Caseflicks

Supreme Court of the United States • 1994

Dolan v. City of Tigard

512 U.S. 374 | 114 S. Ct. 2309 | 129 L. Ed. 2d 304 | 1994 U.S. LEXIS 4826

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, Dolan established that permit exactions involving property dedications must satisfy both Nollan’s essential nexus requirement and “rough proportionality” to the proposed development’s impacts, supported by an individualized governmental showing.

Background

Florence Dolan owned a plumbing-and-electric-supply store on a 1.67-acre parcel in Tigard, Oregon. Fanno Creek ran along and through part of the property, much of which lay in the 100-year floodplain. Dolan sought permission to nearly double her store’s size, pave additional parking, and later add another commercial structure. The expansion would increase impervious surface and was expected to generate additional stormwater runoff and about 435 additional vehicle trips each day.

Tigard approved the permit subject to two land-dedication conditions. Dolan had to dedicate the floodplain and a 15-foot strip beside it—about 7,000 square feet, or roughly 10% of the parcel—to the City for a public greenway and flood-control purposes. She also had to dedicate land for a pedestrian/bicycle pathway. The City reasoned that the greenway would aid drainage management and that the pathway could reduce traffic congestion by providing an alternative to driving.

Dolan challenged the conditions as uncompensated takings. Oregon’s Land Use Board of Appeals, the Oregon Court of Appeals, and the Oregon Supreme Court upheld them under a reasonable-relationship approach, concluding that both conditions served the same purposes that could justify denial of the permit. The U.S. Supreme Court granted review to decide how close the relationship must be between an individualized permit exaction and a proposed development’s impacts.

Issues

Issue #1

Whether Tigard’s flood-control and pedestrian/bicycle-path conditions had the essential nexus to legitimate governmental interests required by Nollan.

Holding

Yes. Both conditions were connected in principle to legitimate interests in reducing flooding and traffic congestion.

Reasoning

Under Nollan v. California Coastal Commission, a government may not demand property as the price of a permit unless the demand serves the same legitimate purpose that could justify denying the permit outright. Without that connection, a permit condition is an unconstitutional condition: the government is effectively using its permitting power to obtain property without paying for it.

Tigard satisfied this threshold nexus requirement. Dolan’s proposed larger building and paved parking would increase stormwater runoff into an already burdened creek, so limiting development in the floodplain was related to flood control. Likewise, a pedestrian/bicycle route could, at least in theory, offer employees and customers an alternative to automobiles and help address congestion caused by the expanded commercial use. Unlike the lateral beach-access easement in Nollan, neither condition was wholly unrelated to the governmental objective asserted.

Issue #2

What degree of relationship must exist between an individualized land-dedication condition and the impacts of a proposed development.

Holding

The Fifth Amendment requires rough proportionality: the government must make an individualized determination that an exaction is related in both nature and extent to the development’s projected impacts.

Reasoning

The Court rejected both extremes found in state cases. A merely generalized reasonable-relationship standard was too weak to protect the owner’s right to compensation, while a requirement that every need be specifically and uniquely attributable to the development demanded more precision than the Constitution requires.

The Court adopted the phrase “rough proportionality” to distinguish its rule from deferential rational-basis review. Exact mathematical proof is unnecessary, but the City must do more than invoke a general planning goal. It must make some individualized showing that the character and size of the property interest demanded reasonably correspond to the burdens that this particular project will create.

The burden rests on the City because this was an adjudicative decision imposing conditions on Dolan’s individual permit application, not simply a generally applicable zoning restriction. If Tigard wanted property for a public purpose beyond the impacts attributable to Dolan’s development, it had to acquire that property through condemnation and pay just compensation.

Issue #3

Whether the floodplain-greenway dedication was roughly proportional to the flooding impacts of Dolan’s proposed expansion.

Holding

No. Tigard showed that keeping the floodplain undeveloped would address added runoff, but it did not show why flood control required Dolan to dedicate the land for public greenway access.

Reasoning

The Court accepted that Dolan’s increased impervious surface would increase stormwater flow and that preserving the floodplain as open space would help confine the resulting pressure on Fanno Creek. Indeed, the existing zoning code’s 15% open-space requirement already substantially served that purpose.

