Dolan applied for permit to redevelop plumbing supply store requested variances, proposed development not in conflict with comprehensive plan denied

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1 Dolan v. City of Tigard Supreme Court of the United States June 24, 1994 No Building permit condition: dedicate portion of property for flood control & traffic improvements Issue: determine required degree of connection between exaction imposed by city and projected impacts of proposed development Dolan applied for permit to redevelop plumbing supply store requested variances, proposed development not in conflict with comprehensive plan denied For permit, required to dedicate 10% of 1.67 acre lot (7k sq ft.) in floodplain, unusable, floodplain part of city greenway system additional 15 ft strip for pedestrian/ bike path City found required dedication reasonably related to increased storm water flow in floodplain customers & employees of site would use path for transportation and rec. needs Dolan exhausted admin appeals, claimed dedication not related to proposed development constituted uncompensated taking of property under 5th Amend. Ore. Sup.Ct. affirmed denial of permit found essential nexus between pathway, drainage dedication reasonably related to impact of development of proposed site U.S. Supreme Court granted Dolan's request for review 1

2 Takings Clause of 5th Amend. of U.S. Constitution applicable to States under 14th Amend. "Nor shall private property be taken for public use without compensation." Principal purpose Takings Clause bar Govt from forcing some people alone to bear public burdens which in fairness & justice should be borne by public as a whole Required dedication would deprive Dolan of right to exclude others one of the most essential sticks in bundle of rights that are commonly characterized as property Authority of states & local govts to engage in land use planning has been sustained against constitutional challenge since 1926 Euclid v. Ambler Realty Govt could hardly go on if to some extent values incident to property could not be diminished without paying for every change in the general law A land use regulation does not effect a taking of it "substantially advances legitimate state interests and does not deny an owner economically viable use of his land Unconstitutional conditions, Govt may not require person to give up constitutional right in exchange for discretionary govt benefit (bldg permit) where property little or no relationship to benefit Here, City has forced Dolan to choose between bldg permit and her right under 5th Amend. to just compensation for public easements 2

3 Issue: whether "essential nexus" exists between "legitimate state interest" and permit conditions exacted by city U.S. Sup. Ct. found nexus existed prevention of flooding and reduction of traffic congestion type of legitimate public purposes upheld by Ct. Given nexus, whether required degree of connection between exactions and the projected impact of the proposed development A use restriction may constitute a taking if not reasonably necessary to the effectuation of a substantial government purpose Here, Ore. Sup.Ct. deferred to city's unchallenged findings expanded use of site would increase traffic pathway alternative means to offset traffic Issue: whether City's findings constitutionally sufficient to justify conditions imposed on requested bldg permit "Rough Proportionality" best encapsulates requirement of 5th Amend. no precise mathematical calculation is required But, City must make some sort of individualized determination that required dedication is related both in nature and extent to impact of proposed development Distinction between appropriate exercise of police power i.e., inherent power of govt to preserve public health, safety & welfare) and improper exercise of eminent domain 3

4 Whether reasonable relationship (nexus) to use or merely excuse for taking property because owner asking for license or permit City may not require dedication for some future public use to obtain permit when such future use not occasioned by construction under permit Reasonable Relationship Test Adopted by State Courts dedication should have some reasonable relationship to the needs created by the development "Rough Proportionality" rather than Reasonable Relationship to avoid confusion with Constitutional "rational basis" test i.e. minimal level of scrutiny under 14th Amend. Applying test: difficult to see why recreational visitors trampling along Dolan's floodplain easement sufficiently related to Citys legitimate interest in reducing floodplain problems along Creek City has not attempted to make any individualized determination to support requested dedication for pathway no reason why public greenway, as opposed to private, was required for flood control Signficiant difference public vs private greenway deprives Dolan of essential property right to exclude others 4

5 Findings do not show required reasonable relationship between floodplain easement and proposed new building City has not demonstrated additional number of vehicles and bike trips generated by development reasonably related to required dedication of pathway easement City must make some effort to quantify findings in support of pathway dedication not mathetmatical precision, but beyond conclusory statement, would offset generated traffic demand. Reversed and Remanded for further proceedings consistent with opinion constitutionality based on some sort of individualized determination required dedication related both in nature & extent ot proposed development. U.S. Sup. Ct.: State Courts have dealt with question longer cited representative decisions to illustrate "rough proportionality" test Very generalized statements re necessary connection between required dedication & development too lax to protect just compensation right if property taken for public purpose Specific and uniquely attributable test must demonstrate exaction directly proportional to specifically created need Federal Constitution does not require such exacting scrutiny "rough proportionality" based upon reasonable relationship test in many jurisdictions Jordan 5

6 v. Village of Menomonee Falls 28 Wis.2d 608, 137 N.W.2d 442 (1965) Specifically and uniquely attributable to activity of developer not so restrictively applied to cast unreasonable burden of proof on city Impossible, in most instances, to prove land required for park or school meet need solely attributable to anticipated influx of people into prpoposed subdivision Absent contravening evidence, city could est. developments responsible for additional people making necessary park, school dedications of land to benefit influx Contravening evidence, city had already acquired sufficient lands to provide for future needs of influx Or normal growth of city would have made aquisitions necessary irrespective of influx from subdivision development Uphold dedication if evidence reasonably est. city required to provide more land for parks, schools, playgrounds as a result of subdivision Not necessarily unconstitutional taking when other residents, as well as those in subdivision, make use of required dedication Reasonableness Test for Exercise of Police Power subdivider enabled to profit more from subdivision than unplatted land In return for benefit city may require dedication to meet demand 6

7 otherwise not imposed on city, but for influx of people into subdivision lots. Collis v. City of Bloomington 310 Minn. 5; 246 N.W.2d 19 (1976) City may not exact dedications far out of proporation to needs created by subdivision to avoid burden of additional taxation on all citizens for additional services City of College Station v. Turtle Rock Corp. 680 S.W.2d 802 (Tex. 1984) City may enact reasonable regulations to promote the health, safety, & general welfare of its people Valid exercise of police power vs taking: 2 requirements reg. must be adopted to accomplish legitimate goal substantially related to public health, safety, welfare Second, reg. must be reasonable, cannot be arbitrary presumption in favor of reasonableness & validity of ordinance extradordinary burden on challenger, public welfare has broad range Reasonable relationship between increased population and increased P&R needs in neighborhood both need and benefit must be considered 7

8 Evidence to consider size of lots in subdivision economic impact on subdivision amount of open land consumed by development Reasonable connection analysis ensures subdivision receives relief for a perceived need will effectively constrain reach of municipality American Law Institute Model Code: land or fees for streets, utilities, parks, open space limit dedication demands to that reasonable allocable to development measured in terms of the need created by development 8