-396.”

[512 U.S. 377] “Petitioner challenges the decision of the Oregon Supreme Court 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. 317 Ore. 110, 854 P. 2d 437 (1993). We granted certiorari to resolve a question left open by our decision in Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), of what is the required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development.”

[512 U.S. 385] “The sort of land use regulations discussed in the cases just cited, however, differ in two relevant particulars from the present case. First, they involved essentially legislative determinations classifying entire areas of the city, whereas here the city made an adjudicative decision to condition petitioner's application for a building permit on an individual parcel. Second, the conditions imposed were not simply a limitation on the use petitioner might make of her own parcel, but a requirement that she deed portions of the property to the city.”

[512 U.S. 385] “Under the well-settled 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 a public use — in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property.”

[512 U.S. 386] “In evaluating petitioner's claim, we must first determine whether the ‘essential nexus’ exists between the ‘legitimate state interest’ and the permit condition exacted by the city. Nollan, 483 U. S., at 837. If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development. We were not required to reach this question in Nollan, because we concluded that the connection did not meet even the loosest standard. Id., at 838. Here, however, we must decide this question.”

[512 U.S. 391] “We think a term such as ‘rough proportionality’ best encapsulates what we hold to be the requirement of 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.”

[512 U.S. 396] “City's goals of reducing flooding hazards and traffic congestion, and providing for public greenways, are laudable, but there are outer limits to how this may be done. ‘A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.’ Pennsylvania Coal, 260 U. S., at 416.”

[512 U.S. 396] “The judgment of the Supreme Court of Oregon is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.”

[512 U.S. 396] “It is so ordered.”

[512 U.S. 396] “The record does not tell us the dollar value of petitioner Florence Dolan's interest in excluding the public from the greenway adjacent to her hardware business.”

Editorial note. Justice Stevens argued that the Court had invented a heightened standard of review and, contrary to settled practice, placed the burden of justification on the municipality rather than on the landowner challenging a land-use decision; in his view the city's findings of increased runoff and increased traffic amply supported the dedications, and the majority's approach revived a discredited judicial supervision of local planning.

Editorial note. Justice Souter, dissenting separately, wrote that the city had in fact shown the required relationship as to the pathway dedication, that the majority faulted the city for failing to quantify a connection it had adequately established, and that the burden of proof question the Court decided had not been necessary to the disposition.

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Editorial note. Florence Dolan owned a plumbing and electrical supply store on a lot of about 1.67 acres in the Central Business District of Tigard, Oregon, through which Fanno Creek flowed along the western boundary; roughly the westernmost hundred feet of the lot lay in the creek's floodplain. She applied to nearly double the building to 17,600 square feet and to pave a thirty-nine-space parking lot. The city's Community Development Code already required owners in that district to keep fifteen per cent of a site as open space. The Planning Commission approved the application on the conditions that she dedicate the land within the floodplain for improvement of a storm drainage system and a public greenway, and dedicate an additional fifteen-foot strip adjacent to the floodplain for a pedestrian and bicycle pathway. The dedications amounted to roughly ten per cent of the parcel.

Editorial note. The Land Use Board of Appeals sustained the conditions, finding a reasonable relationship between the development and each dedication. The Oregon Court of Appeals affirmed, as did the Oregon Supreme Court, 317 Ore. 110, 854 P. 2d 437 (1993), which held that the dedications were reasonably related to the impacts of the development and therefore not takings. The Supreme Court granted certiorari, reversed, and remanded.

Editorial note. The issue was the degree of connection the Constitution requires between an exaction and the impact of the development it conditions. The Court held that the city must make an individualised determination showing rough proportionality between the two, in nature and in extent; precise mathematical calculation is not required, but a conclusory finding will not do. Neither dedication survived that test, and the conditions therefore worked an uncompensated taking.

Editorial note. Chief Justice Rehnquist distinguished adjudicative permit conditions requiring the conveyance of land from legislative classifications of whole districts, and located the case within the doctrine of unconstitutional conditions. He accepted flood control and the relief of traffic congestion as legitimate purposes and found the required nexus present as to each.

Editorial note. The failure lay in degree. As to the greenway, the city never explained why flood control required public rather than private open space, and the difference to the owner was the loss of the right to exclude. As to the pathway, the city's finding that the dedication “could offset some of the traffic demand” was not the quantified, individualised determination the Constitution requires.

Editorial note. Dolan completes the exactions standard begun in Nollan and supplies the treatise's rule of degree: government bargaining in the permit process must be proportioned to the burden the development imposes, and the municipality bears the burden of demonstrating that proportion. It also identifies the right to exclude as the specific interest lost when private open space is converted into a public greenway.

Editorial note. Followed and extended. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), described Nollan and Dolan as a special application of the doctrine of unconstitutional conditions rather than as a general regulatory takings test. Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013), applied both requirements to monetary exactions, and Sheetz v. County of El Dorado, 601 U.S. 267 (2024), held that legislatively imposed exactions are subject to the same standard.

Editorial note. Read with U.S. Const. amend. V (Takings Clause) and the treatise chapters on land-use regulation, on subdivision exactions, and on the right to exclude.