But Tigard demanded more than a restriction on construction in the floodplain. It required Dolan to transfer the land for a public greenway, thereby permanently eliminating her right to exclude members of the public. The City never made an individualized determination explaining why public recreational access, rather than a privately maintained undeveloped floodplain, was necessary to mitigate runoff from Dolan’s project.

A public greenway might have been justified if Dolan’s project displaced existing greenway space and the dedication replaced it. On this record, however, the City had not linked the public-access aspect of the dedication to the development’s flood-control impacts. The floodplain condition therefore failed the required showing.

Issue #4

Whether the pedestrian/bicycle-path dedication was roughly proportional to the traffic impacts of Dolan’s proposed expansion.

Holding

No. Tigard established that the development would create additional traffic, but it did not adequately demonstrate that the required pathway dedication was proportionate to that impact.

Reasoning

The City correctly found that Dolan’s enlarged retail facility would generate more traffic, and streets, sidewalks, and similar public ways may ordinarily be proper exactions to mitigate congestion created by development.

Tigard, however, only stated that the proposed pathway “could” offset some traffic demand and lessen congestion. It did not make an individualized effort to quantify, even approximately, how the additional bicycle and pedestrian use expected from Dolan’s project related to the extent of the easement demanded.

The Court did not require a precise calculation of the number of trips the pathway would replace. But the City’s conclusory assertion that a pathway could help traffic was insufficient to demonstrate rough proportionality between the project’s additional trips and this particular property dedication.

Dissents

Justice Stevens

Reasoning

Justice Stevens agreed that arbitrary permit conditions would be unconstitutional, but he rejected the Court’s new rough-proportionality rule. In his view, the state decisions cited by the majority supported Nollan’s nexus requirement, not a second federal constitutional test requiring proportionality, individualized findings, and a heightened burden on local governments.

He argued that the Court improperly isolated one property right—the right to exclude—from the economic reality of the parcel as a whole. Dolan was seeking permission to expand a commercial business, and the permit offered her substantial benefits. The proper analysis, Stevens maintained, should consider the entire exchange, including the value of the development approval and possible direct benefits of flood-control improvements to Dolan’s property.

Stevens would have presumed valid a rational, impartial condition imposed under a comprehensive land-use plan unless the owner proved that a concededly germane condition was so grossly disproportionate to the development’s harms that it revealed an improper motive. Dolan had not shown that dedicating the floodplain was more burdensome than leaving it undeveloped, nor had she shown that the bike path bore no meaningful relation to traffic from the larger store.

He also warned that the majority had revived an aggressive form of substantive-due-process review of economic regulation. Requiring cities to quantify uncertain future effects of development, he argued, would invite federal courts to second-guess routine local planning decisions and would shift the traditional burden of proof from the challenger to the government.

Justice Souter

Reasoning

Justice Souter concluded that the case did not provide a proper occasion to announce a new rough-proportionality doctrine. As he read the majority’s actual application, its objections to Tigard’s conditions were really objections under Nollan’s existing nexus test, not questions about whether the magnitude of the exactions was proportionate to development impacts.

On the floodplain condition, Souter observed that the City had justified the dedication as serving flood control and the bicycle route as serving traffic reduction. The majority instead found recreational public access unrelated to flood control, but that was not the City’s asserted justification for the public-access component. Any incidental recreational use, he reasoned, should stand or fall with the pathway’s traffic-related justification.

Souter also believed the pathway condition satisfied Nollan. Tigard calculated that the expansion would add 435 daily trips, and its comprehensive plan relied on studies linking bicycle and pedestrian facilities to reductions in automobile traffic. He criticized the majority for treating the City’s statement that the pathway “could” offset traffic as constitutionally inadequate, particularly when Dolan had offered no evidence that the dedication was unrelated in kind or degree to the anticipated traffic impact.

Finally, Souter objected to placing the burden on the City. The dedication requirements arose from Tigard’s development code, and the ordinary presumption of constitutionality for exercises of the police power should have applied. Because the conditions had a rational connection to the development’s anticipated harms, he would have affirmed.